Industrial Relations Act 1999

Industrial Relations Act 1999

An Act relating to industrial relations in Queensland, and for other purposes

1Short title

This Act may be cited as the Industrial Relations Act 1999 .

2Commencement

(1) Section 744 commences, or is taken to have commenced, on 1 July 1999.

(2)The remaining provisions of this Act commence on a day to be fixed by proclamation.

3Principal object of this Act

The principal object of this Act is to provide a framework for industrial relations that supports economic prosperity and social justice by—

(a)providing for rights and responsibilities that ensure economic advancement and social justice for all employees and employers; and

(b)providing for an effective and efficient economy, with strong economic growth, high employment, employment security, improved living standards, low inflation and national and international competitiveness; and

(c)preventing and eliminating discrimination in employment; and

(d)ensuring equal remuneration for men and women employees for work of equal or comparable value; and

(e)helping balance work and family life; and

(f)promoting the effective and efficient operation of enterprises and industries; and

(g)ensuring wages and employment conditions provide fair standards in relation to living standards prevailing in the community; and

(h)promoting participation in industrial relations by employees and employers; and

(i)encouraging responsible representation of employees and employers by democratically run organisations and associations; and

(j)promoting and facilitating the regulation of employment by awards and agreements; and

(k)meeting the needs of emerging labour markets and work patterns; and

(l)promoting and facilitating jobs growth, skills acquisition and vocational training through apprenticeships, traineeships and labour market programs; and

(m)providing for effective, responsive and accessible support for negotiations and resolution of industrial disputes; and

(n)assisting in giving effect to Australia’s international obligations in relation to labour standards; and

(o)promoting collective bargaining and establishing the primacy of collective agreements over individual agreements.

s 3 amd 2001 No. 87 s 4; 2007 No. 23 s 4; 2012 No. 7 s 4; 2013 No. 61 s 4; 2015 No. 7 s 3

4Definitions

The dictionary in schedule 5 defines particular words used in this Act.

5Who is an employee

An employee is—

(a)a person employed in a calling on wages or piecework rates; or

(b)a person whose usual occupation is that of an employee in a calling; or

(c)a person employed in a calling, even though—

(i)the person is working under a contract for labour only, or substantially for labour only; or

(ii)the person is a lessee of tools or other implements of production, or of a vehicle used to deliver goods; or

(iii)the person owns, wholly or partly, a vehicle used to transport goods or passengers; or

(d)a person who is a member of a class of persons declared to be employees under section 275; or

(e)each person, being 1 of 4 or more persons who are, or claim to be, partners working in association in a calling or business; or

(f)for proceedings for payment or recovery of amounts—a former employee; or

(g)an outworker; or

(h)an apprentice or trainee.

Note—

For the application of the Commonwealth Act, see the note to section 6 (1).

s 5 amd 2000 No. 23 s 292 sch 1; 2003 No. 63 s 60 sch; 2009 No. 49 s 31; 2014 No. 25 s 223 sch 1 pt 2

6Who is an employer

(1)An employer is—

(a)a person employing, or who usually employs, 1 or more employees, for the person or someone else; or

(b)for employees employed in a department of government—the chief executive of that department.

Note—

The Commonwealth Act applies generally speaking to private sector employers and their employees.

(2)The following persons are also employers—

(a)a person carrying on a calling in which employees are usually employed, even though for the time being employees are not employed in it;

(b)a person who is managing director, manager, secretary or member of the managing body (however called) of a corporation, partnership, firm or association of persons;

(c)if 4 or more persons are, or claim to be, partners working in association in a calling or business—the partnership firm constituted, or claimed to be constituted, by the persons;

(d)a group training organisation or labour hire agency that arranges for an employee (who is a party to a contract of service with the organisation or agency) to do work for someone else, even though the employee is working for the other person under an arrangement between the organisation or agency and the other person;

(e)for proceedings for an offence or for payment or recovery of amounts—a former employer;

(f)a person for whose calling or business an outworker works;

(g)a person declared to be an employer under section 275.

(3)In this section—

labour hire agency means an entity that conducts a business that includes the supply of services of employees to others.

s 6 amd 2000 No. 23 s 292 sch 1; 2001 No. 87 s 5; 2005 No. 11 s 3; 2009 No. 49 s 32

7What is an industrial matter

(1)An industrial matter is a matter that affects or relates to—

(a)work done or to be done; or

(b)the privileges, rights or functions of—

(i)employers or employees; or

(ii)persons who have been, or propose to be, or who may become, employers or employees; or

(c)a matter (whether or not an industrial matter as defined in this section) that the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute.

(2)However, a matter is not an industrial matter if it is the subject of proceedings for an indictable offence.

(3)Without limiting subsection (1) or affecting subsection (2), a matter is an industrial matter if it relates to a matter mentioned in schedule 1.

8Provisions about appointments and procedures

Schedule 2 contains provisions about—

(a)the president, vice president, deputy presidents and industrial commissioners; and

(b)the registrar; and

(c)inspectors; and

(d)associates.

s 8 amd 2005 No. 11 s 4; 2013 No. 29 s 3A

ch hdg amd 2013 No. 61 s 5

pt hdg ins 2013 No. 61 s 6

8AAApplication of ch 2

This chapter applies to an employee who is bound by a pre-modernisation industrial instrument in relation to particular employment.

Note—

See chapter 2A (Modern employment conditions) in relation to conditions of employment for all other employees.

s 8AA ins 2013 No. 61 s 6

ch 2 pt 1 div 1A hdg ins 2003 No. 27 s 613 (retro)

om 2005 No. 36 s 4

div hdg ins 2005 No. 36 s 4

8AMinimum wage

(1)An employee is entitled to a wage that is not less than the Queensland minimum wage declared by the full bench’s general ruling under section 287.

(2)This section does not apply to an employee who is excluded from the operation of the general ruling under section 287 (5).

s 8A ins 2003 No. 27 s 613 (retro)

div hdg ins 2005 No. 36 s 5

8BWage structuring to develop employee skills

(1)An employer must, if it is appropriate to the employer’s industry and the calling or callings of the employer’s employees, structure the employees’ wages in a way that encourages the development of the employees’ skills.

(2)If, after completing an apprenticeship in a trade, an employee works in the trade, the employee must be paid at least the minimum rate payable under the award or federal award applying to the trade.

s 8B ins 2005 No. 36 s 5

div hdg ins 2005 No. 36 s 5

8CPay and conditions for workers working from home etc. and not covered by award or federal award

(1)This section applies to a person—

(a)who is, for someone else’s calling or business, engaged in or about a private residence or other premises that are not business or commercial premises; and

(b)who, when so engaged, is not a person to whom an award or federal award applies.

(2)The pay and conditions of the person must be fair and reasonable when compared with the pay and conditions of employees who perform the same kind of work at an employer’s business or commercial premises under an award or federal award.

s 8C ins 2005 No. 36 s 5

9Working time for an employee under an industrial instrument made on or before 1 September 2005 etc.

(1)This section applies to an employee under an industrial instrument, other than a certified agreement if the application to certify the agreement was made after 1 September 2005.

(2)The periods for which an employee is required to work must not exceed—

(a)6 days in any 7 consecutive days; or

(b)40 hours in any 6 consecutive days; or

(c)8 hours in any day.

(3)An employee must be paid overtime at the rate of at least—

(a)for a calling in which more than 1 shift is worked in a day—double time; and

(b)for another calling—time and a half.

(4)If an employee is paid at a higher rate than the minimum rate prescribed in the industrial instrument, the overtime rate must be worked out on the higher rate.

(5)If practicable, an employee is entitled to a rest pause of at least 10 minutes in each 4 hours of working time on a day.

(6)The rest pause—

(a)is part of the employee’s working time; and

(b)if continuity of work is necessary—must be taken when it does not interfere with continuity.

(7)This section does not apply if an industrial instrument provides otherwise.

(8)If this section applies to an employee, without limiting the section, its provisions are taken to be terms of an industrial instrument applicable to the employee.

(9)In this section—

overtime means time worked—

(a)outside any of the periods mentioned in subsection (2); or

(b)before or after the fixed or recognised times of starting or finishing work on a day in a calling.

s 9 amd 2005 No. 36 s 6; 2009 No. 49 s 33

9AWorking time for an employee under an industrial instrument made after 1 September 2005 etc.

(1)This section applies to an employee under any of the following instruments, unless the instrument provides otherwise—

(a)an industrial instrument made after 1 September 2005, other than a certified agreement if the application to certify the agreement was made on or before 1 September 2005;

(b)a federal award made or varied after 1 September 2005;

(c)a federal agreement made, varied or approved after 1 September 2005, other than a federal agreement if the application to certify the agreement was made on or before 1 September 2005.

(2)The periods for which the employee is required to work must not exceed—

(a)6 days in any 7 consecutive days; or

(b)38 hours in any 6 consecutive days; or

(c)7.6 hours in any day.

(3)The employee must be paid overtime at the rate of at least—

(a)for a calling in which more than 1 shift is worked in a day—double time; and

(b)for another calling—time and a half.

(4)If the employee is paid at a higher rate than the minimum rate provided for in the relevant instrument mentioned in subsection (1), the overtime rate must be worked out on the higher rate.

(5)If practicable, the employee is entitled to a rest pause of at least 10 minutes in each 4 hours of working time on a day.

(6)The rest pause—

(a)is part of the employee’s working time; and

(b)if continuity of work is necessary—must be taken when it does not interfere with continuity.

(7)If the employee is required to work for more than 5 hours, the employee is entitled to an unpaid meal break of at least 30 minutes after the end of the fourth hour of work and before the start of the sixth hour of work.

(8)If the employee is required to work in a way that is contrary to subsection (7), the employee is entitled to be paid at a rate that is double the rate the employee would have been entitled to for the 30 minutes of work.

(9)If the employee performs shift work, the employee must be paid as follows—

(a)for ordinary time worked on Monday, Tuesday, Wednesday, Thursday or Friday—

(i)for afternoon shift work—at least 12.5% more than the ordinary rate applicable to the employee; or

(ii)for night shift work—at least 15% more than the ordinary rate applicable to the employee;

(b)for ordinary time worked on Saturday—at least 25% more than the ordinary rate applicable to the employee;

(c)for ordinary time worked on Sunday—at least 50% more than the ordinary rate applicable to the employee.

(10)If the employee’s ordinary time includes working between midnight Friday and midnight Sunday, other than as part of performing shift work, the employee is entitled to be paid the following—

(a)for ordinary time worked between midnight Friday and midnight Saturday—at least 25% more than the ordinary rate applicable to the employee;

(b)for ordinary time worked between midnight Saturday and midnight Sunday—at least 50% more than the ordinary rate applicable to the employee.

(11)Without limiting the application of this section to a casual employee, if the employee is a casual employee, the employee is entitled to be paid the following—

(a)for time other than overtime—an ordinary rate that is at least 123% of the ordinary rate for a permanent employee for the work performed, worked out on an hourly basis;

(b)for overtime—at least at the relevant overtime rate specified in subsection (3) worked out on the ordinary rate for the casual employee as specified in paragraph (a).

(12)If this section applies to an employee, without limiting the section, its provisions are taken to be terms of an industrial instrument applicable to the employee.

(13)In this section—

afternoon shift work means all work performed as part of a shift that finishes after 6.00p.m. and at or before midnight, if the majority of hours for the shift are between 6.00p.m. and midnight.

night shift work means all work performed as part of either of the following—

(a)a shift finishing after midnight and at or before 8.00a.m.;

(b)a shift if the majority of hours for the shift are between midnight and 8.00a.m.

overtime means time worked—

(a)outside any period mentioned in subsection (2); or

(b)before or after the fixed or recognised times of starting or finishing work on a day in a calling.

shift work means a system in which employees perform ordinary hours of work in separate shifts.

s 9A ins 2005 No. 36 s 7

amd 2009 No. 49 s 34

10Entitlement

(1)This section does not apply to—

(a)casual employees; or

(b)pieceworkers; or

(c)school-based apprentices or trainees.

(2)An employee is entitled to—

(a)at least 8 days sick leave on full pay for each completed year of employment with an employer; and

(b)for each completed period of employment of less than a year—at least 1 day’s sick leave on full pay for each completed 6 weeks of employment with an employer.

(3)However, the employee’s entitlement is conditional on—

(a)the employee promptly notifying the employer of—

(i)any illness that will cause the employee to be absent from work; and

(ii)the approximate period for which the employee will be absent; and

(b)if the employee is absent for more than 2 days—

(i)the employee giving the employer a doctor’s certificate about the nature of the illness and the approximate period for which the employee will be absent; or

(ii)the employee giving the employer other evidence of the illness to the employer’s satisfaction.

(4) Subsection (3) does not apply if—

(a)an industrial instrument provides otherwise; or

(b)the employee and employer agree otherwise.

(5)Sick leave may be taken for part of a day.

Examples—

1An employee is ordinarily required to work for 8 hours on a particular day and on that day becomes sick after working 3 hours. The employee may take sick leave for the remaining 5 hours that the employee is unable to work because of the sickness.

2An employee is ordinarily required to perform work for 40 hours a week over 5 days, but has come to an arrangement with the employer to work 10 hours a day for 4 days a week. If the employee is unable to work because of sickness on a day, the employee may take 10 hours sick leave, which equates to 1¹/₄ days sick leave.

(6)Sick leave accumulates, unless an industrial instrument provides otherwise.

(7)This section does not operate to confer an entitlement or an additional entitlement in relation to employment before the commencement of this section.

(8)If this section applies to an employee, without limiting the section, its provisions are taken to be terms of an industrial instrument applicable to the employee.

(9)In subsections (2) and (5)—

day, for an employee who is paid on the basis of the number of hours worked, means—

(a)for an employee for whom an industrial instrument provides sick leave—a day within the meaning of the industrial instrument so far as it relates to sick leave; or

(b)otherwise—one-fifth of the number of ordinary hours that the employee would ordinarily have been required to work in a week, averaged over each completed 6 weeks of employment with the employer.

s 10 amd 2000 No. 23 s 292 sch 1; 2009 No. 49 s 35

11Entitlement

(1)This section does not apply to—

(a)casual employees; or

(b)pieceworkers; or

(c)school-based apprentices or trainees.

(2)For each completed year of employment with an employer, an employee is entitled to—

(a)if the employee is not a shift worker—at least 4 weeks annual leave; or

(b)if the employee is a shift worker—at least 5 weeks annual leave.

(3)Annual leave is exclusive of a public holiday that falls during the leave.

(4)However, if an employee is entitled to additional annual leave as compensation for working on a particular public holiday, annual leave is inclusive of the particular public holiday.

(5)In working out a completed year of employment, the following periods when an employee is absent without pay are not to be taken into account—

(a)a period of more than 3 months when an employee is absent with the employer’s approval;

(b)a period when an employee is absent without the employer’s approval, unless the employee is absent for not more than 3 months because of illness or injury certified to by a doctor.

(6)This section does not operate to confer an entitlement or an additional entitlement in relation to employment before the commencement of this section.

(7)Annual leave accumulates, unless an industrial instrument provides otherwise.

(8)If this section applies to an employee, without limiting the section, its provisions are taken to be terms of an industrial instrument applicable to the employee.

(9)In this section—

shift worker means an employee who—

(a)is employed in a calling in which shifts are worked 24 hours a day, 7 days a week; and

(b)works a rotating roster that includes each of the shifts.

s 11 amd 2000 No. 23 s 292 sch 1; 2001 No. 87 s 6; 2009 No. 49 s 36

12Taking annual leave

(1)An employee and employer may agree when the employee is to take annual leave.

(2)If the employee and employer can not agree, the employer—

(a)may decide when the employee is to take leave; and

(b)must give the employee at least 14 days written notice of the starting date of the leave.

(3)An employee and employer may agree that the employee take all or any part of the employee’s annual leave before becoming entitled to it.

(4)If the employee takes leave before becoming entitled to it, the employee is only entitled, at the end of the completed year of employment, to the balance of the leave that would be due at the end of the year.

13Payment for annual leave

(1)Unless an employee and employer otherwise agree, the employer must pay the employee for annual leave in advance.

(2)The employer must pay for the leave—

(a)at the ordinary rate being paid to the employee immediately before the leave is taken; or

(b)if, immediately before taking the leave, the employee is being paid at a higher rate than the ordinary rate—at the higher rate.

(3)If an employee is entitled to receive an amount representing commission in the employee’s annual leave payment, the employer must pay the default average commission unless—

(a)a relevant industrial instrument or contract between the employer and employee otherwise provides; or

(b)the commission, on application, considers that the default average commission would not represent a fair amount in the circumstances.

(4)If, on application under subsection (3) (b), the commission considers that the default average commission would not represent a fair amount in the circumstances, the commission may make the order it considers appropriate in the circumstances.

(5)If this section applies to an employee, without limiting the section, its provisions are taken to be terms of an industrial instrument applicable to the employee.

(6)In this section—

default average commission means—

•the total commissions payable to the employee in the 1 year before the leave is taken, or during the employee’s period of employment, whichever is less

•divided by 365.25, or the number of days in the employee’s period of employment, whichever is less

•multiplied by the number of days starting on the day the leave commences and ending on the day before the employee is due to return to work.

s 13 amd 2005 No. 11 s 5; 2006 No. 2 s 46; 2009 No. 49 s 37

13AAnnual leave loading

(1)This section applies to an employee under any of the following instruments, unless the instrument provides otherwise—

(a)an industrial instrument made after 1 September 2005, other than a certified agreement if the application to certify the agreement was made on or before 1 September 2005;

(b)a federal award made or varied after 1 September 2005;

(c)a federal agreement made, varied or approved after 1 September 2005, other than a federal agreement if the application to certify the agreement was made on or before 1 September 2005.

(2)In addition to the employee’s annual leave entitlement under this division, the employee is entitled to receive a further amount of at least 17¹/₂% of the amount payable under section 13 (2) (a).

(3)However, if the employee’s employer pays the employee an amount (however the amount is described, including, for example, an annual leave bonus or annual leave loading) in addition to the employee’s annual leave entitlement under this division and that amount—

(a)is less than 17¹/₂% of the amount payable under section 13 (2) (a)—the employee is entitled to receive a further amount so that the employee receives the amount the employee is entitled to under subsection (2); or

(b)is at least 17¹/₂% of the amount payable under section 13 (2) (a)—the employee is not entitled to receive an amount under subsection (2).

(4)If this section applies to an employee, without limiting the section, its provisions are taken to be terms of an industrial instrument applicable to the employee.

s 13A ins 2005 No. 36 s 8

amd 2009 No. 49 s 38

14Payment for annual leave on termination of employment

(1)This section applies if an employee’s employment is terminated by the employee or employer.

(2)If the employee has not taken all the annual leave the employee is entitled to, the employee is presumed to have taken the leave from the day the termination takes effect (the termination day).

(3)The employer must immediately pay the employee for the annual leave not taken, including any public holiday that falls in the period the employee is presumed to have taken the leave.

(4)If the employee has been employed for any period of less than 1 year, the employer must pay the employee proportionate annual leave for the period.

(5)The employer must pay the employee at least the ordinary rate being paid to the employee immediately before the termination day, unless an industrial instrument states otherwise.

(6)If this section applies to an employee, without limiting the section, its provisions are taken to be terms of an industrial instrument applicable to the employee.

s 14 amd 2000 No. 23 s 292 sch 1; 2009 No. 49 s 39

div hdg ins 2005 No. 36 s 9

14AJury service leave

(1)This section applies to an employee under any of the following instruments, unless the instrument provides otherwise—

(a)an industrial instrument made after 1 September 2005, other than a certified agreement if the application to certify the agreement was made on or before 1 September 2005;

(b)a federal award made or varied after 1 September 2005;

(c)a federal agreement made, varied or approved after 1 September 2005, other than a federal agreement if the application to certify the agreement was made on or before 1 September 2005.

(2)If the employee is required to attend for jury service, the employee—

(a)is entitled to take jury service leave; and

(b)must, as soon as is practicable, tell the employer about the requirement to attend for jury service and the period the employee is required to perform jury service.

(3)If the employee is given a document relating to jury service, the employee must give the document, or a copy of it, to the employer.

(4)For the period of jury service leave, the employer must pay the employee the difference between the following—

(a)the amount stated in the document relating to jury service, or the copy, as the amount received as remuneration and allowances, other than meal allowances;

(b)the ordinary rate the employee would have been paid if the employee had not taken jury service leave.

(5)The amount payable under subsection (4) must be paid on or before the first pay day that is practicable after the employee gives the employer the employee’s document relating to jury service or a copy of it.

(6)Also, if the employee is not required to serve on a jury for a day or part of a day after attending for jury service and the employee would ordinarily be working for all or part of the remaining day, the employee must, if practicable, present for work at the earliest reasonable opportunity.

(7)If this section applies to an employee, without limiting the section, its provisions are taken to be terms of an industrial instrument applicable to the employee.

(8)In this section—

document relating to jury service, in relation to an employee, means a document stating the employee’s attendance under a requirement to attend for jury service, the number of days of attendance and the amount received as remuneration and allowances, other than meal allowances, under the Jury Act 1995 .

employee does not include a casual employee.

jury service leave, in relation to an employee, means leave taken by an employee required to attend for jury service.

required to attend for jury service, in relation to an employee, means the employee—

(a)is given a summons under the Jury Act 1995 , section 27 requiring the employee to attend for jury service; or

(b)is instructed under the Jury Act 1995 , section 38 to attend for jury service.

s 14A ins 2005 No. 36 s 9

amd 2009 No. 49 s 40

15Public holidays

(1)An employee who would ordinarily be required to work on a day on which a public holiday falls is entitled to full pay for the time the employee would ordinarily have been required to perform work on that day.

(2) Subsection (1) applies to an employee whether the employee—

(a)works on the public holiday; or

(b)does not work on that day because of the public holiday.

(2A)Despite subsection (2), subsection (1) applies to a school-based apprentice or trainee only if the apprentice or trainee works on the public holiday.

(3) Subsection (1) does not apply—

(a)to a casual employee or pieceworker; or

(b)if the employee is rostered off on the public holiday.

(4)If an employee who is bound by a relevant instrument does work on a public holiday, the employer must pay the employee—

(a)for the greater of the hours worked or 4 hours—

(i)if the employee would ordinarily be required to work on a day on which a public holiday falls—at the rate of 1.5 times the hourly rate, in addition to the amount payable under subsection (1); or

(ii)if the employee would not ordinarily be required to work on a day on which a public holiday falls—at the rate of double time and a half; or

(iii)if the employee is a casual employee—at the rate of double time and a half; and

(b)if the employee works outside the employee’s ordinary working hours—at double the rate stated in the instrument for that work.

(5) Subsections (3) and (4) do not apply if a relevant instrument provides otherwise.

(6)Subject to another Act that restricts work or trading hours on particular days of the year, the employee and employer may agree that the employee work on a public holiday at ordinary rates in exchange for another day off on full pay.

(7)The commission may confer on an employee an entitlement to extra annual leave on full pay, instead of extra pay, for work on a public holiday.

(8)In a district in which a holiday is not appointed for an annual agricultural, horticultural or industrial show, the employee and employer must agree on an ordinary working day that is to be treated as a show holiday for all purposes.

(9)An employee, while employed by the 1 employer, is only entitled to leave on full pay for a show holiday once each calendar year.

(10)If this section applies to an employee, without limiting the section, its provisions are taken to be terms of an industrial instrument applicable to the employee.

(11)In this section—

double time and a half means 2.5 times the hourly rate.

ordinary working day means a day on which the employee would ordinarily be required to perform work.

ordinary working hours, for an employee, means the hours between the employee’s ordinary starting time and ordinary finishing time under a relevant instrument.

relevant instrument means any of the following—

(a)an industrial instrument;

(b)a federal award made or varied after 1 September 2005;

(c)a federal agreement made, varied or approved after 1 September 2005, other than a federal agreement if the application to certify the agreement was made on or before 1 September 2005.

show holiday means—

(a)a public holiday appointed for an annual agricultural, horticultural or industrial show under the Holidays Act 1983 , section 4; or

(b)for a district in which a public holiday is not appointed for an annual agricultural, horticultural or industrial show—the day agreed on by the employee and employer under subsection (8).

s 15 amd 2000 No. 23 s 292 sch 1; 2005 No. 36 s 10; 2009 No. 49 s 41

div hdg ins 2001 No. 87 s 8

15AWho is a long term casual employee for pt 2

(1)A long term casual employee is a casual employee engaged by a particular employer, on a regular and systematic basis, for several periods of employment during a period of at least 1 year immediately before the employee seeks to access an entitlement under this part.

(2)The periods of employment mentioned in subsection (1) include periods before and after the commencement of this section.

s 15A ins 2001 No. 87 s 8

div hdg (prev div 1 hdg) renum 2001 No. 87 s 7

16Who this division does not apply to

This division does not apply to—

(a)casual employees, other than long term casual employees; or

(b)seasonal employees; or

(c)pieceworkers.

s 16 sub 2001 No. 87 s 9

17Definitions for pt 2

In this part—

adoption leave means short adoption leave or long adoption leave.

child means—

(a)for adoption leave—a child who is under the age of 5 years, but does not include a child who—

(i)has previously lived continuously with the employee for a period of at least 6 months; or

(ii)is the child or stepchild of the employee or employee’s spouse; or

(b)for surrogacy leave—a child born as a result of a surrogacy arrangement.

def child sub 2010 No. 42 s 78 (2)

intended parent, for a surrogacy arrangement, see the Surrogacy Act 2010 , section 9.

def intended parent ins 2010 No. 42 s 78 (1)

long adoption leave means leave taken by an employee to enable the employee to be the primary caregiver of an adopted child.

long parental leave means—

(a)for a pregnant employee—maternity leave; or

(b)for an employee whose spouse gives birth—leave taken by the employee to enable the employee to be the child’s primary caregiver.

long surrogacy leave means leave taken by an employee to enable the employee to be the primary caregiver of a child born as a result of a surrogacy arrangement.

def long surrogacy leave ins 2010 No. 42 s 78 (1)

maternity leave means leave that a pregnant employee takes—

(a)for the birth of her child; or

(b)to enable her to be the child’s primary caregiver.

parental leave means long parental leave, short parental leave, adoption leave or surrogacy leave.

def parental leave amd 2010 No. 42 s 78 (3)

parental leave entitlement means the parental leave entitlement mentioned in section 18 (2), (3), (4) or (4A).

def parental leave entitlement ins 2006 No. 2 s 47

amd 2010 No. 42 s 78 (4)

short adoption leave means leave taken by an employee at the time of the placement of an adopted child with the employee.

short parental leave means leave taken by an employee, in connection with the birth of a child of the employee’s spouse, at the time of—

(a)the birth of the child; or

(b)the other termination of the pregnancy.

short surrogacy leave means leave taken by an employee when a child born as a result of a surrogacy arrangement starts residing with the employee.

def short surrogacy leave ins 2010 No. 42 s 78 (1)

short term casual employee means a casual employee, other than a long term casual employee.

def short term casual employee ins 2006 No. 2 s 47

surrogacy arrangement see the Surrogacy Act 2010 , section 7.

def surrogacy arrangement ins 2010 No. 42 s 78 (1)

surrogacy leave means long surrogacy leave or short surrogacy leave.

def surrogacy leave ins 2010 No. 42 s 78 (1)

18Entitlement

(1)This section details the parental leave entitlement of an employee for—

(a)an employee who is not a long term casual employee and who has had at least 12 months continuous service with the employer; or

(b)a long term casual employee.

(2)A pregnant employee is entitled to an unbroken period of up to 52 weeks unpaid maternity leave—

(a)for the child’s birth; and

(b)to be the child’s primary caregiver.

(3)For the birth of a child of an employee’s spouse, the employee is entitled to the following leave—

(a)an unbroken period of up to 1 week’s unpaid short parental leave;

(b)a further unbroken period of up to 51 weeks unpaid long parental leave.

(4)For the adoption of a child, an employee is entitled to the following leave—

(a)an unbroken period of up to 3 weeks unpaid short adoption leave;

(b)a further unbroken period of up to 49 weeks unpaid long adoption leave.

(4A)An employee who is an intended parent under a surrogacy arrangement is entitled to the following leave—

(a)an unbroken period of up to 1 week’s unpaid short surrogacy leave;

(b)a further unbroken period of up to 51 weeks unpaid long surrogacy leave.

(5)However, parental leave must not extend—

(a)beyond 1 year after the child was born or adopted or started residing with the employee under the surrogacy arrangement; or

(b)if an application for an extension of parental leave under section 29A is agreed to—beyond 2 years after the child was born or adopted or started residing with the employee under the surrogacy arrangement.

(6)In this section—

continuous service means service, including a period of authorised leave or absence, under an unbroken employment contract.

s 18 amd 2006 No. 2 s 48; 2010 No. 42 s 79

19Notices and documents—maternity leave

(1)This section applies if a pregnant employee wants to take maternity leave.

(2)The employee must give the employer—

(a)at least 10 weeks written notice of intention to take the leave; and

(b)at least 4 weeks written notice of the dates on which she wants to start and end the leave.

(3)The employee must, before starting the leave, give the employer—

(a)a doctor’s certificate confirming that she is pregnant and the expected date of birth; and

(b)a statutory declaration by the employee stating the period of any parental leave sought by her spouse.

s 19 amd 2007 No. 36 s 2 sch

20Notices and documents—parental leave other than maternity, adoption or surrogacy leave

(1)This section applies if an employee wants to take parental leave, other than maternity leave, adoption leave or surrogacy leave.

(2)The employee must give the employer—

(a)for long parental leave—at least 10 weeks written notice of intention to take the leave; and

(b)at least 4 weeks written notice of the dates on which the employee wants to start and end the leave.

(3)The employee must, before starting the leave, give the employer—

(a)a doctor’s certificate confirming that the employee’s spouse is pregnant and the expected date of birth; and

(b)for long parental leave—a statutory declaration by the employee stating—

(i)the period of any maternity leave sought by the employee’s spouse; and

(ii)the employee is seeking the leave to be the child’s primary caregiver.

s 20 amd 2007 No. 36 s 2 sch; 2010 No. 42 s 80

21Notices and documents—adoption leave

(1)This section applies if an employee wants to take adoption leave.

(2)The employee must give the employer—

(a)for long adoption leave—written notice of any approval to adopt a child at least 10 weeks before the expected date of placement of the child for adoption purposes (the expected placement date); and

(b)written notice of the dates on which the employee wants to start and end the leave, as soon as practicable after the employee is notified of the expected placement date but, in any case, at least 14 days before starting the leave.

(3)The employee must, before starting the leave, give the employer—

(a)a statement from an adoption agency of the expected placement date; and

(b)for long adoption leave—a statutory declaration by the employee stating—

(i)the period of any adoption leave sought by the employee’s spouse; and

(ii)the employee is seeking the leave to be the child’s primary caregiver.

(4)In this section—

adoption agency means an agency, body, office or court, authorised by a Commonwealth or State law to perform functions about adoption.

21ANotices and documents—surrogacy leave

(1)This section applies if an employee wants to take surrogacy leave.

(2)The employee must give the employer—

(a)for long surrogacy leave—written notice of intention to take the leave at least 10 weeks before the expected date when a child is to start residing with the employee under the surrogacy arrangement (the expected residence date); and

(b)at least 4 weeks written notice of the dates on which the employee wants to start and end the leave.

(3)The employee must, before starting the leave, give the employer a statutory declaration by the employee stating—

(a)the employee is an intended parent under a surrogacy arrangement; and

(b)the expected residence date; and

(c)for long surrogacy leave—

(i)the period of leave sought by the employee; and

(ii)the period of any surrogacy leave sought by the employee’s spouse; and

(iii)the employee is seeking the leave to be the child’s primary caregiver.

s 21A ins 2010 No. 42 s 81

22Reasons not to give notice or documents

(1)An employee does not fail to comply with section 19, 20, 21 or 21A if the failure was caused by—

(a)the child being born, or the pregnancy otherwise terminating, before the expected date of birth; or

(b)the child being placed for adoption before the expected placement date; or

(ba)the child starting to reside with the employee before the expected residence date; or

(c)another reason that was reasonable in the circumstances.

(2)However, the employee must give the employer—

(a)notice of the period of the leave within 2 weeks after the birth or placement; and

(b)in the case of the birth of a living child—a doctor’s certificate stating the date on which the child was born.

s 22 amd 2010 No. 42 s 82

23Notice of change to situation

An employee must notify the employer of any change in the information provided under section 19, 20, 21 or 21A within 2 weeks after the change.

s 23 amd 2010 No. 42 s 83

24Continuity of service

(1)Parental leave does not break an employee’s continuity of service.

(2)Parental leave is not to be taken into account in working out the employee’s period of service, other than—

(a)to decide the employee’s entitlement to a later period of parental leave; or

(b)as expressly provided in this Act, an industrial instrument or employment contract.

25Spouses not to take parental leave at same time

(1)An employee is not entitled to parental leave, other than short parental leave, short adoption leave or short surrogacy leave, when his or her spouse is on parental leave.

(2)If the employee contravenes subsection (1), the period of parental leave that the employee is entitled to is reduced by the period of leave taken by his or her spouse.

s 25 amd 2010 No. 42 s 84

26Cancelling parental leave

(1)Parental leave applied for but not started is automatically cancelled if—

(a)the employee withdraws the application for leave by written notice to the employer; or

(b)the pregnancy terminates other than by the birth of a living child; or

(c)the placement of the child with the employee for adoption purposes does not proceed; or

(d)a child does not start residing with the employee under the surrogacy arrangement.

(2)If, while an employee is on parental leave—

(a)the pregnancy terminates other than by the birth of a living child; or

(b)the child in relation to whom the employee is on parental leave dies; or

(c)the placement of the child with the employee for adoption purposes does not proceed or continue; or

(d)the residence of the child with the employee under the surrogacy arrangement does not start or continue;

the employee is entitled to resume work at a time nominated by his or her employer within 2 weeks after the day on which the employee gives his or her employer a written notice stating the employee intends to resume work and the reason for the resumption.

(3)This section does not affect an employee’s entitlement to special maternity leave or sick leave under section 37.

s 26 amd 2010 No. 42 s 85

27Parental leave with other leave

(1)An employee may take any annual leave or long service leave to which the employee is entitled instead of or together with parental leave.

(2)However, the total period of leave can not extend beyond the total period allowed under section 18.

(3)While the employee is on unpaid parental leave, the employee is not entitled to paid sick leave or other paid leave, unless the employer agrees.

(4)In this section—

other paid leave means paid leave authorised by law or by an industrial instrument or employment contract.

28Interruption of parental leave by return to work

(1)An employee and employer may agree that the employee break the period of parental leave by returning to work for the employer, whether on a full-time, part-time or casual basis.

(2)The period of parental leave can not be extended by the return to work beyond the total period allowed under section 18.

29Extending period of parental leave by notice

(1)An employee may extend the period of parental leave once only by written notice given to the employer at least 14 days—

(a)before the start of the parental leave; or

(b)if the parental leave has been started—before the parental leave ends.

(2)The notice must state when the extended period of parental leave ends.

(3)The total period of parental leave can not be extended under subsection (1) beyond the total period mentioned in section 18 (5) (a).

s 29 sub 2006 No. 2 s 49

29AExtending period of parental leave by agreement

(1)A pregnant employee entitled to maternity leave under section 18 (2), or an employee who is taking maternity leave, may apply to the employer for an extension of the maternity leave for an unbroken period of up to 104 weeks in total.

(2)An employee entitled to parental leave for the birth of a child of the employee’s spouse under section 18 (3), or who is taking parental leave for the birth, may apply to the employer for either or both of the following—

(a)an extension of the short parental leave for an unbroken period of up to 8 weeks in total;

(b)an extension of the long parental leave for an unbroken period of up to 96 weeks in total.

(3)An employee entitled to parental leave for the adoption of a child under section 18 (4), or who is taking adoption leave for the adoption, may apply to the employer for either or both of the following—

(a)an extension of the short adoption leave for an unbroken period of up to 8 weeks in total;

(b)an extension of the long adoption leave for an unbroken period of up to 96 weeks in total.

(3A)An employee entitled to parental leave under section 18 (4A), or who is taking surrogacy leave, may apply to the employer for either or both of the following—

(a)an extension of the short surrogacy leave for an unbroken period of up to 8 weeks in total;

(b)an extension of the long surrogacy leave for an unbroken period of up to 96 weeks in total.

(4)An employee may not make more than 1 application under subsection (1), (2) or (3) within any 12-month period, unless the employer agrees.

s 29A ins 2006 No. 2 s 49

amd 2010 No. 42 s 86

29BEmployee on parental leave may apply to work part-time

(1)An employee on parental leave may apply to the employer to return to work on a part-time basis.

(2)An employee may not make more than 1 application under this section within any 12-month period, unless the employer agrees.

s 29B ins 2006 No. 2 s 49

29CApplication for extension or part-time work

(1)An application mentioned in section 29A or 29B must—

(a)be in writing; and

(b)be made—

(i)for an application for an extension of short parental leave, short adoption leave or short surrogacy leave—at least 2 business days before the leave ends; or

(ii)for an application for an extension of maternity leave, long parental leave, long adoption leave or long surrogacy leave—at least 4 weeks before the leave ends; or

(iii)for an application to return to work on a part-time basis—at least 7 weeks before the leave ends; and

(c)state that it is an application for an extension of parental leave under section 29A or an application to return to work on a part-time basis under section 29B, as appropriate; and

(d)state the dates the extension, or return to work on a part-time basis, being applied for is to start and end; and

(e)state the impact refusal of the application might have on the employee and the employee’s dependants; and

(f)be accompanied by a statutory declaration by the employee stating—

(i)for an application for an extension of maternity leave, long parental leave, long adoption leave or long surrogacy leave—the employee is seeking the extension so the employee can continue to be the child’s primary caregiver; or

(ii)for an application to return to work on a part-time basis—the employee is seeking to work on a part-time basis so the employee can continue to be the child’s primary caregiver when not at work.

(2)The period in relation to which an application under section 29B may be made can not extend beyond the day the child in relation to whom parental leave was taken is required to be enrolled for compulsory schooling under the Education (General Provisions) Act 2006 .

(3)A person may apply under section 29A or 29B even if the person started parental leave before the commencement of this section.

s 29C ins 2006 No. 2 s 49

amd 2006 No. 39 s 512 (1) sch 1; 2010 No. 42 s 87

29DEmployer to give proper consideration to application for extension or part-time work

(1)In deciding whether to agree to an application for an extension of the period of parental leave under section 29A or an application to return to work on a part-time basis under section 29B, the employer must consider the following—

(a)the particular circumstances of the employee that give rise to the application, particularly circumstances relating to the employee’s role as the child’s caregiver;

(b)the impact refusal of the application might have on the employee and the employee’s dependants;

(c)the effect that agreeing to the application would have on the conduct of the employer’s business, including, for example—

(i)any additional cost the employer would incur; and

(ii)the employer’s capacity to reorganise work arrangements; and

(iii)the availability of competent replacement staff; and

(iv)any loss of efficiency in the conduct of the employer’s business; and

(v)the impact of the employee’s absence or temporary absence on the delivery of customer service.

(2)The employer must not unreasonably refuse an application under section 29A or 29B.

(3)The employer must advise the employee, in writing, of the employer’s decision—

(a)if the application is for an extension of short parental leave, short adoption leave or short surrogacy leave—as soon as possible after receiving the application but before the short parental leave, short adoption leave or short surrogacy leave ends; or

(b)for any other application—within 14 days after receiving the application.

(4)If the employer refuses the application, the employer must provide the employee with written reasons for refusing the application.

s 29D ins 2006 No. 2 s 49

amd 2010 No. 42 s 88

30Shortening period of parental leave

If the employer agrees, an employee may shorten parental leave by written notice given to the employer at least 14 days before the employee wants to return to work.

31Effect on parental leave of ceasing to be the primary caregiver

(1)This section applies if—

(a)during a substantial period starting on or after the start of an employee’s long parental leave, long adoption leave or long surrogacy leave, the employee is not the child’s primary caregiver; and

(b)considering the length of the period and any other relevant circumstances, it is reasonable to expect the employee will not again become the child’s primary caregiver within a reasonable period.

(2)The employer may notify the employee of the day, at least 4 weeks after the employer gives the notice, on which the employee must return to work.

(3)If the employee returns to work, the employer must cancel the rest of the leave.

s 31 amd 2010 No. 42 s 89

32Return to work after parental leave etc.

(1)This section applies to—

(a)an employee who returns to work after parental leave; or

(b)a female employee who returns to work after special maternity leave or sick leave under section 37.

(2)The employee is entitled to be employed in—

(a)the position held by the employee immediately before starting parental leave; or

(b)if the employee worked part-time because of the pregnancy before starting maternity leave—the position held by the employee immediately before starting part-time work; or

(c)if the employee was transferred to a safe job under section 36 before starting maternity leave—the position held by the employee immediately before the transfer.

(3)If the position no longer exists but there are other positions available that the employee is qualified for and is capable of performing, the employee is entitled to be employed in a position that is, as nearly as possible, comparable in status and remuneration to that of the employee’s former position.

(4)An employer must make a position to which an employee is entitled available to the employee.

(5)If a long term casual employee’s hours were reduced because of the pregnancy before starting maternity leave, the employer must restore the employee’s hours to hours equivalent to those worked immediately before the hours were reduced.

33Employer’s obligation to advise about parental leave entitlements

(1)On becoming aware that an employee or an employee’s spouse is pregnant, or that an employee is adopting a child, or that an employee is an intended parent under a surrogacy arrangement, an employer must inform the employee of—

(a)the employee’s entitlement to parental leave under this division; and

(b)the employee’s obligations to notify the employer of any matter under this division.

(2)An employer can not rely on an employee’s failure to give a notice or other document required by this division unless the employer establishes that subsection (1) has been complied with.

s 33 amd 2001 No. 87 s 10; 2006 No. 2 s 50; 2010 No. 42 s 90

34Dismissal because of pregnancy or parental leave

(1)An employer must not dismiss an employee because—

(a)the employee or employee’s spouse is pregnant or has applied to adopt a child; or

(b)the employee or employee’s spouse has given birth to a child or adopted a child; or

(ba)the employee is an intended parent under a surrogacy arrangement or a child has started residing with the employee under a surrogacy arrangement; or

(c)the employee has applied for, or is absent on, parental leave.

(2)This section does not affect any other rights of—

(a)an employer to dismiss an employee; or

(b)a dismissed employee.

s 34 amd 2010 No. 42 s 91

35Replacement employees

(1)The employer must, before a replacement employee starts employment, give the replacement employee a written notice informing the replacement employee of—

(a)the temporary nature of the employment; and

(b)the parent’s right to return to work.

(2)In this section—

replacement employee means—

(a)

a person who is specifically employed because an employee (the parent)—

(i)starts parental leave; or

(ii)is transferred to a safe job under section 36; or

(b)a person replacing an employee who is temporarily promoted or transferred to replace the parent.

36Transfer to a safe job

(1)This section applies whenever the present work of a female employee is, because of her pregnancy or breastfeeding, a risk to the health or safety of the employee or of her unborn or newborn child.

(2)The assessment of the risk is to be made on the basis of—

(a)a doctor’s certificate given by the employee to the employer; and

(b)the employer’s duties under the Work Health and Safety Act 2011 .

(3)The employer must temporarily adjust the employee’s working conditions or hours of work to avoid exposure to the risk.

(4)If an adjustment is not feasible or can not reasonably be required to be made, the employer must transfer the employee to other appropriate work that—

(a)will not expose her to the risk; and

(b)is, as nearly as possible, comparable in status and remuneration to that of her present work.

(5)If a transfer is not feasible or can not reasonably be required to be made, the employer must grant the employee maternity leave, or any available paid sick leave, for as long as a doctor certifies it is necessary to avoid exposure to the risk.

s 36 amd 2011 No. 18 s 404 sch 4 pt 1

37Special maternity leave and sick leave

(1)This section applies if, before an employee starts maternity leave—

(a)the employee’s pregnancy terminates before the expected date of birth, other than by the birth of a living child; or

(b)the employee suffers illness related to her pregnancy.

(2)For as long as a doctor certifies it to be necessary, the employee is entitled to the following types of leave—

(a)unpaid leave (special maternity leave);

(b)paid sick leave, either instead of, or as well as, special maternity leave.

38Special adoption leave

An employee who is seeking to adopt a child is entitled to up to 2 days unpaid leave to attend compulsory interviews or examinations as part of the adoption procedure.

38AASpecial surrogacy leave

An employee who is an intended parent under a surrogacy arrangement is entitled to up to 2 days unpaid leave to attend compulsory interviews or court hearings associated with the surrogacy arrangement.

s 38AA ins 2010 No. 42 s 92

38AEmployer’s obligation to advise about significant change at the workplace

(1)This section applies—

(a)if an employer decides to implement significant change at a workplace; and

(b)whether or not the decision was made before the commencement of this section if the decision had not been implemented at the commencement.

(2)The employer must take reasonable action to advise each employee who is absent from the workplace on parental leave about the proposed change before it is implemented.

(3)The advice must inform the employee of the change and any effect it will have on the position the employee held before starting parental leave, including, for example, its status or the level of responsibility attaching to the position.

(4)The employer must give the employee a reasonable opportunity to discuss any significant effect the change will have on the employee’s position.

s 38A ins 2006 No. 2 s 51

38BEmployee’s obligations to advise employer about particular changes

(1)An employee who is absent on parental leave must advise the employer of any change in the employee’s contact details, including any change of address.

Note—

Advice given under subsection (1) may be used by an employer for section 38A if a need arises to advise the employee about significant change at the workplace.

(2)An employee who is absent on parental leave must also take reasonable steps to advise the employer of any significant change affecting the following as soon as possible after the change happens—

(a)the length of the employee’s parental leave;

(b)the date the employee intends to return to work;

(c)an earlier decision to return to work on a full-time basis or to apply to return to work on a part-time basis.

s 38B ins 2006 No. 2 s 51

38CReview of ss 29A–29D

(1)The full bench must review the operation of sections 29A, 29B, 29C and 29D—

(a)on its own initiative; or

(b)on the Minister’s direction.

(2)In the absence of a direction from the Minister, the full bench must start a review on its own initiative within 3 years after the commencement of this section.

(3)In undertaking a review, the full bench must consider, in particular—

(a)whether the sections are meeting the reasonable needs of employees; and

(b)the impact the operation of the sections is having on the ability of employers to conduct their businesses efficiently.

(4)The full bench must report the result of a review, and make recommendations, to the Minister.

s 38C ins 2006 No. 2 s 51

div hdg (prev div 2 hdg) renum 2001 No. 87 s 7

39Employee’s entitlement to carer’s leave

(1)An employee may use up to 10 days of sick leave on full pay (carer’s leave) in each year to care for and support members of the employee’s immediate family or household—

(a)when they are ill; or

(b)because an unexpected emergency arises.

Example for paragraph (b)—

unexpected failure of child care arrangements

(2)If the employee has exhausted his or her entitlement under subsection (1), the employee may take up to an additional 2 days unpaid carer’s leave each time the employee needs to care for and support members of the employee’s immediate family or household—

(a)when they are ill; or

(b)because an unexpected emergency arises.

(3)The employee may take additional unpaid carer’s leave if the employer agrees.

(4)An employee can not take carer’s leave if another person has taken leave to care for the same person unless there are special circumstances requiring more than 1 person to care for the person.

(5)Carer’s leave may be taken for part of a day.

(6)In this section—

employee does not include casual employee.

sick leave includes sick leave accrued before the commencement of this section.

s 39 amd 2001 No. 87 s 11

sub 2006 No. 2 s 52

39ALong term casual employee’s entitlement to carer’s leave

(1)A long term casual employee is entitled to 10 days unpaid leave (also carer’s leave) in each year to care for and support members of the employee’s immediate family or household—

(a)when they are ill; or

(b)because an unexpected emergency arises.

(2)The long term casual employee may take additional unpaid carer’s leave if the employer agrees.

(3)A long term casual employee can not take carer’s leave if another person has taken leave to care for the same person unless there are special circumstances requiring more than 1 person to care for the person.

(4)Carer’s leave may be taken for part of a day.

(5)The employer must not fail to re-engage a long term casual employee only because the long term casual employee has taken carer’s leave under this section.

(6)However, the rights of an employer not to re-engage a long term casual employee are not otherwise affected.

s 39A ins 2006 No. 2 s 52

39BShort term casual employee’s entitlement to carer’s leave

(1)A short term casual employee is entitled to leave work or to be unavailable to attend work for up to 2 days (also carer’s leave) each time the employee needs to care for and support members of the employee’s immediate family or household—

(a)when they are ill; or

(b)because an unexpected emergency arises; or

(c)because of the birth of a child.

(2)The short term casual employee may leave work or be unavailable to attend work for reasons mentioned in subsection (1) for additional periods if the employer agrees.

(3)A short term casual employee can not take carer’s leave if another person has taken leave to care for the same person unless there are special circumstances requiring more than 1 person to care for the person.

(4)Carer’s leave may be taken for part of a day.

(5)The employer must not fail to re-engage a short term casual employee only because the short term casual employee has taken carer’s leave under this section.

(6)However, the rights of an employer not to re-engage a short term casual employee are not otherwise affected.

(7)Leave taken under this section is unpaid.

s 39B ins 2006 No. 2 s 52

39CEmployees etc. to provide supporting information to employer

(1)If an employee is taking carer’s leave to care for and support a member of the employee’s immediate family or household who is ill, the employee must, if required by the employer, produce a doctor’s certificate or statutory declaration evidencing that the member is ill with an illness requiring care by another.

(2)An employee must, if practicable, give the employer—

(a)notice of the intention to take carer’s leave before taking the leave; and

(b)the name of the person requiring care and the person’s relationship to the employee; and

(c)the reason for taking the leave; and

(d)the period that the employee estimates he or she will be absent; and

(e)if the reason for taking the leave is because an unexpected emergency has arisen—the nature of the emergency.

(3)If it is not practicable for the employee to notify the employer of the intention to take carer’s leave before taking the leave, the employee must notify the employer at the first reasonable opportunity.

s 39C ins 2006 No. 2 s 52

div hdg (prev div 3 hdg) renum 2001 No. 87 s 7

40Entitlement

(1)This section does not apply to pieceworkers.

(2)An employee, other than a long term casual employee or short term casual employee, is entitled to—

(a)at least 2 days bereavement leave on full pay on the death of a member of the person’s immediate family or household; and

(b)if the employee reasonably requires extra time to travel to and from the funeral or other ceremony for the death—an amount of unpaid bereavement leave equal to the time reasonably required for the travel.

(3)A long term casual employee is entitled to—

(a)at least 2 days unpaid bereavement leave on the death of a member of the person’s immediate family or household; and

(b)if the employee reasonably requires extra time to travel to and from the funeral or other ceremony for the death—an amount of unpaid bereavement leave equal to the time reasonably required for the travel.

(4)A short term casual employee is entitled to be unavailable to attend work—

(a)for up to 2 days on unpaid bereavement leave on the death of a member of the person’s immediate family or household; and

(b)if the employee reasonably requires extra time to travel to and from the funeral or other ceremony for the death—an amount of unpaid bereavement leave equal to the time reasonably required for the travel.

(5)The employee must give the employer a copy of the funeral notice or other evidence of the death the employer reasonably requires.

(6)An employee may take additional leave as unpaid bereavement leave if the employer agrees.

(7)The employer must not fail to re-engage a casual employee only because the casual employee has taken bereavement leave under this section.

(8)However, the rights of an employer not to re-engage a casual employee are not otherwise affected.

s 40 amd 2001 No. 87 s 12; 2005 No. 11 s 6; 2006 No. 2 s 53

div 4A (s 40A) ins 2005 No. 11 s 7

40AEntitlement

(1)An employee may take up to 5 days unpaid cultural leave in each year, if the employer agrees.

(2)The employer must not unreasonably refuse the leave.

(3)In considering the employee’s request for leave, the employer must consider at least the following—

(a)the employer’s capacity to reorganise work arrangements to accommodate the employee’s request;

(b)the impact of the employee’s absence on the delivery of customer service;

(c)the particular circumstances of the employee;

(d)the impact of a refusal on the employee, including the employee’s ability to balance his or her work and family responsibilities.

(4)The employee must, if practicable, give the employer—

(a)reasonable notice of the intention to take cultural leave before taking the leave; and

(b)the reason for taking the leave; and

(c)the period that the employee estimates the employee will be absent.

(5)If it is not practicable for the employee to give the notice before taking the leave, the employee must give the employer notice of the matters in subsection (4) (b) and (c) at the first opportunity.

(6)It is declared that leave provided under this section is a welfare measure for the purposes of the Anti-Discrimination Act 1991 , section 104.

(7)In this section—

employee means an employee who is required by Aboriginal tradition or Island custom to attend an Aboriginal or Torres Strait Islander ceremony.

div 4A (s 40A) ins 2005 No. 11 s 7

div hdg (prev div 4 hdg) renum 2001 No. 87 s 7

sub 2009 No. 49 s 42

41Relationship to other rights and industrial instruments

(1)This part has effect despite—

(a)another law of the State; or

(b)an industrial instrument or order;

to the extent that the law, instrument or order provides an employee with a benefit that is less favourable to the employee.

(2)To the extent a provision of this part, other than section 38C, applies to an employee, without limiting the provision, the provision is taken to be a term of an industrial instrument applicable to the employee.

s 41 amd 2009 No. 49 s 43

div hdg amd 2009 No. 15 s 2 sch

42Definitions for pt 3

In this part—

continuous service of an employee means—

(a)in section 50—the period of continuous service the employee is taken to have had with an employer under section 50 (4); and

(b)elsewhere—the employee’s continuous service with the same employer (whether wholly in the State, or partly in and partly outside the State).

owner of a meat works includes a person who carries on the business of the works.

period between seasons includes the period between—

(a)the end of 1 season and the start of the next season; and

(b)for a particular employee—the day the employee stops employment in 1 season and the day the employee starts employment in the next season.

season means a period (whether falling completely in 1 calendar year or partly in 1 calendar year and partly in the next calendar year) when—

(a)for the sugar industry—

(i)sugar cane is delivered to, and crushed at, a sugar mill; or

(ii)sugar cane is harvested, or farm work is performed, in the sugar industry; or

(b)for a meat works—stock are delivered to, and slaughtered at, the works.

div 1A (s 42A) ins 2007 No. 23 s 5

42AApplication of pt 6 for particular purposes

To remove any doubt, it is declared that the provisions of part 6 are to be applied when working out an employee’s rights and entitlements to long service leave under this part or an industrial instrument.

div 1A (s 42A) ins 2007 No. 23 s 5

43Entitlement

(1)This section applies to all employees, other than seasonal employees.

(2)An employee is entitled to long service leave on full pay of—

(a)for the first 10 years continuous service—8.6667 weeks; and

(b)if the employee has completed at least a further 5 years continuous service—another period that bears to 8.6667 weeks the proportion that the employee’s further period of continuous service bears to 10 years.

(3)An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the termination of the employee’s service.

(4)However, if the employee’s service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if—

(a)the employee’s service is terminated because of the employee’s death; or

(b)the employee terminates the service because of—

(i)the employee’s illness or incapacity; or

(ii)a domestic or other pressing necessity; or

(c)the termination is because the employer—

(i)dismisses the employee for a reason other than the employee’s conduct, capacity or performance; or

(ii)unfairly dismisses the employee; or

(d)the termination is because of the effluxion of time and—

(i)the employee had a reasonable expectation that the employment with the employer would continue until the employee had completed at least 10 years continuous service; and

(ii)the employee was prepared to continue the employment with the employer.

(5)Long service leave is exclusive of a public holiday that falls during the period of the leave.

(6)An employee who is entitled to long service leave elsewhere than under this Act, is entitled to leave that is at least as favourable as the entitlement under this section.

(7)For the purposes of working out when an employee may take long service leave, only two-thirds of the employee’s continuous service completed before the commencement of this subsection counts as continuous service.

(8) Subsection (7) does not reduce an entitlement to long service leave that an employee has accrued before subsection (7) commences.

Examples of subsections (7) and (8)—

An employee has completed 15 years continuous service immediately before the commencement. The 15 years counts as 10 years continuous service for working out when the employee may take long service leave. The employee may take the leave immediately. The employee’s entitlement then is 13 weeks (15 x 0.86667 weeks).An employee has completed 10 years continuous service immediately before the commencement. The 10 years counts as 6.6667 years continuous service for working out when the employee may take long service leave. The employee may take the leave after completing another 3.3333 years continuous service. The employee’s entitlement then will be 11.5556 weeks ([10 + 3.3333] x 0.86667 weeks).An employee has completed 1 year continuous service immediately before the commencement. The 1 year counts as 0.6667 years continuous service for working out when the employee may take long service leave. The employee may take the leave after completing another 9.3333 years continuous service. The employee’s entitlement then will be 8.9556 weeks ([1 + 9.3333] x 0.86667 weeks).An employee starts employment after the commencement. The employee may take long service leave after completing 10 years continuous service. The employee’s entitlement then will be 8.6667 weeks (10 x 0.86667 weeks).

(9)In this section—

proportionate payment means a payment equal to the employee’s full pay for a period that bears to 8.6667 weeks the proportion that the employee’s period of continuous service (stated in years, and a fraction of a year if necessary) bears to 10 years.

s 43 amd 2001 No. 18 s 4; 2007 No. 23 s 6

44Working out continuity of service for service before 23 June 1990

(1)This section applies to service of all employees who are not casual employees before 23 June 1990.

(2)The repealed Industrial Conciliation and Arbitration Act 1961 , sections 17, 18, 19 and 20, applies to—

(a)the determination of the employee’s continuous service before 23 June 1990; and

(b)the calculation of the employee’s entitlement to long service leave in relation to continuous service before 23 June 1990.

45Taking long service leave

(1)The commission may insert in an industrial instrument provisions—

(a)about the time when, the way in which, and the conditions on which, long service leave may be taken; or

(b)to the effect that leave in the nature of long service leave taken, before the provisions take effect, by an employee bound by the instrument must be deducted from the long service leave that the employee becomes entitled to under the provisions.

(2)An employee and employer may agree when the employee is to take long service leave.

(3)If the employee and employer can not agree, the employer may decide when the employee is to take leave by giving the employee at least 3 months written notice of the date on which the employee must take at least 4 weeks long service leave.

(4) Subsection (3) applies subject to an industrial instrument.

46Payment for long service leave

(1)The employer must pay the employee for long service leave at the ordinary rate being paid to the employee immediately before the leave is taken.

(2)However, if the employee is, immediately before taking the leave, being paid at a higher rate than the ordinary rate, the employer must pay the employee at the higher rate.

(3)An employer must not reduce an employee’s usual rate, before an employee starts long service leave, with intent to avoid the employer’s obligation under subsection (2).

(4)If satisfied an employer has done so, the commission may order the employer to pay the employee at the usual rate even though the employee was not being paid the usual rate immediately before starting leave.

(5)If, during the employee’s leave—

(a)the ordinary rate is increased above the higher rate—the employer must pay the employee at the increased rate for the part of the leave period that the increased rate applies to; or

(b)the ordinary rate is reduced—the employer may pay the employee at the reduced rate for the part of the leave period that the reduced rate applies to.

(6)If an employee is entitled to receive an amount representing commission in the employee’s long service leave payment, the employer must pay the default average commission unless—

(a)a relevant industrial instrument or contract between the employer and employee otherwise provides; or

(b)the commission, on application, considers that the default average commission would not represent a fair amount in the circumstances.

(7)If, on application under subsection (6) (b), the commission considers that the default average commission would not represent a fair amount in the circumstances, the commission may make the order it considers appropriate in the circumstances.

(8)If a dispute arises between an employee who is paid at piecework rates and the employer about the rate the employee should be paid for long service leave, the commission may decide the rate payable.

(9)An employee and employer may agree on the times when, and the way in which, the employee will be paid for long service leave.

(10)The commission may decide any matter relating to payment for long service leave that the employee and employer can not agree on.

(11)An amount payable for long service leave becomes payable at a time agreed between the employee and employer or, if they can not agree, at a time decided by the commission.

(12)In this section—

default average commission means—

•the total commissions payable to the employee in the 1 year before the leave is taken

•divided by 52.179

•multiplied by the number of weeks leave for which payment is being made.

usual rate means the rate at which the employee is being paid for ordinary time, being a rate that is higher than the ordinary rate.

s 46 amd 2005 No. 11 s 8

(8)–(11) (prev s 49 (3)–(6)) renum and reloc 2005 No. 11 s 9

amd 2011 No. 4 s 69 sch pt 1

div hdg amd 2001 No. 18 s 5

47Continuity of service—additional considerations for casual employees

(1)The service of an employee (a casual employee) who is employed more than once by the same employer over a period is continuous service with the employer even though—

(a)the employment is broken; or

(b)any of the employment is not full-time employment; or

(c)the employee is employed by the employer under 2 or more employment contracts; or

(d)the employee would, apart from this section, be taken to be engaged in casual employment; or

(e)the employee has engaged in other employment during the period.

(2)However, the continuous service ends if the employment is broken by more than 3 months between the end of 1 employment contract and the start of the next employment contract.

(3)In working out the length of an employee’s continuous service—

(a)the following service must not be taken into account—

(i)service by the employee before 23 June 1990;

(ii)if the employee only obtained the entitlement because of the enactment of the repealed Industrial Relations Reform Act 1994 , section 17—the employee’s service between 23 June 1990 and 30 March 1994; and

(b)subject to subsection (2), a period when the employee was not employed by the employer must be taken into account.

(4) Subsection (3) (a) (i) does not affect an employee’s entitlement to long service leave under—

(a)an award made before 23 June 1990; or

(b)the repealed Industrial Conciliation and Arbitration Act 1961 .

(5)This section does not limit any other entitlement to long service leave that an employee may have.

s 47 amd 2000 No. 23 s 292 sch 1

48Taking long service leave—alternative provision for casual or regular part-time employees

(1)An employer may agree with a casual or regular part-time employee that the entitlement to long service leave may be taken in the form of its full-time equivalent.

Example—

If an employee—

(a)is entitled to be paid for 260 hours long service leave; and

(b)works under an award that provides for a full-time working week of 40 ordinary working hours;

the employee and the employer may agree that the employee take 6¹/₂ weeks leave (260 ÷ 40 = 6¹/₂).

(2)This section applies subject to a provision in an industrial instrument about the employee’s long service leave.

s 48 amd 2001 No. 18 s 6

49Payment for long service leave

(1)This section applies if an employee who is entitled to long service leave was a casual employee or regular part-time employee at any time during the employee’s continuous service to which the long service leave relates.

(2)The minimum amount payable to the employee for long service leave is worked out using the formula—

Example—

An employee who worked 15600 ordinary working hours over a 10-year period and is being paid an hourly rate of $12 is entitled to be paid—

(7)In this section—

actual service means the total ordinary working hours actually worked by an employee during the employee’s period of continuous service.

casual employee means an employee mentioned in section 47 (1).

hourly rate means the hourly rate for ordinary time payable to the employee—

(a)if the employee takes the long service leave—on the day that the employee starts the leave; or

(b)if the employee’s employment is terminated—on the date that the termination takes effect.

s 49 amd 2001 No. 18 s 7; 2005 No. 11 s 9; 2011 No. 4 s 69 sch pt 1

50Entitlement—employees in sugar industry and meat works

(1)This section applies to the following seasonal employees—

(a)an employee employed in seasonal employment in the sugar industry;

(b)an employee employed in or about meat works in seasonal employment by the meat works owner.

(2)The employee is entitled to long service leave on full pay of at least the number of weeks worked out using the following formula—

Example—

An employee who worked half of each year, over a 10-year period, is entitled to half the section 43 entitlement, that is, half of 8.6667 weeks leave (8.6667 x ⁵/₁₀= 4.3334).

(3)Service with the employer of an employee engaged in harvesting sugar cane or farm work in the sugar industry before 23 June 1990 must not be taken into account in working out the length of the employee’s continuous service.

(4)A period between seasons when the employee is not employed by the employer must be taken into account in working out the length of an employee’s continuous service if—

(a)in 1 season—the employee’s service with the employer continued until the end of the season or until an earlier day when the employee’s employment was terminated by the employer; and

(b)in the next season—the employee’s service with the same employer started on the season’s opening or on a later day in the season when the employer required the employee to start employment.

(5)If an employee is employed by the employer between seasons, the part of the period between seasons when the employee is employed must be taken into account in working out the length of the employee’s actual service.

(6)An employee who is entitled to long service leave elsewhere than under this Act, is entitled to leave that is at least as favourable as the entitlement under this section.

(7)In this section—

actual service means the total ordinary time actually worked by an employee during the employee’s period of continuous service.

section 43 entitlement means the entitlement to long service leave of an employee under section 43.

s 50 amd 2001 No. 18 s 8; 2009 No. 15 s 2 sch

51Taking long service leave—employees in sugar industry and meat works

(1)This section applies to the following seasonal employees—

(a)an employee employed in seasonal employment in the sugar industry;

(b)an employee employed in or about meat works in seasonal employment by the meat works owner.

(2)An employee may take long service leave between seasons.

(3)If an employee takes leave between seasons, the leave is taken to have started when the employee last ceased employment with the employer.

52Other seasonal employees

The commission may decide the entitlement to long service leave of an employee—

(a)who is employed in seasonal employment, but who is not employed—

(i)in the sugar industry; or

(ii)in or about meat works; or

(b)who is employed in other periodic employment that is not defined as casual employment by the relevant industrial instrument.

53Payment instead of long service leave

(1)An employee may be paid for all or part of an entitlement to long service leave instead of taking the leave or part of the leave if subsection (2) or (3) applies.

(2)If the relevant industrial instrument provides for the employee to be paid for all or part of an entitlement to long service leave instead of taking the leave or part of the leave, payment may be made, in accordance with the industrial instrument, if the employee and employer agree by a signed agreement.

(3)If no industrial instrument provides for the employee to be paid for all or part of an entitlement to long service leave instead of taking the leave or part of the leave, payment may be made only if the payment is ordered by the commission on application by the employee.

(4)The commission may order the payment only if satisfied the payment should be made—

(a)on compassionate grounds; or

(b)on the ground of financial hardship.

(5)Despite section 58 (2), the full bench must not make a general ruling that allows an employee to be paid for an entitlement to long service leave instead of taking the leave.

(6)In subsection (3)—

employee includes a registered worker under the Building and Construction Industry (Portable Long Service Leave) Act 1991 .

entitlement to long service leave includes an entitlement to long service leave under the Building and Construction Industry (Portable Long Service Leave) Act 1991 , section 57 (1).

s 53 sub 2001 No. 18 s 9

54Payment instead of long service leave on death

(1)This section applies if an employee entitled to long service leave dies—

(a)before taking the leave; or

(b)after starting, but before finishing, the leave.

(2)The employer must pay the employee’s legal personal representative any amount payable for the employee’s entitlement to long service leave that has not been already been paid.

(3)If the employer does not do so, the employee’s legal personal representative or an inspector may recover the amount as unpaid wages.

55Continuity not broken by service in Reserve Forces

(1)An employee’s service in the reserve forces is taken to be continuous service with the employer who employed the employee immediately before the employee starting service with the Forces.

(2)In this section—

reserve forces means the Australian Naval Reserve, Australian Army Reserve or Australian Air Force Reserve.

56Recognition of certain exemptions

(1)This part does not apply to an employer if—

(a)the commission has exempted the employer, under the repealed Industrial Conciliation and Arbitration Act 1961 , from the application of long service leave provisions in that Act or an award; and

(b)the exemption is in force.

(2)On application, the commission may revoke an exemption.

57Person may be employer and employee

If in performing duties in a calling a person is an employee, the person is entitled to long service leave as prescribed under this part despite the person being, by definition for this Act, an employer because of—

(a)the person’s engagement in the calling; or

(b)the position the person holds in the calling.

57AProvisions taken to be terms of industrial instrument

A provision of this part that applies to an employee, without limiting the provision, is taken to be a term of an industrial instrument applicable to the employee.

s 57A ins 2009 No. 49 s 44

58Review of general employment conditions

(1)On application by the Minister, an organisation or a State peak council, the full bench may review a condition under this chapter.

(2)The full bench may, by a general ruling under section 287, substitute the condition with another condition that is no less favourable.

s 58 amd 2001 No. 18 s 10

59Definition for pt 5

In this part—

equal remuneration for work of equal or comparable value means equal remuneration for men and women employees for work of equal or comparable value.

60Orders requiring equal remuneration

(1)The commission may make any order it considers appropriate to ensure employees covered by the order receive equal remuneration for work of equal or comparable value.

(2)An order may provide for an increase in remuneration rates, including minimum rates.

61Orders only on application

The commission may make an order under this part only on application by—

(a)an employee to be covered by the order; or

(b)an organisation whose rules entitle it to represent the industrial interests of employees to be covered by the order; or

(c)a State peak council; or

(d)the Minister; or

(e)the anti-discrimination commissioner.

62When commission must and may only make order

The commission must, and may only, make an order if it is satisfied the employees to be covered by the order do not receive equal remuneration for work of equal or comparable value.

63Immediate or progressive introduction of equal remuneration

The order may introduce equal remuneration for work of equal or comparable value—

(a)immediately; or

(b)progressively, in specified stages.

64Employer not to reduce remuneration

(1)An employer must not reduce an employee’s remuneration because an application or order has been made under this part.

(2)If an employer purports to do so, the reduction is of no effect.

65Part does not limit other rights

(1)This part does not limit any right a person or organisation may otherwise have to secure equal remuneration for work of equal or comparable value.

(2) Subsection (1) is subject to section 66.

66Applications under this part

(1)An application can not be made under this part for an order to secure equal remuneration for work of equal or comparable value for an employee if proceedings for an alternative remedy—

(a)to secure the remuneration for the employee; or

(b)against unequal remuneration for work of equal or comparable value for the employee;

have started under another provision of this Act or under another Act.

(2) Subsection (1) does not prevent an application under this part if the proceedings for the alternative remedy have—

(a)been discontinued by the party who started the proceedings; or

(b)failed for want of jurisdiction.

(3)If an application under this part has been made for an order to secure equal remuneration for work of equal or comparable value for an employee, a person is not entitled to start proceedings for an alternative remedy under a provision or Act mentioned in subsection (1)—

(a)to secure the remuneration for the employee; or

(b)against unequal remuneration for work of equal or comparable value for the employee.

(4) Subsection (3) does not prevent proceedings being started for an alternative remedy if the proceedings under this part have—

(a)been discontinued by the party who started the proceedings; or

(b)failed for want of jurisdiction.

67Definition for pt 6

In this part—

service includes employment.

68How part applies

(1)This part applies when working out an employee’s rights and entitlements under this Act or an industrial instrument by prescribing when the employee’s continuity of service is not broken.

(2)An employee is not entitled to claim the benefit of a right or entitlement more than once for the same period of service.

(3)However, when working out the minimum period of notice required to be given under section 84 to a transferred employee, any period of notice previously given in relation to the transfer of the calling (whether given before or after the commencement of this subsection) is to be disregarded.

(4)In subsection (3)—

transferred employee see section 69 (1).

s 68 amd 2000 No. 23 s 292 sch 1; 2007 No. 23 s 7

69Continuity of service—transfer of calling

(1)A transferred employee is a person who becomes an employee of an employer (the new employer) because of the transfer of a calling to the new employer from another employer (the former employer).

(2)Even if a person is dismissed by the former employer before the transfer of a calling, the person is taken to be a transferred employee if—

(a)the person is employed by the new employer after the transfer; and

(b)the employee—

(i)was dismissed by the former employer within 1 month immediately before the transfer; and

(ii)is re-employed by the new employer within 3 months after the dismissal.

(3)The transfer of the calling is taken not to break the transferred employee’s continuity of service.

(4)A period of service with the former employer (including service before the commencement of this section) is taken to be a period of service with the new employer.

(4A)In relation to the transfer, the transferred employee is not an employee to whom chapter 3, part 4, division 1AA applies, unless an instrument mentioned in section 85A (1) provides otherwise.

(5)In this section—

dismissed includes stood down.

s 69 amd 2005 No. 36 s 11

70Continuity of service—apprentices or trainees

(1)This section applies if—

(a)an employee, while employed with the employer, starts an apprenticeship or traineeship; or

(b)the employer—

(i)continues to employ an apprentice or trainee (the employee) on the completion of the apprenticeship or traineeship; or

(ii)re-employs the employee within 3 months after completion of the employee’s apprenticeship or traineeship.

(2)The period of the apprenticeship or traineeship does not break the employee’s continuity of service.

71Continuity of service—generally

(1)Service with a partnership and an employer who was, or becomes, a member of the partnership is taken to be continuous service with the same employer.

(2)An employee’s continuity of service with an employer is not broken if the employee’s service is temporarily lent or let on hire by the employer to another employer.

(3)An employee’s continuity of service with an employer is not broken by an absence, including through illness or injury—

(a)on paid leave approved by the employer; or

(b)on unpaid leave approved by the employer.

(4)An employee’s continuity of service with an employer is not broken if—

(a)the employee’s employment is terminated by the employer or employee because of illness or injury; and

(b)the employer re-employs the employee; and

(c)the employee has not been employed in a calling (whether on the employee’s own account or as an employee) between the termination and the re-employment.

(5)An employee’s continuity of service with an employer is not broken if—

(a)the employee’s employment is terminated by the employer or employee; and

(b)the employer re-employs the employee within 3 months after the termination.

(6)An employee’s continuity of service with an employer is not broken if—

(a)the employee’s employment is interrupted or terminated by the employer with intent to avoid an obligation under this part, an industrial instrument or employment contract; or

(b)the employee’s employment is interrupted or terminated by the employer as a direct or indirect result of an industrial dispute, and the employer re-employs the employee.

(7)An employee’s continuity of service is not broken if—

(a)the employee’s employment is interrupted or terminated by the employer because of slackness of trade or business; and

(b)the employer re-employs the employee.

(8)Service with a corporation and any of its subsidiaries is taken to be continuous service with the same employer.

(9)However, a period for which the employee is away from work under subsection (3) (b), (4), (5), (6) (b) or (7) is not service under this part unless—

(a)this Act or an industrial instrument provides otherwise; or

(b)the commission directs otherwise.

(10)In this section—

subsidiary has the meaning given by the Corporations Act.

terminate includes stand down.

s 71 amd 2001 No. 45 s 29 sch 3; 2005 No. 11 s 10; 2009 No. 15 s 2 sch

pt hdg ins 2005 No. 36 s 12

71AMinimum period of notice required from employee under particular instrument, federal award or federal agreement

(1)This section applies to an employee under any of the following instruments, unless the instrument provides otherwise—

(a)an industrial instrument made after 1 September 2005, other than a certified agreement if the application to certify the agreement was made on or before 1 September 2005;

(b)a federal award made or varied after 1 September 2005;

(c)a federal agreement made, varied or approved after 1 September 2005, other than a federal agreement if the application to certify the agreement was made on or before 1 September 2005.

(2)However, this section does not apply to an employee, apprentice or trainee mentioned in section 72 (3) or (7).

(3)The minimum period of notice an employee must give to an employer is 1 week.

(4)If an employee does not give at least the minimum period of notice required under subsection (3), the employer may deduct from the employee’s wages an amount that is not more than the wages, at the ordinary rate, that would have been payable to the employee for the period for which notice was not given.

s 71A ins 2005 No. 36 s 12

amd 2006 No. 2 s 54

ch hdg ins 2013 No. 61 s 7

pt 1 (ss 71B–71BB) ins 2013 No. 61 s 7

71BApplication of ch 2A

This chapter applies to all employees in relation to particular employment if chapter 2 does not apply to the employee in relation to the employment.

pt 1 (ss 71B–71BB) ins 2013 No. 61 s 7

71BADefinitions for ch 2A

In this chapter—

modern industrial instrument means any of the following—

(a)a modern award;

(b)a certified agreement that is certified under chapter 6 as amended by the modernising Act;

(c)a determination made under section 149 as inserted by the modernising Act.

modernising Act means the Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Act 2013 .

ordinary hours of work, for an employee, means—

(a)the employee’s ordinary hours of work as provided for under a modern industrial instrument that applies to the employee; or

(b)if paragraph (a) does not apply—the hours agreed by the employee and his or her employer as the employee’s ordinary hours of work.

pre-modernisation industrial instrument means any of the following—

(a)an award made under chapter 5 or continued in force under this Act, including an award as amended under chapter 5;

(b)a certified agreement that is certified under chapter 6 as in force before its amendment by the modernising Act;

(c)a determination made under section 149 as it was in force before its replacement by the modernising Act.

relevant industrial instrument, in relation to an employee, means a modern industrial instrument that applies to the employee.

pt 1 (ss 71B–71BB) ins 2013 No. 61 s 7

71BBMeaning of long term casual employee

(1)For this chapter, a long term casual employee is a casual employee engaged by a particular employer, on a regular and systematic basis, for several periods of employment during a period of at least 1 year immediately before the employee seeks to access an entitlement under this chapter.

(2)The periods of employment mentioned in subsection (1) include periods before and after the commencement of this section.

pt 1 (ss 71B–71BB) ins 2013 No. 61 s 7

pt hdg ins 2013 No. 61 s 7

div hdg ins 2013 No. 61 s 7

71CMeaning of Queensland Employment Standards

(1)This part provides for minimum standards of employment of employees.

(2)The minimum standards relate to the following matters—

(a)minimum wage—division 2;

(b)annual leave—division 3;

(c)personal leave, including sick leave, carer’s leave, bereavement leave and cultural leave—division 4;

(d)parental leave—division 5;

(e)long service leave—division 6;

(f)public holidays—division 7;

(g)jury service leave—division 8;

(h)notice of termination and redundancy pay—division 9.

(3)Divisions 2 to 9 are the Queensland Employment Standards.

s 71C ins 2013 No. 61 s 7

71CAQueensland Employment Standards subject to provisions of modern industrial instrument

The Queensland Employment Standards have effect subject to provisions included in a modern industrial instrument under this Act.

Note—

See part 3 for provisions about the content of a modern industrial instrument.

s 71CA ins 2013 No. 61 s 7

amd 2015 No. 7 s 4

71CBRelationship between Queensland Employment Standards and directives

(1)This section applies if a directive is inconsistent with a provision of the Queensland Employment Standards (a QES provision).

(2)For an inconsistency provision, the directive is taken not to be inconsistent with the QES provision to the extent that the effect of the directive is more favourable to an employee than the QES provision.

(3)In this section—

directive means—

(a)a directive under the Public Service Act 2008 made by the chief executive of the Public Service Commission that is the subject of a regulation under section 52 (2) of that Act; or

(b)a directive under the Public Service Act 2008 made by the Minister administering this Act; or

(c)a health employment directive under the Hospital and Health Boards Act 2011 .

inconsistency provision means—

(a)the Public Service Act 2008 , section 51; or

(b)the Hospital and Health Boards Act 2011 , section 51B.

s 71CB ins 2013 No. 61 s 7

div 2 (s 71D) ins 2013 No. 61 s 7

71DEntitlement to minimum wage

(1)An employee is entitled to a wage that is not less than the Queensland minimum wage.

(2)This section does not apply to an employee who is excluded under section 287 (5) from the operation of the full bench’s general ruling declaring the Queensland minimum wage.

div 2 (s 71D) ins 2013 No. 61 s 7

div hdg ins 2013 No. 61 s 7

sdiv 1 (ss 71E–71EB) ins 2013 No. 61 s 7

71EApplication of sdiv 1

This subdivision does not apply to—

(a)casual employees; or

(b)pieceworkers; or

(c)school-based apprentices or trainees.

sdiv 1 (ss 71E–71EB) ins 2013 No. 61 s 7

71EAEntitlement

(1)For each completed year of employment with an employer, an employee is entitled to—

(a)if the employee is not a shift worker—at least 4 weeks annual leave; or

(b)if the employee is a shift worker—at least 5 weeks annual leave.

(2)Annual leave is exclusive of a public holiday that falls during the leave.

(3)However, if an employee is entitled to additional annual leave as compensation for working on a particular public holiday, annual leave is inclusive of the particular public holiday.

(4)Annual leave accumulates, unless a modern industrial instrument provides otherwise.

(5)This section does not confer an entitlement or an additional entitlement in relation to employment before 4 June 1999.

(6)In this section—

shift worker means an employee who—

(a)is employed in a calling in which shifts are worked 24 hours a day, 7 days a week; and

(b)works a rotating roster that includes each of the shifts.

sdiv 1 (ss 71E–71EB) ins 2013 No. 61 s 7

71EBWorking out completed year of employment

(1)This section applies for working out a completed year of employment for section 71EA.

(2)The following periods when an employee is absent without pay are not to be taken into account—

(a)a period of more than 3 months when an employee is absent with the employer’s approval;

(b)a period when an employee is absent without the employer’s approval, unless the employee is absent for not more than 3 months because of illness or injury certified to by a doctor.

sdiv 1 (ss 71E–71EB) ins 2013 No. 61 s 7

sdiv 2 (ss 71EC–71ED) ins 2013 No. 61 s 7

71ECWhen annual leave may be taken

(1)An employee and employer may agree when the employee is to take annual leave.

(2)If the employee and employer can not agree, the employer—

(a)may decide when the employee is to take leave; and

(b)must give the employee at least 14 days written notice of the starting date of the leave.

(3)An employee and employer may agree that the employee take all or any part of the employee’s annual leave before becoming entitled to it.

(4)If the employee takes leave before becoming entitled to it, the employee is only entitled, at the end of the completed year of employment, to the balance of the leave that would be due at the end of the year.

sdiv 2 (ss 71EC–71ED) ins 2013 No. 61 s 7

71EDTerms that may be included in modern industrial instruments

A modern industrial instrument may include the following—

(a)terms requiring an employee to take annual leave in particular circumstances, but only if the requirement is reasonable;

(b)terms otherwise dealing with the taking of annual leave.

sdiv 2 (ss 71EC–71ED) ins 2013 No. 61 s 7

sdiv 3 (ss 71EE–71EF) ins 2013 No. 61 s 7

71EEPayment for annual leave

(1)Unless an employee and employer otherwise agree, the employer must pay the employee for annual leave in advance.

(2)The employer must pay for the leave—

(a)at the ordinary rate being paid to the employee immediately before the leave is taken; or

(b)if, immediately before taking the leave, the employee is being paid at a higher rate than the ordinary rate—at the higher rate.

(3)If an employee is entitled to receive an amount representing commission in the employee’s annual leave payment, the employer must pay the default average commission unless—

(a)a relevant industrial instrument, or a contract between the employer and employee, otherwise provides; or

(b)the commission, on application, considers that the default average commission would not represent a fair amount in the circumstances.

(4)If, on application under subsection (3) (b), the commission considers the default average commission would not represent a fair amount in the circumstances, the commission may make the order it considers appropriate in the circumstances.

(5)In this section—

default average commission means—

•the total commissions payable to the employee in the 1 year before the leave is taken, or during the employee’s period of employment, whichever is less

•divided by 365.25, or the number of days in the employee’s period of employment, whichever is less

•multiplied by the number of days starting on the day the leave commences and ending on the day before the employee is due to return to work.

sdiv 3 (ss 71EE–71EF) ins 2013 No. 61 s 7

71EFAnnual leave loading

(1)In addition to the employee’s annual leave entitlement under this division, the employee is entitled to receive a further amount of at least 17¹/₂% of the amount payable under section 71EE (2) (a).

(2)However, if the employee’s employer pays the employee a prescribed additional amount and the amount—

(a)is less than 17¹/₂% of the amount payable under section 71EE (2) (a)—the employee is entitled to receive a further amount so the employee receives the amount the employee is entitled to under subsection (1); or

(b)is at least 17¹/₂% of the amount payable under section 71EE (2) (a)—the employee is not entitled to receive an amount under subsection (1).

(3)In this section—

prescribed additional amount means an amount, however described, in addition to the employee’s annual leave entitlement under this division.

Example of how a prescribed additional amount might be described—

annual leave bonus, annual leave loading

sdiv 3 (ss 71EE–71EF) ins 2013 No. 61 s 7

sdiv 4 (s 71EG) ins 2013 No. 61 s 7

71EGRequirements for cashing out annual leave

(1)Annual leave may not be cashed out except under this section.

(2)An employer and an employee may agree to the employee cashing out a particular amount of the employee’s annual leave.

(3)The employer and employee must not agree to the employee cashing out an amount of annual leave if the cashing out would result in the employee’s accrued annual leave entitlement being less than 4 weeks.

(4)Each cashing out of a particular amount of annual leave must be by a separate agreement in writing.

(5)The employer must pay the employee at least the full amount that would have been payable to the employee had the employee taken the annual leave that has been forgone.

sdiv 4 (s 71EG) ins 2013 No. 61 s 7

sdiv 5 (s 71EH) ins 2013 No. 61 s 7

71EHPayment for annual leave on termination of employment

(1)This section applies if an employee’s employment is terminated by the employee or employer.

(2)If the employee has not taken all the annual leave the employee is entitled to, the employee is presumed to have taken the leave from the day the termination takes effect (the termination day).

(3)The employer must immediately pay the employee for the annual leave not taken, including any public holiday during the period the employee is presumed to have taken the leave.

(4)If the employee has been employed for less than 1 year, the employer must pay the employee proportionate annual leave for the period.

(5)The employer must pay the employee at least the ordinary rate being paid to the employee immediately before the termination day, unless a modern industrial instrument states otherwise.

sdiv 5 (s 71EH) ins 2013 No. 61 s 7

div hdg ins 2013 No. 61 s 7

sdiv 1 (ss 71F–71FB) ins 2013 No. 61 s 7

71FApplication of sdiv 1

This subdivision does not apply to—

(a)casual employees; or

(b)pieceworkers; or

(c)school-based apprentices or trainees.

sdiv 1 (ss 71F–71FB) ins 2013 No. 61 s 7

71FAEntitlement to sick leave

(1)An employee is entitled to at least 10 days sick leave on full pay for each completed year of employment with an employer.

(2)Unless a modern industrial instrument provides otherwise, an employee’s entitlement to paid sick leave accumulates—

(a)progressively during a year of employment according to the employee’s ordinary hours of work; and

(b)from year to year.

(3)Sick leave may be taken for part of a day.

Examples—

1An employee is ordinarily required to work for 8 hours on a particular day and on that day becomes sick after working 3 hours. The employee may take sick leave for the remaining 5 hours that the employee is unable to work because of the sickness.

2An employee is ordinarily required to perform work for 40 hours a week over 5 days, but has come to an arrangement with the employer to work 10 hours a day for 4 days a week. If the employee is unable to work because of sickness on a day, the employee may take 10 hours sick leave, which equates to 1¹/₄ days sick leave.

(4)This section does not confer an entitlement or an additional entitlement in relation to employment before the commencement of this section.

(5)In this section—

day, for an employee who is paid on the basis of the number of hours worked, means—

(a)for an employee for whom a modern industrial instrument provides sick leave—a day within the meaning of the instrument to the extent it relates to sick leave; or

(b)otherwise—one-fifth of the number of the employee’s ordinary hours of work for a week, averaged over each completed 6 weeks of employment with the employer.

sdiv 1 (ss 71F–71FB) ins 2013 No. 61 s 7

71FBRequirement for employee to give notice etc.

(1)An employee’s entitlement under section 71FA is conditional on—

(a)the employee promptly notifying the employer of—

(i)any illness that will cause the employee to be absent from work; and

(ii)the approximate period for which the employee will be absent; and

(b)if the employee is absent for more than 2 days—

(i)the employee giving the employer a doctor’s certificate about the nature of the illness and the approximate period for which the employee will be absent; or

(ii)the employee giving the employer other evidence of the illness to the employer’s satisfaction.

(2)This section does not apply if—

(a)a modern industrial instrument provides otherwise; or

(b)the employee and employer agree otherwise.

sdiv 1 (ss 71F–71FB) ins 2013 No. 61 s 7

sdiv 2 (ss 71FC–71FF) ins 2013 No. 61 s 7

71FCEntitlement—employees other than casual employees

(1)This section does not apply to a casual employee.

(2)An employee may use up to 10 days of sick leave on full pay (carer’s leave) in each year to care for and support members of the employee’s immediate family or household—

(a)when they are ill; or

(b)because an unexpected emergency arises.

Example for paragraph (b)—

unexpected failure of child care arrangements

(3)If the employee has exhausted the entitlement under subsection (2), the employee may take up to an additional 2 days unpaid carer’s leave each time the employee needs to care for and support members of the employee’s immediate family or household—

(a)when they are ill; or

(b)because an unexpected emergency arises.

(4)The employee may take additional unpaid carer’s leave with the employer’s agreement.

(5)An employee can not take carer’s leave if another person has taken leave enabling him or her to care for the same person unless there are special circumstances requiring more than 1 person to care for the person.

(6)Carer’s leave may be taken for part of a day.

(7)In this section—

sick leave includes sick leave accrued before the commencement of this section.

sdiv 2 (ss 71FC–71FF) ins 2013 No. 61 s 7

71FDEntitlement—long term casual employees

(1)This section applies to a long term casual employee.

(2)The employee is entitled to 10 days leave (also carer’s leave) in each year to care for and support members of the employee’s immediate family or household—

(a)when they are ill; or

(b)because an unexpected emergency arises.

(3)The employee may take additional carer’s leave if the employer agrees.

(4)The employee can not take carer’s leave if another person has taken leave to care for the same person unless there are special circumstances requiring more than 1 person to care for the person.

(5)Carer’s leave may be taken for part of a day.

(6)The employer must not fail to re-engage the employee only because the employee has taken carer’s leave under this section.

(7)Leave taken under this section is unpaid.

sdiv 2 (ss 71FC–71FF) ins 2013 No. 61 s 7

71FEEntitlement—short term casual employees

(1)This section applies to a short term casual employee.

(2)The employee is entitled to leave work or to be unavailable to attend work for up to 2 days (also carer’s leave) each time the employee needs to care for and support members of the employee’s immediate family or household—

(a)when they are ill; or

(b)because an unexpected emergency arises; or

(c)because of the birth of a child.

(3)The employee may leave work or be unavailable to attend work for reasons mentioned in subsection (2) for additional periods if the employer agrees.

(4)The employee can not take carer’s leave if another person has taken leave to care for the same person unless there are special circumstances requiring more than 1 person to care for the person.

(5)Carer’s leave may be taken for part of a day.

(6)The employer must not fail to re-engage the employee only because the employee has taken carer’s leave under this section.

(7)However, the rights of an employer not to re-engage the employee are not otherwise affected.

(8)The employer must not fail to re-engage the employee only because the employee has taken carer’s leave under this section.

sdiv 2 (ss 71FC–71FF) ins 2013 No. 61 s 7

71FFEmployee to provide supporting information to employer

(1)This section applies if an employee is taking carer’s leave to care for and support a member of the employee’s immediate family or household who is ill.

(2)The employee must, if required by the employer, produce a doctor’s certificate or statutory declaration evidencing that the member is ill with an illness requiring care by another person.

(3)The employee must, if practicable, give the employer—

(a)notice of the intention to take carer’s leave before taking the leave; and

(b)the name of the person requiring care and the person’s relationship to the employee; and

(c)the reason for taking the leave; and

(d)the period that the employee estimates he or she will be absent; and

(e)if the reason for taking the leave is because an unexpected emergency has arisen—the nature of the emergency.

(4)If it is not practicable for the employee to notify the employer of the intention to take carer’s leave before taking the leave, the employee must notify the employer at the first reasonable opportunity.

sdiv 2 (ss 71FC–71FF) ins 2013 No. 61 s 7

sdiv 3 (ss 71FG–71FK) ins 2013 No. 61 s 7

71FGApplication of sdiv 3

This subdivision does not apply to pieceworkers.

sdiv 3 (ss 71FG–71FK) ins 2013 No. 61 s 7

71FHEntitlement—employees other than casual employees

An employee, other than a casual employee, is entitled to—

(a)at least 2 days bereavement leave on full pay on the death of a member of the person’s immediate family or household; and

(b)if the employee reasonably requires extra time to travel to and from the funeral or other ceremony for the death—an amount of unpaid bereavement leave equal to the time reasonably required for the travel.

sdiv 3 (ss 71FG–71FK) ins 2013 No. 61 s 7

71FIEntitlement—casual employees

(1)A long term casual employee is entitled to—

(a)at least 2 days unpaid bereavement leave on the death of a member of the person’s immediate family or household; and

(b)if the employee reasonably requires extra time to travel to and from the funeral or other ceremony for the death—an amount of unpaid bereavement leave equal to the time reasonably required for the travel.

(2)A short term casual employee is entitled to be unavailable to attend work—

(a)for up to 2 days on unpaid bereavement leave on the death of a member of the person’s immediate family or household; and

(b)if the employee reasonably requires extra time to travel to and from the funeral or other ceremony for the death—an amount of unpaid bereavement leave equal to the time reasonably required for the travel.

(3)The employer must not fail to re-engage a casual employee only because the employee has taken bereavement leave under this section.

(4)However, the rights of an employer not to re-engage a casual employee are not otherwise affected.

sdiv 3 (ss 71FG–71FK) ins 2013 No. 61 s 7

71FJEvidence to be provided by employee

An employee who takes bereavement leave must give the employer a copy of the funeral notice or other evidence of the death the employer reasonably requires.

sdiv 3 (ss 71FG–71FK) ins 2013 No. 61 s 7

71FKAdditional leave

An employee may take additional leave as unpaid bereavement leave if the employer agrees.

sdiv 3 (ss 71FG–71FK) ins 2013 No. 61 s 7

sdiv 4 (s 71FL) ins 2013 No. 61 s 7

71FLEntitlement

(1)This section applies to an employee who is required by Aboriginal tradition or Island custom to attend an Aboriginal or Torres Strait Islander ceremony.

(2)The employee may take up to 5 days unpaid cultural leave in each year, if the employer agrees.

(3)The employer must not unreasonably refuse the leave.

(4)In considering the employee’s request for leave, the employer must consider at least the following—

(a)the employer’s capacity to reorganise work arrangements to accommodate the employee’s request;

(b)the impact of the employee’s absence on the delivery of customer service;

(c)the particular circumstances of the employee;

(d)the impact of a refusal on the employee, including the employee’s ability to balance work and family responsibilities.

(5)The employee must, if practicable, give the employer—

(a)reasonable notice of the intention to take cultural leave before taking the leave; and

(b)the reason for taking the leave; and

(c)the period that the employee estimates the employee will be absent.

(6)If it is not practicable for the employee to give the notice before taking the leave, the employee must give the employer notice of the matters in subsection (5) (b) and (c) at the first opportunity.

(7)It is declared that leave provided under this section is a welfare measure for the purposes of the Anti-Discrimination Act 1991 , section 104.

sdiv 4 (s 71FL) ins 2013 No. 61 s 7

sdiv 5 (s 71FM) ins 2013 No. 61 s 7

71FMRelationship to other rights

(1)This part has effect despite a relevant law to the extent the relevant law provides an employee with a benefit that is less favourable to the employee.

(2)In this section—

relevant law means another law of the State.

sdiv 5 (s 71FM) ins 2013 No. 61 s 7

div hdg ins 2013 No. 61 s 7

sdiv 1 (ss 71G–71GB) ins 2013 No. 61 s 7

71GApplication of div 5

This division does not apply to—

(a)short term casual employees; or

(b)seasonal employees; or

(c)pieceworkers.

sdiv 1 (ss 71G–71GB) ins 2013 No. 61 s 7

71GAExplanation of types of parental leave

(1)This division provides for parental leave.

(2)The types of parental leave are as follows—

(a)birth-related leave, for—

(i)an employee who is pregnant; or

(ii)an employee whose spouse gives birth;

Notes—

1Birth-related leave for a pregnant employee (maternity leave) may be taken by a pregnant employee in connection with the birth of her child or to enable her to be the child’s primary caregiver.

2Birth-related leave for an employee whose spouse gives birth may be short (in connection with the child’s birth) or long (to enable the employee to be the child’s primary caregiver).

(b)adoption leave, for an employee with whom an adopted child is placed;

Note—

Adoption leave may be short (in connection with the child’s placement) or long (to enable the employee to be the child’s primary caregiver).

(c)surrogacy leave, for an employee who is an intended parent under a surrogacy arrangement.

Note—

Surrogacy leave may be short (when the child born as a result of the surrogacy arrangement starts residing with the employee) or long (to enable the employee to be the child’s primary caregiver).

sdiv 1 (ss 71G–71GB) ins 2013 No. 61 s 7

71GBDefinitions for div 5

In this division—

adoption leave means short adoption leave or long adoption leave.

birth-related leave means short birth-related leave or long birth-related leave.

child means—

(a)for adoption leave—a child who is under the age of 5 years, but does not include a child who, immediately before the child was adopted by the employee—

(i)had been living with the employee for a continuous period of at least 6 months; or

(ii)was the employee’s stepchild or the child or stepchild of the employee’s spouse; or

(b)for surrogacy leave—a child born as a result of a surrogacy arrangement.

intended parent, for a surrogacy arrangement, see the Surrogacy Act 2010 , section 9.

long adoption leave means leave taken by an employee to enable the employee to be the primary caregiver of an adopted child.

long birth-related leave means—

(a)maternity leave; or

(b)leave taken by an employee whose spouse has given birth to enable the employee to be the child’s primary caregiver.

long parental leave means—

(a)long birth-related leave; or

(b)long adoption leave; or

(c)long surrogacy leave.

long surrogacy leave means leave taken by an employee to enable the employee to be the primary caregiver of a child born as a result of a surrogacy arrangement.

maternity leave means leave taken by a pregnant employee—

(a)for the birth of her child; or

(b)to enable her to be the child’s primary caregiver.

parental leave means long parental leave or short parental leave.

parental leave entitlement means the parental leave entitlement mentioned in section 71GD, 71GE or 71GF.

short adoption leave means leave taken by an employee at the time of the placement of an adopted child with the employee.

short birth-related leave means leave taken by an employee, in connection with the birth of a child of the employee’s spouse, at the time of—

(a)the birth of the child; or

(b)the other termination of the pregnancy.

short parental leave means—

(a)short birth-related leave; or

(b)short adoption leave; or

(c)short surrogacy leave.

short surrogacy leave means leave taken by an employee when a child born as a result of a surrogacy arrangement starts residing with the employee.

short term casual employee means a casual employee, other than a long term casual employee.

surrogacy arrangement see the Surrogacy Act 2010 , section 7.

surrogacy leave means long surrogacy leave or short surrogacy leave.

sdiv 1 (ss 71G–71GB) ins 2013 No. 61 s 7

sdiv 2 (ss 71GC–71GG) ins 2013 No. 61 s 7

71GCApplication of sdiv 2

(1)This subdivision applies to—

(a)an employee, other than a long term casual employee, who has had at least 12 months continuous service with the employer; and

(b)a long term casual employee.

(2)In this section—

continuous service means service, including a period of authorised leave or absence, under an unbroken employment contract.

sdiv 2 (ss 71GC–71GG) ins 2013 No. 61 s 7

71GDEntitlement to birth-related leave

(1)A pregnant employee is entitled to an unbroken period of up to 52 weeks unpaid maternity leave—

(a)for the child’s birth; and

(b)to be the child’s primary caregiver.

(2)For the birth of a child of an employee’s spouse, the employee is entitled to the following leave—

(a)an unbroken period of up to 1 week’s unpaid short birth-related leave;

(b)a further unbroken period of up to 51 weeks unpaid long birth-related leave.

sdiv 2 (ss 71GC–71GG) ins 2013 No. 61 s 7

71GEEntitlement to adoption leave

For the adoption of a child, an employee is entitled to the following leave—

(a)an unbroken period of up to 3 weeks unpaid short adoption leave;

(b)a further unbroken period of up to 49 weeks unpaid long adoption leave.

sdiv 2 (ss 71GC–71GG) ins 2013 No. 61 s 7

71GFEntitlement to surrogacy leave

An employee who is an intended parent under a surrogacy arrangement is entitled to the following leave—

(a)an unbroken period of up to 1 week’s unpaid short surrogacy leave;

(b)a further unbroken period of up to 51 weeks unpaid long surrogacy leave.

sdiv 2 (ss 71GC–71GG) ins 2013 No. 61 s 7

71GGMaximum period of parental leave

(1)Parental leave must not extend—

(a)beyond 1 year after the child was born or adopted or started residing with the employee under the surrogacy arrangement; or

(b)if an application for an extension of parental leave under section 71GR is agreed to—beyond 2 years after the child was born or adopted or started residing with the employee under the surrogacy arrangement.

(2)The maximum period of parental leave allowed under subsection (1) is the maximum period of parental leave.

(3)This section applies despite sections 71GD to 71GF.

sdiv 2 (ss 71GC–71GG) ins 2013 No. 61 s 7

sdiv 3 (ss 71GH–71GQ) ins 2013 No. 61 s 7

71GHEmployee notice—intention to take maternity leave

(1)This section applies if a pregnant employee wants to take maternity leave.

(2)The employee must give the employer—

(a)at least 10 weeks written notice of intention to take the leave; and

(b)at least 4 weeks written notice of the dates on which she wants to start and end the leave.

(3)The employee must, before starting the leave, give the employer—

(a)a doctor’s certificate confirming that she is pregnant and the expected date of birth; and

(b)a statutory declaration by the employee stating the period of any parental leave sought by her spouse.

sdiv 3 (ss 71GH–71GQ) ins 2013 No. 61 s 7

71GIEmployee notice—intention to take birth-related leave other than maternity leave

(1)This section applies if an employee wants to take birth-related leave, other than maternity leave.

(2)The employee must give the employer—

(a)for long birth-related leave—at least 10 weeks written notice of intention to take the leave; and

(b)at least 4 weeks written notice of the dates on which the employee wants to start and end the leave.

(3)The employee must, before starting the leave, give the employer—

(a)a doctor’s certificate confirming that the employee’s spouse is pregnant and the expected date of birth; and

(b)for long birth-related leave—a statutory declaration by the employee stating—

(i)the period of any maternity leave sought by the employee’s spouse; and

(ii)that the employee is seeking the leave to be the child’s primary caregiver.

sdiv 3 (ss 71GH–71GQ) ins 2013 No. 61 s 7

71GJEmployee notice—intention to take adoption leave

(1)This section applies if an employee wants to take adoption leave.

(2)The employee must give the employer—

(a)for long adoption leave—written notice of any approval to adopt a child at least 10 weeks before the expected date of placement of the child for adoption purposes (the expected placement date); and

(b)written notice of the dates on which the employee wants to start and end the leave, as soon as practicable after the employee is notified of the expected placement date but, in any case, at least 14 days before starting the leave.

(3)The employee must, before starting the leave, give the employer—

(a)a statement from an adoption agency of the expected placement date; and

(b)for long adoption leave—a statutory declaration by the employee stating—

(i)the period of any adoption leave sought by the employee’s spouse; and

(ii)that the employee is seeking the leave to be the child’s primary caregiver.

(4)In this section—

adoption agency means an agency, body, office or court, authorised by a Commonwealth or State law to perform functions about adoption.

sdiv 3 (ss 71GH–71GQ) ins 2013 No. 61 s 7

71GKEmployee notice—intention to take surrogacy leave

(1)This section applies if an employee wants to take surrogacy leave.

(2)The employee must give the employer—

(a)for long surrogacy leave—written notice of intention to take the leave at least 10 weeks before the expected date when a child is to start residing with the employee under the surrogacy arrangement (the expected residence date); and

(b)at least 4 weeks written notice of the dates on which the employee wants to start and end the leave.

(3)The employee must, before starting the leave, give the employer a statutory declaration by the employee stating—

(a)the employee is an intended parent under a surrogacy arrangement; and

(b)the expected residence date; and

(c)for long surrogacy leave—

(i)the period of leave sought by the employee; and

(ii)the period of any surrogacy leave sought by the employee’s spouse; and

(iii)that the employee is seeking the leave to be the child’s primary caregiver.

sdiv 3 (ss 71GH–71GQ) ins 2013 No. 61 s 7

71GLReasons not to give notice or documents

(1)An employee does not fail to comply with section 71GH, 71GI, 71GJ or 71GK if the failure was caused by—

(a)the child being born, or the pregnancy otherwise terminating, before the expected date of birth; or

(b)the child being placed for adoption before the expected placement date; or

(c)the child starting to reside with the employee before the expected residence date; or

(d)another reason that was reasonable in the circumstances.

(2)However, the employee must give the employer—

(a)notice of the period of the leave within 2 weeks after the child’s birth or placement or the child starts residing with the employee; and

(b)in the case of the birth of a living child—a doctor’s certificate stating the date on which the child was born.

sdiv 3 (ss 71GH–71GQ) ins 2013 No. 61 s 7

71GMConsequences of failure to give notice of intention to take parental leave

(1)This section applies if an employee fails to comply with section 71GH, 71GI, 71GJ or 71GK.

(2)Despite subdivision 2, the employer is not required to provide the parental leave until the employee complies with the section.

sdiv 3 (ss 71GH–71GQ) ins 2013 No. 61 s 7

71GNEmployee notice—change to situation

An employee must notify the employer of any change in the information provided under section 71GH, 71GI, 71GJ or 71GK within 2 weeks after the change.

sdiv 3 (ss 71GH–71GQ) ins 2013 No. 61 s 7

71GOEmployee to advise employer about particular changes

(1)This section applies to an employee who is absent on parental leave.

(2)The employee must advise the employer of any change in the employee’s contact details, including any change of address.

Note—

Advice given under subsection (2) may be used by an employer for section 71GQ to advise the employee about significant change at the workplace.

(3)The employee must also take reasonable steps to advise the employer of any significant change affecting the following as soon as possible after the change happens—

(a)the length of the employee’s parental leave;

(b)the date the employee intends to return to work;

(c)an earlier decision to return to work on a full-time basis or to apply to return to work on a part-time basis.

sdiv 3 (ss 71GH–71GQ) ins 2013 No. 61 s 7

71GPEmployer to advise about parental leave entitlements

(1) Subsection (2) applies to an employer on becoming aware—

(a)an employee or an employee’s spouse is pregnant; or

(b)an employee is adopting a child; or

(c)an employee is an intended parent under a surrogacy arrangement.

(2)The employer must inform the employee of—

(a)the employee’s entitlement to parental leave under this division; and

(b)the employee’s obligations to notify the employer of any matter under this division.

(3)An employer can not rely on an employee’s failure to give a notice or other document required by this division unless the employer establishes that subsection (2) has been complied with.

sdiv 3 (ss 71GH–71GQ) ins 2013 No. 61 s 7

71GQEmployer’s obligation to advise about significant change at the workplace

(1)This section applies if an employer decides to implement significant change at a workplace.

(2)The employer must take reasonable action to advise each employee who is absent from the workplace on parental leave about the proposed change before it is implemented.

(3)The advice must inform the employee of the change and any effect it will have on the position the employee held before starting parental leave, including, for example, the status or level of responsibility attached to the position.

(4)The employer must give the employee a reasonable opportunity to discuss any significant effect the change will have on the employee’s position.

sdiv 3 (ss 71GH–71GQ) ins 2013 No. 61 s 7

sdiv 4 (ss 71GR–71GU) ins 2013 No. 61 s 7

71GRApplication for extension of parental leave

(1)An employee entitled to parental leave under subdivision 2, or who is taking parental leave, may apply to the employer—

(a)if the parental leave is maternity leave—for an extension of the maternity leave for an unbroken period of up to 104 weeks in total; or

(b)otherwise—for an extension of either or both of the following—

(i)the short parental leave for an unbroken period of up to 8 weeks in total;

(ii)the long parental leave for an unbroken period of up to 96 weeks in total.

(2)An employee may not make more than 1 application under subsection (1) within a 12-month period in relation to a particular instance of parental leave, unless the employer agrees.

sdiv 4 (ss 71GR–71GU) ins 2013 No. 61 s 7

71GSApplication to work part-time

(1)An employee on parental leave may apply to the employer to return to work on a part-time basis.

(2)An employee may not make more than 1 application under this section within a 12-month period, unless the employer agrees.

sdiv 4 (ss 71GR–71GU) ins 2013 No. 61 s 7

71GTApplication for extension or part-time work

(1)An application mentioned in section 71GR or 71GS must—

(a)be in writing; and

(b)be made—

(i)for an application for extension of short parental leave—at least 2 business days before the leave ends; or

(ii)for an application for extension of long parental leave—at least 4 weeks before the leave ends; or

(iii)for an application to return to work on a part-time basis—at least 7 weeks before the leave ends; and

(c)state it is an application for extension of parental leave under section 71GR or an application to return to work on a part-time basis under section 71GS, as appropriate; and

(d)state the dates the extension, or return to work on a part-time basis, being applied for is to start and end; and

(e)state the impact refusal of the application might have on the employee and the employee’s dependants; and

(f)for an application for extension of long parental leave or to return to work on a part-time basis—be accompanied by a statutory declaration by the employee stating—

(i)for an application for extension of long parental leave—that the employee is seeking the extension so the employee can continue to be the child’s primary caregiver; or

(ii)for an application to return to work on a part-time basis—that the employee is seeking to work on a part-time basis so the employee can continue to be the child’s primary caregiver when not at work.

(2)The period for which an application may be made under section 71GR can not extend beyond the day the child in relation to whom parental leave was taken is required to be enrolled for compulsory schooling under the Education (General Provisions) Act 2006 .

sdiv 4 (ss 71GR–71GU) ins 2013 No. 61 s 7

71GUEmployer’s decision on application for extension or part-time work

(1)In deciding whether to agree to an application under section 71GR or 71GS, the employer must consider the following—

(a)the particular circumstances of the employee that give rise to the application, particularly circumstances relating to the employee’s role as the child’s caregiver;

(b)the impact refusal of the application might have on the employee and the employee’s dependants;

(c)the effect that agreeing to the application would have on the conduct of the employer’s business, including, for example—

(i)any additional cost the employer would incur; and

(ii)the employer’s capacity to reorganise work arrangements; and

(iii)the availability of competent replacement staff; and

(iv)any loss of efficiency in the conduct of the employer’s business; and

(v)the impact of the employee’s absence or temporary absence on the delivery of customer service.

(2)The employer must not unreasonably refuse an application under section 71GR or 71GS.

(3)The employer must advise the employee, in writing, of the employer’s decision—

(a)if the application is for an extension of short parental leave—as soon as possible after receiving the application but before the short parental leave ends; or

(b)for any other application—within 14 days after receiving the application.

(4)If the employer refuses the application, the employer must provide the employee with written reasons for refusing the application.

sdiv 4 (ss 71GR–71GU) ins 2013 No. 61 s 7

sdiv 5 (ss 71GV–71GZB) ins 2013 No. 61 s 7

71GVSpouses not to take long parental leave at same time

(1)An employee is not entitled to long parental leave when his or her spouse is on parental leave.

(2)If the employee contravenes subsection (1), the period of parental leave the employee is entitled to is reduced by the period for which the employee and his or her spouse were on parental leave in contravention of subsection (1).

sdiv 5 (ss 71GV–71GZB) ins 2013 No. 61 s 7

71GWCancelling parental leave

(1)Parental leave applied for but not started is automatically cancelled if—

(a)the employee withdraws the application for leave by written notice to the employer; or

(b)the pregnancy terminates other than by the birth of a living child; or

(c)the placement of the child with the employee for adoption purposes does not proceed; or

(d)a child does not start residing with the employee under the surrogacy arrangement.

(2) Subsection (3) applies if, while an employee is on parental leave—

(a)the pregnancy terminates other than by the birth of a living child; or

(b)the child in relation to whom the employee is on parental leave dies; or

(c)the placement of the child with the employee for adoption purposes does not proceed or continue; or

(d)the residence of the child with the employee under the surrogacy arrangement does not start or continue.

(3)The employee is entitled to resume work at a time nominated by the employer within 2 weeks after the day on which the employee gives the employer a written notice stating—

(a)the employee intends to resume work; and

(b)the reason for the resumption.

(4)This section does not affect an employee’s entitlement to special maternity leave or sick leave under section 71GZC.

sdiv 5 (ss 71GV–71GZB) ins 2013 No. 61 s 7

71GXParental leave with other leave

(1)An employee may take any annual leave or long service leave to which the employee is entitled instead of or together with parental leave.

(2)However, the total period of leave can not extend beyond the maximum period of parental leave.

(3)While the employee is on unpaid parental leave, the employee is not entitled to paid sick leave or other paid leave, unless the employer agrees.

(4)In this section—

other paid leave means paid leave authorised by any of the following—

(a)a law;

(b)a modern industrial instrument;

(c)an employment contract.

sdiv 5 (ss 71GV–71GZB) ins 2013 No. 61 s 7

71GYInterruption of parental leave by return to work

(1)An employee and employer may agree that the employee break the period of parental leave by returning to work for the employer, whether on a full-time, part-time or casual basis.

(2)The period of parental leave can not be extended by the return to work beyond the maximum period of parental leave under section 71GG.

sdiv 5 (ss 71GV–71GZB) ins 2013 No. 61 s 7

71GZExtending period of parental leave by notice

(1)An employee may extend the period of parental leave by written notice given to the employer at least 14 days—

(a)before the start of the parental leave; or

(b)if the parental leave has been started—before the parental leave ends.

(2)The notice must state when the extended period of parental leave ends.

(3)The total period of parental leave can not be extended under subsection (1) beyond the total period mentioned in section 71GG (1) (a).

(4)Parental leave may be extended under subsection (1) only once.

sdiv 5 (ss 71GV–71GZB) ins 2013 No. 61 s 7

71GZA Shortening period of parental leave

If the employer agrees, an employee may shorten parental leave by written notice given to the employer at least 14 days before the employee wants to return to work.

sdiv 5 (ss 71GV–71GZB) ins 2013 No. 61 s 7

71GZB Effect on parental leave of employee ceasing to be primary caregiver

(1)This section applies if—

(a)during a substantial period starting on or after the start of an employee’s long parental leave the employee is not the child’s primary caregiver; and

(b)considering the length of the period and any other relevant circumstances, it is reasonable to expect the employee will not again become the child’s primary caregiver within a reasonable period.

(2)The employer may notify the employee of the day, at least 4 weeks after the employer gives the notice, on which the employee must return to work.

(3)If the employee returns to work, the employer must cancel the rest of the leave.

sdiv 5 (ss 71GV–71GZB) ins 2013 No. 61 s 7

sdiv 6 (ss 71GZC–71GZJ) ins 2013 No. 61 s 7

71GZC Special maternity leave and sick leave

(1)This section applies if, before an employee starts maternity leave—

(a)the employee’s pregnancy terminates before the expected date of birth, other than by the birth of a living child; or

(b)the employee suffers illness related to her pregnancy.

(2)For as long as a doctor certifies it to be necessary, the employee is entitled to the following types of leave—

(a)unpaid leave (special maternity leave);

(b)paid sick leave, either instead of, or as well as, special maternity leave.

sdiv 6 (ss 71GZC–71GZJ) ins 2013 No. 61 s 7

71GZD Special adoption leave

An employee who is seeking to adopt a child is entitled to up to 2 days unpaid leave to attend compulsory interviews or examinations as part of the adoption procedure.

sdiv 6 (ss 71GZC–71GZJ) ins 2013 No. 61 s 7

71GZE Special surrogacy leave

An employee who is an intended parent under a surrogacy arrangement is entitled to up to 2 days unpaid leave to attend compulsory interviews or court hearings associated with the surrogacy arrangement.

sdiv 6 (ss 71GZC–71GZJ) ins 2013 No. 61 s 7

71GZF Return to work after parental leave etc.

(1)This section applies to—

(a)an employee who returns to work after parental leave; or

(b)a female employee who returns to work after special maternity leave or sick leave under section 71GZC.

(2)The employee is entitled to be employed in—

(a)the position held by the employee immediately before starting parental leave; or

(b)if the employee worked part-time because of the pregnancy before starting maternity leave—the position held by the employee immediately before starting part-time work; or

(c)if the employee was transferred to a safe job under section 71GZG before starting maternity leave—the position held by the employee immediately before the transfer.

(3)If the position mentioned in subsection (2) no longer exists but there are other positions available that the employee is qualified for and is capable of performing, the employee is entitled to be employed in a position that is, as nearly as possible, comparable in status and remuneration to that of the employee’s former position.

(4)An employer must make a position to which the employee is entitled available to the employee.

(5)If a long term casual employee’s hours were reduced because of the pregnancy before starting maternity leave, the employer must restore the employee’s hours to hours equivalent to those worked immediately before the hours were reduced.

sdiv 6 (ss 71GZC–71GZJ) ins 2013 No. 61 s 7

71GZG Transfer to a safe job

(1)This section applies whenever the present work of a female employee is, because of her pregnancy or breastfeeding, a risk to the health or safety of the employee or of her unborn or newborn child.

(2)The assessment of the risk is to be made on the basis of—

(a)a doctor’s certificate given by the employee to the employer; and

(b)the employer’s duties under the Work Health and Safety Act 2011 .

(3)The employer must temporarily adjust the employee’s working conditions or hours of work to avoid exposure to the risk.

(4)If an adjustment is not feasible or can not reasonably be required to be made, the employer must transfer the employee to other appropriate work that—

(a)will not expose her to the risk; and

(b)is, as nearly as possible, comparable in status and remuneration to that of her present work.

(5)If a transfer is not feasible or can not reasonably be required to be made, the employer must grant the employee maternity leave, or any available paid sick leave, for as long as a doctor certifies it is necessary to avoid exposure to the risk.

sdiv 6 (ss 71GZC–71GZJ) ins 2013 No. 61 s 7

71GZH Continuity of service

(1)Parental leave does not break an employee’s continuity of service.

(2)Parental leave is not to be taken into account in working out the employee’s period of service, other than—

(a)to decide the employee’s entitlement to a later period of parental leave; or

(b)as expressly provided in—

(i)this Act; or

(ii)a modern industrial instrument; or

(iii)an employment contract.

sdiv 6 (ss 71GZC–71GZJ) ins 2013 No. 61 s 7

71GZI Dismissal because of pregnancy or parental leave

(1)An employer must not dismiss an employee because—

(a)the employee or the employee’s spouse is pregnant or has applied to adopt a child; or

(b)the employee or the employee’s spouse has given birth to a child or adopted a child; or

(c)the employee is an intended parent under a surrogacy arrangement or a child has started residing with the employee under a surrogacy arrangement; or

(d)the employee has applied for, or is absent on, parental leave.

(2)This section does not affect any other rights of—

(a)an employer to dismiss an employee; or

(b)a dismissed employee.

sdiv 6 (ss 71GZC–71GZJ) ins 2013 No. 61 s 7

71GZJ Replacement employees

(1)The employer must, before a replacement employee starts employment, give the replacement employee a written notice informing the replacement employee of—

(a)the temporary nature of the employment; and

(b)the parent’s right to return to work.

(2)In this section—

replacement employee means—

(a)

a person who is specifically employed because an employee (the parent)—

(i)starts parental leave; or

(ii)is transferred to a safe job under section 71GZC; or

(b)a person replacing an employee who is temporarily promoted or transferred to replace the parent.

sdiv 6 (ss 71GZC–71GZJ) ins 2013 No. 61 s 7

sdiv 7 (s 71GZK) ins 2013 No. 61 s 7

71GZK Relationship to other rights

(1)This division has effect despite a relevant law to the extent the relevant law provides an employee with a benefit that is less favourable to the employee.

(2)In this section—

relevant law means another law of the State.

sdiv 7 (s 71GZK) ins 2013 No. 61 s 7

div hdg ins 2013 No. 61 s 7

sdiv 1 (s 71H) ins 2013 No. 61 s 7

71HDefinitions for div 6

In this division—

continuous service, of an employee, means—

(a)in section 71HN—the period of continuous service the employee is taken to have had with an employer under section 71HN (2) (b); or

(b)elsewhere—the employee’s continuous service with the same employer, whether wholly in the State or partly in and partly outside the State.

owner, of a meat works, includes a person who carries on the business of the works.

period between seasons includes the period between—

(a)the end of 1 season and the start of the next season; and

(b)for a particular employee—the day the employee stops employment in 1 season and the day the employee starts employment in the next season.

season means a period, whether falling completely in 1 calendar year or partly in 1 calendar year and partly in the next calendar year, when—

(a)for the sugar industry—

(i)sugar cane is delivered to, and crushed at, a sugar mill; or

(ii)sugar cane is harvested, or farm work is performed, in the sugar industry; or

(b)for a meat works—stock are delivered to, and slaughtered at, the works.

sdiv 1 (s 71H) ins 2013 No. 61 s 7

sdiv 2 (s 71HA) ins 2013 No. 61 s 7

71HAApplication of pt 5 for particular purposes

To remove any doubt, it is declared that the provisions of part 5 apply for working out an employee’s rights and entitlements to long service leave under this division or a modern industrial instrument.

sdiv 2 (s 71HA) ins 2013 No. 61 s 7

sdiv 3 (ss 71HB–71HC) ins 2013 No. 61 s 7

71HBEntitlement—employees other than seasonal employees

(1)This section applies to an employee, other than a seasonal employee.

Note—

For provisions applicable to seasonal employees, see subdivisions 7 and 8.

(2)The employee is entitled to long service leave, on full pay, of—

(a)if the employee has completed 10 years continuous service—8.6667 weeks; and

(b)after 10 years service, if the employee has completed at least a further 5 years continuous service—a period that bears to 8.6667 weeks the proportion that the employee’s further period of continuous service bears to 10 years.

(3)An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the termination of the employee’s service.

(4)However, if the employee’s service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if—

(a)the employee’s service is terminated because of the employee’s death; or

(b)the employee terminates the service because of—

(i)the employee’s illness or incapacity; or

(ii)a domestic or other pressing necessity; or

(c)the termination is because the employer—

(i)dismisses the employee for a reason other than the employee’s conduct, capacity or performance; or

(ii)unfairly dismisses the employee; or

(d)the termination is because of the passing of time and—

(i)the employee had a reasonable expectation that the employment with the employer would continue until the employee had completed at least 10 years continuous service; and

(ii)the employee was prepared to continue the employment with the employer.

(5)Long service leave is exclusive of a public holiday that falls during the period of the leave.

(6)An employee who is entitled to long service leave other than under this Act is entitled to leave that is at least as favourable as the entitlement under this section.

(7)For working out when an employee may take long service leave, only two-thirds of the employee’s continuous service completed before 3 June 2001 counts as continuous service.

(8) Subsection (7) does not reduce an entitlement to long service leave that an employee has accrued before subsection (7) commences.

Examples for subsections (7) and (8)—

An employee has completed 15 years of continuous service immediately before the commencement. The 15 years counts as 10 years continuous service for working out when the employee may take long service leave. The employee may take the leave immediately. The employee’s entitlement then is 13 weeks (15 x 0.86667 weeks).An employee has completed 10 years of continuous service immediately before the commencement. The 10 years counts as 6.6667 years continuous service for working out when the employee may take long service leave. The employee may take the leave after completing another 3.3333 years continuous service. The employee’s entitlement then will be 11.5556 weeks ([10 + 3.3333] x 0.86667 weeks).An employee has completed 1 year of continuous service immediately before the commencement. The 1 year counts as 0.6667 years continuous service for working out when the employee may take long service leave. The employee may take the leave after completing another 9.3333 years continuous service. The employee’s entitlement then will be 8.9556 weeks ([1 + 9.3333] x 0.86667 weeks).An employee starts employment after the commencement. The employee may take long service leave after completing 10 years continuous service. The employee’s entitlement then will be 8.6667 weeks (10 x 0.86667 weeks).

(9)In this section—

proportionate payment means a payment equal to the employee’s full pay for a period that represents the same proportion of 8.6667 weeks that the employee’s period of continuous service bears to 10 years.

sdiv 3 (ss 71HB–71HC) ins 2013 No. 61 s 7

71HCContinuity of service—service before 23 June 1990

(1)This section applies to service of an employee, other than a casual employee, before 23 June 1990.

(2)The repealed Industrial Conciliation and Arbitration Act 1961 , sections 17, 18, 19 and 20, applies for—

(a)working out the employee’s continuous service before 23 June 1990; and

(b)calculating the employee’s entitlement to long service leave in relation to continuous service before 23 June 1990.

sdiv 3 (ss 71HB–71HC) ins 2013 No. 61 s 7

sdiv 4 (s 71HD) ins 2013 No. 61 s 7

71HDTaking long service leave

(1)The commission may insert in a modern industrial instrument provisions—

(a)about when, the way in which, and the conditions on which, long service leave may be taken; or

(b)requiring that leave in the nature of long service leave taken, before the provisions take effect, by an employee to whom the instrument applies must be deducted from the long service leave to which the employee is entitled under the provisions.

(2)An employee and employer may agree when the employee will take long service leave.

(3)If the employee and employer can not agree, the employer may—

(a)decide when the employee will take long service leave; and

(b)give the employee at least 3 months written notice of the date on which the employee must take at least 4 weeks long service leave.

sdiv 4 (s 71HD) ins 2013 No. 61 s 7

sdiv 5 (ss 71HE–71HH) ins 2013 No. 61 s 7

71HERate of payment

(1)An employer must pay an employee for long service leave at the following rate—

(a)if the employee is, immediately before taking the leave, being paid at a higher rate than the ordinary rate—the higher rate;

(b)otherwise—the ordinary rate being paid to the employee immediately before the leave is taken.

(2)An employer must not reduce an employee’s usual rate, before an employee starts long service leave, with intent to avoid the employer’s obligation under subsection (1) (a).

(3)If satisfied an employer has contravened subsection (2), the commission may order the employer to pay the employee at the usual rate even though the employee was not being paid the usual rate immediately before starting leave.

(4)If, during the employee’s long service leave—

(a)the ordinary rate is increased above the higher rate—the employer must pay the employee at the increased rate for the part of the leave period to which the increased rate applies; or

(b)the ordinary rate is reduced—the employer may pay the employee at the reduced rate for the part of the leave period to which the reduced rate applies.

(5)If the employee is a seasonal employee, this section applies subject to section 71HN.

(6)In this section—

usual rate means the rate—

(a)at which the employee is being paid for ordinary time; and

(b)that is higher than the ordinary rate.

sdiv 5 (ss 71HE–71HH) ins 2013 No. 61 s 7

71HFPayment for commission

(1)If an employee is entitled to receive an amount representing commission in the employee’s long service leave payment, the employer must pay the default average commission.

(2) Subsection (1) does not apply if—

(a)a relevant industrial instrument, or a contract between the employer and employee, otherwise provides; or

(b)the commission, on application, considers that the default average commission would not represent a fair amount in the circumstances.

(3)If, on application under subsection (2) (b), the commission considers the default average commission would not represent a fair amount in the circumstances, the commission may make the order it considers appropriate in the circumstances.

(4)In this section—

default average commission means—

•the total commission payable to the employee in the 1 year before the leave is taken

•divided by 52.179

•multiplied by the number of weeks leave for which payment is being made.

sdiv 5 (ss 71HE–71HH) ins 2013 No. 61 s 7

71HGDisputes about payment—piecework rates

(1)This section applies if a dispute arises between an employee who is paid at piecework rates and the employer about the rate the employee should be paid for long service leave.

(2)The commission may decide the rate payable.

sdiv 5 (ss 71HE–71HH) ins 2013 No. 61 s 7

71HHOther matters relating to payment for long service leave

(1)An employee and employer may agree on when, and the way in which, the employee will be paid for long service leave.

(2)The commission may decide any matter relating to payment for long service leave that the employee and employer can not agree on.

(3)An amount payable for long service leave becomes payable at a time agreed between the employee and employer or, if they can not agree, at a time decided by the commission.

sdiv 5 (ss 71HE–71HH) ins 2013 No. 61 s 7

sdiv 6 (ss 71HI–71HL) ins 2013 No. 61 s 7

71HIDefinition for sdiv 6

In this subdivision—

casual employee means an employee who is employed more than once by the same employer over a period.

sdiv 6 (ss 71HI–71HL) ins 2013 No. 61 s 7

71HJContinuity of service—casual employees

(1)This section applies to a casual employee.

(2)The employee’s service is continuous service with the employer even though—

(a)the employment is broken; or

(b)any of the employment is not full-time employment; or

(c)the employee is employed by the employer under 2 or more employment contracts; or

(d)the employee would, apart from this section, be taken to be engaged in casual employment; or

(e)the employee has engaged in other employment during the period.

(3)However, the continuous service ends if the employment is broken by more than 3 months between the end of 1 employment contract and the start of the next employment contract.

(4)In working out the length of the employee’s continuous service—

(a)the following service must not be taken into account—

(i)service by the employee before 23 June 1990;

(ii)if the employee obtained the entitlement only because of the enactment of the repealed Industrial Relations Reform Act 1994 , section 17—the employee’s service between 23 June 1990 and 30 March 1994; and

(b)subject to subsection (2), a period when the employee was not employed by the employer must be taken into account.

(5) Subsection (4) (a) (i) does not affect the employee’s entitlement to long service leave under—

(a)an award made before 23 June 1990; or

(b)the repealed Industrial Conciliation and Arbitration Act 1961 .

(6)This section does not limit any other entitlement to long service leave the employee may have.

sdiv 6 (ss 71HI–71HL) ins 2013 No. 61 s 7

71HKTaking long service leave—casual or regular part-time employees

(1)This section applies to a casual or regular part-time employee.

(2)The employer may agree with the employee that the employee’s entitlement to long service leave may be taken in the form of its full-time equivalent.

Example—

If an employee—

(a)is entitled to be paid for 260 hours long service leave; and

(b)works under an award that provides for a full-time working week of 40 ordinary working hours;

the employee and the employer may agree that the employee take 6¹/₂ weeks leave (260 ÷ 40 = 6¹/₂).

sdiv 6 (ss 71HI–71HL) ins 2013 No. 61 s 7

71HLPayment for long service leave

(1)This section applies to an employee who is entitled to long service leave if the employee was a casual employee or regular part-time employee at any time during the employee’s continuous service to which the long service leave relates.

(2)The minimum amount payable to the employee for long service leave is worked out using the formula—

Example—

An employee who worked 15600 ordinary working hours over a 10-year period and is being paid an hourly rate of $12 is entitled to be paid—

(3)In this section—

actual service means the total ordinary working hours actually worked by an employee during the employee’s period of continuous service.

hourly rate means the hourly rate for ordinary time payable to the employee—

(a)if the employee takes the long service leave—on the day the employee’s leave starts; or

(b)if the employee’s employment is terminated—on the day the termination takes effect.

sdiv 6 (ss 71HI–71HL) ins 2013 No. 61 s 7

sdiv 7 (ss 71HM–71HO) ins 2013 No. 61 s 7

71HMApplication of sdiv 7

This subdivision applies to the following seasonal employees—

(a)an employee employed in seasonal employment in the sugar industry;

(b)an employee employed in or about meat works in seasonal employment by the meat works owner.

sdiv 7 (ss 71HM–71HO) ins 2013 No. 61 s 7

71HNEntitlement to long service leave

(1)The employee is entitled to long service leave on full pay of at least the number of weeks worked out using the following formula—

Example—

An employee who worked half of each year, over a 10-year period, is entitled to half the s 71HB entitlement, that is, half of 8.6667 weeks leave (8.6667 x ⁵/₁₀= 4.3334).

(2)In working out the length of the employee’s continuous service—

(a)service with the employer of the employee engaged in harvesting sugar cane or farm work in the sugar industry before 23 June 1990 must not be taken into account; and

(b)a period between seasons when the employee is not employed by the employer must be taken into account if—

(i)in 1 season—the employee’s service with the employer continued until the end of the season or until an earlier day when the employee’s employment was terminated by the employer; and

(ii)in the next season—the employee’s service with the same employer started on the season’s opening or on a later day in the season when the employer required the employee to start employment.

(3)If the employee is employed by the employer between seasons, the part of the period between seasons when the employee is employed must be taken into account in working out the length of the employee’s actual service.

(4)If the employee is entitled to long service leave other than under this Act, the employee is entitled to leave that is at least as favourable as the entitlement under this section.

(5)In this section—

actual service means the total ordinary time actually worked by the employee during the employee’s period of continuous service.

s 71HB entitlement means the employee’s entitlement to long service leave under section 71HB.

sdiv 7 (ss 71HM–71HO) ins 2013 No. 61 s 7

71HOTaking long service leave

(1)The employee may take long service leave between seasons.

(2)If the employee takes long service leave between seasons, the leave is taken to have started when the employee last ceased employment with the employer.

sdiv 7 (ss 71HM–71HO) ins 2013 No. 61 s 7

sdiv 8 (s 71HP) ins 2013 No. 61 s 7

71HPEntitlement of other seasonal employees

The commission may decide the entitlement to long service leave of an employee—

(a)who is employed in seasonal employment, other than an employee to whom subdivision 7 applies; or

(b)who is employed in other periodic employment that is not defined as casual employment by a relevant industrial instrument.

sdiv 8 (s 71HP) ins 2013 No. 61 s 7

sdiv 9 (ss 71HQ–71HU) ins 2013 No. 61 s 7

71HQPayment instead of long service leave

(1)An employee may be paid for all or part of an entitlement to long service leave instead of taking the leave or part of the leave under subsection (2) or (3).

(2)The payment may be made if—

(a)a relevant industrial instrument provides for the employee to be paid for all or part of the entitlement; and

(b)the employee and employer agree by a signed agreement the payment may be made; and

(c)the payment is made in accordance with the industrial instrument.

(3)If no modern industrial instrument provides for the employee to be paid for all or part of the entitlement, the payment may be made only if the payment is ordered by the commission on application by the employee.

(4)The commission may order the payment only if satisfied it should be made—

(a)on compassionate grounds; or

(b)on the ground of financial hardship.

(5)The full bench must not make a general ruling that allows an employee to be paid for an entitlement to long service leave instead of taking the leave.

(6)In this section—

employee includes a registered worker under the Building and Construction Industry (Portable Long Service Leave) Act 1991 .

entitlement to long service leave includes an entitlement to long service leave under the Building and Construction Industry (Portable Long Service Leave) Act 1991 , section 57 (1).

sdiv 9 (ss 71HQ–71HU) ins 2013 No. 61 s 7

71HRPayment instead of long service leave on death

(1)This section applies if an employee entitled to long service leave dies—

(a)before taking the leave; or

(b)after starting, but before finishing, the leave.

(2)The employer must pay the employee’s legal personal representative any amount payable for the employee’s entitlement to long service leave that has not already been paid.

(3)If the employer does not do so, the employee’s legal personal representative or an inspector may recover the amount as unpaid wages.

sdiv 9 (ss 71HQ–71HU) ins 2013 No. 61 s 7

71HSContinuity not broken by service in Reserve Forces

(1)An employee’s service in the reserve forces is taken to be continuous service with the employer who employed the employee immediately before the employee starting service with the forces.

(2)In this section—

reserve forces means the Australian Naval Reserve, Australian Army Reserve or Australian Air Force Reserve.

sdiv 9 (ss 71HQ–71HU) ins 2013 No. 61 s 7

71HTRecognition of certain exemptions

(1)This part does not apply to an employer if—

(a)the commission exempted the employer, under the repealed Industrial Conciliation and Arbitration Act 1961 , from the application of long service leave provisions in that Act or an award; and

(b)the exemption is in force.

(2)On application, the commission may revoke the exemption.

sdiv 9 (ss 71HQ–71HU) ins 2013 No. 61 s 7

71HUPerson who is both employer and employee

(1)This section applies to a person who, in performing duties in a calling, is an employee.

(2)The person is entitled to long service leave under this part despite the person being an employer within the meaning of this Act because of—

(a)the person’s engagement in the calling; or

(b)the position the person holds in the calling.

sdiv 9 (ss 71HQ–71HU) ins 2013 No. 61 s 7

div 7 (ss 71I–71IB) ins 2013 No. 61 s 7

71IDefinitions for div 7

In this division—

ordinary working day means a day on which an employee would ordinarily be required to work.

show holiday means—

(a)a public holiday appointed for an annual agricultural, horticultural or industrial show under the Holidays Act 1983 , section 4; or

(b)for a district in which a holiday is not appointed for an annual agricultural, horticultural or industrial show—the ordinary working day agreed on by the employer and employee that is to be treated as a show holiday for all purposes.

div 7 (ss 71I–71IB) ins 2013 No. 61 s 7

71IAEntitlement to be absent on public holiday

(1)An employee is entitled to be absent from the employee’s employment on a day, or part of a day, that is a public holiday in the place where the employee is based for work purposes.

(2)However, the employee’s employer may ask the employee to work on a public holiday if the request is reasonable.

(3)If the employer asks the employee to work on a public holiday, the employee may refuse the request if—

(a)the request is unreasonable; or

(b)the refusal is reasonable.

(4)In deciding whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account—

(a)the nature of the employer’s calling or business, including its operational requirements;

(b)the nature of the work performed by the employee;

(c)the employee’s personal circumstances, including family responsibilities;

(d)whether the employee could reasonably expect that the employer might ask the employee to work on the public holiday;

(e)whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;

(f)the type of employment of the employee, including, for example, whether the employment is full-time, part-time or casual, or involves shift work;

(g)the period of notice given by the employer before the public holiday in making the request;

(h)for a refusal of a request—the period of notice given by the employee before the public holiday in refusing the request;

(i)any other relevant matter.

div 7 (ss 71I–71IB) ins 2013 No. 61 s 7

71IBPayment for public holiday

(1) Subsection (2) applies if—

(a)under this part, an employee is absent from his or her employment on a day, or part of a day, that is a public holiday; and

(b)the employee would ordinarily have been required to work on the day or the part of the day.

Examples of employees to whom subsection (2) does not apply—

•an employee who is not rostered on for the public holiday

•a part-time employee whose part-time hours do not include the day on which the public holiday falls

•a casual employee or pieceworker

(2)The employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or the part of the day.

(3)An employee, while employed by the same employer, is only entitled to be paid under subsection (2) for a show holiday once in each calendar year.

(4)If an employee does work on a public holiday, the employer must pay the employee—

(a)if a modern industrial instrument applies to the employee—the penalty rates provided for under the instrument; or

(b)otherwise—at the employee’s base rate of pay.

(5)In this section—

base rate of pay means the rate of pay payable to the employee for the employee’s ordinary hours of work, but not including any of the following—

(a)incentive-based payments and bonuses;

(b)loadings;

(c)monetary allowances;

(d)overtime or penalty rates;

(e)any other separately identifiable amounts.

div 7 (ss 71I–71IB) ins 2013 No. 61 s 7

div 8 (s 71J) ins 2013 No. 61 s 7

71JEntitlement

(1)If the employee is required to attend for jury service, the employee—

(a)is entitled to take leave (jury service leave) to perform jury service; and

(b)must, as soon as is practicable, tell the employer—

(i)the employee is required to attend for jury service; and

(ii)about the period for which the employee is required to perform jury service.

(2)If the employee is given an attendance document in relation to the jury service, the employee must give the employer the document.

(3)For the period of jury service leave, the employer must pay the employee the difference between the following—

(a)the amount stated in the employee’s attendance document as the amount received as remuneration and allowances, other than meal allowances;

(b)the ordinary rate the employee would have been paid if the employee had not taken jury service leave.

(4)The amount payable under subsection (3) must be paid on or before the first pay day that is practicable after the employee gives the employer the employee’s attendance document.

(5) Subsection (6) applies if—

(a)the employee is not required to serve on a jury for a day or part of a day after attending for jury service; and

(b)the employee would ordinarily be working for all or part of the remaining day.

(6)The employee must, if practicable, present for work at the earliest reasonable opportunity.

(7)In this section—

attendance document, in relation to jury service performed by an employee, means a document, or a copy of a document, stating the following matters under the Jury Act 1995 —

(a)the employee’s attendance under a requirement to attend for jury service;

(b)the number of days of attendance;

(c)the amount received as remuneration and allowances, other than meal allowances.

required to attend for jury service means the employee—

(a)is given a summons under the Jury Act 1995 , section 27 requiring the employee to attend for jury service; or

(b)is instructed under the Jury Act 1995 , section 38 to attend for jury service.

div 8 (s 71J) ins 2013 No. 61 s 7

div hdg ins 2013 No. 61 s 7

sdiv hdg ins 2013 No. 61 s 7

71KApplication of sdiv 1

This subdivision does not apply to any of the following—

(a)a casual employee;

(b)an employee engaged by the hour or day;

(c)an employee engaged for a specific period or task;

(d)an employee during the first 3 months of employment with an employer (the probationary period) unless the employee and employer agree in writing that the employee serve—

(i)a period of probation that is shorter than the probationary period; or

(ii)no period of probation;

(e)an employee serving a period of probation that is longer than the probationary period if the period decided by written agreement between the employee and employer before the employment started, is a reasonable period having regard to the nature and circumstances of the employment;

(f)an employee—

(i)to whom a modern industrial instrument does not apply; and

(ii)who is not a public service officer employed on tenure under the Public Service Act 2008 ; and

(iii)whose annual wages immediately before the dismissal are more than $68000 or a greater amount stated in, or worked out in a way prescribed under, a regulation;

(g)an employee participating in a labour market program.

s 71K ins 2013 No. 61 s 7

amd 2014 No. 25 s 223 sch 1 pt 2

71KAWhat employer must do to dismiss employee

(1)An employer may dismiss an employee only if—

(a)the employee has been—

(i)given the period of notice required by section 71KC; or

(ii)paid the compensation required by section 71KD; or

(b)the employee engages in misconduct of a type that would make it unreasonable to require the employer to continue the employment during the notice period.

(2)For subsection (1) (b), misconduct includes the following—

(a)theft;

(b)assault;

(c)fraud;

(d)other misconduct prescribed under a regulation.

(3)However, subsection (1) (b) does not apply if the employee can show that, in the circumstances, the conduct was not conduct that made it unreasonable to continue the employment during the notice period.

s 71KA ins 2013 No. 61 s 7

71KBEmployer’s failure to give notice or pay compensation

(1)If an employer dismisses an employee to whom section 71KA (1) (a) applies without giving the required notice or paying the required compensation—

(a)on an application under section 74—the commission may order the employer to pay the employee the compensation that the employer was required to pay under section 71KD; or

(b)otherwise—the commission or a magistrate may order the employer to pay the employee the compensation the employer was required to pay under section 71KD.

(2)An application for an order under subsection (1) (b) may be made by—

(a)the employee who has been dismissed; or

(b)with the employee’s consent—an organisation whose rules entitle it to represent the employee’s industrial interests; or

(c)an inspector.

(3)The application must be made within 6 years after the day on which the employee is dismissed.

(4)A regulation may exclude from the operation of this section dismissals happening in stated circumstances that relate to the transfer of the employer’s business.

s 71KB ins 2013 No. 61 s 7

71KCMinimum period of notice required from employers

(1)The minimum period of notice is—

(a)if the employee’s continuous service is—

(i)not more than 1 year—1 week; and

(ii)more than 1 year, but not more than 3 years—2 weeks; and

(iii)more than 3 years, but not more than 5 years—3 weeks; and

(iv)more than 5 years—4 weeks; and

(b)increased by 1 week if the employee—

(i)is 45 years old or over; and

(ii)has completed at least 2 years of continuous service with the employer.

(2)A regulation may prescribe matters that must be disregarded when working out continuous service under subsection (1).

s 71KC ins 2013 No. 61 s 7

71KDMinimum amount of compensation required

(1)The minimum compensation payable to an employee is at least equal to the total of the amounts the employer would have been liable to pay the employee if the employee’s employment had continued until the end of the required notice period.

(2)The total must be worked out on the basis of—

(a)the ordinary working hours worked by the employee; and

(b)the amounts payable to the employee for the hours, including, for example, allowances, loadings and penalties; and

(c)any other amounts payable under the employee’s employment contract.

(3)A regulation may prescribe the amount that is taken to be payable, or how to work out the amount, under an employment contract mentioned in subsection (2) (c), to an employee whose wages before dismissal were decided wholly or partly on the basis of commission or piece rates.

s 71KD ins 2013 No. 61 s 7

sdiv hdg ins 2013 No. 61 s 7

71KEApplication of sdiv 2

(1)This subdivision applies to an employee if—

(a)a modern industrial instrument applies to the employee; and

(b)the employee’s employment is terminated because the employer no longer requires the job done by the employee to be done by anyone.

(2)However, this subdivision does not apply if the employee’s employment is terminated because of the ordinary and customary turnover of labour.

(3)Also, this subdivision does not apply to any of the following employees—

(a)a casual employee;

(b)an employee whose period of continuous service with the employer is less than 1 year;

(c)an employee employed for a fixed period, for a fixed task, or for the duration of a particular season;

(e)an employee participating in a labour market program;

(f)another employee prescribed under a regulation or a modern industrial instrument as an employee to whom this division does not apply.

Note—

In relation to an employee whose employment is terminated due to the transfer of the employer’s calling, see part 5.

(4) Subsection (3) (c) does not prevent this subdivision applying to an employee if a substantial reason for employing the employee as mentioned in the subsection was to avoid the application of this division.

s 71KE ins 2013 No. 61 s 7

amd 2014 No. 25 s 223 sch 1 pt 2; 2015 No. 7 s 4A

71KFEntitlement to redundancy pay

(1)The employee is entitled to be paid an amount (redundancy pay) equal to the total amount payable to the employee for the redundancy pay period worked out using the following table—

Employee’s years of continuous service with the employer	Redundancy pay period
at least 1 year but not more than 2 years	4 weeks
more than 2 years but not more than 3 years	6 weeks
more than 3 years but not more than 4 years	7 weeks
more than 4 years but not more than 5 years	8 weeks
more than 5 years but not more than 6 years	9 weeks
more than 6 years but not more than 7 years	10 weeks
more than 7 years but not more than 8 years	11 weeks
more than 8 years but not more than 9 years	12 weeks
more than 9 years but not more than 10 years	13 weeks
more than 10 years but not more than 11 years	14 weeks
more than 11 years but not more than 12 years	15 weeks
more than 12 years	16 weeks

(2)The amount of the employee’s redundancy pay must be worked out on the basis of the employee’s weeks pay for the employee’s ordinary hours of work.

(3)This section applies subject to section 71KG.

s 71KF ins 2013 No. 61 s 7

71KGVariation of redundancy pay by commission

(1)This section applies if—

(a)an employee is entitled under this division to be paid an amount of redundancy pay; and

(b)the employer—

(i)obtains other acceptable employment for the employee; or

(ii)can not pay the amount.

(2)On application by the employer, the commission may make an order reducing the amount of the redundancy pay to a stated amount the commission considers appropriate.

(3)For subsection (2), the amount may be zero.

(4)The amount of redundancy pay to which the employee is entitled under this division is the amount stated in the order.

s 71KG ins 2013 No. 61 s 7

pt hdg ins 2013 No. 61 s 7

div hdg ins 2013 No. 61 s 7

71LMeaning of modern industrial instrument for pt 3

In this part—

modern industrial instrument does not include a determination made under section 149 as inserted by the modernising Act.

s 71L ins 2013 No. 61 s 7

71LARequired or permitted provisions

(1)A modern industrial instrument must include the provisions required under—

(a)part 2; or

(b)for a modern award—division 2, subdivision 2; and

(c)for a certified agreement—division 2, subdivision 3.

(2)A modern industrial instrument may include the provisions permitted under division 3.

(3)This section is subject to section 71NCA.

s 71LA ins 2013 No. 61 s 7

sub 2015 No. 7 s 5

71LCProvisions that contravene s 71LA of no effect

A provision of a modern industrial instrument that contravenes section 71LA is of no effect.

s 71LC ins 2013 No. 61 s 7

amd 2015 No. 7 s 7

div hdg ins 2013 No. 61 s 7

sdiv hdg ins 2013 No. 61 s 7

71MCCoverage

(1)A modern award must include provisions (coverage provisions) stating the employers, employees and organisations to which the award applies.

(2)A modern award must be expressed to apply to—

(a)stated employers; and

(b)stated employees of employers to whom the award applies.

(3)A modern award may be expressed to cover 1 or more stated organisations, in relation to all or stated employees or employers to whom the award applies.

(4)For subsections (2) and (3)—

(a)employers may be identified by name or by reference to 1 or more stated classes; and

(b)employees must be identified by reference to 1 or more stated classes; and

(c)organisations must be identified by name.

(5)Without limiting the way a class may be described in a coverage provision, the class may be described by reference to—

(a)a particular industry or part of an industry; or

(b)particular kinds of work.

s 71MC ins 2013 No. 61 s 7

71MCA Dispute resolution procedure

A modern award must contain a dispute resolution procedure that provides for—

(a)consultation at the workplace; and

(b)the involvement of relevant organisations; and

(c)any other matter prescribed by regulation.

s 71MCA ins 2015 No. 7 s 9

sdiv 3 (ss 71MD–71ME) ins 2013 No. 61 s 7

71MDNominal expiry date

A certified agreement must specify a nominal expiry date that is—

(a)for a project agreement—a date no later than the date on which the project ends; or

(b)otherwise—a date no later than 4 years after the date on which the agreement will come into operation.

sdiv 3 (ss 71MD–71ME) ins 2013 No. 61 s 7

71MEOther matters

A certified agreement must—

(a)state the persons covered by the certified agreement; and

(b)include, or be accompanied by, information prescribed under a regulation.

sdiv 3 (ss 71MD–71ME) ins 2013 No. 61 s 7

div hdg ins 2013 No. 61 s 7

sdiv hdg ins 2013 No. 61 s 7

71NGeneral matters

A modern industrial instrument may include provisions about any of the following matters—

(a)types of engagement;

(b)allowances, including for any of the following—

(i)expenses incurred in the course of employment;

(ii)responsibilities or skills not taken into account in the basic rates of pay;

(iii)disabilities associated with the performance of particular tasks or work in particular conditions or locations;

(c)annualised salary arrangements that—

(i)have regard to the patterns of work in the enterprise or industry concerned; and

(ii)provide an alternative to the separate payment of wages and other monetary entitlements; and

(iii)include appropriate safeguards to ensure individual employees are not disadvantaged;

(d)overtime rates;

(e)penalty rates, including for any of the following—

(i)employees working unsocial, irregular or unpredictable hours;

(ii)employees working on weekends or public holidays;

(iii)shift workers;

(f)arrangements for when work is performed, including hours of work, rostering, weekend work, shift work, meal and rest breaks and variations to working hours;

(g)superannuation;

(h)anti-discrimination and equal opportunity.

s 71N ins 2013 No. 61 s 7

amd 2015 No. 7 s 10

71NAProvisions related to Queensland Employment Standards

(1)A modern industrial instrument may include any other provision that—

(a)provides for all or part of a matter that is provided for under the Queensland Employment Standards; or

(b)is ancillary or incidental to the operation of the entitlement of an employee under the Queensland Employment Standards; or

(c)supplements the Queensland Employment Standards.

(2)However, subsection (1) applies only to the extent the effect of the provision is no less favourable to an employee than the Queensland Employment Standards.

s 71NA ins 2013 No. 61 s 7

amd 2015 No. 7 s 11

71NBOther incidental provisions

A modern industrial instrument may include provisions that are—

(a)incidental to a provision that is required or permitted to be included in the instrument; and

(b)essential for making a particular provision operate in a practical way.

s 71NB ins 2013 No. 61 s 7

amd 2015 No. 7 s 12

71NCMachinery provisions

A modern industrial instrument may include machinery provisions, including, for example, provisions about the following—

(a)commencement;

(b)definitions;

(c)titles;

(d)arrangement.

s 71NC ins 2013 No. 61 s 7

71NCAOther requirements

(1)Despite any other provision of this division, a modern industrial instrument may not include—

(a)a provision that discriminates against an employee; or

(b)a provision that displaces, or is otherwise inconsistent with, a provision of the Queensland Employment Standards.

(2)For subsection (1) (a), a modern industrial instrument does not discriminate against an employee only because it provides for minimum wages for any of the following—

(a)all young employees;

(b)all employees with a disability;

(c)all employees engaged as apprentices or trainees;

(d)a class of employees mentioned in paragraph (a), (b), or (c).

(3) Subsection (1) (b) does not apply to a provision that may be included in the modern industrial instrument under section 71NA.

s 71NCA ins 2015 No. 7 s 13

sdiv hdg ins 2013 No. 61 s 7

71NDGeneral matters

(1)A modern award may include provisions to provide fair and just employment conditions.

(2)Without limiting subsection (1), a modern award may include provisions about—

(a)minimum wages, including—

(i)wage rates for young employees, employees with a disability and employees engaged as apprentices or trainees; and

(ii)piece rates; and

(b)skill-based classifications and career structures.

s 71ND ins 2013 No. 61 s 7

sub 2015 No. 7 s 14

sdiv hdg ins 2013 No. 61 s 7

71NEProvisions about employment relationship

(1)A certified agreement may include provisions about the employment relationship.

(2)Without limiting subsection (1), a certified agreement may include a term about any or all of the following—

(a)arrangements for the taking of annual leave, parental leave, personal leave or long service leave;

(b)bonuses or incentive-based payments;

(c)continuous improvement initiatives;

(d)productivity improvement initiatives;

(e)salary sacrifice;

(f)uniforms, including personal protective equipment;

(g)wages.

s 71NE ins 2013 No. 61 s 7

amd 2015 No. 7 s 15

pt 4 (ss 71P–71PG) ins 2013 No. 61 s 7

71PDefinition for pt 4

In this part—

equal remuneration for work of equal or comparable value means equal remuneration for men and women employees for work of equal or comparable value.

pt 4 (ss 71P–71PG) ins 2013 No. 61 s 7

71PAOrders requiring equal remuneration

(1)The commission may make any order it considers appropriate to ensure employees covered by the order receive equal remuneration for work of equal or comparable value.

(2)An order may provide for an increase in remuneration rates, including minimum rates.

pt 4 (ss 71P–71PG) ins 2013 No. 61 s 7

71PBOrders only on application

The commission may make an order under this part only on application by—

(a)an employee to be covered by the order; or

(b)an organisation whose rules entitle it to represent the industrial interests of employees to be covered by the order; or

(c)a State peak council; or

(d)the Minister; or

(e)the anti-discrimination commissioner.

pt 4 (ss 71P–71PG) ins 2013 No. 61 s 7

71PCRequirements about making of order by commission

The commission must, and may only, make an order if it is satisfied the employees to be covered by the order do not receive equal remuneration for work of equal or comparable value.

pt 4 (ss 71P–71PG) ins 2013 No. 61 s 7

71PDImmediate or progressive introduction of equal remuneration

The order may introduce equal remuneration for work of equal or comparable value—

(a)immediately; or

(b)progressively in stated stages.

pt 4 (ss 71P–71PG) ins 2013 No. 61 s 7

71PEEmployer not to reduce remuneration

(1)An employer must not reduce an employee’s remuneration because an application or order has been made under this part.

(2)If an employer purports to do so, the reduction is of no effect.

pt 4 (ss 71P–71PG) ins 2013 No. 61 s 7

71PFPt 4 does not limit other rights

(1)This part does not limit any right a person or organisation may otherwise have to secure equal remuneration for work of equal or comparable value.

(2) Subsection (1) is subject to section 71PG.

pt 4 (ss 71P–71PG) ins 2013 No. 61 s 7

71PGApplications under pt 4

(1)An application can not be made under this part for an order to secure equal remuneration for work of equal or comparable value for an employee if there are current proceedings for an alternative remedy under—

(a)another provision of this Act; or

(b)another Act.

(2)If an application under this part has been made, a person can not start proceedings for an alternative remedy under a provision or Act mentioned in subsection (1).

(3) Subsection (2) does not prevent proceedings being started for an alternative remedy if the proceedings under this part have—

(a)been discontinued by the party who started the proceedings; or

(b)failed for want of jurisdiction.

(4)In this section—

alternative remedy means an alternative remedy—

(a)to secure the remuneration for the employee; or

(b)against unequal remuneration for work of equal or comparable value for the employee.

pt 4 (ss 71P–71PG) ins 2013 No. 61 s 7

pt 5 (ss 71Q–71QD) ins 2013 No. 61 s 7

71QDefinitions for pt 5

In this part—

service includes employment.

transferred employee see section 71QB (1).

pt 5 (ss 71Q–71QD) ins 2013 No. 61 s 7

71QAHow pt 5 applies

(1)This part applies for working out an employee’s rights and entitlements under this chapter or a modern industrial instrument by prescribing when the employee’s continuity of service is not broken.

(2)An employee is not entitled to claim the benefit of a right or entitlement more than once for the same period of service.

(3)However, when working out the minimum period of notice required to be given under section 71KC to a transferred employee, a period of notice previously given in relation to the transfer of the calling, whether given before or after the commencement of this subsection, is to be disregarded.

pt 5 (ss 71Q–71QD) ins 2013 No. 61 s 7

71QBContinuity of service—transfer of calling

(1)A transferred employee is a person who becomes an employee of an employer (the new employer) because of the transfer of a calling to the new employer from another employer (the former employer).

(2)Even if a person is dismissed by the former employer before the transfer of a calling, the person is taken to be a transferred employee if—

(a)the person is employed by the new employer after the transfer; and

(b)the employee—

(i)was dismissed by the former employer within 1 month immediately before the transfer; and

(ii)is re-employed by the new employer within 3 months after the dismissal.

(3)The transfer of the calling is taken not to break the transferred employee’s continuity of service.

(4)A period of service with the former employer, including service before the commencement of this section, is taken to be a period of service with the new employer.

(5)In relation to the transfer, the transferred employee is not an employee to whom part 2, division 9, subdivision 2 applies, unless a modern industrial instrument mentioned in section 71KE (1) (a) provides otherwise.

(6)In this section—

dismissed includes stood down.

pt 5 (ss 71Q–71QD) ins 2013 No. 61 s 7

71QCContinuity of service—apprentices or trainees

(1)This section applies if—

(a)an employee, while employed with the employer, starts an apprenticeship or traineeship; or

(b)the employer—

(i)continues to employ an apprentice or trainee (the employee) on the completion of the apprenticeship or traineeship; or

(ii)re-employs the employee within 3 months after completion of the employee’s apprenticeship or traineeship.

(2)The period of the apprenticeship or traineeship does not break the employee’s continuity of service.

pt 5 (ss 71Q–71QD) ins 2013 No. 61 s 7

71QDContinuity of service—generally

(1)Service with a partnership and an employer who was, or becomes, a member of the partnership is taken to be continuous service with the same employer.

(2)An employee’s continuity of service with an employer is not broken if the employee’s service is temporarily lent or let on hire by the employer to another employer.

(3)An employee’s continuity of service with an employer is not broken by an absence, including through illness or injury—

(a)on paid leave approved by the employer; or

(b)on unpaid leave approved by the employer.

(4)An employee’s continuity of service with an employer is not broken if—

(a)the employee’s employment is terminated by the employer or employee because of illness or injury; and

(b)the employer re-employs the employee; and

(c)the employee has not been employed in a calling, whether on the employee’s own account or as an employee, between the termination and the re-employment.

(5)An employee’s continuity of service with an employer is not broken if—

(a)the employee’s employment is terminated by the employer or employee; and

(b)the employer re-employs the employee within 3 months after the termination.

(6)An employee’s continuity of service with an employer is not broken if—

(a)the employee’s employment is interrupted or terminated by the employer with intent to avoid an obligation under this part, a modern industrial instrument or employment contract; or

(b)the employee’s employment is interrupted or terminated by the employer as a direct or indirect result of an industrial dispute, and the employer re-employs the employee.

(7)An employee’s continuity of service is not broken if—

(a)the employee’s employment is interrupted or terminated by the employer because of slackness of trade or business; and

(b)the employer re-employs the employee.

(8)Service with a corporation and any of its subsidiaries is taken to be continuous service with the same employer.

(9)However, a period for which the employee is away from work under subsection (3) (b), (4), (5), (6) (b) or (7) is not service under this part unless—

(a)this Act or a modern industrial instrument provides otherwise; or

(b)the commission directs otherwise.

(10)In this section—

subsidiary has the meaning given by the Corporations Act.

terminate includes stand down.

pt 5 (ss 71Q–71QD) ins 2013 No. 61 s 7

72Employees to whom this chapter does not apply

(1) Section 73 (1) does not apply to—

(a)an employee during the first 3 months of employment with an employer (the probationary period), if the dismissal is for a reason other than an invalid reason, unless the employee and employer agree in writing that the employee serve—

(i)a period of probation that is shorter than the probationary period; or

(ii)no period of probation; or

(b)an employee serving a period of probation that is longer than the probationary period, if—

(i)the period decided, by written agreement between the employee and employer before the employment started, is a reasonable period having regard to the nature and circumstances of the employment; and

(ii)the dismissal is for a reason other than an invalid reason; or

(c)a short term casual employee, unless the reason for the dismissal is an invalid reason; or

(d)an employee engaged for a specific period or task, unless—

(i)the main purpose of engaging the employee in that way is, or was at the time of the employee’s engagement, to avoid the employer’s obligations under part 2; or

(ii)the employee is participating in a labour market program and is dismissed before the period ends or the task is complete; or

(iii)the reason for the dismissal is an invalid reason; or

(e)an employee—

(i)who is not employed under an industrial instrument; and

(ii)who is not a public service officer employed on tenure under the Public Service Act 2008 ; and

(iii)whose annual wages immediately before the dismissal are more than $68000 or a greater amount stated in, or worked out in a way prescribed under, a regulation.

(2)In deciding—

(a)the probationary period for subsection (1) (a); or

(b)whether an employee is a short term casual employee for subsections (1) (c) and (8);

periods of employment with a former employer that are taken to be service with a new employer because of section 69 or 71GZH must be taken into account.

(3)Parts 3 and 4 do not apply to—

(a)a casual employee; or

(b)an employee engaged by the hour or day; or

(c)an employee engaged for a specific period or task; or

(d)an employee during the first 3 months of employment with an employer (the probationary period) unless the employee and employer agree in writing that the employee serve—

(i)a period of probation that is shorter than the probationary period; or

(ii)no period of probation; or

(e)an employee serving a period of probation that is longer than the probationary period if the period decided by written agreement between the employee and employer before the employment started, is a reasonable period having regard to the nature and circumstances of the employment; or

(f)an employee—

(i)who is not employed under an industrial instrument; and

(ii)who is not a public service officer employed on tenure under the Public Service Act 2008 ; and

(iii)whose annual wages immediately before the dismissal are more than $68000 or a greater amount stated in, or worked out in a way prescribed under, a regulation.

(3A)Part 3 does not apply to an employee to whom chapter 2A applies.

(4)Part 4 does not apply to an employee with less than 1 year of continuous service.

(5)A regulation may exclude particular employees from the operation of particular provisions of this chapter.

(6)Without limiting subsection (5), the regulation may identify as a class of employees those employees whose wages or salary immediately before dismissal was more than an amount, or an amount worked out in a way, prescribed under the regulation.

(7)Parts 3 to 7 do not apply to an employee participating in a labour market program.

(8)In this section—

short term casual employee means a casual employee, other than a casual employee who—

(a)is engaged—

(i)by a particular employer on a regular and systematic basis; and

(ii)for several periods of employment during a period of at least 1 year; and

(b)apart from the employer’s decision not to offer the person further employment, had a reasonable expectation of further employment by the employer.

s 72 amd 2000 No. 23 s 292 sch 1; 2001 No. 87 s 13; 2005 No. 11 s 11; 2008 No. 38 s 252 sch 3; 2009 No. 15 s 2 sch; 2013 No. 61 ss 8, 117 sch 1 pt 2; 2014 No. 25 s 223 sch 1 pt 2; 2015 No. 7 s 16A

73When is a dismissal unfair

(1)A dismissal is unfair if it is—

(a)harsh, unjust or unreasonable; or

(b)for an invalid reason.

(2)Each of the following is an invalid reason—

(a)temporary absence, within the meaning of a regulation, from work because of illness or injury (other than an injury to which chapter 4, part 6 of the Workers’ Compensation and Rehabilitation Act 2003 applies);

(aa)temporary absence from work if—

(i)the absence is—

(A)by an SES member or an ESU member under the Fire and Emergency Services Act 1990 and for the purpose of performing an SES function or an ESU function under that Act in an emergency situation; or

(B)by a member of a rural fire brigade under the Fire and Emergency Services Act 1990 and for the purpose of performing a function of a rural fire brigade under that Act in an emergency situation; or

(C)by an honorary ambulance officer under the Ambulance Service Act 1991 and for the purpose of performing a function of an honorary ambulance officer under that Act in an emergency situation; and

(ii)having regard to all the circumstances, the period of absence is reasonable;

(b)seeking office as, or acting or having acted in the capacity of, an employees’ representative;

(c)membership of an employee organisation or participation in the organisation’s activities outside working hours or, with the employer’s consent, during working hours;

(d)non-membership of an employee organisation;

(e)filing a complaint, or taking part in proceedings, against an employer involving alleged violation of laws or recourse to competent administrative authorities;

(f)the making by anyone, or a belief that anyone has made or may make—

(i)a public interest disclosure under the Public Interest Disclosure Act 2010 ; or

(ii)a complaint under the Health Ombudsman Act 2013 , the repealed Health Quality and Complaints Commission Act 2006 or the repealed Health Rights Commission Act 1991 ;

(g)refusing to negotiate for, make, sign, extend, amend or terminate a certified agreement;

(h)refusing to negotiate for or make a certified agreement, or Australian workplace agreement, under the Commonwealth Act;

(i)the employee or employee’s spouse is pregnant or has applied to adopt a child;

(j)the employee or employee’s spouse has given birth to a child or adopted a child;

(k)applying for, or being absent on, parental leave under chapter 2 or 2A;

(ka)a reason mentioned in section 39B (5), 40 (7), 71FE or 71FI;

(l)a reason mentioned in section 394 (2);

(m)discrimination.

(3)In this section—

parental leave has the meaning given in section 17.

s 73 amd 2001 No. 87 s 14; 2003 No. 91 s 174; 2005 No. 11 s  12; 2006 No. 2 s 55; 2006 No. 25 s 241 (1) sch 3; 2007 No. 23 s 8; 2009 No. 15 s 2 sch; 2010 No. 38 s 78 sch 3; 2011 No. 4 s 21; 2011 No. 18 s 404 sch 4 pt 1; 2013 No. 61 s 117 sch 1 pt 2; 2014 No. 17 s 184 sch 1 pts 2–3; 2013 No. 36 s 331 sch 1

74Application for reinstatement

(1)If it is alleged that an employee has been unfairly dismissed, an application for reinstatement may be made to the commission for the dismissal to be dealt with under this chapter.

(2)The application must be made within—

(a)21 days after the dismissal takes effect; or

(b)a further period the commission allows on an application made at any time.

(2A)However, a person—

(a)who, immediately before the commencement of this subsection, was a federal award employee within the meaning of section 72 (8), as in force immediately before the commencement of this subsection; and

(b)who was dismissed after 30 June 1999, but before the commencement of this subsection; and

(c)who—

(i)has made an application for reinstatement relating to that dismissal to the commission, but the application was rejected or dismissed because the person was a federal award employee; and

(ii)has not made an application for reinstatement relating to that dismissal to the Australian commission;

may make an application within 21 days after the commencement of this subsection.

(3)An application may be made by—

(a)an employee; or

(b)with the employee’s consent—an organisation whose rules entitle it to represent the employee’s industrial interests.

(4)The registrar may reject an application if the registrar considers the dismissed employee is a person mentioned in section 72 (1) as a person to whom section 73 (1) does not apply.

(5)If the registrar rejects the application, the registrar must, by written notice, notify the applicant—

(a)that the application has been rejected; and

(b)of the reasons why the registrar considers the dismissed employee is a person mentioned in section 72 (1) as a person to whom section 73 (1) does not apply.

(6)The applicant may, by written notice given within 21 days after the registrar’s notice is received, inform the registrar that the applicant wishes the application to proceed.

(7)If the applicant does so, the commission must deal with the application, despite the registrar’s rejection.

(8)The commission and registrar must deal with an application as quickly as possible.

s 74 amd 2000 No. 23 s 292 sch 1

75Conciliation before application heard

(1)The commission must hold a conference to attempt to settle an application under section 74 by conciliation before it hears the application.

(2)The commission may, by written notice, require the applicant, employee or employer to attend the conference at a stated time and place.

(3)If the commission is satisfied all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful so far as it relates to at least 1 ground of the application or because the applicant is a person to whom section 73 (1) does not apply, it—

(a)must issue a written certificate stating that the commission—

(i)is so satisfied for a stated ground; or

(ii)considers the applicant is a person to whom section 73 (1) does not apply; and

(b)must inform the parties to the conciliation of—

(i)the commission’s assessment of the merits of the application in relation to the stated ground or in relation to how the applicant is a person to whom section 73 (1) does not apply; and

(ii)the possible consequences of further proceeding on the application; and

(c)may recommend the application be discontinued, whether or not it also recommends another way of resolving the matter.

(4)The application lapses if the applicant has not, within 6 months after the applicant has been informed by the commission under subsection (3)—

(a)taken any action in relation to the application; or

(b)discontinued the application.

(5)The parties may seek further conciliation, or settle the matter, at any time before an order is made under section 78, 79 or 80.

(6)The president may delegate the functions of the commission under this section to the registrar or a deputy registrar.

s 75 amd 2000 No. 23 s 292 sch 1; 2001 No. 18 s 10A; 2002 No. 73 s 10 sch; 2009 No. 15 ss 3, 2 sch; 2012 No. 22 s 25 sch; 2015 No. 13 s 37AB

76Arbitration when conciliation unsuccessful

If the commission considers all reasonable attempts to settle an application by conciliation have been made, but have been unsuccessful, the commission may hear and decide the application by—

(a)making an order under section 78, 79 or 80; or

(b)dismissing the application.

77Matters to be considered in deciding an application

In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider—

(a)whether the employee was notified of the reason for dismissal; and

(b)whether the dismissal related to—

(i)the operational requirements of the employer’s undertaking, establishment or service; or

(ii)the employee’s conduct, capacity or performance; and

(c)if the dismissal relates to the employee’s conduct, capacity or performance—

(i)whether the employee had been warned about the conduct, capacity or performance; or

(ii)whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and

(d)any other matters the commission considers relevant.

78Remedies—reinstatement or re-employment

(1)This section applies if the commission is satisfied an employee was unfairly dismissed.

(2)The commission may order the employer to reinstate the employee to the employee’s former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.

(3)If the commission considers reinstatement would be impracticable, the commission may order the employer to re-employ the employee in another position that the employer has available and that the commission considers suitable.

(4)The commission may also—

(a)make an order it considers necessary to maintain the continuity of the employee’s employment or service; and

(b)order the employee to repay any amount paid to the employee by, or for, the employer on the dismissal; and

(c)order the employer to pay the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal, after taking into account any employment benefits or wages received by the employee since the dismissal.

(5)This section does not limit the commission’s power to make an interim or interlocutory order.

s 78 amd 2004 No. 53 s 2 sch

79Remedies—compensation

(1)If, and only if, the commission considers reinstatement or re-employment would be impracticable, the commission may order the employer to pay the employee an amount of compensation decided by the commission.

(2)The commission must not award an amount of compensation that is more than—

(a)if the employee was employed under an industrial instrument—the wages the employer would have been liable to pay the employee for the 6 months immediately after the dismissal, paid at the rate the employee received immediately before the dismissal; or

(b)if the employee was not employed under an industrial instrument—the lesser of the wages under paragraph (a) and an amount equal to half the amount prescribed under section 72 (1) (e) (iii).

(3)The commission must take into account any amount paid to the employee by the employer on the dismissal.

(4)This section does not limit the commission’s power to make an interim or interlocutory order.

80Sanctions for unfair dismissal—invalid reason

(1)If satisfied an employer has dismissed an employee for an invalid reason, the commission may order the employer to pay the employee an amount of not more than the monetary value of 135 penalty units.

(2)The commission may make the order in addition to an order for reinstatement, re-employment or compensation.

81Further orders if employer fails to reinstate

(1)If an employer wilfully contravenes an order to reinstate or re-employ an employee, the commission may—

(a)further order the employer to pay the employee—

(i)an amount of not more than the monetary value of 50 penalty units; and

(ii)an amount for lost wages; and

(b)make further orders until the employer complies with an order under section 78 or this section.

(2)This section does not affect another provision of this Act allowing proceedings to be taken against the employer.

82Effect of order on leave

If the commission makes an order under section 78, the interruption to the employee’s continuity of employment or service caused by the dismissal must be disregarded when working out the employee’s entitlement—

(a)to annual, sick, family or long service leave; or

(b)under this chapter.

83What employer must do to dismiss employee

(1)An employer may dismiss an employee only if—

(a)the employee has been—

(i)given the period of notice required by section 84; or

(ii)paid the compensation required by section 85; or

(b)the employee engages in misconduct of a type that would make it unreasonable to require the employer to continue the employment during the notice period.

(2)Misconduct under subsection (1) (b) includes—

(a)theft; and

(b)assault; and

(c)fraud; and

(d)other misconduct prescribed under a regulation.

(3)However, subsection (1) (b) does not apply if the employee can show that, in the circumstances, the conduct was not conduct that made it unreasonable to continue the employment during the notice period.

(4)If an employer dismisses an employee, to whom subsection (1) (a) applies, without giving the required notice or paying the required compensation—

(a)on an application under section 74—the commission may order the employer to pay the employee the compensation that the employer was required to pay under section 85; or

(b)otherwise—the commission or a magistrate may order the employer to pay the employee the compensation that the employer was required to pay under section 85.

(5)An application for an order under subsection (4) (b) may be made by—

(a)an employee who has been dismissed; or

(b)with the employee’s consent—an organisation whose rules entitle it to represent the employee’s industrial interests; or

(c)an inspector.

(6)The application must be made within 6 years after the day on which the employee is dismissed.

(7)A regulation may exclude from the operation of this section dismissals happening in specified circumstances that relate to the transfer of the employer’s business.

84Minimum period of notice required from employers

(1)The minimum period of notice is—

(a)if the employee’s continuous service is—

(i)not more than 1 year—1 week; and

(ii)more than 1 year, but not more than 3 years—2 weeks; and

(iii)more than 3 years, but not more than 5 years—3 weeks; and

(iv)more than 5 years—4 weeks; and

(b)increased by 1 week if the employee—

(i)is 45 years old or over; and

(ii)has completed at least 2 years of continuous service with the employer.

(2)A regulation may prescribe matters that must be disregarded when working out continuous service under subsection (1).

s 84 amd 2005 No. 36 s 13

85Minimum amount of compensation required

(1)The minimum compensation payable to an employee is at least equal to the total of the amounts the employer would have been liable to pay the employee if the employee’s employment had continued until the end of the required notice period.

(2)The total must be worked out on the basis of—

(a)the ordinary working hours worked by the employee; and

(b)the amounts payable to the employee for the hours, including, for example, allowances, loadings and penalties; and

(c)any other amounts payable under the employee’s employment contract.

(3)A regulation may prescribe the amount that is taken to be payable, or how to work out the amount, under an employment contract mentioned in subsection (2) (c), to an employee whose wages before dismissal were decided wholly or partly on the basis of commission or piece rates.

pt hdg sub 2001 No. 87 s 15

div hdg ins 2005 No. 36 s 14

85AApplication of div 1AA

(1)This division applies to an employee (a prescribed employee) under any of the following instruments, unless the instrument provides otherwise—

(a)an industrial instrument made after 1 September 2005, other than a certified agreement if the application to certify the agreement was made on or before 1 September 2005;

(b)a federal award made or varied after 1 September 2005;

(c)a federal agreement made, varied or approved after 1 September 2005, other than a federal agreement if the application to certify the agreement was made on or before 1 September 2005.

(2)However, this division does not apply to a prescribed employee if all employees of the prescribed employee’s employer work a total of less than 550 hours a week (Monday to Sunday) excluding overtime, averaged over the previous 12 months.

(2A)Also, this division does not apply to an employee to whom chapter 2A applies.

(3)In this section—

employer, if the employer is a body corporate, includes each body corporate that is a related body corporate to the employer.

related body corporate, of an employer that is a body corporate, means a body corporate that is related to the employer because of the Corporations Act, section 50.

s 85A ins 2005 No. 36 s 14

amd 2013 No. 61 s 9

85BMinimum redundancy payment

If an employee is made redundant, the employee is entitled to be paid an amount (a redundancy payment) that is at least equal to the employee’s weeks pay multiplied by the number of weeks for the employee’s years of service, as set out in schedule 3.

s 85B ins 2005 No. 36 s 14

85CEmployer may apply for relief

The employer of an employee who is made redundant may apply to the commission for relief from the obligation to make the redundancy payment if—

(a)the employer has contributed to a fund that will provide a benefit to the employee if the employee is made redundant; or

(b)the employer is unable to pay the redundancy payment.

s 85C ins 2005 No. 36 s 14

div hdg ins 2001 No. 87 s 15

86When this division applies

This division applies to an application about severance allowance or other separation benefits.

s 86 sub 2001 No. 87 s 15

87Orders about severance allowance and other separation benefits

(1)The commission may make an order about severance allowance or other separation benefits on application by—

(a)an employee; or

(b)an organisation whose rules entitle it to represent the employee’s industrial interests.

(2)An employer must not contravene the order.

(3)If an employer contravenes the order, the commission may—

(a)make any of the orders it may make under section 78 (2), (3) or (4); or

(b)order the employer to pay the employee an amount of not more than the monetary value of 135 penalty units.

(4)In this section—

severance allowance or other separation benefits means severance allowance or other separation benefits under article 12 of the Termination of Employment Convention 1982.

s 87 sub 2001 No. 87 s 15

88Time for making application under this division

An application for an order under this division must be made—

(a)before, or within 21 days after, the dismissal takes effect; or

(b)within a further period the commission allows on an application made at any time.

s 88 sub 2001 No. 87 s 15

div hdg ins 2001 No. 87 s 15

89When this division applies

This division applies if an employer decides to dismiss 15 or more employees for an economic, technological or structural reason.

s 89 sub 2001 No. 87 s 15

amd 2012 No. 22 s 22A; 2015 No. 7 s 36 sch 1

90Employer must give notice of proposed dismissals

(1)The employer may dismiss the employees only if the employer, as soon as practicable after making the decision, notifies—

(a)the Commonwealth department or agency whose primary function is helping unemployed people find work; and

(b)each employee organisation of which any of the employees is a member.

(2)The notice must state—

(a)the number and categories of employees being dismissed; and

(b)the reasons for the dismissals; and

(c)the time when, or the period over which, the employer intends to carry out the dismissals.

(3)If satisfied an employer has dismissed, or proposes to dismiss, an employee without giving the notice, the commission may make any or all of the following orders—

(a)any of the orders it may make under section 78 (2), (3) or (4);

(b)an order imposing on the employer a penalty of not more than 16 penalty units;

(c)an order that the employer pay the employee an amount of not more than the monetary value of 135 penalty units;

(d)an order declaring the dismissal ineffective until the employer has given the notice.

(4)An application for an order may be made by—

(a)an employee, including a dismissed employee; or

(b)an organisation whose rules entitle it to represent the employee’s industrial interests; or

(c)an inspector.

(5)The commission may order that a penalty, or part of a penalty, under subsection (3) (b) be paid to any person who may have made the application, other than an officer or employee of the State or a public service officer.

(6)Any part of the penalty ordered to be paid to the person under subsection (5) must first be paid to the person.

(7)The remainder of the penalty must then be paid to the consolidated fund.

(8)A failure to give a notice is not an offence.

s 90 sub 2001 No. 87 s 15

90AEmployer must consult with employee organisations about dismissals

(1)The employer must give each employee organisation of which any of the employees is a member an opportunity to consult with the employer on ways to—

(a)avoid or minimise the dismissals; and

(b)minimise the adverse effects of the dismissals, for example, by finding alternative employment.

(2)The employer must do so as soon as practicable after making the decision to dismiss employees, but in any case before dismissing any of the employees.

(3)If the employer does not give the organisation an opportunity to consult as required, the commission may make the orders it considers appropriate to put employees, and their organisations, in the same position, as nearly as can be done, as if the employer had done so.

(4)The commission may make an order on application from an employee or organisation that is to be affected by the order.

(5) Subsections (1) and (2) do not apply to an organisation if the employer could not reasonably be expected to have known, at the time of the decision, that the organisation’s rules entitled it to represent the industrial interests of a dismissed employee.

s 90A ins 2001 No. 87 s 15

90BTime for making application under this division

An application for an order under this division must be made—

(a)before, or within 21 days after, the dismissal takes effect; or

(b)within a further period the commission allows on an application made at any time.

s 90B ins 2001 No. 87 s 15

97Employee stood down in December then re-employed in January

(1)This section applies to an employee, other than a casual employee, who—

(a)is stood down by an employer during December; and

(b)is re-employed by the employer before the end of the next January; and

(c)was employed by the employer for a continuous period of at least 2 weeks immediately before being stood down.

(2)The employer must pay the employee at the ordinary rate payable to the employee immediately before the stand-down for the Christmas Day, Boxing Day, and New Year’s Day public holidays between the stand-down and the re-employment.

(3)In this section—

stand-down includes dismissal.

s 97 amd 2000 No. 23 s 292 sch 1

98Permissible stand-down of employee

(1)An employer may stand down an employee on a day, or for part of a day, when the employee can not be usefully employed because of something that happened—

(a)for which the employer is not responsible; or

(b)over which the employer has no control.

(2)The employer may stand down the employee without pay, unless an industrial instrument provides otherwise.

s 98 amd 2014 No. 25 s 223 sch 1 pt 2

99Chapter does not limit other rights

This chapter does not limit a right a person or organisation may otherwise have to—

(a)appeal against a dismissal; or

(b)have an industrial instrument or order about a dismissal made.

100Inconsistent instruments and orders

An industrial instrument or order that is inconsistent with an order under this chapter does not apply to the extent the inconsistency detrimentally affects the rights of employees concerned.

101Main purposes of ch 4

The main purposes of this chapter are to ensure—

(a)a person who is eligible to become a member of an industrial association may become or remain a member of the association without fear of discrimination; and

(b)a person who does not wish to become or remain a member of an industrial association may refrain from doing so without fear of discrimination.

102Definitions for ch 4

In this chapter—

conduct includes an omission.

conscientious beliefs means an individual’s beliefs based on the individual’s moral values or fundamental religious beliefs, other than a belief founded wholly or principally on objections to the policies of an organisation or organisations generally.

exempted person means a person who holds an exemption certificate.

exemption certificate means an exemption certificate under section 115 (1) that has not expired.

industrial association means any of the following—

(a)an organisation;

(b)an association of independent contractors, however called, that is registered or recognised as an association under an industrial law;

(c)an association of employees having as a principal purpose the protection and promotion of their interests in matters concerning their employment;

(d)an association of independent contractors having as a principal purpose the protection and promotion of their interests as independent contractors;

(e)an association of employers having as a principal purpose the protection and promotion of their interests in matters concerning employment or independent contractors;

(f)a branch of an industrial association under paragraphs (a) to (e).

industrial body means—

(a)the commission; or

(b)the court or another court or commission, however called, exercising industrial law functions and powers corresponding to the commission’s functions and powers.

industrial instrument includes an award or agreement made under the Commonwealth Act or a law of another State.

industrial law means this Act or another Act regulating the relationships between employers and employees.

management committee of an industrial association means the body of persons, however called, that manages its affairs.

prohibited conduct means conduct prohibited under part 2.

representative of an industrial association means—

(a)a delegate of the association; or

(b)an employee of the association; or

(c)an officer or agent of the association acting in that capacity.

103Meaning of industrial action for ch 4

(1)In this chapter, industrial action includes conduct by a person—

(a)engaged as an independent contractor that would be a strike if the conduct had been engaged in by an employee; and

(b)who has engaged an independent contractor that would be a lockout if the conduct had been engaged in by an employer.

(2)A reference in this chapter to industrial action includes a reference to a course of conduct that makes up a series of industrial actions.

104Meaning of engaging in conduct for a prohibited reason for ch 4

(1)For this chapter, a person engages in conduct for a prohibited reason if the person engages in, or threatens to engage in, the conduct because another person—

(a)is, has been, proposes to cease being or become, or has proposed to cease being or become a member or representative of an industrial association; or

(b)is not, or does not propose to become, a member or representative of an industrial association; or

(c)has not paid, or does not propose to pay, a fee, however called, to an industrial association; or

(d)is, has been, proposes to cease being or become, or has proposed to cease being or become an exempted person; or

(e)has not or does not propose to join in industrial action; or

(f)has not agreed or consented to, or voted for, the making of an agreement to which an industrial association of which the person is a member, would be a party; or

(g)has participated in, proposes to participate in or has proposed to participate in—

(i)a protected action ballot; or

(ii)a secret ballot ordered by an industrial body under an industrial law; or

(h)has the right to the benefit of an industrial instrument or an order of an industrial body; or

(i)has made or proposes to make an inquiry or complaint to a person or body having the capacity under an industrial law to seek—

(i)compliance with that law; or

(ii)the observance of a person’s rights under an industrial instrument; or

(j)has given evidence or taken part in (participate) or proposes to participate in, or has proposed to participate in proceedings under an industrial law; or

(k)is a member of an industrial association that is seeking better industrial conditions; or

(l)is dissatisfied with the person’s industrial conditions; or

(m)has absented himself or herself from work as an employee or independent contractor without leave and—

(i)the absence was to carry out a duty or exercise a right as an officer of an industrial association; and

(ii)the person applied for leave before absenting himself or herself and leave was unreasonably refused or withheld; or

(n)as an officer or member of an industrial association has done, or proposes to do, an act or thing that is lawful and authorised by the association’s rules to further or protect the industrial interests of the association or its members; or

(o)is a health and safety representative appointed under the Work Health and Safety Act 2011 .

(2)A person engages in conduct for a prohibited reason if the conduct is engaged in for a reason that includes a prohibited reason.

(3)In this section, a reference to a person engaging in conduct includes a reference to the person being, directly or indirectly, a party to or concerned in the conduct.

s 104 amd 2011 No. 18 s 404 sch 4 pt 1; 2012 No. 7 s 5

105Prohibited conduct for employers and principals

(1)This section applies to a person who is, or proposes to become, an employer or who has engaged, or proposes to engage, someone else as an employee or independent contractor.

(2)The person must not, for a prohibited reason, engage in the following conduct—

(a)refuse to engage a person as an employee or independent contractor;

(b)terminate a person’s contract of employment or contract for services;

(c)disadvantage or injure a person who is, or proposes to become, an employee or independent contractor;

(d)discriminate against a person in the conditions on which the person is offered a contract of employment or contract for services;

(e)in negotiating an agreement under chapter 6, discriminate between the person’s employees because—

(i)some of the employees are members of an employee organisation, while others are not members of the organisation; or

(ii)some of the employees are members of a particular employee organisation, while others are not members of the organisation, or are members of a different employee organisation.

s 105 amd 2011 No. 4 s 22

106Prohibited conduct for employees and independent contractors

(1)This section applies to a person who is, or proposes to become, an employee or who is, or proposes to become, an independent contractor.

(2)The person must not, for a prohibited reason, take industrial action against the person who engaged, or proposes to engage, the person as an employee or an independent contractor.

107Prohibited conduct for industrial associations

An industrial association must not, for a prohibited reason, engage in the following conduct—

(a)organise or take, or threaten to organise or take, industrial action;

(b)advise, encourage or incite a person to engage in prohibited conduct or conduct that would be prohibited conduct if the person were an employer or a person who engaged an independent contractor;

(c)take or threaten to take action that disadvantages a person in the person’s employment, prospective employment, contract for services or prospective contract for services;

(d)disadvantage, or impose or threaten to impose a penalty or disability, on a member of the association or a person who is eligible to become a member of the association.

108Certain actions by representative not prohibited conduct

An industrial association does not engage in prohibited conduct under another provision of this part if—

(a)the conduct was engaged in by its representative, during or in connection with industrial action; and

(b)the representative acted without the knowledge of the association’s management committee; and

(c)the management committee could not, by the exercise of reasonable diligence, have prevented the conduct.

108AAction under full bench order not prohibited conduct

Anything done under an order of the full bench made under section 279 is not prohibited conduct.

s 108A ins 2007 No. 23 s 9

109Provision requiring or permitting prohibited conduct

An industrial instrument or an arrangement is void to the extent it requires or permits prohibited conduct.

111Who may apply for exemption

A person may apply to a magistrate or the registrar for an exemption from membership of an organisation only because of the person’s conscientious beliefs.

112Procedure for hearing

Before deciding the application, the magistrate or registrar must follow the procedure prescribed under a regulation for the hearing.

113Deciding application

(1)The magistrate or registrar may grant the application only if satisfied the applicant—

(a)genuinely holds conscientious beliefs; and

(b)has paid the same amount as the membership subscription of the organisation to the registrar of a Magistrates Court or the registry.

(2)If the magistrate or registrar decides to refuse to grant the application, the registrar must promptly give the applicant a notice stating the following—

(a)the decision;

(b)the reasons for the decision;

(c)that the applicant may appeal against the decision to the full bench within 21 days;

(d)how to start an appeal.

114How payment must be applied

The amount paid to the registrar of the Magistrates Court or the registry must be paid to the consolidated fund.

115Exemption certificate

(1)If the application is granted, the magistrate or registrar must give the applicant a certificate (an exemption certificate).

(2)The exemption certificate must—

(a)be in the approved form; and

(b)state—

(i)that the applicant is exempt from membership of the organisation because of the applicant’s conscientious beliefs; and

(ii)the day the exemption takes effect.

s 115 amd 2009 No. 15 s 2 sch

116Expiry of exemption certificate

An exemption certificate expires 1 year after the day the exemption stated in the certificate took effect.

117Who may apply

The following may apply to the commission for an order under this part—

(a)an entity against whom prohibited conduct has been carried out or is proposed to be carried out;

(b)an industrial association of which an entity mentioned in paragraph (a) is a member or is eligible to become a member of;

(c)another entity prescribed under a regulation.

118Conciliation required before hearing

Before the commission hears the application, it must direct the parties to the proceedings to hold a conference before it—

(a)to try to resolve, by conciliation, the issues relevant to the proceedings; and

(b)to ensure the parties are fully informed of the orders that may be made at the hearing.

119Right to be heard

(1)The commission must, before making an order under this part against an entity, give the entity an opportunity to be heard.

(2)This section does not apply to the making of an interim order or interim injunction.

120Remedies

(1)If, after hearing the application, the commission is satisfied an entity has engaged in, or proposes to engage in, prohibited conduct it may order the entity—

(a)to pay a penalty of not more than the monetary value of—

(i)for a corporation—135 penalty units; or

(ii)otherwise—27 penalty units; or

(b)to reinstate an employee in—

(i)the position from which the employee was removed or dismissed because of the prohibited conduct or proposed prohibited conduct on which the ground was based; or

(ii)a similar position; or

(c)to re-engage an independent contractor; or

(d)to pay appropriate compensation to an entity disadvantaged by the conduct or proposed conduct; or

(e)not to carry out a threat made by the entity or make any further threat.

(2)If the commission orders the reinstatement of an employee, the reinstatement must be on conditions at least as favourable as the conditions on which the employee was employed immediately before the employee’s removal or dismissal.

(3)The commission may also—

(a)grant an interim or other injunction or make any other order it considers appropriate to stop the conduct or proposed conduct or to remedy its effects; or

(b)make any other order that is consequential to an order under this section.

(4)The commission may make more than 1 order under this section against the same entity.

121Payment of penalty

(1)If the commission orders an entity to pay a penalty, it may also order that the penalty, or a part of the penalty, be paid to another entity.

(2)Any part of the penalty that is ordered to be paid to the other entity must first be paid to the other entity.

(3)The remainder of the penalty must be paid to the consolidated fund.

122Evidence of prohibited conduct

(1)This section applies if conduct was engaged in by any of the following—

(a)an industrial association’s management committee;

(b)an officer or agent of an industrial association acting in that capacity;

(c)a member or group of members of an industrial association authorised by—

(i)the rules of the association; or

(ii)its management committee; or

(iii)an officer or agent of the association acting in that capacity;

(d)a member of an industrial association, who performs the function of dealing with an employer or principal on behalf of the member and other members of the association, acting in that capacity;

(e)a director or other officer or an employee or agent of a corporation, acting in that capacity.

(2)Evidence that the conduct was engaged in by an entity mentioned in subsection (1) is evidence the conduct was engaged in by the industrial association or corporation.

(3)Evidence that the entity engaged in the conduct for a prohibited reason is evidence the conduct was engaged in by the industrial association or corporation for the prohibited reason.

122AProof of the reason for, or the intention of, conduct not required

(1)This section applies if—

(a)in an application under this part about an entity’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and

(b)for the entity to carry out the conduct for that reason or with that intent would constitute a contravention of this part.

(2)It is to be presumed, in proceedings under this part arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the entity proves otherwise.

s 122A ins 2005 No. 11 s 13

ch hdg sub 2013 No. 61 s 10

pt 1AA (s 122B) ins 2013 No. 61 s 11

122BApplication of ch 5

This chapter applies to an award other than a modern award.

pt 1AA (s 122B) ins 2013 No. 61 s 11

123Form, effect and term of award

(1)An award—

(a)must be in a form decided by the commission; and

(b)takes effect and has the force of law throughout the State and without limit of time, except as otherwise prescribed by subsection (2).

Note—

An award that is in force immediately before the commencement of part 8 (Modernisation of awards) may be repealed as a result of an award modernisation process carried out under that part.

(2)An award may state it is in force—

(a)in a stated locality; or

(b)for a stated period; or

(c)in relation to a stated employer; or

(d)in relation to a stated establishment or operation of a stated employer.

(3)An award stated to be limited in a way mentioned in subsection (2) has effect only to the extent that it provides.

s 123 amd 2013 No. 61 s 12

124Persons bound by award

(1)An award binds—

(a)subject to paragraphs (d) to (f)—all employers who are engaged in the calling to which the award applies; and

(b)subject to paragraphs (d) to (f)—all employees who are engaged in the calling to which the award applies; and

(c)all organisations concerned with the calling to which the award applies; and

(d)if the award applies only in a stated locality—all employers and employees in the locality who are engaged in the calling to which the award applies; and

(e)if the award applies only to a stated employer—

(i)the employer and any successor of the employer; and

(ii)all employees of the employer and any successor; and

(f)if the award applies only to a stated establishment or operation of a stated employer—

(i)the employer and any successor of the employer; and

(ii)all employees of the employer in the establishment or operation.

(2)This section applies subject to section 653 and to all exemptions—

(a)the effect of which are continued under section 823; or

(b)ordered by the commission under section 234.

(3)Despite subsection (1), an award does not bind a person in relation to a calling if a modern award applies to the person.

s 124 amd 2013 No. 61 s 13

pt hdg sub 2013 No. 61 s 14

125Repealing awards

(1)The commission may repeal an award.

Note—

See also part 8 in relation to the modernisation of awards made under this chapter.

(2)The commission may act under subsection (1)—

(a)of its own initiative; or

(b)on application by—

(i)the Minister; or

(ii)an organisation; or

(iii)an employer; or

(iv)a person who satisfies the commission that the person is not an officer of, or acting for, an eligible association.

s 125 sub 2013 No. 61 s 14

133Enforceability of awards

Action can not be commenced to enforce an award until 21 days after the date it is published on the QIRC website.

s 133 amd 2009 No. 38 s 33

134Effect of appeals on awards

The commission must immediately amend an award to give effect to—

(a)a decision of the Court of Appeal, court or full bench affecting the award on appeal from a decision of the commission; or

(b)a decision of the court affecting the award on a case stated by the commission.

135Inconsistency between awards and contracts

(1)To the extent of any inconsistency, an award prevails over a contract of service that is—

(a)in force when the award becomes enforceable; or

(b)made while the award continues in force.

(2)The contract is to be interpreted, and takes effect, as if it were amended to the extent necessary to make the area of inconsistency conform to the award.

(3)However, no inconsistency arises only because the contract provides for employment conditions more favourable to the employee than the award.

s 135 amd 2013 No. 61 s 15; 2015 No. 7 s 36 sch 1

136Apprentice’s and trainee’s employment conditions

(1)An apprentice or trainee is entitled to the same employment conditions as those fixed by the industrial instrument applicable to employees in the workplace where the apprentice or trainee is employed.

(2)An apprentice or trainee is entitled to wages at—

(a)if an industrial instrument applying to employees in the workplace where the apprentice or trainee is employed or placed states a rate payable to apprentices or trainees—the rate stated in the instrument; or

(b)otherwise—the rate fixed by the commission, being a proportion of the wages payable for the relevant calling to employees in the workplace where the apprentice or trainee is employed or placed.

Examples—

1An apprentice plumber is placed by a group training organisation in the workplace of a host employer where a federal award applies. The apprentice is entitled to the rate of wages stated in the federal award rather than a State award.

2An apprentice carpenter is placed by a group training organisation in the workplace of a host employer where a certified agreement applies. The certified agreement does not state the rate of wages payable to an apprentice. The apprentice is entitled to wages at the rate fixed by the commission, being a proportion of the wages payable to a qualified carpenter under the certified agreement.

(3)If an industrial instrument provides for a tradesperson in a calling to be paid an allowance in addition to wages, an apprentice in the calling is entitled to be paid—

(a)if, under the instrument, the allowance is taken to be part of the tradesperson’s wages—the percentage of the allowance that the apprentice’s wages bear to the tradesperson’s wages; or

(b)if, under the instrument, the allowance is not taken to be part of the tradesperson’s wages—the full allowance.

(4)If an industrial instrument provides for a tradesperson in a calling to be paid an allowance that is assessed as a percentage of the tradesperson’s wages, an apprentice in the calling is entitled to be paid the percentage of the allowance that the apprentice’s wages bear to the tradesperson’s wages.

(5) Subsection (4) applies whether or not, under the instrument, the allowance is taken to be part of the tradesperson’s wages.

(6)In this section—

industrial instrument includes a federal industrial instrument.

workplace, for an apprentice or trainee employed by a group training organisation, includes the workplace of the host employer with whom the apprentice or trainee is placed.

s 136 amd 2000 No. 23 s 292 sch 1; 2009 No. 49 s 45

137Order setting minimum wages and conditions

(1)The commission may make an order fixing minimum wages and employment conditions for the following employees, whether or not they are employed under an industrial instrument—

(a)apprentices or trainees;

(b)different classes of apprentices or trainees.

(2)In making an order, the commission may consider any matter it considers relevant, including—

(a)the age, competency, or method of progression through training of the apprentices or trainees; and

(b)an industrial instrument.

(3)Despite section 136, if there is an inconsistency between an order and an industrial instrument (other than a certified agreement), the order prevails to the extent of the inconsistency.

(4)The commission may make an order—

(a)of its own initiative; or

(b)on application by—

(i)the chief executive (training); or

(ii)an organisation; or

(iii)a State peak council; or

(iv)the Minister; or

(v)another entity with an interest in apprentices or trainees.

(5)In this section—

industrial instrument includes an award or agreement under the Commonwealth Act.

s 137 amd 2000 No. 23 s 292 sch 1; 2005 No. 11 s 16; 2009 No. 15 s 2 sch; 2011 No. 4 s 23; 2012 No. 11 s 43 sch pt 2; 2013 No. 49 s 28 sch 1; 2014 No. 25 s 223 sch 1 pt 2

138Order setting tool allowance

(1)The commission may make an order requiring an apprentice’s employer to provide the apprentice with—

(a)tools relevant to the calling the apprentice is engaged in; or

(b)an amount to enable the apprentice to buy the tools (a tool allowance).

(2)The order may state—

(a)the particular tools to be provided and the circumstances in which they are to be provided; or

(b)the circumstances in which a tool allowance must be provided.

(3)The commission may make an order—

(a)of its own initiative; or

(b)on application by—

(i)the chief executive (training); or

(ii)an organisation; or

(iii)a State peak council; or

(iv)the Minister; or

(v)another entity with an interest in apprentices.

(4)An employer must not contravene an order.

Maximum penalty—40 penalty units.

(5)An offence against subsection (4) may consist of—

(a)a single failure to provide the apprentice with the relevant tools, or tool allowance, for a level of the apprenticeship; or

(b)a failure to provide the apprentice with the relevant tools, or tool allowance, for the term of the apprenticeship.

(6)The offence starts on the day of the failure and continues until the apprentice has been provided with the relevant tools or tool allowance.

(7)A complaint, or a series of complaints, may be made for any period over which the offence continues.

(8)However, a complaint may only relate to offences started within 6 years before the complaint is made.

(9)If a magistrate finds an employer guilty of an offence against subsection (4), the magistrate must, in addition to a penalty the magistrate may impose, order the employer to—

(a)provide the apprentice with the tools required to be provided under the commission’s order; or

(b)pay to the Magistrates Court the amount—

(i)stated in the commission’s order; or

(ii)equivalent to the cost of the tools required to be provided under the commission’s order.

(10)The magistrate may express the order in the alternative so the employer may decide how to comply with it.

(11)The court must pay an amount paid under subsection (9) (b) to the apprentice.

s 138 amd 2000 No. 23 s 292 sch 1; 2005 No. 11 s 17; 2012 No. 11 s 43 sch pt 2; 2013 No. 49 s 28 sch 1; 2014 No. 25 s 223 sch 1 pt 2

138BWages payable to former apprentices or trainees

(1)This section applies if—

(a)an employee was engaged as an apprentice or trainee; and

(b)the employer continued to employ the employee after the end of the probationary period; and

(c)either—

(i)the employer dismisses the employee; or

(ii)the employer does not sign a training contract.

(2)The employee is entitled to the higher of the following for the period after the end of the probationary period—

(a)the wages that would have been payable under the relevant industrial instrument had the employee continued to be employed as an apprentice or trainee;

(b)the wages payable under the relevant industrial instrument applicable to the type of work the employee performed.

(3)This section does not apply to an employee if a training contract between the employee and employer has been sent to the chief executive (training) for registration.

s 138B ins 2000 No. 23 s 292 sch 1

amd 2005 No. 11 s 18; 2012 No. 11 s 43 sch pt 2; 2013 No. 49 s 28 sch 1; 2014 No. 25 s 223 sch 1 pt 2

139AReinstatement to previous position

(1)This section applies if—

(a)an apprenticeship or traineeship is started with an employer; and

(b)immediately before the apprenticeship or traineeship started, the person training as the apprentice or trainee was employed in a position (the previous position) by the employer; and

(c)any of the following events happen—

(i)the chief executive (training) refuses to register the person’s training contract;

(ii)the training contract is cancelled;

(iii)the apprenticeship or traineeship ends before the probationary period for the apprenticeship or traineeship ends;

(iv)the person completes the apprenticeship or traineeship.

(2)The person is taken to be immediately reinstated with the employer in the person’s previous position.

(3)The reinstated person is not excluded from the operation of chapter 3 only because of the apprenticeship or traineeship.

s 139A ins 2003 No. 63 s 60 sch

amd 2012 No. 11 s 43 sch pt 2; 2013 No. 49 s 28 sch 1; 2014 No. 25 s 223 sch 1 pt 2

140Orders for wages and employment conditions

(1)The commission may make an order fixing wages and employment conditions for employees who participate in a labour market program.

(2)In making an order, the commission may consider any matter it considers relevant, including—

(a)the objectives of the program; and

(b)any attribute of the participants that affects their ability to get employment, including, for example—

(i)the age and competency of the participants; and

(ii)any disability or incapacity of the participants; and

(c)the kind of work done in the program; and

(d)the experience to be gained by the participants; and

(e)any relevant industrial instrument; and

(f)any remuneration or benefit the participants are receiving from the Commonwealth or the State.

(3)The commission may make an order—

(a)of its own initiative; or

(b)on application by—

(i)the chief executive (training); or

(ii)the Minister.

s 140 amd 2000 No. 23 s 292 sch 1; 2005 No. 11 s 19; 2012 No. 11 s 43 sch pt 2; 2013 No. 49 s 28 sch 1; 2014 No. 25 s 223 sch 1 pt 2

pt hdg ins 2013 No. 61 s 16

div 1 (ss 140B–140BB) ins 2013 No. 61 s 16

140BDefinition for pt 8

In this part—

pre-modernisation award means an award—

(a)either—

(i)made under section 125 as in force before the commencement of this part; or

(ii)continued in force under this Act; and

(b)in force immediately before the commencement of this part.

div 1 (ss 140B–140BB) ins 2013 No. 61 s 16

140BA Object of modernising awards

The principal object of this part is to provide for the modernisation of awards so they—

(a)are simple to understand and easy to apply; and

(b)together with the Queensland Employment Standards, provide for a fair minimum safety net of enforceable conditions of employment for employees; and

(c)are economically sustainable, and promote flexible modern work practices and the efficient and productive performance of work; and

(d)are in a form that is appropriate for a fair and productive industrial relations system; and

(e)result in a certain, stable and sustainable modern award system for Queensland.

div 1 (ss 140B–140BB) ins 2013 No. 61 s 16

140BB Commission’s award modernisation function

(1)The functions of the commission include carrying out a process (award modernisation process) to reform and modernise pre-modernisation awards.

(2)In performing its functions under this part, the commission must have regard to the following factors—

(a)promoting the creation of jobs, high levels of productivity, low inflation, high levels of employment and labour force participation, national and international competitiveness, the development of skills and a fair labour market;

(b)the need to help prevent and eliminate discrimination in employment;

(c)protecting the position in the labour market of young people, employees engaged as apprentices or trainees and employees with a disability;

(d)the needs of low-paid employees;

(e)the need to promote the principle of equal remuneration for work of equal value;

(f)the need to help employees balance their work and family responsibilities effectively and to improve retention and participation of employees in the workforce;

(g)the safety, health and welfare of employees;

(h)the Queensland minimum wage;

(i)the desirability of reducing the number of awards operating under this Act;

(j)the representation rights of organisations and associations under this Act.

(3)This section does not limit section 140D.

div 1 (ss 140B–140BB) ins 2013 No. 61 s 16

div hdg ins 2013 No. 61 s 16

sdiv hdg ins 2013 No. 61 s 16

140CMinister may make award modernisation request

(1)The Minister may give the commission a written notice (an award modernisation request) requesting that an award modernisation process be carried out.

(2)An award modernisation request must state—

(a)details of the award modernisation process that is to be carried out; and

(b)the day by which the process must be completed.

(3)The day stated in the notice under subsection (2) (b) must not be later than 2 years after the day on which the award modernisation request is given to the commission.

(4)An award modernisation request may state any other matter about the award modernisation process the Minister considers appropriate.

(5)Without limiting subsection (4), the award modernisation request may—

(a)require the commission to—

(i)prepare progress reports on stated matters about the award modernisation process; and

(ii)make the progress reports available as stated in the request; or

(b)state permitted matters about which provisions must be included in a modern award; or

(c)direct the commission to include in a modern award terms about particular permitted matters; or

(d)give other directions about how, or whether, the commission must deal with particular permitted matters.

(6)In this section—

permitted matter means a matter about which provisions may be included in a modern award under chapter 2A, part 3, division 1 or 2.

s 140C ins 2013 No. 61 s 16

140CA Variation of award modernisation request

(1)Before an award modernisation process is completed, the Minister may vary the award modernisation request by written notice (a variation notice) given to the commission.

(2)Without limiting subsection (1), a variation notice may extend the day by which the award modernisation process must be completed.

s 140CA ins 2013 No. 61 s 16

amd 2015 No. 7 s 17

140CB Publication of award modernisation request or variation notice

(1)This section applies if either of the following is given to the commission under this part—

(a)an award modernisation request;

(b)a variation notice.

(2)As soon as practicable after the request or notice is given to the commission, the registrar must publish the request or notice on the QIRC website.

s 140CB ins 2013 No. 61 s 16

sdiv hdg ins 2013 No. 61 s 16

140CC Procedure for carrying out modernisation process

(1)The commission must carry out the award modernisation process in accordance with the award modernisation request.

(2)Subject to subsection (1)—

(a)the commission may decide the procedure for carrying out the award modernisation process; and

(b)without limiting paragraph (a), the commission may inform itself in any way it thinks appropriate, including by consulting with any person, body or organisation in the way the commission considers appropriate.

(3)To remove any doubt, it is declared that subsection (2) does not limit the powers of the commission under any other provision of this Act.

s 140CC ins 2013 No. 61 s 16

140CD Deadline for completion of award modernisation process

(1)The commission must complete an award modernisation process by—

(a)the day stated in the award modernisation request relating to the process; or

(b)if a variation notice states a later day by which the process must be completed—the stated day.

(2)For subsection (1), the award modernisation process is completed when 1 or more modern awards are made to give effect to the outcome of the process.

s 140CD ins 2013 No. 61 s 16

140CE Making of modern awards and repeal of pre-modernisation awards

(1)To give effect to the outcome of an award modernisation process, the commission must—

(a)make 1 or more modern awards; and

(b)under section 125, repeal the pre-modernisation awards to which the process relates on a stated day determined by the commission, having regard to section 824.

(2)The commission must ensure each relevant class of employees—

(a)is covered by a modern award; or

(b)would be covered by a modern award but for the effect of section 140E (2).

(3)Subject to chapter 2A, part 3 and chapter 5A, a modern award made for the purposes of subsection (1) must be consistent with the award modernisation request to which the modern award relates.

(4)In this section—

relevant class of employees means a class of employees who were bound by a pre-modernisation award that is repealed to give effect to the outcome of the award modernisation process.

s 140CE ins 2013 No. 61 s 16

amd 2015 No. 7 s 36 sch 1

ch hdg ins 2013 No. 61 s 17

pt hdg ins 2013 No. 61 s 17

140DModern awards objectives

(1)In exercising its chapter 5A powers, the commission must ensure modern awards, together with the Queensland Employment Standards, provide a minimum safety net of employment conditions that is fair and relevant.

(2)For subsection (1), the commission must have regard to the following—

(a)relative living standards and the needs of low-paid employees;

(b)the need to promote social inclusion through increased workforce participation;

(c)the need to promote flexible modern work practices and the efficient and productive performance of work;

(d)the need to ensure equal remuneration for male and female employees for work of equal or comparable value;

(e)the need to provide penalty rates for employees who—

(i)work overtime; or

(ii)work unsocial, irregular or unpredictable hours; or

(iii)work on weekends or public holidays; or

(iv)perform shift work;

(f)the likely impact of the exercise of the chapter 5A powers on business, including on productivity, employment costs and the regulatory burden;

(g)the need to ensure the modern award system—

(i)is simple and easy to understand; and

(ii)is certain, stable and sustainable; and

(iii)avoids unnecessary overlap of modern awards;

(i)the likely impact of the exercise of the chapter 5A powers on—

(i)employment growth and inflation; and

(ii)the sustainability, performance and competitiveness of the Queensland economy.

(3)Also, to the extent the commission’s chapter 5A powers relate to setting, varying or revoking minimum wages in modern awards, the commission must establish and maintain a minimum safety net of fair minimum wages, having regard to—

(a)the matters mentioned in subsection (2) (a) to (d) and (i); and

(b)providing a comprehensive range of fair minimum wages to—

(i)young employees; and

(ii)employees engaged as apprentices or trainees; and

(iii)employees with a disability.

(4)The objectives of the commission under subsections (1) and (2) are the modern awards objectives.

(5)In this section—

chapter 5A powers means powers or functions of the commission under this chapter.

s 140D ins 2013 No. 61 s 17

amd 2015 No. 7 s 18

140DA Definitions for ch 5A

In this chapter—

employee with a disability means an employee who—

(a)is qualified for a disability support pension under the Social Security Act 1991 (Cwlth), section 94 or 95; or

(b)would be qualified for a disability support pension but for section 94 (1) (e) or 95 (1) (c) of that Act.

work value reasons, in relation to fixing rates of minimum wages for a particular kind of work, means reasons that—

(a)justify the amount employees should be paid for doing the work; and

(b)relate to any of the following—

(i)the nature of the work;

(ii)the level of skill or responsibility involved in doing the work;

(iii)the conditions under which the work is done.

s 140DA ins 2013 No. 61 s 17

pt hdg ins 2013 No. 61 s 17

140EWho a modern award applies to

(1)A modern award applies to an employee, employer or organisation if the award is in operation and—

(a)the award states that it applies to the employee, employer or organisation; or

(b)the award applies to the employee, employer or organisation under any of the following—

(i)a provision of this Act;

(ii)an order made by the commission under this Act;

(iii)an order of a court.

(2)However, a modern award does not apply to an employee, employer or organisation if a provision of this Act provides that the award does not apply to the employee, employer or organisation.

Note—

See, for example, section 824 which provides that a modern award does not apply to an employee who is under a pre-modernisation certified agreement.

(3)A reference in this Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment.

s 140E ins 2013 No. 61 s 17

140EA Significance of application of modern award

(1)A modern award does not—

(a)impose obligations on a person; or

(b)confer an entitlement on a person;

unless the award applies to the person.

(2)A person does not contravene a term of a modern award unless the award applies to the person.

s 140EA ins 2013 No. 61 s 17

140EB When a modern award operates

(1)Subject to section 824, a modern award starts operating on the day stated in the award as the day on which it comes into operation.

(2)The stated day must not be earlier than the day the modern award is made.

(3)A modern award continues in effect until it is revoked.

s 140EB ins 2013 No. 61 s 17

140EC Relationship of modern award with certified agreement

(1)A modern award may apply to an employee in relation to particular employment at the same time as a certified agreement applies to the employee in relation to the employment.

(2)If both a modern award and certified agreement apply to an employee in relation to particular employment, the certified agreement prevails to the extent of any inconsistency.

s 140EC ins 2013 No. 61 s 17

140ED Relationship of modern award with contract of service

(1)A modern award prevails over a relevant contract to the extent of any inconsistency.

(2)The contract must be interpreted, and takes effect, as if it were amended to the extent necessary to make the inconsistency consistent with the modern award.

(3)However, there is no inconsistency only because the contract provides for employment conditions more favourable to the employee than the modern award.

(4)In this section—

relevant contract means a contract of service that is—

(a)in force when the award comes into operation; or

(b)made while the award continues in operation.

s 140ED ins 2013 No. 61 s 17

amd 2015 No. 7 s 36 sch 1

pt hdg ins 2013 No. 61 s 17

div hdg ins 2013 No. 61 s 17

140FPeriodic reviews of a modern award

(1)The commission must review a modern award (a periodic review) as soon as practicable after each 4th anniversary of the making of the award.

(2)The president may give a direction about the conduct of a periodic review to the member constituting the commission for conducting the review.

(3)An industrial commissioner must comply with a direction of the president under subsection (2).

(4)For the purposes of a periodic review, the commission may make any of the following—

(a)a determination varying the modern award;

(b)a modern award;

(c)a determination revoking the modern award.

(5) Subsection (4) (a) applies subject to section 140FA.

s 140F ins 2013 No. 61 s 17

amd 2015 No. 13 s 37AC

140FA Requirement about variation of minimum wages

For a periodic review, the commission may make a determination varying the rates of minimum wages in a modern award only if the commission is satisfied the variation is justified by work value reasons.

s 140FA ins 2013 No. 61 s 17

div 2 (ss 140G–140GD) ins 2013 No. 61 s 17

140GPowers may be exercised to achieve modern awards objectives

(1)The commission may, other than for the purposes of a periodic review—

(a)make a determination varying a modern award; or

(b)make a modern award; or

(c)make a determination revoking a modern award.

(2)The commission may exercise a power under subsection (1) only if the commission is satisfied—

(a)that making the determination or modern award other than for the purposes of a periodic review is necessary to achieve the modern awards objectives; and

(b)for a variation of the rates of minimum wages in a modern award—the variation is justified by work value reasons.

(3)The commission may exercise a power under this section—

(a)on its own initiative; or

(b)on application under section 140GA.

div 2 (ss 140G–140GD) ins 2013 No. 61 s 17

140GA Application to vary, revoke or make modern award under s 140G

(1)This section provides for who may apply for the making of a determination varying or revoking a modern award, or for the making of a modern award, under section 140G.

(2)An application to vary, omit or include provisions, other than coverage provisions, in a modern award or an application to revoke a modern award may be made by—

(a)an employer, employee or organisation to which the award applies; or

(b)an organisation whose rules entitle it to represent the industrial interests of 1 or more employers or employees to whom the award applies.

(3)An application to vary or include coverage provisions in a modern award to extend the coverage of the award to include additional employers, employees or organisations may be made by—

(a)an employer, employee or organisation that the award would start applying to; or

(b)an organisation whose rules entitle it to represent the industrial interests of 1 or more employers or employees whom the award would start applying to.

(4)An application to vary or omit coverage provisions in a modern award so it stops applying to employers, employees or organisations may be made by—

(a)an employer, employee or organisation the award would stop applying to; or

(b)an organisation whose rules entitle it to represent the industrial interests of 1 or more employers or employees whom the award would stop applying to.

(5)An application for the making of a modern award may be made by—

(a)an employee or employer to whom the award would apply; or

(b)an organisation entitled to represent the industrial interests of 1 or more employers or employees to whom the award would apply.

(6)Subject to subsections (1) to (5), an applicant may make applications for 2 or more related things at the same time.

Example—

An applicant may apply for the making of a new modern award and the related revocation of an existing modern award.

(7)In this section—

coverage provisions see section 71MC.

div 2 (ss 140G–140GD) ins 2013 No. 61 s 17

140GB Variation to update or omit name of employer or organisation

(1)The commission may make a determination varying a modern award—

(a)to reflect a change in the name of an employer or organisation; or

(b)to omit the name of an employer or organisation from the award, if—

(i)the employer or organisation has ceased to exist; or

(ii)the organisation has been deregistered under chapter 12, part 16; or

(c)to reflect a transfer of a calling from an employer named in the award (the old employer) to another employer (the new employer).

(2)The commission may make a determination under this section—

(a)on its own initiative; or

(b)if subsection (1) (a) or (b) (ii) applies—on application by the employer or organisation; or

(c)if subsection (1) (c) applies—on application by—

(i)the old employer or the new employer; or

(ii)a transferring employee to whom the award applied as an employee of the old employer; or

(iii)an organisation entitled under its rules to represent the industrial interests of a person mentioned in subparagraph (i) or (ii).

div 2 (ss 140G–140GD) ins 2013 No. 61 s 17

140GC Variation to remove ambiguity or uncertainty or to correct error

(1)The commission may make a determination varying a modern award to—

(a)remove an ambiguity or uncertainty; or

(b)correct an error.

(2)The commission may make a determination under this section—

(a)on its own initiative; or

(b)on application by—

(i)an employer, employee or organisation to which the modern award applies; or

(ii)an organisation entitled under its rules to represent the industrial interests of 1 or more employers or employees mentioned in subparagraph (i).

div 2 (ss 140G–140GD) ins 2013 No. 61 s 17

140GD Variation on referral by Anti-Discrimination Commission

(1)The Anti-Discrimination Commission may apply to the commission for a review of a modern award on the grounds that it is discriminatory.

(2)If an application is made under subsection (1), the commission must—

(a)review the modern award; and

(b)if it considers the award requires a person to do an act that would be unlawful under the Anti-Discrimination Act 1991 had the act not been done under the award—make a determination varying the award so it no longer requires the person to do the unlawful act.

div 2 (ss 140G–140GD) ins 2013 No. 61 s 17

div 3 (ss 140H–140HB) ins 2013 No. 61 s 17

140HRequirements about revoking a modern award

The commission must not make a determination revoking a modern award unless the commission is satisfied the award is obsolete or no longer capable of operating.

div 3 (ss 140H–140HB) ins 2013 No. 61 s 17

140HA When variation determination comes into operation

(1)This section applies to a determination varying a modern award.

(2)The determination comes into operation on the day stated in the determination.

(3)The stated day must not be earlier than the day on which the determination is made, unless—

(a)the determination is made under section 140GC; and

(b)the commission is satisfied exceptional circumstances justify stating an earlier day; and

(c)the determination does not adversely affect an employee.

(4)The determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after the day the determination comes into operation.

div 3 (ss 140H–140HB) ins 2013 No. 61 s 17

140HB Retrospective variation of modern awards

(1)This section applies if a determination varying a modern award operates retrospectively under section 140HA.

(2)If, before the determination was made, a certified agreement or a variation of a certified agreement was approved by the commission, the validity of the approval is not affected by the retrospective operation of the determination.

(3) Subsection (4) applies if—

(a)a person engaged in conduct before the determination was made; and

(b)but for the retrospective operation of the determination, the conduct would not have contravened a term of the modern award or a certified agreement.

(4)The person is taken not to have committed an offence only because the conduct contravened a term of the modern award or certified agreement.

div 3 (ss 140H–140HB) ins 2013 No. 61 s 17

pt 4 (ss 140I–140ID) ins 2013 No. 61 s 17

140IDefinition for pt 4

In this part—

relevant instrument means—

(a)a modern award; or

(b)a determination varying or revoking a modern award.

pt 4 (ss 140I–140ID) ins 2013 No. 61 s 17

140IA Formal requirements of relevant instruments

(1)A relevant instrument must—

(a)be in writing; and

(b)be signed by the member of the commission making the instrument; and

(c)state the day on which it is signed.

(2)Also, a modern award must—

(a)have a unique title; and

(b)have a table of contents; and

(c)be expressed in plain English and be easy to understand in structure and content.

pt 4 (ss 140I–140ID) ins 2013 No. 61 s 17

140IB Publication of relevant instruments

(1)This section applies if the commission makes a relevant instrument.

(2)As soon as practicable after making the relevant instrument, the commission must give the registrar—

(a)a copy of the instrument; and

(b)written reasons for the instrument.

(3)As soon as practicable after the registrar receives a copy of the relevant instrument under subsection (2), the registrar must—

(a)give the parties to whom the relevant modern award applies, or will or did apply, notice of the making of the instrument; and

(b)ensure a copy of the instrument and the written reasons for the instrument are published on the QIRC website.

(4)The registrar must give the notice under subsection (3) (a)—

(a)in the way prescribed under a regulation; or

(b)if there is no prescribed way—in the way the registrar considers appropriate.

pt 4 (ss 140I–140ID) ins 2013 No. 61 s 17

140IC Publication of varied awards

(1)This section applies if the commission makes a determination under this part or section 287 varying a modern award.

(2)The registrar must, as soon as practicable after the determination is made, publish the award as varied on the QIRC website.

pt 4 (ss 140I–140ID) ins 2013 No. 61 s 17

140ID Interpretation of relevant instrument

(1)A term used in a relevant instrument has the same meaning as it has—

(a)in this Act; or

(b)subject to paragraph (a), under the Acts Interpretation Act 1954 .

(2) Subsection (1) applies subject to a contrary intention in the modern award or determination.

pt 4 (ss 140I–140ID) ins 2013 No. 61 s 17

ch hdg amd 2011 No. 4 s 24

ch 6 pt 1 hdg om 2011 No. 4 s 25

ch 6 pt 2 hdg om 2011 No. 4 s 31

ch 6 pt 2 div 1 hdg om 2011 No. 4 s 31

ch 6 pt 2 div 2 hdg om 2011 No. 4 s 31

ch 6 pt 2 div 3 hdg om 2011 No. 4 s 31

ch 6 pt 2 div 4 hdg om 2011 No. 4 s 31

ch 6 pt 2 div 5 hdg om 2011 No. 4 s 31

ch 6 pt 2 div 6 hdg om 2011 No. 4 s 31

ch 6 pt 2 div 7 hdg om 2011 No. 4 s 31

ch 6 pt 2 div 8 hdg om 2011 No. 4 s 31

ch 6 pt 2 div 9 hdg om 2011 No. 4 s 31

div 1A (ss 140J–140K) ins 2013 No. 61 s 18

140JApplication of ch 6

This chapter applies to—

(a)employees who are covered by a modern award; and

(b)employers of employees covered by a modern award.

div 1A (ss 140J–140K) ins 2013 No. 61 s 18

140KDefinitions for ch 6

In this chapter—

arbitration period, for a matter, means the arbitration period for the matter under section 149A.

conciliating member, for a matter, see section 149 (2).

conciliation report, for a matter, see section 149 (2).

conciliation period, for a matter, see section 148 (2).

multi-employer agreement means a certified agreement made with a multi-employer.

negotiating party see section 148 (1).

peace obligation period see section 147 (2).

relevant employee organisation, for a certified agreement or a proposed certified agreement, means an employee organisation that—

(a)is bound by an award or industrial agreement that binds an employer under the certified agreement or proposed certified agreement, or would bind the employer apart from an award under the Commonwealth Act; or

(b)if there is no award or agreement that binds, or would bind, an employer under the certified agreement or proposed certified agreement—is entitled to represent the industrial interests of employees of the employer.

div 1A (ss 140J–140K) ins 2013 No. 61 s 18

141Meaning of certified agreement

(1)A certified agreement is a written agreement—

(a)between an employer and a group of employees of the employer (whether all employees or a category of employees) who are covered by a modern award; and

(b)that has been certified under section 156.

(2)The certified agreement covers all employees in the group, even if they were employed after the agreement was made.

(3)In this section—

group of employees includes—

(a)employees of a single employer; and

(b)employees of a multi-employer; and

(c)employees of an employer who are engaged in a project, including a proposed project; and

(d)employees proposed to be employed in a new business by an employer, other than a multi-employer; and

(e)employees of—

(i)the State; or

(ii)an entity established for a public purpose under a law of the State or Commonwealth; or

(iii)another entity in which the State has a controlling interest.

s 141 amd 2013 No. 61 s 19

142Who may make certified agreements

A certified agreement may be made between—

(a)on the one hand, the employer; and

(b)on the other hand—

(i)1 or more employee organisations that represent, or are entitled to represent, any employees to whom this chapter applies and who are, or are eligible to be, members of the organisation; or

(ii)the employees, at the time the agreement is made, to whom this chapter applies.

s 142 sub 2013 No. 61 s 20

amd 2015 No. 7 s 18A

div hdg prev div 1 hdg om 2013 No. 61 s 18

pres div 1 hdg ins 2013 No. 61 s 21

sdiv hdg ins 2013 No. 61 s 21

143Proposed parties to be advised when agreement is proposed

(1)This section applies when a person (the proposer) proposes to make a certified agreement.

(2)The proposer must give each of the following persons a written notice (a notice of intention) of the proposer’s intention to begin negotiations for the agreement—

(a)the other proposed parties to the agreement;

(b)for a project agreement—all relevant employee organisations and the commission.

(3)The proposer must give the notice of intention at least 7 days before the negotiations are proposed to begin.

(3A)If there is an existing certified agreement or a determination under subdivision 3 between the parties, the proposer must not, despite anything to the contrary in the agreement or determination, give the notice of intention more than 60 days before the nominal expiry date.

(4)If the agreement proposed is a project agreement, an organisation that receives a notice of intention and wants to be party to the agreement must give written notice of that fact to—

(a)the proposer; and

(b)the commission.

(5)If the agreement proposed is a multi-employer agreement, a person who receives a notice of intention and wants to be party to the agreement must give written notice of that fact to the proposer and the commission.

(6)A notice under subsection (4) or (5) must be given within 21 days of the person receiving the advice.

(7)An agreement may only be made within that 21 days if the other proposed parties to the agreement, and all relevant employee organisations, have given a notice under subsection (4) or (5).

s 143 amd 2009 No. 15 s 2 sch; 2013 No. 61 s 22

144What is to be done when an agreement is proposed

(1)This section does not apply to—

(a)a certified agreement to be made with an employee organisation for employees proposed to be employed in a new business; or

(b)a project agreement if the agreement is to be made before the project commences.

(2)When a certified agreement is proposed to be made with an employee organisation or employees, the employer must take reasonable steps to ensure—

(a)each relevant employee has, or has ready access to, the proposed written agreement or a copy of it during the period starting 7 days before the day the relevant employees are asked to approve the proposed agreement; and

(b)the terms of the agreement (including the procedures for preventing and settling disputes), and the effect of the terms, are explained to each relevant employee before approval is given; and

(c)for an agreement with employees—each relevant employee is informed that he or she may ask a relevant employee organisation of which he or she is a member to represent the employee in negotiating with the employer about the agreement.

(3)If a relevant employee does ask a relevant employee organisation of which he or she is a member to represent the employee, the employer must give the organisation a reasonable opportunity to represent the employee in negotiating with the employer about the agreement before it is made.

(4) Subsection (3) stops applying if, after the request is made—

(a)the relevant employee withdraws the request; or

(b)the employee stops being a relevant employee.

(4A) Subsections (2) (c) and (3) do not apply to an agreement proposed to be made with employees under section 147A.

s 144 amd 2012 No. 7 s 6; 2013 No. 61 s 23

145Negotiations for project agreements

(1)This section applies if more than 1 employee organisation has given notice, under section 143 (4), that it wants to be party to a proposed project agreement.

(2)The employer must negotiate with the single bargaining unit, through a person nominated by the single bargaining unit to represent it.

(3)An organisation may withdraw as a party to a proposed project agreement by written notice to—

(a)the other organisations that comprise the single bargaining unit; and

(b)the proposer; and

(c)the commission.

(4)In this section—

single bargaining unit means all the employee organisations that have given notice, under section 143 (4), that they want to be party to a proposed project agreement.

146Negotiations must be in good faith

When negotiating the terms of a proposed agreement, the proposed parties to the agreement must negotiate in good faith.

Examples of good faith in negotiating—

•agreeing to meet at reasonable times proposed by another party

•attending meetings that the party had agreed to attend

•complying with negotiation procedures agreed to by the parties

•not capriciously adding or withdrawing items for negotiation

•disclosing relevant information as appropriate for the negotiations

•negotiating with all of the parties

147Peace obligation period to assist negotiations

(1)To enable the proposed parties to reach agreement about the terms of the proposed agreement, the proposed parties can not during the peace obligation period—

(a)take industrial action for the purpose of—

(i)supporting or advancing claims made in relation to the proposed agreement; or

(ii)responding to industrial action by the employer or the relevant employees; or

(b)ask the commission to help the parties to make the agreement under section 148.

(2)In this section—

peace obligation period means the period of 21 days after the giving of the advice mentioned in section 143 (2), ending no earlier than 7 days after the nominal expiry date of any existing certified agreement.

147AEmployer may ask employees to approve proposed agreement being negotiated with employee organisation

(1)This section applies if—

(a)the parties to a proposed agreement are an employer and 1 or more employee organisations; and

(b)the agreement is not a project agreement.

(2)The employer may request the employees who will be bound by the proposed agreement to approve it.

(3)The request must not be made until after the peace obligation period has ended.

(4)In making the request, the employer must comply with section 144 (2) (a) and (b).

(5)If a valid majority of the employees approve the proposed agreement—

(a)the employer may apply to the commission for certification of the agreement under division 2; and

(b)the agreement is taken to be made by—

(i)the employer; and

(ii)the employees at the time the agreement is made.

Note—

See section 142 (b).

(6)For section 156, if, in negotiating a proposed agreement—

(a)a step was taken by the employer, or an employee organisation mentioned in subsection (1), to comply with a requirement under this Act; and

(b)the employer or employee organisation, as applicable, complied with the requirement as it applied to the proposed agreement;

the requirement is taken to have been complied with as it applies to the agreement made between the employer and the employees.

Example—

For paragraph (a), the step taken was that the employer, or employee organisation, gave a notice of intention under section 143 (2).For section 156, section 143 (2) is taken to have been complied with for the agreement made between the employer and the employees.

(6A)If the commission is satisfied a valid majority of the employees approved the agreement, section 156 (1) (c) does not apply to the extent it requires the commission to be satisfied the agreement is signed by or for all the parties.

(7) Subsection (5) does not prevent an employee organisation mentioned in subsection (1) being bound by the agreement under section 166 (2).

(8)If the full bench, or the commission, has jurisdiction to arbitrate the matter under subdivision 3, this section stops applying and anything being done under this section ends.

(9)Making a request under subsection (2) does not, of itself, constitute a failure to negotiate in good faith as required under section 146.

s 147A ins 2012 No. 7 s 7

amd 2013 No. 61 s 24; 2015 No. 7 s 36 sch 1

sdiv hdg ins 2013 No. 61 s 25

148Commission to help negotiating parties

(1)After the peace obligation period for negotiations for a proposed certified agreement has ended, the commission must help the parties to the negotiations (each, a negotiating party) to make a certified agreement if—

(a)all of the negotiating parties jointly ask the commission to help them negotiate the agreement; or

(b)1 negotiating party declares a breakdown in the negotiations and the commission considers further negotiations are unlikely to result in making a certified agreement within a reasonable time; or

(c)1 negotiating party asks the commission for help negotiating the matter and the commission considers that a negotiating party is organising or engaging in, or threatening to organise or engage in, relevant industrial action.

(2)The negotiating parties must, with the commission’s help, try to make a certified agreement during the period (the conciliation period)—

(a)starting on the day—

(i)if subsection (1) (a) applies—the commission is asked to help; or

(ii)if subsection (1) (b) applies—the commission notifies the parties that it considers further negotiations are unlikely to result in making a certified agreement within a reasonable time; or

(iii)if subsection (1) (c) applies—the commission notifies the parties that it considers that 1 of them is engaging, or threatening to engage, in relevant industrial action; and

(b)ending on—

(i)the day that is 14 days after the day mentioned in paragraph (a) for the matter; or

(ii)if all the negotiating parties agree to end the conciliation period on a later day—the later day.

(3)In this section—

relevant industrial action—

(a)means industrial action—

(i)that has been protracted; or

(ii)that has caused, is causing or threatens to cause significant damage to any of the following—

(A)the economy or a part of it;

(B)the local community or a part of it;

(C)a single enterprise;

(D)the employees; or

(iii)that has endangered, is endangering or threatens to endanger the personal health, safety or welfare of the community or a part of it; or

(iv)that affects, or threatens to affect, directly or indirectly, access to, or delivery of, services to the community or a part of it; or

(v)the cumulative effect of which has affected, or threatens to affect, directly or indirectly, access to, or delivery of, services to the community or a part of it; but

(b)does not include the making, by a negotiating party, of an application for a protected action ballot order under schedule 4, part 2, section 3.

single enterprise means—

(a)a business project or undertaking carried on by an employer; or

(b)the activities carried on by any of the following—

(i)the Commonwealth or a State;

(ii)a body, association, office or other entity established for a public purpose by, or under, a law of the Commonwealth or a State;

(iii)another entity in which the Commonwealth or a State has a controlling interest.

s 148 sub 2013 No. 61 s 26

148ACommission’s conciliation powers

(1)In helping negotiating parties make a certified agreement under this subdivision, the commission has the conciliation powers it would have under section 230 if that section applied to certified agreement negotiations instead of industrial disputes.

(2)Without limiting subsection (1), the commission may make an order—

(a)to promote the efficient conduct of negotiations; or

(b)to ensure the parties negotiate in good faith; or

(c)if 2 or more employee organisations are involved in the negotiations—that, for conciliating the matter, the organisations be represented by an authorised person; or

(d)that otherwise helps the parties to negotiate a certified agreement.

(3)In deciding what orders to make, the commission must consider the conduct of each of the negotiating parties.

(4)In this section—

authorised person, for 2 or more employee organisations, means a person or a group of persons authorised by the organisations to represent them, whether generally or for particular negotiations.

s 148A ins 2013 No. 61 s 26

148BCommission can not order wage increase

The Commission can not, in helping negotiating parties negotiate a certified agreement under this subdivision, order an increase in wages payable to the employees.

s 148B ins 2013 No. 61 s 26

sdiv hdg ins 2013 No. 61 s 27

149Arbitration if conciliation unsuccessful

(1)This section applies if—

(a)the commission has helped negotiating parties to try to negotiate a certified agreement; and

(b)when the conciliation period for the matter ends, there remain matters at issue between the negotiating parties.

(2)The commissioner (the conciliating member) who conciliated the matter under subdivision 2 must prepare a written report (the conciliation report) identifying—

(a)the aspects of the matter, if any, on which the negotiating parties agree; and

(b)the aspects of the matter (the issues) that remain at issue between the negotiating parties.

(3)The conciliating member must, on the day that is 14 days after the conciliation period for the matter ends—

(a)give the conciliation report to the president; and

(b)give a copy of the conciliation report to each negotiating party.

(4)The matter must be determined by arbitration within the arbitration period for the matter.

(5)However, subsection (4) does not apply if the parties reach agreement on the terms of a proposed certified agreement before the commission makes an arbitration determination for the matter.

s 149 amd 2001 No. 87 s 17; 2012 No. 7 s 8

sub 2013 No. 61 s 28

amd 2015 No. 7 s 19; 2015 No. 13 s 37AD

149AArbitration period

(1)Unless the president otherwise directs, the arbitration period for a matter is the period of 90 days after the day the president receives the conciliation report.

(2)The president may direct that the arbitration period for a matter be a stated period of more than 90 days only if the president considers that the arbitration can not reasonably be determined within 90 days.

(3)In deciding whether a matter can not reasonably be determined by arbitration within 90 days, the president must consider all of the circumstances, including the number, scope and complexity of the issues identified in the conciliation report.

(4)An arbitration period mentioned in subsection (2)—

(a)starts on the day after the president receives the conciliation report for the matter; and

(b)ends on the day stated in the president’s direction; and

(c)must not be longer than is reasonably necessary.

(5)The president may make a direction for a matter under subsection (2) at any time—

(a)after the president receives the conciliation report; and

(b)before the full bench makes its arbitration determination.

s 149A ins 2013 No. 61 s 28

amd 2015 No. 13 s 37AE

149BFull bench to determine matters by arbitration unless president directs otherwise

(1)The full bench is to determine matters by arbitration under this subdivision.

(2)However, the president may direct that a matter be determined by arbitration by the commission constituted by a commissioner sitting alone.

(3)The president may make a direction under subsection (2) only if, having considered all of the circumstances including the number, scope and complexity of the issues identified in the conciliation report, the president considers it would not be appropriate to have the matter determined by arbitration by the full bench.

(4)If the president makes a direction under subsection (2)—

(a)the president must choose a commissioner other than the conciliating member for the matter to constitute the commission for the arbitration; and

(b) sections 149A (5) (b) and 149C to 149E apply as if a reference in those sections to the full bench were a reference to the commission constituted by a commissioner sitting alone.

s 149B ins 2013 No. 61 s 28

amd 2015 No. 13 s 37AF

149CArbitration powers of full bench

(1)For determining a matter by arbitration under this subdivision, the full bench—

(a)has the arbitration powers it would have under section 230 if that section applied to certified agreement negotiations instead of industrial disputes; and

(b)may give directions or make orders of an interlocutory nature; and

(c)can not order an increase in wages payable to employees before the full bench makes its arbitration determination for the matter.

(2)An arbitration determination by the full bench must include the provisions required to be included in a certified agreement under chapter 2A, part 3, division 2, subdivision 3.

s 149C ins 2013 No. 61 s 28

amd 2015 No. 7 s 20

149DIssues full bench must consider

(1)In determining a matter by arbitration under this subdivision, the full bench—

(a)must limit its consideration to the issues identified in the conciliation report for the matter; and

(b)in considering the issues, must consider at least the following—

(i)the merits of the case;

(ii)the likely effect of the proposed arbitration determination, and any matters agreed between the negotiating parties before the arbitration, on employees and employers who will be bound by the proposed arbitration determination;

(iii)the extent to which the negotiating parties have negotiated in good faith;

(iv)the public interest.

(2)In considering the public interest under subsection (1) (b) (iv), the full bench must consider—

(a)the objects of this Act; and

(b)the likely effect of the proposed arbitration determination on the economy and the community or a part of the economy or community; and

(c)the employer’s efforts to improve productivity in the enterprise or industry concerned; and

(d)the flexibility of work practices to meet the operational requirements of the enterprise or industry concerned.

s 149D ins 2013 No. 61 s 28

amd 2015 No. 7 s 21

149EFull bench must publish reasons

(1)The full bench must publish its reasons when it makes an arbitration determination for a matter under this subdivision.

(2)The published reasons must address each of the things mentioned in section 149D (1) and (2) and, for each thing, must—

(a)set out the full bench’s findings on material questions of fact; and

(b)refer to the evidence or other material on which those findings were based.

s 149E ins 2013 No. 61 s 28

150Arbitration determinations

(1)An arbitration determination made under this subdivision must specify a date, no later than 4 years after the date on which the determination is made, as its nominal expiry date.

(2)Subject to subsection (2A), the arbitration determination has effect subject to any conditions specified in it.

(2A)A wage increase, other entitlement or benefit under the arbitration determination can not—

(a)take effect on a day earlier than the day the arbitration period for the matter started; or

(b)relate to a period before the day the arbitration period for the matter started.

(3)The determination (including a determination made before the commencement of this subsection) operates until—

(a)before its nominal expiry date has passed—the full bench, acting on an application under subsection (4), revokes it under subsection (5); or

(b)after its nominal expiry date has passed—

(i)it is replaced by a certified agreement; or

(ii)the full bench, acting on an application under subsection (4), revokes it under subsection (6).

(4)The following persons may apply to the full bench to revoke a determination—

(a)the employer;

(b)a valid majority of the employees to whom the determination applies;

(c)an employee organisation that—

(i)is bound by the determination; and

(ii)has at least 1 member who is an employee bound by the determination.

(5)Before the determination’s nominal expiry date has passed, the full bench must not revoke the determination unless satisfied—

(a)the employer and the 1 or more employee organisations, or a valid majority of the employees, who are bound by the determination have agreed to the revocation (for example, because they propose to make an agreement under division 1); and

(b)the revocation would not be against the public interest.

(6)After the determination’s nominal expiry date has passed, the full bench must revoke the determination if, and only if, satisfied—

(a)for a determination that provides that it may be revoked if particular conditions are met—the conditions have been met; or

(b)for a determination that does not provide for the way it may be revoked—it is in the public interest to revoke the determination.

(7)The revocation takes effect when the full bench’s approval takes effect.

(8)While a determination operates—

(a)the determination prevails, to the extent of any inconsistency, over an award or industrial agreement or an order made under section 137; and

(b)the determination can not be amended.

s 150 amd 2005 No. 11 s 21; 2007 No. 36 s 2 sch; 2013 No. 61 s 29

sdiv 4 (s 150A) ins 2013 No. 61 s 30

150ANo protected industrial action during conciliation and arbitration periods

Industrial action is not protected industrial action under section 174 if it is organised, or engaged in, by or on behalf of a negotiating part for a matter—

(a)during the conciliation period for a matter; and

(b)if the matter is determined by arbitration under subdivision 3—between the end of the conciliation period and the end of the arbitration period for the matter.

sdiv 4 (s 150A) ins 2013 No. 61 s 30

sdiv hdg ins 2013 No. 61 s 30

151Steps to be repeated if proposed agreement is amended

(1)If a proposed agreement is amended for any reason, the steps in section 144 (2) and (3) must be taken again for the agreement as amended.

(2)If the agreement is being amended only by adding an employer (a new employer) as a party to the agreement, the steps need only be taken in relation to the new employer’s employees.

(3)However, the steps need not be taken if the commission is satisfied the proposed agreement was amended only—

(a)for a formal or clerical reason; or

(b)in another way that does not adversely affect a relevant employee’s interests.

152Certificate as to requested representation

(1)An employee organisation may apply to the registrar for a certificate stating that an employee has requested the organisation, under section 144, to represent the employee in negotiating with the employer about a proposed agreement.

(2)An employer may apply to the registrar for a certificate stating that the employer need not negotiate with an employee organisation about a proposed agreement because of a circumstance mentioned in section 144 (4).

(3)A certificate must identify the organisation, the employer and the proposed agreement.

(4)A certificate must not identify any of the employees concerned.

(5)The certificate is, for all purposes of this Act, evidence of the matters stated in it.

153Applying for certification

(1)An application for the commission to certify an agreement may be made by a party to the agreement.

(2)For an agreement made between a single employer and 1 or more employee organisations, the application may be made even though the agreement has not been signed by or for all the parties if—

(a)all the parties have agreed on the terms of the agreement; and

(b)the agreement has been approved by a valid majority of the relevant employees at the time in a properly conducted ballot.

(3)If an agreement has been signed by or for all the parties, the application must be made within 21 days after it is signed.

s 153 sub 2007 No. 23 s 10

154Notice of hearing

The registrar must, at least 7 days before an application for certification of an agreement is to be heard, place a notice in the registry detailing—

(a)the names of the parties to the agreement; and

(b)the relevant or designated award; and

(c)the hearing date.

155Entities that may be heard on application

(1)An employee organisation that will be a party to an agreement if it is certified is entitled to be heard on an application for the certification of the agreement.

(2)As soon as practicable after the application is made, the commission must notify each employee organisation mentioned in subsection (1) that the application has been made and that the organisation is entitled to be heard on it.

(3)An employee organisation that will not be party to the agreement if it is certified may be heard on the application only by leave of the commission.

(4)The commission may give leave to an employee organisation mentioned in subsection (3) only if the commission is satisfied there is a reasonable possibility that, if leave is not given, it will not be informed of an issue relevant to its decision to certify, or not to certify, the agreement.

(5)This section does not affect another right of an employee organisation, or anyone else, to be heard on, or to intervene in, an application.

s 155 sub 2013 No. 61 s 31

156Certifying an agreement

(1)The commission must certify the agreement if, and must not certify the agreement unless, it is satisfied—

(a)the things required by sections 143, 144 and 145 were done, and in particular, the terms of the agreement were explained in a way that was appropriate, having regard to the persons’ particular circumstances and needs; and

Examples of persons with particular circumstances and needs—

1women

2persons from a non-English speaking background

3young persons

4persons with limited literacy or numeracy skills

Note—

For an agreement made with employees under section 147A—see also section 147A (6).

(b)the employer did not coerce, or attempt to coerce, an employee—

(i)not to make a request mentioned in section 144 (2) (c); or

(ii)to withdraw the request; and

(c)the agreement is in writing and signed by or for all the parties; and

(d)the agreement complies with chapter 2A, part 3, division 2, subdivision 3; and

(e)a valid majority of the relevant employees employed at the time approved the agreement; and

(f)the agreement passes the no-disadvantage test; and

(g)for a project agreement—each employee organisation that has given notice of wanting to be party to the agreement under section 143 (4), and that has not withdrawn as a party under section 145 (3), is a party to the agreement; and

(h)for an agreement to be made with an employee organisation, other than an agreement for a new business—each relevant employee organisation is a party to the agreement; and

(i)for an agreement for a new business—

(i)the agreement was made before the employment of any of the persons in the new business at the new workplace whose employment will be subject to the agreement; and

(ii)the agreement has been made with 1 or more employee organisations that are entitled to represent the industrial interests of the persons.

(1A) Subsection (1) (c) does not apply if the commission is satisfied, in the particular circumstances, that—

(a)although the agreement has not been signed by or for all the parties, all the parties have agreed on the terms of the agreement; and

(b)the application for the certification of the agreement was made within a reasonable time after the agreement was approved by a valid majority of the relevant employees at the time in a properly conducted ballot.

(1B)For subsection (1A), in deciding whether all parties have agreed on the terms of the agreement, the commission may consider—

(a)whether the parties negotiated in good faith as required under section 146; and

(b)any other evidence supporting or not supporting the alleged agreement.

(2) Subsection (1) (h) does not apply if the commission is satisfied a relevant employee organisation—

(a)has been given the opportunity to be a party to the agreement, but does not want to be a party; or

(b)has no members who are to be bound by the agreement.

s 156 amd 2001 No. 87 s 18; 2007 No. 23 s 11; 2012 No. 7 s 9; 2013 No. 61 s 32; 2015 No. 7 s 22

157When commission to refuse to certify an agreement

(1)The commission must refuse to certify an agreement if it considers that a provision of the agreement is inconsistent with—

(a)a provision of—

(i)chapter 2A, part 4; or

(ii)chapter 3; or

(iii)chapter 4; or

(b)an order by the commission under any of those provisions; or

(c)an injunction granted by the commission under any of those provisions.

(2)The commission must refuse to certify an agreement if satisfied—

(a)the employer has, in connection with negotiating the agreement, contravened—

(i) section 170; or

(ii)chapter 4; or

(b)the employer has caused an entity to engage, in connection with negotiations for an agreement, in conduct that, had the employer engaged in the conduct, would be a contravention by the employer of—

(i) section 170; or

(ii)chapter 4; or

(c)an entity has, for the employer—

(i)engaged in conduct mentioned in paragraph (b); or

(ii)caused another entity to engage in the conduct.

(3) Subsection (2) does not apply if the commission is satisfied the contravention or conduct, and its effects, have been fully remedied.

(4)The commission must refuse to certify an agreement if it considers a provision of the agreement is a discriminatory provision.

(5)The commission must refuse to certify an agreement if a provision of the agreement seeks to prohibit or restrict an application being made under chapter 2A, part 4.

(6)The commission must refuse to certify an agreement if—

(a)the agreement applies only to a group or category of employees; and

(b)the commission considers the agreement defines the group or category in a way that results in other employees not being subject to the agreement, if it would be reasonable for the other employees to be subject to the agreement, having regard to—

(i)the nature of the work performed by the other employees; and

(ii)the organisational and operational relationships between the group or category and the other employees; and

(c)the commission considers it unfair that the other employees are not subject to the agreement.

s 157 amd 2001 No. 87 s 19; 2013 No. 61 s 33

158Other options open to commission instead of refusing to certify agreement

(1)If, under section 156 or 157, the commission has grounds to refuse to certify an agreement—

(a)the commission may accept an undertaking from 1 or more of the persons who made the agreement in relation to the operation of the agreement and, if satisfied the undertaking meets the commission’s concerns, certify the agreement; and

(b)before refusing to certify the agreement, the commission must give the persons who made the agreement an opportunity to take action that may be necessary to enable the commission to certify the agreement.

(2)If an undertaking is not complied with, the commission, after giving the persons who made the agreement an opportunity to be heard, may—

(a)order the 1 or more persons who gave the undertaking to comply with it; or

(b)terminate the agreement.

(3)If—

(a)after doing the things required or allowed by subsection (1), the commission is still required to refuse to certify the agreement; and

(b)it is so required only because of an inconsistency mentioned in section 157 (1);

the commission may conciliate the industrial matter concerned with a view to helping the persons concerned to take the action necessary to enable the commission to certify the agreement.

s 158 amd 2013 No. 61 s 34; 2015 No. 7 s 23

159Procedures for preventing and settling disputes

The procedures for preventing and settling disputes contained in a certified agreement may, with the commission’s approval, authorise the commission to settle a dispute.

160When an agreement passes the no-disadvantage test

(1)An agreement passes the no-disadvantage test if it does not disadvantage employees in relation to their employment conditions.

(2)An agreement disadvantages employees only if the commission considers it would result in a reduction in the employees’ entitlements or protections.

(3) Subsection (2) applies subject to sections 161 and 162.

(4) Subsection (2) does not apply if the commission considers that, in the context of the employment conditions considered as a whole, the reduction is not against the public interest.

Example of subsection (4)—

The making of the agreement is part of a reasonable strategy to deal with a short-term crisis in, and to help in the revival of, a business.

(5)If the president considers exceptional circumstances exist, the president may require the registrar to give the commission a report comparing the agreement with the employee’s entitlements or protections.

(6)In this section—

entitlements or protections means the entitlements or protections under—

(a)a relevant award, designated award, industrial agreement or order under chapter 5, part 5; or

(b)chapter 2, chapter 2A or chapter 3, part 4, division 1AA.

s 160 amd 2005 No. 11 s 22; 2005 No. 36 s 15; 2009 No. 15 s 4; 2012 No. 22 s 25 sch; 2013 No. 61 s 117 sch 1 pt 2; 2015 No. 13 s 37AG

161Special case—employee eligible for supported wage system

(1)This section applies if a certified agreement provides for the payment of wages to an employee who is eligible for the supported wage system at a rate not less than the rate set in accordance with that system for the employee.

(2)The agreement does not disadvantage the employee in relation to the employee’s employment conditions only because of the reduction of the employee’s wages.

162Special case—employee undertaking approved apprenticeship or traineeship

(1)This section applies if—

(a)a certified agreement provides for the payment of wages to an employee undertaking approved training (a training employee) in a particular trade, occupation or work, or a trade, occupation or work similar to the particular trade, occupation or work (the work); and

(b)there is a relevant award, designated award or order providing for the payment of wages to employees undertaking benchmark training for the work.

(2)The agreement is taken to disadvantage the training employee in the employee’s employment conditions if the agreement provides for the payment of wages to the employee at a rate less than the rate payable to an employee undertaking benchmark training (the benchmark employee) under the relevant award, designated award or order, as adjusted under subsection (3).

(3)For subsection (2), the rate payable to a benchmark employee is to be adjusted to take into account the proportionate difference, as decided by the approving authority, between the productive time of a training employee and the productive time of a benchmark employee.

(4)If the agreement adopts, as the qualification for a wage level, a criterion decided by the approving authority (the decided criterion) instead of a specified criterion applying under the relevant award, designated award or order (the award criterion), the award is taken, for this section, to have effect as if the decided criterion were substituted for the award criterion.

(5)This section does not apply to a trainee bound by—

(a)the Training Wage Award—State; or

(b)the National Training Wage Award 1994.

(6)In this section—

benchmark training means training for an apprentice or trainee in a particular trade, occupation or work if the trade, occupation or work is recognised under an award or under an order made under section 137.

s 162 amd 2007 No. 36 s 2 sch

163Deciding designated awards

(1)This section applies if—

(a)an employer or organisation of employees proposes to make a certified agreement; and

(b)there is no relevant award for some or all of the persons to whom the agreement will apply.

(2)The employer or organisation must apply to the commission for a decision under subsection (3).

(3)On application, the commission must decide that an award (regulating employment conditions of employees engaged in a similar kind of work as the person under the proposed agreement) is appropriate for deciding whether the agreement passes the no-disadvantage test.

(4)The commission must inform the employer or organisation in writing of its decision.

164When a certified agreement is in operation

(1)A certified agreement starts operating when it is certified.

(2)The agreement continues to operate until—

(a)after its nominal expiry date, it is replaced by another certified agreement; or

(b)it is terminated under section 158, 171, 172 or 173.

s 164 amd 2013 No. 61 s 117 sch 1 pt 1; 2015 No. 7 s 23A

165Certified agreement’s effect on awards, agreements or orders

(1)While a certified agreement operates, it prevails, to the extent of any inconsistency, over an award or industrial agreement or an order made under section 137.

(2)While a project agreement operates, it operates to the exclusion of any other certified agreement.

s 165 amd 2011 No. 4 s 26

166Persons bound

(1)A certified agreement binds—

(a)the employer—

(i)for an agreement made by an organisation of employers for a project—for whom the agreement was made; or

(ii)who made the agreement; and

(b)all persons who are, while the agreement operates, relevant employees; and

(c)if the agreement is made with 1 or more employee organisations—the 1 or more organisations.

(1A) Subsection (1) applies even though an employer or employee organisation has not signed the agreement if the commission is satisfied, under section 156 (1A) in the particular circumstances, that the agreement does not need to be signed by or for all the parties.

(2)For a certified agreement made between the employees and employer, the commission must decide that the agreement also binds an employee organisation if—

(a)before the agreement is certified, the organisation gives the commission and employer notice that it wants to be bound by the agreement; and

(b)the organisation satisfies the commission that it—

(i)is a relevant employee organisation; and

(ii)has at least 1 member whose employment will be subject to the agreement and who asked the organisation to give the notice.

s 166 amd 2007 No. 23 s 12; 2013 No. 61 s 35

167Successor employers bound

(1)This section applies if—

(a)an employer is bound by a certified agreement; and

(b)at a later time a new employer becomes the successor (whether or not immediate) of the whole or a part of the business of the employer bound by the agreement.

(2)From the later time—

(a)the new employer is bound by the certified agreement, to the extent it relates to the whole or part of the business; and

(b)the previous employer stops being bound by the certified agreement, to the extent it relates to the whole or part of the business; and

(c)a reference in this chapter to the employer includes a reference to the new employer, and ceases to refer to the previous employer, to the extent the context relates to the whole or part of the business.

s 167 amd 2011 No. 4 s 27

168Extending a certified agreement

(1)On or before the nominal expiry date of a certified agreement, the following persons may apply to the commission to extend a certified agreement’s nominal expiry date—

(a)if 1 or more organisations are bound by the agreement—the employer and the 1 or more organisations;

(b)otherwise—the employer.

(2)However, the nominal expiry date can not be extended beyond—

(a)for a project agreement—the date on which the project ends; or

(b)for another agreement—4 years after the date on which the agreement came into operation.

(3)The extension has no effect unless the commission approves it.

(4)The commission must approve the extension if, and must not approve the extension unless, satisfied a valid majority of the relevant employees at the time approved the extension.

(5)The extension takes effect when the commission’s approval takes effect.

(6)This section does not apply to—

(a)an agreement made with an employee organisation for employees proposed to be employed in a new business; or

(b)an agreement to which section 160 (4) applies.

s 168 amd 2013 No. 61 s 36

169Amending a certified agreement

(1)This section does not apply to an amendment of the parties to the agreement, other than in a multi-employer agreement (a multi-employer amendment).

(2)The following persons may apply to the commission to amend a certified agreement—

(a)if 1 or more organisations are bound by the agreement—the employer and the 1 or more organisations;

(b)for a multi-employer amendment—the person who wants to become a party to the agreement (the new employer);

(c)otherwise—the employer.

(3)The commission must approve the amendment if, and only if, satisfied—

(a)the amendment has been approved by—

(i)for a multi-employer amendment—

(A)a valid majority of the new employer’s employees whose employment will be subject to the amended agreement; and

(B)the other parties to the agreement, or their representative; or

(ii)for any other amendment—a valid majority of the relevant employees at the time; and

(b)the commission would be required to certify the agreement as amended if it were an agreement whose certification was applied for under this chapter.

(4)In applying subsection (3) (b)—

(a)a requirement about a majority of persons making or approving the agreement is taken to be satisfied; and

(b) section 158 is to be disregarded.

(5)The amendment takes effect when the commission’s approval takes effect.

(6)The commission may, on application by a person bound by a certified agreement, amend a certified agreement—

(a)to remove ambiguity; or

(b)to include, omit or amend a term, however specified, that allows an employer to stand down an employee; or

(c)in another way, if—

(i)the following persons have agreed to the amendment—

(A)for an agreement between the employer and an employee organisation—the employer and organisation;

(B)for an agreement between the employer and employees—the employer and a valid majority of the relevant employees at the time; and

(ii)the commission is satisfied the amendment does not disadvantage the relevant employees; and

(iii)the commission is satisfied exceptional circumstances have arisen in the workplace that necessitate the amendment.

(7)A certified agreement may be amended only under—

(a)this section (including as it applies under section 170); or

(b) section 168; or

(c) section 171.

s 169 amd 2011 No. 4 s 28

170Amendment if discrimination between unionists and non-unionists

(1)This section applies if—

(a)1 or more employees whose employment is not subject to the agreement ask the employer to—

(i)amend the agreement so that their employment is subject to the agreement; and

(ii)seek the approval of the commission for the amendment under section 169; and

(b)their employment would be subject to the agreement if—

(i)they were members of an employee organisation or of a particular employee organisation; or

(ii)they were not members of an employee organisation or of a particular employee organisation.

(2)The employer must seek the commission’s approval to amend the agreement in accordance with the request.

(3)The commission must disregard section 169 (3) (a) in deciding whether to approve the amendment.

171Other options open to commission instead of refusing to approve amendment of agreement

(1)If, for section 170, the commission is not satisfied as required under section 169 (3)—

(a)before refusing to approve the amendment, it must give the persons who amended the agreement an opportunity to take action necessary to enable the commission to approve the amendment; or

(b)it may accept an undertaking from 1 or more of the persons who amended the agreement in relation to the operation of the agreement as amended and, if satisfied the undertaking meets the commission’s concerns, approve the amendment.

(2)If an undertaking is not complied with, the commission, after giving the persons who amended the agreement an opportunity to be heard, may—

(a)order the 1 or more persons who gave the undertaking to comply with the undertaking; or

(b)undo any effect of the amendment; or

(c)terminate the amendment.

172Terminating certified agreement on or before its nominal expiry date

(1)On or before a certified agreement’s nominal expiry date, the following persons may terminate the agreement by notice—

(a)if 1 or more organisations are bound by the agreement—the employer and the 1 or more organisations;

(b)otherwise—the employer.

(2)The commission must approve the termination if, and only if, satisfied a valid majority of the relevant employees at the time approve its termination.

(3)The termination takes effect when the commission’s approval takes effect.

173Terminating agreement after its nominal expiry date

(1)After a certified agreement’s nominal expiry date, the following persons may apply to the commission to terminate a certified agreement—

(a)the employer;

(b)a valid majority of the relevant employees;

(c)an employee organisation that is bound by the agreement and that has at least 1 member who is a relevant employee.

(2)If the agreement does not provide for the way it may be terminated after the agreement’s nominal expiry date has passed, the person who intends to apply to terminate it must give all other persons bound by the agreement notice of the intention.

(3)The commission must approve the termination if, and only if, satisfied—

(a)for an agreement that provides that it may be terminated if particular conditions are met—the conditions have been met; or

(b)for an agreement that does not provide for the way it may be terminated—it is in the public interest to terminate the agreement.

(4)The termination takes effect when the commission’s approval takes effect.

s 173 amd 2005 No. 11 s 23

174Protected industrial action

(1)This section applies to industrial action that is organised, or engaged in, by a protected person or the employer for the purpose of—

(a)supporting or advancing claims made in relation to a proposed agreement; or

(b)responding to industrial action by the employer or the relevant employees.

(2)An action for the industrial action taken after the peace obligation period does not lie under any law, unless the industrial action has involved or is likely to involve—

(a)personal injury; or

(b)wilful or reckless destruction of, or damage to, property; or

(c)the unlawful taking, keeping or use of property.

(3)However, subsection (2) applies to—

(a)a strike by a protected person, only if the protected person has genuinely tried to reach agreement before the strike starts; and

(b)a lockout by an employer, only if the employer has genuinely tried to reach agreement before the lockout starts.

(3A)Also, subsection (2) applies to industrial action only if the requirements stated in the following provision are complied with—

(a)if the action is in response to, and is taken after the start of, industrial action by another negotiating party in relation to a proposed agreement—section 175;

(b)if the action is organised, or engaged in, by an employee organisation or employees and paragraph (a) does not apply—section 176;

(c)if the action is organised, or engaged in, by an employer and paragraph (a) does not apply—section 177.

(4)Despite subsection (2), an action for defamation may be brought in relation to anything that happened during the industrial action.

(5)If the employer lawfully locks out an employee, the employer may refuse to pay the employee remuneration for the period of the lockout.

(6)The employer can not lock out an employee unless the continuity of the employee’s employment, for the purposes prescribed under a regulation, is not affected by the lockout.

(7)In this section—

protected person means—

(a)an employee organisation that is a negotiating party; or

(b)an officer or employee of the employee organisation acting in that capacity; or

(c)an employee who is a negotiating party or a member of the employee organisation.

s 174 amd 2012 No. 7 s 10

175Requirements for industrial action in response to industrial action by another party

(1)This section applies to industrial action in response to, and taken after the start of, industrial action by another negotiating party in relation to a proposed agreement.

(2)The person intending to take the action must give all of the negotiating parties written notice of the intended action.

Note—

See also section 177A in relation to the notice required to be given under this subsection.

(3)However, if the person is an employer who is negotiating an agreement with employees, the employer may take other reasonable steps to notify the employees of the intended action instead of giving a written notice.

s 175 sub 2012 No. 7 s 11

176Requirements for other industrial action by an employee organisation or employees

(1)This section applies to industrial action that is organised, or engaged in, by an employee organisation or by employees, other than industrial action to which section 175 applies.

(2)The industrial action must be authorised by a ballot conducted under schedule 4 (a protected action ballot).

(3)Industrial action is authorised by a protected action ballot if—

(a)a protected action ballot order has been made by the commission in relation to the proposed action; and

(b)the action was the subject of the protected action ballot; and

(c)at least 50% of the employees on the roll of voters for the ballot voted; and

(d)more than 50% of the valid votes cast approved the industrial action; and

(e)the industrial action starts—

(i)during the 30-day period starting on the day the results of the ballot are declared; or

(ii)if the commission has extended the period under subsection (7)—during the extended period.

Note—

See also sections 186 and 187 in relation to the authorisation of industrial action by a protected action ballot if—

•the action is later found not to have been authorised by the ballot; or

•there is a technical breach relating to the protected action ballot order.

(4)However, the industrial action must not start before the peace obligation period has ended.

(5)The person intending to take the industrial action must give written notice of the intended action to all of the negotiating parties.

Note—

See also section 177A in relation to the notice required to be given under this subsection.

(6)For subsection (5)—

(a)the written notice must not be given until the results of the protected action ballot have been declared; and

(b)the period of the notice given must be at least—

(i)3 working days; or

(ii)if the protected action ballot order states a longer period of notice for the purpose of this subsection—the stated period.

Note—

Under schedule 4, section 8 (5) the stated period must not be more than 7 working days.

(7)The commission may extend the 30-day period mentioned in subsection (3) (e) (i) by not more than 30 days if—

(a)an applicant for the protected action ballot order applies to the commission for the period to be extended; and

(b)the period has not previously been extended.

(8) Subsection (9) applies if—

(a)the nature of the proposed industrial action stated in the question put to the employees in the protected action ballot included periods of industrial action of a stated duration; and

(b)the question did not state that consecutive periods of the industrial action may be organised or engaged in.

(9)For subsection (3) (b), only the first period in a series of consecutive periods of the industrial action is taken to be the subject of the protected action ballot.

s 176 sub 2012 No. 7 s 11

amd 2013 No. 61 s 37; 2015 No. 7 s 36 sch 1

177Requirements for other industrial action by an employer

(1)This section applies to industrial action that is organised, or engaged in, by an employer, other than industrial action to which section 175 applies.

(2)The employer must give all of the negotiating parties at least 3 working days written notice of the intended action.

Note—

See also section 177A in relation to the notice required to be given under this subsection.

(3)However, if the employer is negotiating an agreement with employees, the employer may take other reasonable steps to notify the employees of the intended action instead of giving a written notice.

s 177 sub 2012 No. 7 s 11

177AProvision about notice of industrial action

(1)This section applies to a notice required to be given under section 175 (2), 176 (5) or 177 (2).

(2)The notice must state the nature of the intended action and the day it will start.

(3)The notice may be given before the end of the peace obligation period if the intended action does not start before the end of that period.

s 177A ins 2012 No. 7 s 11

amd 2013 No. 61 s 39

179Employer not to dismiss employee for engaging in protected industrial action

(1)An employer must not—

(a)dismiss an employee, injure an employee in his or her employment or change an employee’s position to the employee’s prejudice; or

(b)threaten to dismiss an employee, injure an employee in his or her employment or change an employee’s position to the employee’s prejudice;

wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected industrial action.

(2) Subsection (1) does not apply to any of the following actions taken by the employer—

(a)standing down the employee;

(b)refusing to pay the employee if, under common law, the employer is permitted to do so because the employee has not performed work as directed;

(c)action of the employer that is itself protected industrial action.

(3)In proceedings under section 183 for an alleged contravention of subsection (1), it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected industrial action.

180Remedies if employee dismissed etc. for engaging in protected industrial action

(1)If an employer contravenes section 179 (1), the commission may order the employer—

(a)if the contravention was constituted by dismissing an employee—to reinstate the employee to the position the employee occupied immediately before the dismissal or re-employ the employee in a position at least as favourable as that position; and

(b)to pay the employee dismissed, injured or prejudiced, compensation for loss suffered because of the dismissal, injury or prejudice.

(2)The rights of and relating to reinstatement and re-employment that are conferred on an employee by this section do not limit any other rights of the employee.

181When industrial action must not be taken

(1)This section applies to—

(a)a certified agreement from when it starts operating until its nominal expiry date has passed; and

(b)a determination under section 149 from when it starts operating until its nominal expiry date has passed.

(2)The following persons must not engage in industrial action for the purpose of supporting or advancing claims against the employer in relation to the employment of employees whose employment is subject to the agreement or determination—

(a)an employee whose employment is subject to the agreement or determination;

(b)an employee organisation that is bound by the agreement or determination;

(c)an officer or employee of the employee organisation acting in that capacity.

(3)If the employee, organisation or officer does so, the action is not protected industrial action.

(4)The employer must not lock out an employee from his or her employment for the purpose of supporting or advancing the employer’s claims in relation to the employment of employees whose employment is subject to the agreement or determination.

(5)If the employer does so, the lockout is not protected industrial action.

s 181 amd 2005 No. 11 s 24

div hdg ins 2012 No. 7 s 12

181ADefinitions for div 6A

(1)In this division—

Minister means the Attorney-General.

post-industrial action negotiation period see section 181E (4).

termination declaration see section 181B (1).

(2)To remove any doubt, it is declared that the definition of Minister for this division does not limit the meaning of that term where it is used elsewhere in this Act, except in section 183 (6A) (a).

s 181A ins 2012 No. 7 s 12

181BTermination of industrial action by Ministerial declaration

(1)The Minister may, by a written declaration (a termination declaration), terminate protected industrial action in relation to a proposed agreement if the Minister is satisfied that—

(a)the action is being engaged in, or is threatened, impending or probable; and

(b)the action—

(i)is threatening or would threaten to cause, or has caused, significant damage to the economy, community or local community, or part of the economy; or

(ii)is threatening or would threaten to endanger, or has endangered, the personal health, safety or welfare of the community or part of it.

(2)The termination declaration—

(a)must be published in the gazette; and

(b)takes effect on the day it is made.

s 181B ins 2012 No. 7 s 12

181CInforming commission and parties of termination declaration

(1)This section applies if a termination declaration is made.

(2)The Minister must inform the commission of the making of the termination declaration.

(3)The Minister must take all reasonable steps to ensure the parties to the proposed agreement are made aware of—

(a)the making of the termination declaration; and

(b)the effect of section 181F (2).

s 181C ins 2012 No. 7 s 12

181DMinister may give directions to reduce or remove threat, damage or danger

(1)If a termination declaration has taken effect in relation to a proposed agreement, the Minister may give written directions requiring any of the following persons to take, or not take, stated action—

(a)a stated employee who will be covered by the agreement;

(b)an employee organisation that is a party to the proposed agreement;

(c)the employer who is a party to the proposed agreement.

(2)However, the Minister may only give a direction under subsection (1) if the Minister is satisfied the direction is reasonably directed to removing or reducing the threat, damage or danger mentioned in section 181B (1) (b).

(3)A person to whom a direction under subsection (1) applies must comply with it.

Note—

See division 7 for penalty provisions applicable to contraventions of this subsection.

(4)The Minister must inform the commission of the making of a direction under subsection (1).

s 181D ins 2012 No. 7 s 12

181EConciliation of matter during post-industrial action negotiation period

(1)This section applies if a termination declaration has taken effect in relation to a proposed agreement.

(2)During the post-industrial action negotiation period, to help the parties reach agreement the commission has the power to conciliate the matter as if division 1, subdivision 2 applied.

(3)However, during the post-industrial action negotiation period—

(a)the commission must not make any order that is inconsistent with the termination declaration or a direction given by the Minister under section 181D; and

(b)any industrial action organised, or engaged in, is not protected industrial action for section 174.

(4)The post-industrial action negotiation period is the period—

(a)starting on the day the termination declaration is made; and

(b)ending—

(i)21 days after the day the termination declaration is made; or

(ii)if the commission extends the post-industrial action negotiation period under subsection (5)—42 days after the day the termination declaration is made.

(5)The commission must extend the post-industrial action negotiation period if—

(a)all of the parties to the proposed agreement jointly apply to the commission for the extension within 21 days after the day the termination declaration is made; and

(b)the parties have not settled all of the matters that were at issue during negotiations for the proposed agreement.

s 181E ins 2012 No. 7 s 12

amd 2013 No. 61 s 40

181FDetermination of matter by commission after post-industrial action negotiation period

(1)This section applies if—

(a)the post-industrial action negotiation period has ended; and

(b)the matters that were at issue during negotiations for the proposed agreement have not been settled.

(2)The commission must determine the matter by arbitration as quickly as possible.

(3)For subsection (2), sections 149C to 149E and 150A are taken to apply.

Note—

See also section 149B (4) (b).

(4)For sections 150, 181, 341, 342 and 719, a determination under this section is taken to be a determination under division 1, subdivision 3.

s 181F ins 2012 No. 7 s 12

amd 2013 No. 61 s 41

182Penalty provisions

In this division, each of the following is a penalty provision—

(a) section 170 (2);

(b) section 179 (1);

(c) section 181 (2) or (4);

(d) section 181D (3);

(e) section 185 (1) or (3);

(f) schedule 4, section 9 (4).

s 182 amd 2012 No. 7 s 13

183Penalties for contravening penalty provisions

(1)A contravention of a penalty provision is not an offence.

(2)However, a magistrate may, by order, impose a penalty on a person who contravenes a penalty provision.

(3)The penalty can not be more than the amount of the monetary value of—

(a)for a corporation—135 penalty units; or

(b)otherwise—27 penalty units.

(4)An application for an order for a contravention of section 170 (2) may be made by—

(a)the employees making the request mentioned in section 170; or

(b)an employee organisation of which any of the employees making the request is a member; or

(c)an inspector; or

(d)another person prescribed under a regulation.

(5)An application for an order for a contravention of section 179 (1) may be made by—

(a)the employee concerned; or

(b)an employee organisation of which the employee is a member; or

(c)an inspector; or

(d)another person prescribed under a regulation.

(6)An application for an order for a contravention of section 181 (2) or (4) may be made by—

(a)an employee whose employment is subject to the certified agreement concerned; or

(b)another person who is bound by the agreement; or

(c)another person prescribed under a regulation.

(6A)An application for an order for a contravention of section 181D (3) may be made by—

(a)the Minister within the meaning of section 181A (1); or

(b)a party to the proposed agreement to which the termination declaration relates; or

(c)another person prescribed under a regulation.

(7)An application for an order for a contravention of section 185 (1) or (3) may be made by—

(a)an employee whose employment is subject to the agreement, or will be subject to the proposed agreement concerned; or

(b)another person bound by the agreement or who will be bound by the proposed agreement; or

(c)the person who allegedly was intended to be coerced; or

(d)an employee organisation of which the person is a member; or

(e)an inspector; or

(f)another person prescribed under a regulation.

(7A)An application for an order for a contravention of schedule 4, section 9 (4) may be made by—

(a)an employee who will be covered by the proposed agreement concerned; or

(b)if an employee organisation was an applicant for the protected action ballot order concerned—the employee organisation; or

(c)another person prescribed under a regulation.

(8)The magistrate may order that a penalty, or part of a penalty, be paid to any person who may have made the application (other than an officer or employee of the State or a public service officer).

(9)Any part of the penalty that is ordered to be paid to the person must first be paid to the person.

(10)The remainder of the penalty must be paid to the consolidated fund.

s 183 amd 2012 No. 7 s 14

184Secret ballot on valid majority

(1)This section applies if—

(a)the commission is required under this chapter to be satisfied that a valid majority of the persons employed at a particular time whose employment is or will be subject to an agreement have made or terminated the agreement, or given an approval; and

(b)the commission is not so satisfied.

(2)The commission may order a vote be taken by secret ballot (with or without a provision for absent voting), in accordance with the commission’s directions, of employees whose employment is or will be subject to the agreement to find out whether they would make or terminate the agreement, or give the approval.

(3)If a majority of the validly cast votes is in favour of making or terminating the agreement, or giving the approval, the commission is taken to be satisfied of the requirement.

(4)Before a vote is taken, the commission may revoke an order under subsection (2) if it becomes satisfied that the requirement of subsection (1) (a) has been met.

s 184 amd 2011 No. 4 s 29

185Coercion of persons to make, amend or terminate certified agreements etc.

(1)A person must not take, or refrain from taking, industrial action or other action with intent to coerce someone else to agree, or not to agree, to—

(a)making, amending or terminating, or extending the nominal expiry date of, an agreement under this chapter; or

(b)approving anything mentioned in paragraph (a).

(2) Subsection (1) does not apply to industrial action that is protected industrial action.

(3)An employer must not coerce, or attempt to coerce, an employee of the employer—

(a)not to make a request mentioned in section 144 (2) (c) in relation to an agreement the employer proposes to make; or

(b)to withdraw the request.

(4)In this section—

take or refrain from taking includes threaten to take or refrain from taking.

s 185 amd 2011 No. 4 s 30

186Industrial action organised, or engaged in, in good faith on basis of protected action ballot

(1)This section applies if—

(a)the results of a protected action ballot declared by the ECQ under schedule 4 purportedly authorise particular industrial action; and

(b)a protected person, within the meaning of section 174, organises, or engages in, the industrial action acting in good faith on the basis of the declared results; and

(c)either—

(i)it later becomes clear the industrial action was not authorised by the ballot; or

(ii)the decision to make the protected action ballot order is set aside on appeal after the industrial action is organised or engaged in.

(2)For section 176 (2), the industrial action is taken to be authorised by the protected action ballot.

s 186 prev s 186 om 2007 No. 36 s 2 sch

pres s 186 ins 2012 No. 7 s 15

187Validity of protected action ballot etc. not affected by technical breach

A technical breach of a provision in schedule 4 does not affect the validity of any of the following—

(a)a protected action ballot order;

(b)an order, direction or decision of the commission in relation to a protected action ballot order or a protected action ballot;

(c)a direction or decision of the ECQ in relation to a protected action ballot order or a protected action ballot;

(d)a protected action ballot, including, for example, the conduct of the ballot and the declaration of the results of the ballot.

s 187 prev s 187 om 2011 No. 4 s 31

pres s 187 ins 2012 No. 7 s 15

229Notice of industrial dispute

(1) Subsection (2) applies if an industrial dispute—

(a)exists between—

(i)an employer organisation or employer; and

(ii)an employee organisation or employee; and

(b)remains unresolved after the parties have genuinely attempted to settle the dispute.

(2)Each party to the dispute must immediately give the registrar notice of the dispute.

(3)The notice—

(a)may be given by letter, telex, fax, email, or other means of written communication; and

(b)must state—

(i)the names of the parties to the dispute; and

(ii)the place where the dispute exists; and

(iii)the subject matter of the dispute; and

(iv)anything else required under the rules.

(4)If the Minister is aware an industrial dispute exists, the Minister may notify the commission or registrar of the dispute.

230Action on industrial dispute

(1)This section applies if—

(a)notice of a dispute has been given by a party under section 229 (2); or

(b)notice of a dispute has been given by the Minister under section 229 (4) and the commission considers it is in the public interest to take action under this section; or

(c)whether or not a notice has been given under section 229—the commission considers it is in the public interest to take action under this section.

(2) Subsection (1) (c) applies irrespective of whether the parties are attempting to resolve the dispute.

(3)The commission may take the steps it considers appropriate for the prevention or prompt settlement of the dispute, by—

(a)conciliation in the first instance; and

(b)if the commission considers conciliation has failed and the parties are unlikely to resolve the dispute—arbitration.

(4)Without limiting subsection (3), the commission may do 1 or more of the following—

(a)direct the industrial action to stop or not happen;

(b)make orders, or give directions, of an interlocutory nature;

(c)exercise the commission’s powers under section 277 (whether or not application under that section has been made) to grant an interim injunction;

(d)make another order or exercise another power the commission considers appropriate for the prevention or prompt settlement of the dispute.

(5)For proceedings for the dispute—

(a)the commission may name a party to the dispute as having carriage of the proceedings; and

(b)the party named has the carriage of the proceedings accordingly.

(6)This section does not affect the operation of an industrial instrument that imposes a duty on a party to the instrument in relation to industrial disputes.

s 230 amd 2007 No. 23 ss 14, 3 sch

231Mediation by commission

The commission may act as mediator in an industrial cause, whether or not it is within the jurisdiction of the commission—

(a)on the request of the parties directly involved in the cause; or

(b)if the commissioner is satisfied mediation is desirable in the public interest.

232Compulsory conference

(1)This section applies if the commission, when taking action under section 230, considers that holding a conference is desirable to prevent or settle the industrial dispute.

(2)The commission may, by attendance notice, require a person to attend a conference at a stated time and place.

(3)A person may be required to attend even though not directly involved in the dispute, if the commission considers the person’s presence would be conducive to the prevention or prompt settlement of the dispute.

(4)A person required to attend must—

(a)attend the conference at the stated time and place; and

(b)continue to attend as directed by the commission.

Maximum penalty—40 penalty units.

(5)A person required to attend under subsection (3) is entitled to be paid by the State an amount certified by the commission as reasonable compensation for the person’s expenses and loss of time.

(6)At the commission’s discretion, a conference may be held—

(a)in public or private; or

(b)partly in public and partly in private.

s 232 amd 2007 No. 23 s 15 (2) (amdt s 15 (1) could not be given effect)

233Enforcing commission’s orders

(1)The commission may direct an order about an industrial dispute to—

(a)an organisation; or

(b)a person in a capacity as an officer or agent of an organisation; or

(c)any other person.

(2)If an order may be directed to an organisation or a person, the commission may direct the order to the person only after considering whether it would be more appropriate to direct the order to the organisation.

(3)An order must—

(a)if the order is made against a person—state the person’s name; and

(b)state a time for complying with the order; and

(c)direct any of the following persons to file an affidavit with the registrar within a stated time—

(i)the organisation or person;

(ii)the party to the proceedings who sought the order;

(iii)any other party to the proceedings the commission considers appropriate.

(4)An affidavit under subsection (3) (c) must state whether there has been compliance with the order and, if the order has not been complied with, the steps the person is aware of that have been taken to comply.

(5)The commission may extend a time stated under subsection (3) (b) or (c).

(6)At the end of the time stated for filing an affidavit, or the time as extended by the commission, the registrar must—

(a)examine all affidavits filed; and

(b)if all affidavits required to be filed have not been filed in the stated time—make all necessary further inquiries;

to decide whether there has been substantial compliance with the order.

(7)If the registrar is not satisfied that there has been substantial compliance with the order, the registrar must issue a notice under the rules calling on the organisation or person to whom the order was directed to show cause to the full bench at a stated time why the organisation or person should not be dealt with under section 234.

(8)In this section—

full bench means the full bench constituted by 3 or more members, 1 of whom must be the president, vice-president or a deputy president (court).

s 233 amd 2013 No. 29 s 4A

234Remedies on show cause notice

(1)If an organisation issued with the notice does not show cause at the stated time, the full bench may do 1 or more of the following—

(a)impose on the organisation a penalty of not more than 1000 penalty units;

(b)amend an award or certified agreement to which the organisation is a party;

(c)if the organisation is an employee organisation—suspend the date of operation of a wage increase that would otherwise be payable to members of the organisation or to a class of the members;

(d)change the organisation’s rules to exclude from eligibility for membership persons belonging to a particular class or section of the membership;

(e)make the orders it considers appropriate—

(i)restricting the use of the organisation’s property; or

(ii)controlling the organisation’s property to ensure the restrictions are complied with;

(f)suspend the organisation’s registration for a stated period;

(g)deregister the organisation;

(h)make the other orders it considers appropriate—

(i)to secure the organisation’s compliance with the commission’s order; or

(ii)to punish the organisation for not complying with the commission’s order;

(i)order the organisation to pay the costs of the show cause proceedings.

(2)If a person issued with the notice does not show cause at the stated time, the full bench may do 1 or more of the following—

(a)impose on the person a penalty of not more than 40 penalty units;

(b)make the other orders it considers appropriate—

(i)to secure the person’s compliance with the commission’s order; or

(ii)to punish the person for not complying with the commission’s order;

(c)order the person to pay the costs of the show cause proceedings.

(3)All persons concerned must comply with an order or direction made or given by the full bench.

(4)In this section—

organisation includes a branch of the organisation.

stated time means at the time stated in the notice to show cause under section 233 (7), or at a time to which the proceedings are adjourned.

s 234 amd 2007 No. 23 ss 16, 3 sch

235Secret ballot on strike action

(1)This section applies if—

(a)a strike happens; or

(b)the commission, or a person applying to the commission, considers a strike is likely to happen.

(2)The commission may act under subsection (4)—

(a)of its own initiative; or

(b)on application by an employer or employer organisation; or

(c)on application—

(i)by or on behalf of 5% of the employees engaged in or on the calling, enterprise, establishment or project concerned; or

(ii)by 250 employees;

whichever is less, but being, in any case, at least 4.

(3)The commission must act under subsection (4)—

(a)on application by an employee organisation; or

(b)if directed by the Minister.

(4)To find out the number of employees or members who favour the strike, the commission may direct the registrar to conduct a secret ballot of—

(a)the employees engaged in or on the calling, enterprise, establishment or project concerned; or

(b)the members of an employee organisation engaged in or on the calling, enterprise, establishment or project concerned.

(5)The registrar must publish the result of the secret ballot in a newspaper circulating in the locality concerned.

236Effect of ballot adverse to strike

(1) Subsection (2) applies if—

(a)when a secret ballot was conducted under section 235 (4)—

(i)a strike exists; or

(ii)a strike appeared likely to happen, and a strike happens for the same issue within 1 month after the ballot result is published under section 235 (5); and

(b)the ballot shows that a majority of employees or members who voted in the ballot is not in favour of the strike.

(2)The registrar must advertise a date (the end date), not more than 7 days after the date of publication, on or before which the employees or members who are on strike must discontinue the strike.

(3)The advertisement—

(a)must be in a newspaper circulating in the locality concerned; and

(b)may be included in the advertisement published under section 235 (5).

(4)The employees or members must discontinue the strike on or before the end date.

(5)An employee or member who does not is taken to have terminated, from the end date, the employment in which the employee or member was engaged when the strike commenced, unless the employee or member has a reasonable excuse.

(6)Disagreement by a person with the result of the ballot is not a reasonable excuse.

237Indemnity against agent’s unauthorised actions

An organisation or association of persons is not liable for anything said or done by its agent, during or in connection with industrial action, if—

(a)the agent acted without the knowledge of the governing body of the organisation or association; and

(b)the governing body could not, by the exercise of reasonable diligence, have prevented the action.

238Payments for strikes can not be compelled

(1)An employer may pay, or refuse to pay, an employee for a period when the employee engages in a strike.

(2)An employee must not organise or engage in, or threaten to organise or engage in, a strike against an employer with intent to coerce the employer to make the payment.

(3)An employee organisation, or an officer, member or employee of the organisation, must not organise or engage in, or threaten to organise or engage in, a strike against an employer with intent to coerce the employer to make the payment.

(4)For subsection (3), action is taken to have been done by an organisation if it is done by—

(a)the organisation’s management committee; or

(b)an officer, employee or agent of the organisation acting in that capacity; or

(c)a member or group of members of the organisation acting under the organisation’s rules; or

(d)a member of the organisation, who performs the function of dealing with an employer on behalf of the member and other members of the organisation, acting in that capacity.

(5) Subsection (4) (c) and (d) does not apply if any of the following persons has taken reasonable steps to prevent the action—

(a)the organisation’s management committee;

(b)a person authorised by the committee;

(c)an officer of the organisation.

(6)A contravention of subsection (2) or (3) is not an offence.

Note—

See section 239 for the orders the commission may make for a contravention of this section.

(7)In this section—

strike does not include the failure to perform work in excess of that required under a relevant industrial instrument.

s 238 amd 2011 No. 4 s 69 sch pt 1

239Orders the commission may make

(1)An application may be made to the commission for orders under this section for a contravention of section 238.

(2)The application may be made by—

(a)the Minister; or

(b)a person who has an interest in the matter; or

(c)for a contravention of section 238 (2) or (3)—the employer; or

(d)someone else prescribed under a regulation.

(3)A regulation prescribing persons for subsection (2) (d) may limit its application to stated circumstances.

(4)The commission may, if it considers it appropriate in all the circumstances, make 1 or more of the following orders—

(a)an order imposing on a person who contravenes section 238 a penalty of not more than 135 penalty units;

(b)an order requiring a person who contravenes section 238 (2) or (3) to pay an employer compensation of the amount the commission considers appropriate;

(c)an injunctive order (including an interim injunction), and any other order, the commission considers necessary to stop the contravention or remedy its effects;

(d)another consequential order.

240Commission not to deal with claims for payments for strikes

(1)The commission can not deal with a claim for the making of a payment to employees for a period when the employees engage in a strike under section 238.

(2) Subsection (1) applies to a claim for a period before or after—

(a)the making of the claim; or

(b)the commencement of this section.

241Right to refuse to work if imminent health or safety risk

Nothing in this Act prevents an employee from refusing to perform work if—

(a)the refusal is based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and

(b)the employee does not unreasonably contravene a direction of his or her employer to perform other available work (whether at the same or another workplace) that is safe and appropriate for the employee to perform.

242Continuance

The Industrial Court, as formerly established as a superior court of record in Queensland, is continued in existence as the Industrial Court of Queensland (the court).

242AOfficial seal

(1)The court has an official seal.

(2)All courts and persons acting judicially must take judicial notice of the official seal affixed to any document and must presume, until the contrary is proved, that it was properly affixed.

s 242A ins 2005 No. 11 s 26

242BFinances of court

The court is part of the department for the purposes of the Financial Accountability Act 2009 .

s 242B ins 2005 No. 11 s 26

amd 2009 No. 9 s 136 sch 1

div hdg amd 2013 No. 29 s 4B

242CMembers of the court

The members of the court are—

(a)the president; and

(b)the vice-president; and

(c)the deputy presidents (court).

s 242C ins 2013 No. 29 s 4C

242DAppointment of members on full-time or part-time basis

(1)This section applies to a person appointed to 1 of the following offices (each a relevant office)—

(a)the office of the vice-president;

(b)the office of a deputy president (court).

(2)A person appointed to a relevant office is on a full-time basis unless the appointment is stated, in the instrument of appointment, to be on a part-time basis.

(3)However, a person appointed to a relevant office on a full-time basis may, by written agreement between the Minister and the person, perform the functions of the office to which the person has been appointed on a part-time basis.

(4)An appointment or agreement for a person to perform the functions of a relevant office on a part-time basis must state the percentage of the office the person is to perform.

(5)A person appointed on a part-time basis may, by written agreement with the Minister, perform the functions of the office to which the person has been appointed on a full-time basis.

(6)A person appointed to a relevant office on a part-time basis may hold another office, perform other duties or engage in employment if—

(a)the Minister is satisfied that holding the other office, performing the other duties or engaging in the employment is compatible with, and is not a conflict of interest issue for, the relevant office; and

(b)the Minister has given written approval for the person to hold the other office, perform the other duties or engage in the employment.

s 242D ins 2013 No. 29 s 4C

amd 2013 No. 61 s 43

242EFunctions of the president

(1)The president has the functions conferred on the president under this Act.

(2)The functions of the president include—

(a)managing the administration of the business of the court and the registry under section 242G; and

(b)preparing, and giving the Minister, the annual report under section 252.

(3)The president has the power to do all things necessary or convenient to be done for the performance of the president’s functions.

(4)The president may delegate a function of the president to the vice-president or a deputy president (court).

s 242E ins 2013 No. 29 s 4C

amd 2013 No. 61 s 44; 2015 No. 13 s 37AH

242FFunctions of the vice-president

(1)The vice-president of the court has the functions conferred on the vice-president under this Act or another Act.

(2)The vice-president is subject to the direction of the president in performing the vice-president’s functions.

(3)The vice-president has the power to do all things necessary or convenient to be done for the performance of the vice-president’s functions.

(4)The vice-president may delegate a function of the vice-president to a deputy president (court).

s 242F ins 2013 No. 29 s 4C

amd 2013 No. 61 s 45

242GAdministration of the court

(1)The president is responsible for managing the administration of the business of—

(a)the court; and

(b)to the extent it operates as the registry for the court—the registry.

(2)Without limiting subsection (1), the president is responsible for deciding the member who is to constitute the court for a proceeding.

s 242G ins 2013 No. 29 s 4C

amd 2013 No. 61 s 46

243Appointment of president

(1)The Governor in Council may, by gazette notice, appoint a person who is a Supreme Court judge as president of the court.

(2)The person is appointed on a full-time basis unless the gazette notice appointing the president states the appointment is to be on a part-time basis.

s 243 sub 2007 No. 23 s 17

amd 2010 No. 42 s 93; 2013 No. 29 s 4D; 2013 No. 61 s 47

244Effect of appointment as president

(1)The appointment of, or service by, a Supreme Court judge as president does not affect—

(a)the judge’s tenure of office as a judge; or

(b)the judge’s rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a judge.

(2)The president may perform the functions of office of both president and a Supreme Court judge.

(3)The Supreme Court judge’s service as president is taken to be service as a Supreme Court judge for all purposes.

(4)The appointment of, or service by, a Supreme Court judge as president does not entitle the judge to any salary or allowance in addition to the judge’s salary or allowance as the holder of his or her office as a judge.

(5)However, the Supreme Court judge is entitled to be paid expenses reasonably incurred by the judge in performing the functions of the office of president.

(6)This section applies despite any other Act.

s 244 amd 2007 No. 23 s 18; 2013 No. 61 s 48

245When president holds office

(1)The president holds office until—

(a)the term stated in the gazette notice appointing the president ends; or

(b)the president resigns by signed notice given to the Governor; or

(c)the president stops being a Supreme Court judge.

(2)If the president stops holding office while hearing a matter, the Governor in Council may, without reappointing the person as president, continue the person in office for the time necessary to enable the hearing to be completed.

(3)A person continued in office under subsection (2) may exercise the jurisdiction and powers of the court necessary or convenient for the hearing to be completed.

(4)The Governor in Council may, by gazette notice, reappoint a president if the president’s term of office ends under subsection (1) (a).

s 245 amd 2007 No. 23 s 19; 2013 No. 61 s 49

246Acting president

(1)This section applies if the president temporarily can not perform the functions of office.

(2)The Governor in Council may, by gazette notice, appoint a person who is a Supreme Court judge to act as the president.

(3)A person who has acted as president may attend sittings of the court for the purpose of giving a decision in, or otherwise completing, proceedings that were heard by the person while acting as president.

(4)The person’s decision is taken to be the president’s decision in the proceedings.

(5)The appointment of, or service by, a Supreme Court judge as acting president does not affect—

(a)the judge’s tenure of office as a judge; or

(b)the judge’s rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a judge.

(6)The acting president may perform the functions of office of both president and a Supreme Court judge.

(7)The Supreme Court judge’s service as acting president is taken to be service as a Supreme Court judge for all purposes.

(8)The appointment of, or service by, a Supreme Court judge as acting president does not entitle the judge to any salary or allowance in addition to the judge’s salary or allowance as the holder of his or her office as a judge.

(9)However, the Supreme Court judge is entitled to be paid expenses reasonably incurred by the judge in performing the functions of the office of acting president.

(10) Subsections (5) to (9) apply despite any other Act.

s 246 amd 2007 No. 23 s 20; 2010 No. 42 s 94; 2013 No. 29 s 4E; 2013 No. 61 s 50

246AAppointment of vice-president

(1)The Governor in Council may, by commission, appoint a person as the vice-president of the court.

(2)The person must—

(a)be a lawyer of at least 5 years standing; and

(b)have either of the following—

(i)high-level experience in business or industry or in a relevant entity;

(ii)suitable experience, qualification and standing in the community to be appointed as the vice-president of the court.

(3)The person can not be—

(a)a member of the Executive Council or Legislative Assembly; or

(b)a director of a corporation engaged in a calling; or

(c)an auditor of a corporation engaged in a calling or of a business; or

(d)a person who participates in any capacity in the management of—

(i)a corporation engaged in a calling; or

(ii)a business.

(4)In this section—

relevant entity means any of the following—

(a)an organisation or employer association or a State peak council;

(b)a department of government;

(c)an agency, authority, commission, corporation, instrumentality, office or other entity, established under an Act or under State authorisation for a public or State purpose.

s 246A prev s 246A ins 2009 No. 15 s 6

om 2012 No. 22 s 25 sch

pres s 246A ins 2013 No. 29 s 4F

246BWhen vice-president holds office

(1)The vice-president of the court holds office until the vice-president—

(a)turns 70; or

(b)resigns by signed notice given to the Governor; or

(c)becomes a member of the Executive Council or Legislative Assembly; or

(d)does any of the following without the prior written consent of the Minister—

(i)acts as a director of a corporation engaged in a calling;

(ii)acts as auditor of a corporation engaged in a calling or of a business;

(iii)participates in any capacity in the management of a corporation engaged in a calling or of a business; or

(e)is removed from office under section 246E.

(2)If the vice-president stops holding the office because of subsection (1) (a) or (b) while hearing a matter, the Governor in Council may, without reappointing the person as the vice-president of the court, continue the person in the office for the time necessary to enable the hearing of the matter to be completed.

(3)A person continued in office under subsection (2) may exercise the jurisdiction and powers of the court necessary or convenient for the hearing to be completed.

s 246B ins 2013 No. 29 s 4F

246BA Acting vice-president

(1)This section applies if the vice-president temporarily can not perform the functions of office.

(2)The Governor in Council may, by gazette notice, appoint a person to act as the vice-president.

(3)The person must be a person who is qualified for appointment under section 246A (2).

(4)The person can not be a person mentioned in section 246A (3).

(5)A person who has acted as vice-president may attend sittings of the court for the purpose of giving a decision in, or otherwise completing, proceedings that were heard by the person while acting as vice-president.

(6)The person’s decision in the proceedings is taken to be the decision of the vice-president.

s 246BA ins 2013 No. 31 s 38B

246CDeputy presidents (court)

(1)The Governor in Council may, by commission, appoint a person as a deputy president (court) of the court.

(2)The person must—

(a)be a lawyer of at least 5 years standing; and

(b)have either of the following—

(i)high-level experience in business or industry or in a relevant entity;

(ii)suitable experience, qualification and standing in the community to be appointed as a deputy president (court).

(3)The person can not be—

(a)a member of the Executive Council or Legislative Assembly; or

(b)a director of a corporation engaged in a calling; or

(c)an auditor of a corporation engaged in a calling or of a business; or

(d)a person who participates in any capacity in the management of—

(i)a corporation engaged in a calling; or

(ii)a business.

(4)In this section—

relevant entity see section 246A (4).

s 246C ins 2013 No. 29 s 4F

amd 2013 No. 39 s 113 (retro); 2015 No. 13 s 37AI

246DWhen deputy president (court) holds office

(1)A deputy president (court) holds office until the deputy president (court)—

(a)turns 70; or

(b)resigns by signed notice given to the Governor; or

(c)becomes a member of the Executive Council or Legislative Assembly; or

(d)does any of the following without the prior written consent of the Minister—

(i)acts as a director of a corporation engaged in a calling;

(ii)acts as auditor of a corporation engaged in a calling or of a business;

(iii)participates in any capacity in the management of a corporation engaged in a calling or of a business; or

(e)is removed from office under section 246E.

(2)If a deputy president (court) stops holding the office because of subsection (1) (a) or (b) while hearing a matter, the Governor in Council may, without reappointing the person as a deputy president (court), continue the person in the office for the time necessary to enable the hearing of the matter to be completed.

(3)A person continued in office under subsection (2) may exercise the jurisdiction and powers of the court necessary or convenient for the hearing to be completed.

s 246D ins 2013 No. 29 s 4F

246ERemoval of vice-president or deputy president (court) from office

The Governor may remove the vice-president or a deputy president (court) from office, on an address of the Legislative Assembly, for—

(a)mental or physical incapacity; or

(b)misbehaviour.

s 246E ins 2013 No. 29 s 4F

247Constitution

The court is constituted by the president, the vice-president or a deputy president (court) sitting alone.

s 247 sub 2013 No. 29 s 4G

248Court’s jurisdiction

(1)The court may—

(a)perform all functions and exercise all powers prescribed for the court by this or another Act; and

(b)hear and decide cases stated to it by the commission; and

(c)hear and decide an offence against this Act, unless the offence is one for which this Act makes other provision; and

(d)hear and decide appeals from an industrial magistrate’s decision in proceedings for—

(i)an offence against this Act; or

(ii)recovery of damages, or other amounts, under this Act; and

(e)if the court is constituted by the president, exercise the jurisdiction and powers of the Supreme Court to ensure, by prerogative order or other appropriate process—

(i)the commission and magistrates exercise their jurisdictions according to law; and

(ii)the commission and magistrates do not exceed their jurisdictions.

(2)In proceedings, the court may—

(a)make the decisions it considers appropriate, irrespective of specific relief sought by a party; and

(b)give directions about the hearing of a matter.

(3)The court’s jurisdiction is not limited, by implication, by a provision of this or another Act.

s 248 amd 2013 No. 29 s 4H; 2013 No. 61 s 51

249Court’s interpretation

The court’s interpretation of a provision of this Act, an industrial instrument or permit binds—

(a)the commission; and

(b)magistrates; and

(c)organisations and persons who are subject to this Act, or bound by the industrial instrument or permit.

250Court may refuse to proceed

(1)This section applies if proceedings before the court relate to an industrial instrument that exists or is sought in the proceedings.

(2)The court may refuse to hear and decide the proceedings if any of the employees who are, or would be, bound by the instrument are—

(a)involved in an industrial dispute; or

(b)contravening this Act or a decision.

(3) Subsection (2) applies whether or not the employees are employees whose employment may be affected by the decision.

251Contempt of court

(1)The court has all the protection, powers, jurisdiction and authority of the Supreme Court for a contempt of court.

(2)The court must comply with the Uniform Civil Procedure Rules relating to contempt of court, with necessary changes.

(3)The registrar or another officer of the court may apply to the court for an order that a person be committed to prison for contempt of court.

(4)The court’s jurisdiction to punish a contempt of the court may be exercised on the president’s own initiative.

(5)The court has jurisdiction to punish an act or omission as a contempt of the court, although a penalty is prescribed for the act or omission.

252President’s annual report

(1)As soon as practicable after the end of each financial year, the president must prepare and give to the Minister a report for the year on—

(a)the operation of this Act; and

(b)in particular, the working of the court, commission and registry.

(2)The registrar must prepare, and give to the president, a report for the year on the working of the registry for inclusion in the president’s report under subsection (1).

(3)The Minister must table a copy of the report in the Legislative Assembly within 14 days after the Minister receives it.

s 252 amd 2005 No. 11 s 27; 2011 No. 4 s 32; 2012 No. 22 s 25 sch; 2014 No. 30 s 48B; 2015 No. 13 s 37AJ

255Continuance

The Queensland Industrial Relations Commission (the commission), as formerly established as a court of record, is continued in existence.

255AOfficial seal

(1)The commission has an official seal.

(2)All courts and persons acting judicially must take judicial notice of the official seal affixed to any document and must presume, until the contrary is proved, that it was properly affixed.

s 255A ins 2005 No. 11 s 29

255BFinances of commission

The commission is part of the department for the purposes of the Financial Accountability Act 2009 .

s 255B ins 2005 No. 11 s 29

amd 2009 No. 9 s 136 sch 1

256Composition

(1)The commission consists of the following members—

(a)the president;

(b)the following persons (each a commissioner)—

(i)a person holding office as the vice president;

(ii)a person holding office as a deputy president;

(iii)a person holding office as an industrial commissioner.

(2)The full bench of the commission (the full bench) is constituted by—

(a)for chapter 12, part 16 or for the hearing of an appeal—the president and 2 or more other members; or

(b)otherwise—3 or more members.

(3)The commission is constituted by a commissioner sitting alone.

(4)More than 1 full bench or commission may sit at the same time.

(5)The commission’s jurisdiction, or existence, is not affected by a vacancy in any office of the commission.

s 256 amd 2002 No. 73 s 4; 2007 No. 23 s 21; 2013 No. 29 s 4I; 2013 No. 61 s 52

257President of the commission

(1)The president of the court is also the president of the commission.

(2)The president’s service as the president of the commission does not entitle the president to any salary or allowance in addition to the salary or allowance received as the holder of the office of the president of the court.

s 257 sub 2013 No. 29 s 4J

258Vice-president of the commission

(1)The vice-president of the court is also the vice-president of the commission.

(2)The vice-president’s service as the vice-president of the commission does not entitle the vice-president to any salary or allowance in addition to the salary or allowance received as the holder of the office of the vice-president of the court.

s 258 amd 2010 No. 42 s 95

sub 2013 No. 29 s 4J

258AA Deputy presidents (court) also deputy presidents of the commission

(1)A deputy president (court) is also a deputy president of the commission.

(2)The service of a deputy president (court) as a deputy president of the commission does not entitle the deputy president (court) to any salary or allowance in addition to the salary or allowance received as the holder of the office of a deputy president (court).

s 258AA ins 2013 No. 29 s 4J

258AAppointment of other deputy presidents of the commission

(1)The Governor in Council may appoint a person as a deputy president of the commission—

(a)if the person is not already an industrial commissioner—by commission; or

(b)if the person is already an industrial commissioner—by gazette notice.

(2)The person must be a person who has the experience, qualifications and standing mentioned in section 259 (2).

(3)The person is taken to be appointed on tenure unless the appointment is stated, in the instrument of appointment, to be for a fixed term.

(4)A person appointed for a fixed term is appointed for the term, of at least 1 year, stated in the instrument of appointment.

(5)The person is taken to be appointed on a full-time basis unless the appointment is stated, in the instrument of appointment, to be on a part-time basis.

(6)A person appointed on a full-time basis may, by written agreement between the Minister and the person, perform the functions of the office of a deputy president on a part-time basis.

(7)An appointment or agreement for a deputy president to perform the functions of the office of a deputy president on a part-time basis must state the percentage of the full-time basis the deputy president is to perform.

(8)A person appointed on a part-time basis may, by written agreement between the Minister and the person, perform the functions of the office of a deputy president on a full-time basis.

(9)A person performing the functions of the office of a deputy president on a part-time basis may hold another office, perform other duties or engage in employment if—

(a)the Minister is satisfied that holding the other office, performing the other duties or engaging in the employment is compatible with, and is not a conflict of interest issue for, the office of a deputy president; and

(b)the Minister has given written approval for the person to hold the other office, perform the other duties or engage in the employment.

s 258A ins 2002 No. 73 s 5

amd 2010 No. 42 s 96; 2013 No. 29 s 4K; 2013 No. 61 s 53

259Industrial commissioners

(1)The Governor in Council may appoint a person as an industrial commissioner by commission.

(2)The person must have—

(a)a high level of experience in—

(i)business or industry; or

(ii)an organisation or employer association or a State peak council; or

(iii)a department of government; or

(iv)an agency, authority, commission, corporation, instrumentality, office, or other entity, established under an Act or under State authorisation for a public or State purpose; or

(b)suitable experience, qualifications and standing in the community to be appointed as an industrial commissioner.

(3)The person is taken to be appointed on tenure unless the appointment is stated, in the instrument of appointment, to be for a fixed term.

(4)A person appointed for a fixed term is appointed for the term, of at least 1 year, stated in the instrument of appointment.

(5)The person is taken to be appointed on a full-time basis unless the appointment is stated, in the instrument of appointment, to be on a part-time basis.

(6)A person appointed on a full-time basis may, by written agreement between the Minister and the person, perform the functions of the office of an industrial commissioner on a part-time basis.

(7)An appointment or agreement for an industrial commissioner to perform the functions of the office of an industrial commissioner on a part-time basis must state the percentage of the full-time basis the industrial commissioner is to perform.

(8)A person appointed on a part-time basis may, by written agreement between the Minister and the person, perform the functions of the office of an industrial commissioner on a full-time basis.

(9)A person performing the functions of the office of an industrial commissioner on a part-time basis may hold another office, perform other duties or engage in employment if—

(a)the Minister is satisfied that holding the other office, performing the other duties or engaging in the employment is compatible with, and is not a conflict of interest issue for, the office of an industrial commissioner; and

(b)the Minister has given written approval for the person to hold the other office, perform the other duties or engage in the employment.

s 259 amd 2002 No. 73 s 10 sch; 2010 No. 42 s 97; 2013 No. 29 s 4L; 2013 No. 61 s 54

259AA Dealing with matters as commissioner and ombudsman

(1)This section applies if—

(a)a commissioner who holds, or held, an appointment as ombudsman has dealt with a matter while performing the functions of the office of ombudsman; and

(b)the matter is or has become a matter or proceeding before the commission.

Note—

Chapter 8A provided for the appointment of the ombudsman. That chapter was repealed by the Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Act 2013 .

(2)The commissioner must not deal with the matter or proceeding.

(3)The commissioner must inform the president why the commissioner is not dealing with the matter or proceeding.

s 259AA ins 2010 No. 42 s 99

amd 2012 No. 22 s 25 sch; 2013 No. 61 s 117 sch 1 pt 1; 2015 No. 13 s 37AK

260When deputy president or industrial commissioner holds office

(1)A deputy president appointed under section 258A or an industrial commissioner (each a relevant commissioner) holds office until—

(a)the relevant commissioner turns 70; or

(b)the relevant commissioner resigns by signed notice given to the Governor; or

(c)if the relevant commissioner is appointed for a fixed term—the term stated in the commissioner’s instrument of appointment ends; or

(d)the relevant commissioner becomes a member of the Executive Council or the Legislative Assembly; or

(e)the relevant commissioner becomes a person mentioned in section 262 (b), other than with the Minister’s written approval; or

(f)the relevant commissioner is removed from office under section 263.

(2)However, if a relevant commissioner stops holding office because of subsection (1) (a) or (b) while investigating or hearing a matter, the Governor in Council may, without reappointing the person as a relevant commissioner, continue the person in office for the time necessary to enable the investigation or hearing to be completed.

(3)The person continued in office may exercise the jurisdiction and powers of the commission necessary or convenient for the investigation or hearing to be completed.

s 260 amd 2013 No. 29 s 4M; 2013 No. 61 s 55

261Acting deputy president or industrial commissioner

(1)This section applies if a deputy president appointed under section 258A or an industrial commissioner temporarily can not perform the functions of office.

(2)The Governor in Council may, by gazette notice, appoint a person to act as the deputy president or industrial commissioner.

s 261 amd 2002 No. 73 s 10 sch; 2007 No. 23 s 3 sch

sub 2013 No. 29 s 4O

262Restrictions on appointment

The following persons can not be appointed as a deputy president under section 258A or an industrial commissioner—

(a)a member of the Executive Council or Legislative Assembly;

(b)a person who—

(i)acts as director of a corporation engaged in a calling; or

(ii)acts as auditor of a corporation engaged in a calling or of a business; or

(iii)participates in any capacity in the management of a corporation engaged in a calling; or

(iv)participates in any capacity in the management of a business.

s 262 amd 2013 No. 29 s 4P

263Removal of deputy president or industrial commissioner from office

The Governor may remove a deputy president appointed under section 258A or an industrial commissioner from office, on an address of the Legislative Assembly, for—

(a)mental or physical incapacity; or

(b)misbehaviour.

s 263 amd 2005 No. 11 s 30; 2013 No. 29 s 4Q

264Administrative responsibilities for the commission and registry

(1)In addition to performing the functions of a member, the president is responsible for the administration of the commission and registry, and the orderly and expeditious exercise of the commission’s jurisdiction and powers.

(2)Without limiting subsection (1), the president is responsible for determining the member or members who is or are to constitute the commission, including a full bench of the commission, for a matter or proceeding.

(3)The president has the power to do all things necessary or convenient to be done to perform responsibilities under subsection (1) or (2).

(4) Subsection (4AA) applies if a member has dealt with, or is dealing with, a particular issue while performing the functions of the ombudsman.

Note—

Chapter 8A provided for the appointment of the ombudsman. That chapter was repealed by the Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Act 2013 .

(4AA)The president must not constitute the commission, including the full bench, with the member for a matter or proceeding that will, or is likely to, consider, or have regard to, the particular issue.

(4A)The president may delegate a power under subsection (3)—

(a)to the vice president; or

(b)to a deputy president; or

(c)if the vice president or a deputy president is not available—to 1 or more industrial commissioners.

(5)A commissioner must comply with a direction of the president, vice president, a deputy president or an industrial commissioner given for the performance of responsibilities under subsection (1) or (2).

(6)The president must assign an industry or group of industries to a panel of members.

(7)The powers of the commission in relation to that industry, other than the powers of the full bench, may only be exercised by—

(a)a member of the panel; or

(b)another member of the commission to whom the president has assigned a particular matter.

(8)If practicable, a panel must consist of at least 1 presidential member and 1 commissioner.

(9)A member of the commission may be a member of more than 1 panel.

s 264 sub 2001 No. 18 s 10B

amd 2002 No. 73 s 6; 2007 No. 23 s 23; 2009 No. 15 s 7; 2010 No. 42 s 100; 2012 No. 22 s 25 sch; 2013 No. 29 s 4R; 2013 No. 61 s 117 sch 1 pt 1; 2015 No. 13 s 37AL

265Commission’s jurisdiction

(1)The commission may hear and decide the following matters—

(a)all questions of law or fact brought before it or that it considers expedient to hear and decide for the regulation of a calling;

(b)all questions—

(i)arising out of an industrial matter; or

(ii)involving deciding the rights and duties of a person in relation to an industrial matter; or

(iii)it considers expedient to hear and decide about an industrial matter;

(c)an industrial dispute, referred to the commission by a member who has held a conference under this Act at which no agreement has been reached;

(d)all appeals properly made to it under this or another Act;

(e)all matters committed to the commission by this or another Act.

(2)The commission may regulate a calling by an award—

(a)on application by an organisation, an employer, or 20 employees (who are not members of an employee organisation and not covered by an award) in a calling; or

(b)on application by the Minister; or

(c)of its own initiative.

(3)The commission—

(a)may hold an inquiry into or about an industrial matter on application by an interested person or on its own initiative; and

(b)must hold an inquiry into or about an industrial matter if the Minister directs.

(4)The commission must report the result of the inquiry, and make recommendations, to the Minister.

(5)The commission may consolidate into 1 award all awards binding or affecting an employer or class of employer in a calling, or the members of an organisation employed by the same employer or class of employer—

(a)on application by an organisation or an employer; or

(b)by direction of the Minister.

(6)When exercising power under subsection (5), the commission may make the amendments of the award it considers expedient to make to effect the consolidation.

(7)No provision of this or another Act limits, by implication, the commission’s jurisdiction.

(8)In this section—

class includes a section of a class.

s 265 amd 2001 No. 87 s 22; 2007 No. 36 s 2 sch

266Commission to prevent discrimination in employment

In exercising a power, the commission must not allow discrimination in employment.

267Commission’s jurisdiction is exclusive

The original and appellate jurisdiction conferred on the commission by an Act is exclusive of the jurisdiction of the Supreme Court or another court or tribunal, unless otherwise prescribed under this Act.

s 267 amd 2004 No. 45 s 134; 2005 No. 50 s 95

268Commission may refuse to proceed

(1)This section applies if proceedings before the commission relate to an industrial instrument that exists or is sought in the proceedings.

(2)The commission may refuse to hear and decide the proceedings if any of the employees who are, or would be, bound by the instrument are—

(a)involved in an industrial dispute; or

(b)contravening this Act or a decision.

(3) Subsection (2) applies whether or not the employees are employees whose employment may be affected by the decision of the proceedings.

s 268 amd 2007 No. 36 s 2 sch

269President to consider efficiencies that may be achieved by using dual commissioners

When administering the commission, the president must consider—

(a)the improved efficiency of the commission; and

(b)in particular, the improved cooperation between the commission and the Australian commission;

that may be achieved by the commission’s functions and powers being performed and exercised, for a particular matter, by a dual commissioner.

s 269 amd 2001 No. 18 s 10C; 2002 No. 73 s 10 sch; 2005 No. 11 s 31; 2009 No. 15 s 8; 2012 No. 22 s 25 sch; 2015 No. 13 s 37AM

270Reallocation of commission’s work

The president may reallocate the matter of proceedings before a commission constituted by 1 or more of the members to a commission constituted by—

(a)the same member or members together with another member or other members; or

(b)a different member or different members.

s 270 amd 2001 No. 18 s 10D; 2002 No. 73 s 10 sch; 2009 No. 15 s 9; 2012 No. 22 s 25 sch; 2015 No. 13 s 37AN

271Commission may continue to hear reallocated work without re-hearing evidence

The commission to which the matter is reallocated may continue to hear and decide the matter, without re-hearing evidence given before the reallocation.

272Decision of full bench

A decision of the full bench is the decision of the majority of its members.

273Commission’s functions

(1)The commission’s functions include the following—

(a)establishing and maintaining a system of non-discriminatory awards that, together with the Queensland Employment Standards, provide for a fair minimum safety net of enforceable conditions of employment for employees;

(b)supervising the bargaining of agreements;

(c)certifying agreements;

(d)resolving disputes by conciliation of industrial matters and, if necessary, by arbitration or making an order;

(e)making awards;

(f)resolving disputes in the negotiation of agreements—

(i)by conciliation; or

(ii)by arbitration, including by the making of determinations;

(g)resolving disputes over union coverage by making representation orders;

(h)resolving disputes by performing the functions conferred on the commission under a referral agreement;

(i)resolving other disputes that threaten to harm the community or the economy by conciliation and, if necessary, by arbitration;

(j)dealing with—

(i)applications for orders under section 85C, 278 or 408F; or

(ii)claims relating to dismissals;

(k)making declarations about industrial matters.

(2)The commission must perform its functions in a way that—

(a)furthers the objects of this Act; and

(b)avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act.

s 273 amd 2002 No. 9 s 26; 2005 No. 36 s 17; 2007 No. 23 s 24; 2009 No. 15 s 2 sch; 2011 No. 4 s 33; 2013 No. 61 s 56

273ACommission may perform dispute resolution functions conferred by agreement of parties to disputes

(1)This section applies if—

(a)there is an industrial dispute between—

(i)an employee organisation; and

(ii)1 or more employers or employer organisations; and

(b)the parties to the dispute have agreed in writing (the referral agreement) that the dispute, or disputes of a class to which the dispute belongs, is or are to be resolved by the commission.

(2)A party to the dispute may apply to the commission for the commission to perform the functions about resolving the dispute that are conferred on the commission under the referral agreement (the dispute resolution functions).

(3)If an application is made under subsection (2), the commission may perform the dispute resolution functions.

(4)Without limiting subsections (2) and (3), the dispute resolution functions may include 1 or more of the following—

(a)conciliating the dispute;

(b)arbitrating the dispute;

(c)granting a remedy or other relief of the kind provided for under chapter 3, part 2 or chapter 8, part 2, division 4;

(d)deciding any other issue or question arising in the dispute.

(5)A decision made by the commission in performing the dispute resolution functions does not bind the parties to the dispute unless the referral agreement provides for the decision to bind the parties.

(6)This section does not limit a function or power of the commission under any other provision of this Act to conciliate, arbitrate or otherwise decide a matter.

s 273A ins 2007 No. 23 s 25

274General powers

(1)The commission has the power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.

(2)Without limiting subsection (1), the commission in proceedings may—

(a)give directions about the hearing of a matter; or

(b)make a decision it considers appropriate, irrespective of the specific relief sought by a party; or

(c)make an order it considers appropriate.

(3)The commission may, by general order or for a particular case, delegate to the registrar—

(a)the working out of a decision of the commission; or

(b)a function relating to the decision, including, for example—

(i)the giving of directions; or

(ii)the making of orders; or

(iii)the preparation of rosters and schedules; or

(iv)a similar function it considers appropriate.

(4)The full bench may, to assist it in the appropriate resolution of proceedings—

(a)refer the whole or part of a question or matter before it to the commission—

(i)for investigation and report to the full bench; or

(ii)for the other action it decides; or

(b)direct 1 or more of its members to carry out a specified investigation or inspection and to report on it to the full bench.

(5)A member to whom a reference is made or a direction is given must comply with the reference or direction.

s 274 amd 2007 No. 36 s 2 sch

274APower to make declarations

(1)The commission may, on application, make a declaration about an industrial matter.

(2)The commission may make the declaration whether or not consequential relief is or could be claimed.

(3)The application may be made by—

(a)a person who may be directly affected by the declaration; or

(b)an inspector; or

(c)an organisation of employees or employers of which a person mentioned in paragraph (a) is a member, if it is acting with the person’s written consent; or

(d)an organisation of employees or employers who may be directly affected by the declaration.

(4)Subject to chapter 9, a declaration made by the commission under this section is binding in any proceeding under this Act in relation to the issue determined by the declaration.

s 274A ins 2007 No. 23 s 26

275Power to declare persons to be employees or employers

(1)The full bench may, on application by an organisation, a State peak council or the Minister, make an order declaring—

(a)a class of persons who perform work in an industry under a contract for services to be employees; and

(b)a person to be an employer of the employees.

(2)The full bench may make an order only if it considers the class of persons would be more appropriately regarded as employees.

(3)In considering whether to make an order, the full bench may consider—

(a)the relative bargaining power of the class of persons; or

(b)the economic dependency of the class of persons on the contract; or

(c)the particular circumstances and needs of low-paid employees; or

(d)whether the contract is designed to, or does, avoid the provisions of an industrial instrument; or

(e)whether the contract is designed to, or does, exclude the operation of the Queensland minimum wage; or

(f)the particular circumstances and needs of employees including women, persons from a non-English speaking background, young persons and outworkers; or

(g)the consequences of not making an order for the class of persons.

(4)In this section—

contract includes—

(a)an arrangement or understanding; and

(b)a collateral contract relating to a contract.

industrial instrument includes a federal industrial instrument.

s 275 amd 2000 No. 23 s 292 sch 1; 2001 No. 87 s 23; 2003 No. 27 s 614 (retro); 2009 No. 49 s 46

276Power to amend or declare void contracts

(1)On application, the commission may amend or declare void (wholly or partly) a contract if it considers—

(a)the contract is—

(i)a contract of service that is not covered by an industrial instrument; or

(ii)a contract for services; and

(b)the contract is an unfair contract.

(1A)The commission must not—

(a)amend a contract (whether made before or after the commencement of this subsection) to include an accident pay provision; or

(b)declare a contract (whether made before or after the commencement of this subsection) wholly or partly void, because it does not contain an accident pay provision.

(2)In deciding whether to amend or declare void a contract, or part of a contract, the commission may consider—

(a)the relative bargaining power of the parties to the contract and, if applicable, anyone acting for the parties; or

(b)whether any undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the contract; or

(c)an industrial instrument or this Act; or

(d)the Queensland minimum wage; or

(e)anything else the commission considers relevant.

(3)An application may be made by—

(a)a party to the contract; or

(b)an inspector, for the party required under the contract to provide services; or

(c)an organisation of employees or employers of which a party is, or has applied to become, a member, if it is acting with the party’s written consent.

(4)The commission may consider a contract to be an unfair contract if it considers the contract—

(a)was an unfair contract when it was entered into; or

(b)became an unfair contract after it was entered into because of the conduct of the parties, or a variation to the contract or for any other reason it considers sufficient.

(5)The commission may make an order it considers appropriate about payment of an amount for a contract amended or declared void.

(6)A person can not make an application under this section if—

(a)an application has been made under section 74 for the same matter; or

(b)the person—

(i)is not a public service officer employed on tenure under the Public Service Act 2008 ; and

(ii)has an annual wage of more than $68000 or a greater amount stated in, or worked out in a way prescribed under a regulation.

(7)In this section—

accident pay provision means a provision for accident pay, or other payment, on account of a worker sustaining an injury.

contract includes—

(a)an arrangement or understanding; and

(b)a collateral contract relating to a contract.

industrial instrument includes a federal industrial instrument.

injury means an injury under the Workers’ Compensation and Rehabilitation Act 2003 .

unfair contract means a contract that—

(a)is harsh, unconscionable or unfair; or

(b)is against the public interest; or

(c)provides, or has provided, a total remuneration less than that which a person performing the work as an employee would receive under an industrial instrument or this Act; or

(d)is designed to, or does, avoid the provisions of an industrial instrument.

worker means a worker under the Workers’ Compensation and Rehabilitation Act 2003 .

s 276 amd 2000 No. 23 s 292 sch 1; 2001 No. 87 s 24; 2003 No. 27 s 615 (retro); 2005 No. 11 s 32; 2008 No. 38 s 252 sch 3; 2009 No. 49 s 47

277Power to grant injunctions

(1)The commission may, on application, grant the injunctive order it considers appropriate—

(a)to compel compliance with an industrial instrument, a permit or this Act; or

(b)to restrain a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act.

(2)An application may be made by—

(a)a party to industrial action or an industrial dispute; or

(b)a person who is, or is likely to be, directly affected by industrial action or an industrial dispute; or

(c)the registrar; or

(d)the chief inspector; or

(e)an inspector.

(3)An application by an organisation must be under the organisation’s seal and signed by the organisation’s president and secretary.

(4)The commission may direct the injunctive order to—

(a)the officers or members of an organisation generally; or

(b)particular officers or members of an organisation; or

(c)a particular employer; or

(d)a particular employee.

(5)A person to whom the order is directed must comply with the order after the person has received notice of it.

(6)The commission may decide the form of the notice and the way the order is to be served.

(7)Without limiting subsection (6), the commission may order substituted service of the order by advertisement or otherwise.

(8)If the order is directed to an organisation, the organisation and each officer of the organisation must ensure the officers and members of the organisation comply with the order.

(9)If the officers or members, or a substantial number of the officers or members, of an organisation to whom an injunctive order is directed, contravene the order, the organisation and each officer of the organisation commit an offence, namely, the offence of failing to ensure the organisation complies with the order.

(10)It is a defence to a prosecution for an offence against subsection (9) for the organisation or officer to prove that it, or the officer, took all reasonable steps to ensure the officers or members complied with the order.

(11)The commission can not grant an injunctive order for a proposed contravention of section 73, 83, 87, 90 or 90A.

(12)In this section—

injunctive order means an order in the nature of a mandatory or restrictive injunction.

organisation includes a branch of the organisation.

s 277 amd 2003 No. 19 s 3 sch

278Power to recover unpaid wages and superannuation contribution etc.

(1)An application may be made to the commission for an order for payment of—

(a)an employee’s unpaid wages; or

(b)an apprentice’s unpaid tool allowance under section 138; or

(c)remuneration lost by an apprentice or trainee because the employer has contravened section 391 (2); or

(d)contributions to the approved superannuation fund payable for an eligible employee that are unpaid.

(2)An application can not be made to the commission if the total amount claimed under subsection (1) is more than $50000.

(3)The application may be made by—

(a)for a claim for occupational superannuation—an employee who is an eligible employee on whose behalf an employer is required to contribute to an approved superannuation fund; or

(b)for any other claim—an employee; or

(c)an employee organisation of which the eligible employee or employee is a member, acting for the employee; or

(d)a person authorised by the eligible employee or employee to make the application, acting for the employee; or

(e)an inspector.

(4)The application must be made within 6 years after the amount claimed became payable.

(5)However, for an apprentice or trainee, the application can not relate to wages payable more than 4 years before the commencement of this section.

(6)A presidential member may, either before or after the start of a hearing, remit the application to a magistrate if the presidential member considers the application could be more conveniently heard by a magistrate, having regard to—

(a)the difficulty or expense of producing witnesses; or

(b)another good and sufficient reason, for example, cost.

(7)A magistrate may hear and decide the application as if it had been brought before the commission, and the magistrate’s decision is taken to be a decision of the commission.

(8)On hearing the application, the commission or magistrate—

(a)must order the employer to pay the employee—

(i)the amount the commission or magistrate finds to be payable and unpaid to the employee within the 6 years before the date of the application; and

(ii)an amount the commission or magistrate considers appropriate, based on the return that would have accrued in relation to the contributions had it been properly paid to the approved superannuation fund; and

(b)may make an order for the payment despite an express or implied provision of an agreement to the contrary; and

(c)may order the payment to be made on the terms the commission or magistrate considers appropriate.

(9)For an order about an unpaid contribution, the order must require the contribution to be paid to—

(a)if the employee is employed by the employer—the approved superannuation fund; or

(b)if the employee is no longer employed by the employer—

(i)the approved superannuation fund; or

(ii)a complying superannuation fund; or

(iii)a superannuation fund nominated by the employee; or

(iv)an eligible rollover fund; or

(v)if the amount is less than the amount of total benefits that may revert to an employee under the Superannuation Industry (Supervision) Act 1993 (Cwlth)—the employee.

(10)The contribution must be paid into the unclaimed moneys fund, if a former employee in relation to whom an order is made—

(a)can not be located after reasonable inquiry; or

(b)does not nominate a superannuation fund for the purpose of the order, if required by the order to do so.

(11)A person can not make an application under this section if an application has been made under section 399, 400F or 408 for the same matter.

(12)In this section—

occupational superannuation includes an amount equal to the return that would have accrued in relation to the occupational superannuation had it been properly paid to an approved superannuation fund.

s 278 amd 2000 No. 23 s 292 sch 1; 2001 No. 18 s 10E; 2002 No. 73 s 10 sch; 2005 No. 11 s 33; 2007 No. 36 s 2 sch; 2010 No. 42 s 101; 2014 No. 25 s 223 sch 1 pt 2

279Orders about representation rights of associations or employee organisations

(1)The full bench may, on application by an organisation, an employer or the Minister, make the following orders about a demarcation dispute—

(a)an order that an employee organisation has the right, to the exclusion of an association or another organisation, to represent a particular group of employees who are eligible for membership of the organisation;

(b)an order that an employee organisation that does not have the right to represent a particular group of employees has the right;

(c)an order that an association or employee organisation does not have the right to represent a particular group of employees who are eligible for membership of the organisation.

(2)The full bench may make an order only if—

(a)the full bench considers conciliation proceedings would not help in the prevention or settlement of the dispute; or

(b)conciliation proceedings for the dispute are completed, but the dispute has not been fully settled.

(3)The full bench may make an order only if satisfied—

(a)the conduct, or threatened conduct, of an association or organisation to which the order would relate, or of an officer, member or employee of the association or organisation is—

(i)preventing, obstructing or restricting the performance of work; or

(ii)harming an employer’s business; or

(b)the conduct, or threatened conduct, of an association or of an officer, member or employee of the association is preventing, obstructing or restricting negotiations or discussions between the employer and an organisation or the employer and the employer’s employees; or

(c)the consequences mentioned in paragraph (a) or (b)—

(i)have stopped, but are likely to recur as a result of the conduct or threatened conduct; or

(ii)are imminent as a result of the conduct or threatened conduct.

(4)In considering whether to make an order, the full bench must consider—

(a)the wishes of employees who would be affected by the order; and

(b)the effect of an order on the operations (including operating costs, work practices, efficiency and productivity) of the employees’ employer; and

(c)whether it should consult with appropriate State peak councils or organisations; and

(d)the ability of the organisation to adequately represent the employees’ interests; and

(e)an agreement or understanding that the full bench becomes aware of that deals with an employee organisation’s right to represent a particular group of employees; and

(f)the consequences of not making an order for the employees, employer or organisation; and

(g)another order made by the commission that it considers relevant.

(4A)If the full bench makes an order under this section, it may also make any ancillary order it considers necessary to support the order, including making an order prohibiting—

(a)an officer or employee of an association or organisation from representing a person in a matter before an industrial tribunal; and

(b)an association or organisation from arranging for an agent to represent a person in relation to making an agreement under chapter 6; and

(c)an association or organisation from holding out membership on the basis of being able to provide representation in stated industrial matters.

(5)An order or ancillary order may—

(a)be subject to conditions; and

(b)apply to an individual, an association or an organisation.

(6)An individual, an association or an organisation to which an order applies must comply with the order.

(7)The full bench may, on application by the Minister or a person or organisation affected by an order, make the further order it considers appropriate to ensure the Act is complied with.

(8)In this section—

association means a body or entity that is formed or carried on to protect and promote its members’ interests in matters concerning their employment, but is not registered as an organisation under this Act.

industrial tribunal means the court, the commission, the full bench or the registrar.

right to represent a particular group of employees means the right to represent the industrial interests of the particular group of employees.

s 279 amd 2007 No. 23 s 27

280Procedures for reopening

(1)Proceedings may be reopened, on application by a person under subsection (2), by—

(a)for proceedings taken before the full bench—the full bench; or

(b)otherwise—the commission.

(2)An application for reopening of proceedings may be made by—

(a)the Minister; or

(b)a party to the proceedings; or

(c)for proceedings that are not about a certified agreement—

(i)an organisation whose members are bound by, or claim to be affected by or dissatisfied with, the proceedings; or

(ii)a person who is bound by or claims to be affected by or dissatisfied with the proceedings, and who satisfies the commission that the person is not an officer of, or acting for, an eligible association.

(3)If the commission reopens proceedings, it may—

(a)revoke or amend a decision or recommendation made by it; and

(b)make the decision or recommendation it considers appropriate.

(4)If a recommendation of the commission has been acted on by the Governor in Council and the commission later revokes or amends the recommendation, the Governor in Council may—

(a)cancel the action taken on the recommendation to accord with the commission’s revocation or amendment; or

(b)amend the action to accord with the commission’s revocation or amendment.

(5)Failure to give notice to a person of the proceedings, or any part of the proceedings, leading to the making by the commission of a decision binding on the person—

(a)does not invalidate or otherwise affect the decision; but

(b)if the person is one on whose application the commission may exercise its powers, the person’s failure to participate in the proceedings because of the absence of notice does not affect the person’s application for reopening of proceedings.

(6)If the commission grants an application for reopening, it may give the retrospective operation to its decision made in the reopened proceedings it considers appropriate.

s 280 amd 2011 No. 4 s 34

281Reference to full bench

(1)The commission may, at any stage of proceedings and on the terms the commission considers appropriate, refer the matter to which the proceedings relate to the full bench.

(2)A commissioner may refer the matter only with the president’s approval.

(3)Before the hearing of a matter by the commission starts, a party to the proceedings may apply to the president for the matter to be referred to the full bench.

(4)The president may approve the referral of a matter to the full bench under subsection (2) only if the president is satisfied the matter is of substantial industrial significance.

(5)On application under subsection (3), the president may refer the matter to the full bench only if the president is satisfied the matter is of substantial industrial significance.

(6)The full bench may hear and decide a matter referred to it and make the decision it considers appropriate.

s 281 amd 2001 No. 18 s 10F; 2002 No. 73 s 10 sch; 2010 No. 42 s 102; 2012 No. 22 s 25 sch; 2013 No. 29 s 4S; 2015 No. 13 s 37AO

282Case stated to court

(1)The commission may, at any stage of proceedings and on the terms it considers appropriate, state a written case for the court’s opinion on a question of law relevant to the proceedings.

(2)The court may—

(a)hear and decide the matter raised by a case stated; and

(b)remit the case, with its opinion, to the commission by which the case was stated.

(3)The commission must give effect to the court’s opinion.

283Power to enter and inspect

(1)A member, an officer of the commission or another person with a member’s written authority (a commission official), may—

(a)enter a workplace in relation to which—

(i)an industrial dispute exists, is impending or threatened, or is likely to arise; or

(ii)an industrial matter exists; or

(iii)an industrial instrument or permit exists; or

(iv)it is reasonably suspected an offence under this Act has been, or is being committed; and

(b)inspect any work, machinery, appliance, materials, article or thing in or on the workplace; and

(c)question a person in or on the workplace about a matter relevant to the commission’s concern with the workplace.

(2)A power under subsection (1) may be exercised only during working hours at the workplace.

(3)If a commission official is seeking to exercise a power under subsection (1), a person must not—

(a)refuse or unduly delay the official’s entry to the workplace; or

(b)fail to answer a question about a matter mentioned in subsection (1), unless the person has a lawful excuse; or

(c)wilfully give false information or make a false statement.

Maximum penalty—100 penalty units or 1 year’s imprisonment.

(4)In this section—

workplace means a place where, or for which—

(a)a calling is carried on; or

(b)work has been, or is being, performed; or

(c)another activity has happened, or is happening.

284Interpretation of industrial instruments

(1)The commission may give an interpretation of an industrial instrument, other than a certified agreement, on application by—

(a)the Minister; or

(b)an organisation; or

(c)an employer; or

(d)a person who satisfies the commission that the person is not an officer of, or acting for, an eligible association; or

(e)an inspector.

(2)The commission may give an interpretation of a certified agreement on application by—

(a)the Minister; or

(b)an organisation, or other person, bound by the agreement; or

(c)an employee whose employment is subject to the agreement; or

(d)an inspector.

(3)If an inspector’s application under this section relates to an alleged ambiguity, the commission must hear and decide the application in the absence of a statement of agreed facts.

s 284 amd 2011 No. 4 s 35

285Conducting a secret ballot

(1)The commission may specify when, where and how a secret ballot is to be conducted.

Note—

See also section 664A in relation to interference with a secret ballot conducted under this section.

(2)The registrar must—

(a)conduct the ballot in accordance with the direction; and

(b)for the conduct of the ballot—do the things provided for by the rules.

(3)Public service officers must help the registrar, as required, to conduct the ballot.

(4)The registrar must advertise the result of the ballot in a newspaper circulating in the locality concerned, unless the commission otherwise directs.

s 285 amd 2000 No. 5 s 461 sch 3; 2012 No. 7 s 16

286Other powers

This division does not limit, by implication, another power given to, or possessed by, the commission under this or another Act or law.

287General rulings

(1)The full bench may make general rulings about—

(a)for employees bound by an industrial instrument—an industrial matter, to avoid a multiplication of inquiries into the same matter; or

(c)a Queensland minimum wage for all employees.

(2)The full bench must ensure a general ruling about a Queensland minimum wage for all employees is made at least once each calendar year.

(3)Before conducting a hearing about the ruling, the full bench must—

(a)give reasonable notice, in the way it considers appropriate, of its intention to conduct the hearing; and

(b)give all interested persons an opportunity to be heard.

(4)A ruling—

(a)must specify a date (the specified date) on and from which it has effect; and

(b)has effect as a decision of the full bench on and from the specified date.

(5)A ruling may exclude from the operation of any of its provisions—

(a)a class of employers or employees; or

(b)employers or employees in a particular locality; or

(c)an industrial instrument or part of an instrument.

(6)As soon as practicable after making a ruling, the registrar must publish notice of the ruling and the specified date on the QIRC website.

(7)The notice, on and from the specified date, replaces a notice of a ruling on the same subject matter previously published.

(8)The ruling notified continues in force until the end of the day immediately before the specified date included in the next ruling on the same subject matter.

(9)If a ruling takes effect while an industrial instrument, other than a instrument or part of an instrument excluded under subsection (5), is in force—

(a)the industrial instrument is taken to be amended to accord with the ruling, on and from the specified date; and

(b)the amendment has effect as an industrial instrument, on and from the specified date.

(10)The registrar may amend an industrial instrument taken to be amended under subsection (9) as the registrar considers appropriate, to accord with the ruling—

(a)on application under the rules; or

(b)of the registrar’s own initiative.

(10A)This section applies despite chapter 5A.

(11)In this section—

Queensland minimum wage means the wage declared by the full bench to be the Queensland minimum wage.

s 287 amd 2001 No. 87 s 25; 2009 No. 38 s 33; 2013 No. 61 s 57; 2014 No. 62 s 139B (retro)

289Industrial Magistrates Court

An Industrial Magistrates Court is a court of record.

290Office of industrial magistrate

Each of the following persons is an industrial magistrate (a magistrate)—

(a)a magistrate;

(b)an acting magistrate.

s 290 amd 2005 No. 11 s 34

291Constitution of Industrial Magistrates Court

An Industrial Magistrates Court is constituted by a magistrate sitting alone.

292Magistrate’s jurisdiction

(1)A magistrate has jurisdiction—

(a)to exercise powers conferred on, or jurisdiction given to, magistrates by this Act or another Act; and

(b)to hear and decide proceedings about the following matters—

(i)an offence against this Act, unless the offence is one for which this Act makes other provision;

(ii)a claim for—

(A)wages; or

(B)the repayment of a fee received by a private employment agent in contravention of section 408D (1) or (2);

(iii)claims for damages suffered by an employee because of the employer neglecting to pay the employee’s wages;

(iv)claims for damages for contravention of an agreement made under an industrial instrument;

(v)claims under chapter 11, part 2, division 2;

(vi)claims for compensation under section 83.

(2)A magistrate has jurisdiction throughout the State.

(3)In this section—

fee includes charge, expense of any kind and reward.

s 292 amd 2002 No. 9 s 27; 2013 No. 61 s 59

293Magistrates’ jurisdiction is exclusive

(1)The jurisdiction conferred on a magistrate by this or another Act is exclusive of the jurisdiction of another court or tribunal, unless this or the other Act otherwise prescribes.

(2)Jurisdiction conferred on a magistrate for the following matters is not exclusive of another court’s jurisdiction—

(a)a claim for an employee’s wages payable under an industrial instrument or permit or under section 8A;

(b)a claim for an employee’s wages payable under an agreement in which wages are payable at a price or rate higher than that fixed by a relevant industrial instrument or permit;

(c)a claim for an employee’s wages payable under an agreement in which wages are payable at a price or rate that is not fixed by a relevant industrial instrument or permit;

(d)a claim for amounts payable, with an employee’s written consent, from an employee’s wages;

(e)a claim for the repayment of a fee received by a private employment agent in contravention of section 408D (1) or (2).

(3)In this section—

fee includes charge, expense of any kind and reward.

s 293 amd 2002 No. 9 s 28; 2003 No. 27 s 616 (retro)

294Industrial registry

(1)There is an Industrial Registry (the registry).

Note—

The registry is a public service office under the Public Service Act 2008 .

(2)The registry consists of—

(a)an industrial registrar (the registrar); and

(b)1 or more deputy industrial registrars (a deputy registrar); and

(c)the other staff mentioned in section 303.

s 294 amd 2011 No. 4 s 69 sch pt 1

295Functions of the registry

The registry has the following functions—

(a)to act as the registry for the court and commission;

(b)to provide administrative support to the court and commission;

(c)any other functions conferred on the registry by this Act.

296Seal of the registry

(1)The registry has a seal.

(2)Judicial notice must be taken of the imprint of the registry’s seal on a document, and the document must be presumed to have been properly sealed unless the contrary is proved.

297Appointment of registrar

(1)The Governor in Council may, by gazette notice, appoint a person to be the registrar.

(2)The registrar is to be paid the remuneration and allowances decided by the Governor in Council.

(3)The registrar holds office on the terms and conditions, not provided for by this Act, decided by the Governor in Council.

s 297 amd 2007 No. 23 s 3 sch

298Termination of appointment of registrar

(1)The Governor in Council must end the registrar’s appointment if the registrar—

(a)is guilty of misconduct of a kind that could warrant dismissal from the public service if the registrar were a public service officer; or

(b)is absent, without the Minister’s leave or without reasonable excuse, for 14 consecutive days or 28 days in any year; or

(c)becomes incapable of performing the functions of office.

(2)The Governor in Council may end the registrar’s appointment if the registrar—

(a)is convicted of an indictable offence (whether in Queensland or elsewhere); or

(b)engages in other paid employment.

299Functions and powers of registrar

(1)The registrar—

(a)administers the registry; and

(b)has the functions conferred on the registrar under this or another Act.

(2)The registrar has the power to do all things necessary or convenient to be done to perform the registrar’s functions.

(3)In performing a function or exercising a power, the registrar must comply with a direction given by the president in relation to the court or the commission.

s 299 amd 2002 No. 73 s 10 sch; 2009 No. 15 s 10; 2012 No. 22 s 25 sch; 2013 No. 29 s 4T; 2015 No. 13 s 37AP

300Deputy registrar

A deputy registrar must help the registrar in performing the registrar’s functions.

301Delegation by registrar

The registrar may delegate a power of the registrar under this Act to—

(a)a deputy registrar; or

(b)an appropriately qualified person nominated by the president; or

(c)for section 374—an appropriately qualified officer of the court or commission.

s 301 amd 2012 No. 22 s 25 sch; 2015 No. 13 s 37AQ

302Acting registrar

(1)This section applies if the registrar temporarily can not perform the functions of office.

(2)The Governor in Council may appoint a person to act as the registrar by gazette notice.

s 302 amd 2007 No. 23 s 3 sch

303Staff

The staff of the registry, including a deputy registrar, are to be appointed under the Public Service Act 2008 .

s 303 amd 2008 No. 38 s 252 sch 3

304Officers of the court and commission

The registrar, a deputy registrar and the other staff of the registry are officers of the court and the commission.

div 3 (ss 304A–304B) ins 2009 No. 38 s 34

304AWhat is the QIRC website

The QIRC website is the internet website used by the registrar to provide public access to information about matters relating to the court, the commission and the registry.

div 3 (ss 304A–304B) ins 2009 No. 38 s 34

304BWhen matter is published on QIRC website

(1)A matter is published on the QIRC website—

(a)if it is made accessible in full on the website; or

(b)if—

(i)notice of its making, issue or other production is made accessible on the website; and

(ii)it is made accessible separately in full in another location identified in the notice.

(2)The date on which a matter is published on the QIRC website is the date notified by the registrar (whether as part of the matter or elsewhere) as the date of its publication, being a date that is not earlier than the date on which it was first made accessible under subsection (1).

(3)However, if a matter can not for technical or other reasons be published on the QIRC website at a particular time, the matter—

(a)may be published at that time as mentioned in subsection (4); and

(b)must be published on the QIRC website as soon as practicable; and

(c)is taken to have been published on the QIRC website when it is published as mentioned in subsection (4).

(4)If subsection (3) applies, the registrar may publish the matter in any of the following ways—

(a)in the gazette;

(b)in a newspaper circulating throughout the State;

(c)another way the registrar decides that gives sufficient notice of the matter to the public or the part of the public likely to be affected by or concerned with the matter.

Example for paragraph (c)—

a website of another department or State agency

div 3 (ss 304A–304B) ins 2009 No. 38 s 34

305Member may hold other appointment

A member who is appointed as a member of the Australian commission may hold that appointment and the appointment as a member at the same time.

306Appointment of Commonwealth official as deputy president or industrial commissioner

(1)The Governor in Council may appoint a member of the Australian commission to be a deputy president or an industrial commissioner (each a dual commissioner).

(2)Sections 246E and 263 and schedule 2, part 1, section 1 do not apply to the appointment of a dual commissioner or to a dual commissioner.

(3)The appointment—

(a)is for the term the Governor in Council considers appropriate and states in the instrument of appointment; and

(b)may be ended, with the Governor in Council’s approval, by the Minister’s notice given to the dual commissioner.

(4)A dual commissioner—

(a)is not entitled to remuneration for performing the functions of a deputy president or an industrial commissioner; but

(b)is entitled to be paid expenses reasonably incurred by the dual commissioner in exercising powers and performing functions as a deputy president or an industrial commissioner.

(5)A dual commissioner stops being a deputy president or an industrial commissioner if the person—

(a)becomes a person mentioned in section 262; or

(b)stops being a member of the Australian commission.

s 306 amd 2013 No. 29 s 4U

307Role of dual commissioner

(1)A dual commissioner, as agreed from time to time by the president and the president of the Australian commission—

(a)must perform the functions of a deputy president or an industrial commissioner; and

(b)has, and may exercise for a particular matter, the powers of—

(i)a deputy president or an industrial commissioner; and

(ii)a member of the Australian commission.

(2)A provision of this Act prescribing the functions or powers of a deputy president or an industrial commissioner is subject to subsection (1) in its application to a dual commissioner.

s 307 amd 2000 No. 23 s 292 sch 1; 2013 No. 29 s 4V

308Reference of matter to Commonwealth official

(1)The president may ask the president of the Australian commission to nominate a member of that commission to deal with an industrial matter before the commission.

(2)If a nomination is made, the president may refer the industrial matter to the nominated member, to be dealt with by the nominated member under this Act.

(3)In dealing with the industrial matter, the nominated member—

(a)has the powers of an industrial commissioner; and

(b)in exercising the powers, is taken to constitute the commission.

(4)The nominated commissioner’s decision is taken to be a decision of the commission.

(5)The reference of an industrial matter to a nominated commissioner—

(a)does not derogate from the commission’s authority to exercise jurisdiction in relation to the matter; and

(b)may be revoked by the president by notice given to the nominated commissioner.

(6)In this section—

industrial matter includes part of an industrial matter.

s 308 amd 2012 No. 22 s 25 sch; 2013 No. 29 s 4W; 2015 No. 13 s 37AR

309Conferences with industrial authorities

(1)This section applies if—

(a)the president considers it desirable that a conference be held with an industrial authority about an industrial matter; and

(b)the industrial authority agrees to a conference.

(2)The president may confer, or direct a commissioner to confer, with the industrial authority to coordinate decisions made, or to be made—

(a)under this Act about the industrial matter; and

(b)by the industrial authority.

s 309 amd 2012 No. 22 s 25 sch; 2013 No. 29 s 4X; 2015 No. 13 s 37AS

310Joint sessions with industrial authorities

(1)This section applies if—

(a)the president considers proceedings relating to an industrial matter before the commission should be heard in joint session with an industrial authority; and

(b)the industrial authority agrees to a joint session.

(2)The president may—

(a)hear, or direct a commissioner to hear, the proceedings in joint session with the industrial authority; and

(b)confer, or direct the commissioner to confer, with the industrial authority about the proceedings and the decision to be made in the proceedings; and

(c)join, or direct the commissioner to join, with the industrial authority in the decision made in the proceedings.

s 310 amd 2012 No. 22 s 25 sch; 2013 No. 29 s 4Y; 2015 No. 13 s 37AT

311Similar matters before full bench and industrial authority

(1)This section applies if—

(a)the president considers an industrial authority has before it an industrial matter similar to an industrial matter before the full bench; and

(b)the industrial authority agrees to participate in joint session.

(2)The president may—

(a)if the president is a member of the full bench—participate in joint session with the industrial authority about the industrial matter; or

(b)direct a member of the full bench to participate in joint session with the industrial authority about the industrial matter.

(3)The president or member must report the result of the joint session to the full bench.

s 311 amd 2012 No. 22 s 25 sch; 2015 No. 13 s 37AU

311AAdoption of result of joint session

(1)This section applies if the president or member reports the result of the joint session to the full bench under section 311.

(2)The full bench may make a general ruling under section 287 about the industrial matter that was the subject of the joint session.

(3)Before making the ruling, the full bench must decide whether any further hearing is necessary in relation to the matter.

s 311A ins 2007 No. 23 s 28

amd 2012 No. 22 s 25 sch; 2013 No. 61 s 117 sch 1 pt 2; 2015 No. 13 s 37AV

312Member’s powers in joint session

A member participating in joint session with an industrial authority, in relation to the industrial matter dealt with in joint session, must perform the functions and has, and may exercise, the powers of the commission.

313President may decide matter not to be dealt with in joint session

The president may decide that an industrial matter should not be dealt with in joint session and, if the decision is made after a joint session about the matter starts—

(a)the member participating in the joint session must immediately stop participating; and

(b)the industrial matter may proceed before the commission or, if appropriate, the full bench.

s 313 amd 2012 No. 22 s 25 sch; 2015 No. 13 s 37AW

314Functions and powers vested in commission by other jurisdictions

(1)The commission may perform the functions and exercise the powers conferred on it under—

(a)the Commonwealth Act; or

(b)another enactment of a jurisdiction other than Queensland declared for this section under a regulation.

(2)A decision of the commission under authority conferred by subsection (1) is not a decision made by it under this Act.

s 314 amd 2009 No. 49 s 48

315Arrangements with Commonwealth public service

(1)Arrangements may be made under the Public Service Act 2008 , section 183 or 184 for—

(a)a Commonwealth public servant to perform functions and exercise powers under this Act; and

(b)Queensland public service employees to perform functions and exercise powers under the Commonwealth Act.

(2)An arrangement under subsection (1) (a) is enough authority for a Commonwealth public servant to perform the functions and exercise the powers of a Queensland public service employee under this Act.

(3)In this section—

Commonwealth public servant means—

(a)an officer of the Commonwealth public service; or

(b)a person performing functions and exercising powers under the Commonwealth Act.

s 315 amd 2008 No. 38 s 252 sch 3; 2009 No. 49 s 49

316Definitions for pt 6

In this part—

administer an oath includes authorise the administering of an oath.

exercising jurisdiction includes exercising powers and performing functions.

take a statutory declaration includes authorise the taking of a statutory declaration.

317Starting proceedings

(1)Unless otherwise provided, proceedings may be started in the court or commission or before the registrar on application by—

(a)an organisation or an officer or member of an organisation; or

(b)the Minister; or

(c)a State peak council; or

(d)an inspector; or

(e)an employer; or

(f)a person who has an interest in the matter to which the application relates.

(2)Proceedings may also be started by the commission of its own initiative.

(3)In proceedings, the commission may call before it the persons it considers necessary.

(4)This section does not affect another provision of this Act providing for the starting of proceedings.

318Service of process

(1) Subsection (2) applies if—

(a)for proceedings in, or to be started in, the court—the president, the vice-president, a deputy president (court) or registrar considers service of a document can not be effected promptly by personal service or in a way prescribed under the rules; or

(b)for proceedings in, or to be started in, the commission—the commission or registrar considers service of a document can not be effected promptly by personal service or in a way prescribed under the rules.

(2)The court, commission or registrar may order—

(a)substituted service of the document; or

(b)notice of the document be given by letter, telex, fax, email, advertisement in an appropriate newspaper, or otherwise, instead of service.

(3)Service or notice in accordance with the order is sufficient service of the person required to be served.

(4)Unless otherwise ordered by the court or commission—

(a)service of the document on an employer organisation; or

(b)substituted service or notice of the document in accordance with an order under subsection (2);

is taken to be service on all employers who have employees engaged in the calling that is relevant to the purpose of the document, or in related callings.

(5)In this section—

document includes an attendance notice, notice or order.

s 318 amd 2013 No. 29 s 4Z

319Representation of parties

(1)In proceedings, a party to the proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented by—

(a)an agent appointed in writing; or

(b)if the party or person is an organisation—an officer or member of the organisation.

(2)The party or person may be represented by a lawyer if, and only if—

(a)for proceedings in the court—

(i)the proceedings are for the prosecution of an offence; or

(ii)all parties consent; or

(iii)the court gives leave; or

(b)for proceedings before the commission, other than proceedings under section 278 or 408F—

(i)the proceedings relate to a matter under chapter 4; or

(ii)all parties consent; or

(iii)the proceedings relate to a matter under chapter 3, or under section 275, 276 or 279, or under chapter 12, part 2 or part 16 and, on application by a party or person—

(A)the commission is satisfied, having regard to the matter the proceedings relate to, that there are special circumstances making it desirable for the party or person to be legally represented; or

(B)the commission is satisfied the party or person can be adequately represented only by a lawyer; or

(c)for proceedings before an Industrial Magistrates Court, other than proceedings remitted under section 278 (6) or 408F (5)—

(i)all parties consent; or

(ii)the proceedings are brought personally by an employee and relate to a matter that could have been brought before a court of competent jurisdiction other than an Industrial Magistrates Court; or

(iii)the proceedings are for the prosecution of an offence; or

(d)for proceedings before the registrar, including interlocutory proceedings—

(i)all parties consent; or

(ii)the registrar gives leave.

(3)However, in proceedings mentioned in subsection (2) (c) (iii), the person represented can not be awarded costs of the representation.

(4)For subsection (2) (b) (iii), the commission may consider, for example, the following—

(a)the amount claimed in the proceedings, if any;

(b)the nature and complexity of the matter;

(c)the nature of the evidence to be adduced;

(d)the cross-examination likely to be required;

(e)the capacity of the party or person to represent himself or herself;

(f)the questions of law likely to arise;

(g)whether the duration or cost of the proceedings will be decreased or increased if the party or person is represented.

(5)In this section—

proceedings means proceedings under this or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar.

s 319 amd 2001 No. 87 s 26; 2002 No. 9 s 29; 2007 No. 36 s 2 sch; 2012 No. 22 s 23; 2013 No. 29 s 5; 2013 No. 61 s 60; 2015 No. 7 s 25

320Basis of decisions of the commission and magistrates

(1) Subsections (2) and (3) do not apply to proceedings for—

(a)the recovery of amounts, other than an amount ordered under section 278 or 408F; or

(b)an offence against this Act.

(2)In proceedings, the commission or Industrial Magistrates Court—

(a)is not bound by technicalities, legal forms or rules of evidence; and

(b)may inform itself on a matter it considers appropriate in the exercise of its jurisdiction.

(3)Also, the commission or Industrial Magistrates Court is to be governed in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of—

(a)the persons immediately concerned; and

(b)the community as a whole.

(4)In proceedings, the commission may admit evidence given before, and the findings of, the Anti-Discrimination Commission as evidence in the proceedings.

(5)In making a decision, other than a decision made under chapter 6, division 1, subdivision 3, the commission must consider the public interest, and to that end must consider—

(a)the objects of this Act; and

(b)the likely effects of the commission’s decision on the community, local community, economy, industry generally and the particular industry concerned.

Note—

For a determination made under chapter 6, division 1, subdivision 3, section 149D (1) (b) (iv) and (2) provide for the matters that must be considered, in relation to the public interest, by the commission (either the full bench or, if the president makes a direction under section 149B (2), the commission constituted by a commissioner sitting alone).

(6)In exercising its jurisdiction, the commission must have appropriate regard to the rules.

s 320 amd 2002 No. 9 s 30; 2012 No. 7 s 17; 2013 No. 61 s 61; 2015 No. 13 s 37AX

321Competence and compellability of witnesses

A party to proceedings in the court or commission is competent, and may be compelled, to give evidence in the proceedings as a witness to the same extent as in civil proceedings in the Supreme Court.

322Intervention

(1)The Minister may intervene—

(a)in proceedings before an industrial tribunal; or

(b)in proceedings before another court or tribunal that touch on—

(i)the jurisdiction or powers of the court, the commission, a magistrate or the registrar; or

(ii)a matter for which the jurisdiction or powers may be exercised; or

(iii)the interpretation of this Act.

(2)A State peak council may intervene in proceedings before the commission if any of its members has a sufficient interest in the proceedings.

(3)On intervention, the Minister or State peak council becomes a party to the proceedings.

(4)In this section—

industrial tribunal means the court, the commission, an Industrial Magistrates Court or the registrar.

323Adjournment by registrar

If a member of the commission can not attend at the time appointed for hearing proceedings, the registrar may adjourn the court or commission and any business set down for the day to a day and time that the registrar considers convenient.

s 323 amd 2013 No. 29 s 5A

324State employee to give information

(1)A person employed by the State must give the court or commission, if the court or commission asks, information that the person has knowledge of in an official capacity.

(2)The person must comply with the request despite an obligation under an Act or law not to disclose information, unless the Act or law allows, justifies or excuses a refusal to give it in evidence in legal proceedings.

325Exercise of commission’s powers

(1)The commission may, unless otherwise prescribed by or under this Act, exercise its powers—

(a)of its own initiative; or

(b)on application by—

(i)a party to proceedings in which the power is to be exercised; or

(ii)an organisation.

(2)The commission may, of its own initiative—

(a)join 2 or more matters to be heard and decided by the commission, whether the matters or any of them arise under this or another Act; and

(b)hear and decide the matters in 1 proceeding.

326Interlocutory proceedings

In an industrial cause, the court, commission or registrar may make orders or give directions the court, commission or registrar considers just and necessary in relation to interlocutory proceedings to be taken before the hearing of the cause, including proceedings about—

(a)naming and joinder of parties; or

(b)persons to be served with notice of proceedings; or

(c)calling of persons to attend in proceedings; or

(d)particulars of the claims of the parties; or

(e)the issues to be referred to the court or commission; or

(f)admissions, discovery, interrogatories or inspection of documents or property; or

(g)examination of witnesses; or

(h)costs of the interlocutory proceedings; or

(i)place, time and mode of hearing of the cause.

s 326 amd 2013 No. 29 s 5B

327Power to order inquiry or taking of evidence

(1)The commission, by order, may direct—

(a)the registrar to conduct an inquiry into a matter the commission requires information about for the exercise of the commission’s jurisdiction; or

(b)an appropriately qualified person to take evidence for the commission about an industrial cause.

(2)The registrar or other person must comply promptly with the direction and report, or give a record of evidence taken, to the commission.

(3)The registrar may call persons to attend before the registrar and examine parties and witnesses for—

(a)conducting an inquiry mentioned in subsection (1); or

(b)disposing of another matter referred to the registrar under this Act.

(4)A person directed to take evidence under subsection (1) has all the powers of the commission for—

(a)calling witnesses; and

(b)requiring production of records.

328Power to administer oath

In exercising jurisdiction, the following persons may take evidence on oath or statutory declaration, and for that purpose may administer an oath or take a statutory declaration—

(a)a person constituting the court, the commission or an Industrial Magistrates Court;

(b)the registrar;

(c)a person directed by the commission to take evidence for the commission.

329Powers incidental to exercise of jurisdiction

Except as otherwise prescribed by this Act or the rules, the court, commission and registrar may—

(a)at or before a hearing, take steps to find out whether all persons who ought to be bound by a decision to be made in proceedings have been called to attend or given notice of, the proceedings; and

(b)direct, for proceedings—

(i)who the parties to the proceedings are; and

(ii)by whom the parties may be represented; and

(iii)persons to be called to attend the proceedings, if they have not been called and it appears they should attend the proceedings; and

(iv)parties to be joined or struck out; and

(v)who may be heard and on what conditions; and

(c)hear and decide an industrial cause in the way that appears best suited for the purpose; and

(d)allow claims in the proceedings to be amended on terms that appear fair and just; and

(e)correct, amend or waive an error, defect or irregularity in the proceedings, whether substantive or formal; and

(f)give directions under a decision, that the court, commission or registrar considers necessary for, or conducive and appropriate to, the effective implementation of the decision; and

(g)hear and decide an industrial cause in the absence of a party, or of a person who has been called to attend, or served with a notice to appear, at the proceedings; and

(h)sit at any time and in any place for hearing and deciding an industrial cause, and adjourn a sitting to any time and place; and

(i)refer technical matters, accounting matters, or matters involving expert knowledge to an expert, and admit the expert’s report in evidence; and

(j)extend a prescribed or stated time, before or after expiry of the time; and

(k)waive compliance with the rules.

330Power to obtain data and expert evidence

(1)If the commission wants expert evidence based on facts or figures to decide an industrial cause, it may—

(a)order the following persons to give it returns of the facts or figures—

(i)an organisation that is, or any of whose members are, party to the proceedings;

(ii)an employer, or group of employers, who is a party to the proceedings; and

(b)allow a person selected by it as an expert in a relevant respect to prepare, from the returns, reports directed to matters that the commission seeks to be informed on.

(2)A person preparing a schedule may show in it the particulars that—

(a)are relevant to the cause; or

(b)the commission asks for.

(3)However, the person must not, without the commission’s leave, otherwise divulge to anyone (other than the commission)—

(a)the name of the organisation that gave the return; or

(b)business information of a private or confidential nature extracted from the return.

Maximum penalty—20 penalty units.

(4)A schedule, as far as possible, must extend beyond 1 year’s operation of a business or industry.

331Decisions generally

The court or commission may, in an industrial cause—

(a)make a decision it considers just, and include in the decision a provision it considers appropriate for preventing or settling the industrial dispute, or dealing with the industrial matter, the cause relates to, without being restricted to any specific relief claimed by the parties to the cause; or

(b)dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—

(i)the cause is trivial; or

(ii)further proceedings by the court or commission are not necessary or desirable in the public interest; or

(c)order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate.

332Reserved decisions

(1)The court or commission may reserve its decision in proceedings.

(2)If a decision is reserved—

(a)it may be pronounced at—

(i)a continuation or resumption of the court or commission; or

(ii)a subsequent sitting of the court or commission; or

(b)the court or commission may give its written decision, signed by the person or each of the persons constituting the court or commission, to the registrar.

(3)The registrar must file a written decision in the registry and give a copy of it to each of the parties to the industrial cause.

(4)When filed, a written decision has effect as if it had been pronounced by the court or commission.

333Commission decisions to be in plain English

The commission must ensure the commission’s written decisions are—

(a)in plain English; and

(b)structured in a way that makes a decision as easy to understand as the subject matter allows.

334Extent of decisions and their execution

(1)In the exercise of its jurisdiction, the court or commission may—

(a)make the decisions it considers necessary for—

(i)doing complete justice in proceedings before it; and

(ii)the execution of the decision; and

(b)enforce its own decisions; and

(c)direct the issue of a writ or process; and

(d)impose and enforce a penalty, allowed or prescribed by this or another Act, in the same way a Supreme Court judgment is enforced.

(2)A decision of the court or commission—

(a)must be drawn up and verified; and

(b)without limiting any other way of execution and recovery prescribed by or under this Act, may be executed, recovered on, and otherwise enforced;

as a judgment or order of a Supreme Court judge is drawn up, verified, executed, recovered and otherwise enforced against the person, lands, and goods of the party affected.

(3)For the effective operation of subsection (2), the Uniform Civil Procedures Rules, as far as they may reasonably be applied, are to be applied and complied with, with the amendments the court or commission approves.

(4)The registrar, deputy registrars, sheriff, bailiffs and officers of the Supreme Court, or of Magistrates Courts, are taken to be officers of the court and commission for—

(a)executing, recovering on, and otherwise enforcing decisions of the court or commission; or

(b)imposing functions or conferring powers by the rules and of performing the functions or exercising the powers.

335General power to award costs

(1)The court or commission may order a party to an application to pay costs, including witness expenses and other expenses, incurred by another party only if satisfied—

(a)the party made the application vexatiously or without reasonable cause; or

(b)for an application for reinstatement—the party caused costs, including witness expenses and other expenses, to be incurred by the other party because of an unreasonable act or omission connected with the conduct of the proceedings.

(2)In making an order, the court or commission may order a party to pay another party an amount reasonably payable to a person, who is not a lawyer, for representing the other party.

s 335 amd 2001 No. 87 s 27; 2005 No. 11 s 35; 2007 No. 36 s 2 sch

336Recovery of amounts under orders

(1)If the court or commission in proceedings orders an amount be paid (as a penalty or otherwise), the registrar may issue a certificate, under the seal of the court or commission, stating—

(a)the amount payable; and

(b)who is to pay the amount; and

(c)to whom the amount is payable; and

(d)any conditions about payment.

(2)The amount may be recovered in proceedings as for a debt.

(3)When the certificate is filed in a court of competent jurisdiction in an action for a debt of the amount, the order evidenced by the certificate is enforceable as an order made by the court where the certificate is filed.

(4)This section does not limit other ways in which amounts may be recovered on an order of the court or commission.

(5)In this section—

registrar, for an order made by a magistrate on remission from the commission under section 278 or 408F, means the registrar of the Magistrates Court.

s 336 amd 2002 No. 9 s 31

337Protections and immunities

(1)A member of the court, a member of the commission and a magistrate, in the exercise of jurisdiction for this or another Act have the protection and immunities of a Supreme Court judge exercising the jurisdiction of a judge.

(2)A member of the court, a member of the commission, a magistrate or the registrar (the official) has, in proceedings for defamation for a publication made to or by the official in the official’s official capacity, a defence of absolute privilege if the publication was made in good faith.

(3)The burden of proving absence of good faith is on a person who alleges the absence.

s 337 amd 2007 No. 36 s 2 sch; 2013 No. 29 s 5C

337ARules committee

(1)The president must establish a rules committee consisting of the following members—

(a)the president;

(b)the vice-president;

(c)each deputy president.

(2)The president is the chairperson of the rules committee.

(3)The functions of the rules committee include—

(a)developing and reviewing the rules under this Act; and

(b)approving forms under section 708; and

(c)the other functions conferred on the rules committee under this Act.

(4)The rules committee may conduct its business and proceedings at meetings in the way it decides.

(5)However—

(a)the chairperson has a deliberative vote and, in the event of an equality of votes, a casting vote; and

(b)the rules committee must consult with—

(i)for a rule relating to the Industrial Magistrates Court—the Chief Magistrate; or

(ii)for a rule relating to the registry—the registrar.

s 337A ins 2013 No. 29 s 5D

338Rules

(1)The Governor in Council may make rules under this Act.

(2)The rules may only be made with the consent of the rules committee.

(3)Rules may be made about the following matters—

(a)regulating the practice and procedure to be followed and used—

(i)in or for proceedings in the court, commission or Industrial Magistrates Court and before the registrar; or

(ii)in or for drawing up, settling and enforcing decisions, convictions and actions made, recorded or done by the court, commission or registrar; or

(iii)in or for the performance by the commission of a function conferred on it under a referral agreement;

(b)publishing decisions and other actions of the court, commission or registrar and the effect of the publication;

(c)recovering fines and penalties imposed;

(d)enforcing orders for attachment or imprisonment and orders for the payment of amounts made by the court or commission;

(e)fees and expenses payable to witnesses;

(f)fees payable in relation to proceedings in the court or commission, or before the registrar and the party by whom the fees are to be paid;

(g)service of process, notices, orders or other things on parties and other persons;

(h)the functions and powers of officers of the court or commission;

(i)delegating the jurisdiction of the commission as permitted by this Act;

(j)requiring organisations or other entities to give returns, lists of officers or members and other statistical information to the registrar;

(k)providing for all matters necessary or expedient to be provided for to allow for—

(i)the full and effective exercise of jurisdiction and powers of the court, commission, Industrial Magistrates Court and registrar; and

(ii)giving effect to the decisions, convictions and actions made, recorded, or done by the court, the commission, a magistrate, the registrar, or an officer of the court or commission.

(4)Rules made under this section are subordinate legislation.

s 338 amd 2005 No. 11 s 36; 2007 No. 23 s 29; 2010 No. 42 s 103; 2012 No. 22 s 25 sch; 2013 No. 29 s 5E

339Directions about practice

(1)Subject to this Act and the rules, the practice and procedure of the court, the commission, an Industrial Magistrates Court or the registrar is as directed by a member of the court, a member of the commission, a magistrate or the registrar.

(2)If a person wishes to take a step in an industrial cause or a proposed cause and this Act or the rules do not provide or sufficiently provide for it, application for directions may be made to the appropriate person mentioned in subsection (1).

s 339 amd 2013 No. 29 s 5F

340Appeal from court

(1A)A defendant who is dissatisfied with a decision of the court in proceedings mentioned in section 248 (1) (c) may appeal to the Court of Appeal.

(1)A defendant who is dissatisfied with a decision of the court in proceedings mentioned in section 251 may appeal to the Court of Appeal.

(4)The Court of Appeal may—

(a)dismiss the appeal; or

(b)allow the appeal, set aside the decision and substitute another decision; or

(c)allow the appeal and amend the decision; or

(d)allow the appeal, suspend the operation of the decision and remit the industrial cause (with or without directions) to the court—

(i)for report to the Court of Appeal; or

(ii)to act according to law.

s 340 amd 2007 No. 23 s 31; 2013 No. 29 s 5G

341Appeal from commission, magistrate or registrar

(1)The Minister, or a person dissatisfied with a decision of the commission (other than a determination under chapter 6, division 1, subdivision 3 or a decision under section 273A) or registrar, may appeal against the decision to the court only on the ground of—

(a)error of law; or

(b)excess, or want, of jurisdiction.

(2)A person may appeal to the court if dissatisfied with a decision of a magistrate in relation to a matter for which the magistrate has jurisdiction.

(3)The court may—

(a)dismiss the appeal; or

(b)allow the appeal, set aside the decision and substitute another decision; or

(c)allow the appeal and amend the decision; or

(d)allow the appeal, suspend the operation of the decision and remit the industrial cause, with or without directions, to the commission, an Industrial Magistrates Court or the registrar to act according to law.

(4)Also, if—

(a)under the decision that was appealed, the appellant was sentenced to a term of imprisonment; and

(b)the appellant was released from custody under the Industrial Relations (Tribunals) Rules 2011 , rule 145; and

(c)after the appeal is decided, discontinued or struck out, the appellant is still required to serve all or part of the term of imprisonment;

the court may direct an industrial magistrate to issue a warrant for the appellant’s arrest.

(5)The industrial magistrate must comply with the direction.

(6)When arrested, the appellant must be taken to a corrective services facility within the meaning of the Corrective Services Act 2006 to serve the unexpired portion of the term of imprisonment to which the appellant was sentenced.

s 341 amd 2003 No. 77 s 79; 2004 No. 53 s 2 sch; 2006 No. 29 s 518 sch 3; 2007 No. 23 s 32; 2012 No. 17 s 51 sch; 2013 No. 29 s 5H; 2013 No. 31 s 38C; 2013 No. 61 s 62

342Appeal from commission, magistrate or registrar

(1)A person dissatisfied with a decision of the commission (other than a determination under chapter 6, division 1, subdivision 3 or a decision under section 273A) may appeal against the decision to the full bench, with the full bench’s leave, on a ground other than—

(a)error of law; or

(b)excess, or want, of jurisdiction.

(2)However, if a person wants to appeal against a decision of the commission both on a ground mentioned in section 341 (1) and on a ground mentioned in subsection (1), the person may only appeal against the decision to the full bench, with the full bench’s leave.

(3)The full bench must, and may only, give leave for subsection (1) or (2) if it considers the matter is important enough, in the public interest, to give leave.

(4)Also, the Minister may appeal against a decision of the commission to the full bench.

(5)A person dissatisfied with a decision of a magistrate under this Act, other than a decision mentioned in section 341 (2), may appeal against the decision to the full bench.

(6)A person dissatisfied with a decision of the registrar, other than a decision mentioned in section 287 (10), 341 (1) or 695 may appeal against the decision to the full bench.

(7)A person dissatisfied with a decision of the registrar under section 287 (10) may appeal against the decision to the full bench as it was constituted when the general ruling under section 287 was made.

(8)The full bench may—

(a)dismiss the appeal; or

(b)allow the appeal, set aside the decision and substitute another decision; or

(c)allow the appeal and amend the decision; or

(d)allow the appeal, suspend the operation of the decision and remit the industrial cause, with or without directions, to the commission, an Industrial Magistrates Court or the registrar—

(i)for report to the full bench; or

(ii)to act according to law.

s 342 amd 2007 No. 23 s 33; 2007 No. 36 s 2 sch; 2007 No. 55 s 54 sch 1; 2013 No. 61 s 63

343Appeal from registrar

(1)A person dissatisfied with a decision of the registrar under section 695 may appeal against the decision to the commission.

(2)The commission may—

(a)dismiss the appeal; or

(b)allow the appeal, set aside the decision and substitute another decision; or

(c)allow the appeal and amend the decision; or

(d)allow the appeal, suspend the operation of the decision and remit the matter, with or without directions, to the registrar—

(i)for report to the commission; or

(ii)to act according to law.

344Appeal against stand-downs

(1)An employee stood down by an employer under section 98, may appeal to the commission against the stand-down.

(2)If the employee is a member of an employee organisation, the organisation may institute and conduct the appeal for the employee.

(3)The commission may—

(a)dismiss the appeal; or

(b)allow the appeal and order the employee be paid, within a stated period, the wages lost by the employee because of the stand-down; or

(c)if the employee remains stood down at the time of the commission’s decision—

(i)allow the appeal; and

(ii)order the employer to provide for the resumption of work by the employee, immediately or on a stated day; and

(iii)make an order about payment of wages mentioned in paragraph (b).

(4)If the commission makes an order under subsection (3) (b), it may include in the order default provisions for its enforcement, other than by imprisonment, as if—

(a)the commission were an Industrial Magistrates Court; and

(b)the member who makes the order were a magistrate.

(5)The order may be filed with the clerk of a Magistrates Court and on filing may be enforced as an order made by an Industrial Magistrates Court.

345Definition for div 5

In this division—

industrial tribunal means the Court of Appeal, court, full bench or commission.

346Time limited for appeal

(1)An appeal against a decision must be commenced, as required under the rules, within the appeal period.

(2)However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be commenced within a longer period.

(3)In this section—

appeal period, for an appeal against a decision, means the period within 21 days after—

(a)if the decision is given at a hearing—the announcement of the decision at the hearing; or

(b)if the decision is given through the registrar—the release of the decision; or

(c)if, under another Act, the decision is given in another way—the decision is given in the other way.

s 346 amd 2011 No. 4 s 42

347Stay of decision appealed against

On an appeal, the industrial tribunal may order that the decision being appealed be wholly or partly stayed pending—

(a)the determination of the appeal; or

(b)a further order of the industrial tribunal.

s 347 amd 2011 No. 4 s 43

348Nature of appeal

(1)An appeal to an industrial tribunal is by way of re-hearing on the record.

(2)However, the industrial tribunal may hear evidence afresh, or hear additional evidence, if the industrial tribunal considers it appropriate to effectively dispose of the appeal.

349Finality of decisions

(1)This section applies to the following decisions—

(a)a decision of the Court of Appeal under section 340;

(b)a decision of the court under section 341;

(c)a decision of the full bench under section 342;

(d)a decision of the commission under section 343 or 344;

(e)another decision of the court, the full bench, the commission, an Industrial Magistrates Court or the registrar.

(2)The decision—

(a)is final and conclusive; and

(b)can not be impeached for informality or want of form; and

(c)can not be appealed against, reviewed, quashed or invalidated in any court.

(3)The industrial tribunal’s jurisdiction is exclusive of any court’s jurisdiction and an injunction or prerogative order can not be issued, granted or made in relation to proceedings in the court within its jurisdiction.

(4)This section does not apply to a decision mentioned in subsection (1) to the extent that this Act or another Act provides for a right of appeal from the decision.

(5)In this section—

industrial tribunal includes an Industrial Magistrates Court and the registrar.

350Appointment of inspectors

(1)The Governor in Council may, by gazette notice, appoint a person as the chief inspector.

(2)The chief executive may appoint a person as an inspector.

(3)A person appointed as an inspector—

(a)must be—

(i)a public service officer or employee; or

(ii)an inspector under the Further Education and Training Act 2014 ; or

(iii)a person with the qualifications prescribed under a regulation; and

(b)must have the necessary expertise or experience to be an inspector.

(4)An inspector, while the inspector holds the appointment, is also an inspector for—

(a)the Pastoral Workers’ Accommodation Act 1980 ; and

(b)the Trading (Allowable Hours) Act 1990 ; and

(c)the Workers’ Accommodation Act 1952 ; and

(d)the Child Employment Act 2006 .

(4A)Also, an inspector, while the inspector holds the appointment, is an authorised person under the Workers’ Compensation and Rehabilitation Act 2003 , but only for the purposes of chapter 4, part 6 of that Act.

(5)An inspector is to be employed under the Public Service Act 2008 .

s 350 amd 2000 No. 23 s 292 sch 1; 2003 No. 63 s 60 sch; 2006 No. 2 s 56; 2007 No. 23 ss 34, 3 sch; 2008 No. 38 s 252 sch 3; 2013 No. 52 s 114 sch 2; 2014 No. 25 s 223 sch 1 pt 2

351Functions

(1)An inspector must—

(a)ensure industrial instruments, permits and orders are, as far as possible, complied with; and

(b)investigate and, when necessary, take action to deal with alleged contraventions of this Act; and

(c)investigate complaints made under section 636A about organisations or officers of organisations and other matters referred to the inspector under section 636G; and

(d)inform employees and employers of their rights and obligations under this Act; and

(e)perform other functions—

(i)given to an inspector under this or another Act; or

(ii)prescribed under a regulation.

(2)Also, an inspector’s functions include investigating and monitoring compliance with chapter 12, part 12.

(3)For subsection (2), an investigation may be undertaken regardless of whether—

(a)the registrar has investigated the matter under chapter 12, part 12, division 5; or

(b)a complaint about the matter has been referred to the inspector under section 636G.

(4)In the performance of his or her functions, the inspector must, when appropriate, have particular regard to—

(a)the needs of employees in a disadvantaged bargaining position (including for example, women, people from a non-English speaking background, young people, apprentices, trainees and outworkers); and

(b)helping employees to balance work and family responsibilities.

s 351 amd 2013 No. 29 s 6; 2013 No. 61 s 63A

352Powers

(1)An inspector has the power to do all things necessary or convenient to be done for, or in connection with, the performance of the inspector’s functions.

(2)An inspector may exercise a power in relation to a person only if the inspector—

(a)first produces his or her identity card for the person’s inspection; or

(b)has the inspector’s identity card displayed so it is clearly visible to the person.

(3)However, if for any reason it is not practicable to comply with subsection (2) before exercising the power, the inspector must produce the identity card for the person’s inspection at the first reasonable opportunity.

(4)For the purposes of an inspector exercising powers under this Act while acting as an inspector under the Child Employment Act 2006 —

(a)a reference in this Act to an employee includes a child to whom that Act applies; and

(b)a reference in this Act to an employer includes a person who engages, or arranges for, a child to whom that Act applies to perform work at the direction of the person, whether the child works for gain or reward or on a voluntary basis.

s 352 amd 2006 No. 2 s 57

353Entry to places

(1)An inspector may, without the occupier’s consent, enter—

(a)a public place; or

(b)a workplace when—

(i)the workplace is open for carrying on business; or

(ii)the workplace is otherwise open for entry.

(2)If the workplace is on or near domestic premises, an inspector may, without the occupier’s consent—

(a)enter the land around the premises to an extent that is reasonable to contact the occupier; or

(b)enter part of the place the inspector reasonably considers members of the public are ordinarily allowed to enter when they wish to contact the occupier; or

(c)enter that part of the place the inspector reasonably believes clothing outwork is being, has been, or is about to be carried on.

(3)However, if it is practicable to do so before entering the land, the inspector must first tell the occupier of the inspector’s intention to gain access to the workplace.

(4)In this section—

branch, of an organisation, see section 409.

domestic premises means premises usually occupied as a private dwelling house.

workplace—

(a)means a place in or on which the inspector reasonably suspects a calling is, has been, or is about to be carried on; and

(b)includes a place of business used or occupied by an organisation or branch of an organisation.

s 353 amd 2005 No. 11 s 37; 2013 No. 61 s 117 sch 1 pt 1; 2014 No. 36 s 55K

354General powers after entering workplaces

(1)This section applies to an inspector who enters a workplace under section 353.

(2)However, if an inspector enters a workplace to get the occupier’s consent to enter the workplace, this section applies to the inspector only if the consent is given or the entry is otherwise authorised.

(3)For monitoring or enforcing compliance with this Act, the inspector may—

(a)inspect, photograph or film any part of the place or anything at the workplace; or

(b)copy a document at the workplace; or

(c)take into or onto the workplace the persons, equipment and materials the inspector reasonably requires for exercising a power under this part; or

(d)require a person at the workplace to give the inspector reasonable help to exercise the powers under paragraphs (a) to (c).

(4)When making a requirement under subsection (3) (d), the inspector must warn the person it is an offence to fail to comply with the requirement, unless the person has a reasonable excuse.

(5)A person required to give reasonable help under subsection (3) (d) must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

s 354 amd 2000 No. 23 s 292 sch 1

355Power to require documents to be produced

(1)An inspector may require a person to make available for inspection by an inspector, or to produce to the inspector for inspection, at a reasonable time and place nominated by the inspector—

(a)a document issued to the person under this Act; or

(b)a document required to be kept by the person under this Act; or

(c)a document relating to an employee, including, for example, a time sheet or pay sheet; or

(d)a document relating to a matter under chapter 12; or

(e)if a document or information required to be kept by the person under this Act or relating to an employee or a matter under chapter 12 is stored or recorded by means of a device—a document that is a clear written reproduction of the stored or recorded document or information.

(2)The person must produce the document, unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

(3)The inspector may keep the document to copy it.

(4)If the inspector copies it, the inspector may require the person responsible for keeping the document to certify the copy as a true copy of the document.

(5)The person must certify the copy, unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

(6)The inspector must return the document to the person as soon as practicable after copying it.

(7)To remove any doubt, it is declared that the powers of an inspector under this section—

(a)are additional to the powers under section 371; and

(b)do not limit, and are not limited by, any other powers of an inspector under this Act.

s 355 amd 2005 No. 11 s 38; 2013 No. 31 s 38D

356Power to require information

(1)An inspector may, during business hours—

(a)question with respect to matters under this Act or under a relevant industrial instrument any of the following persons (each a relevant person)—

(i)an employer in a calling;

(ii)a person found in or on a place in or on which the inspector reasonably suspects a calling is, has been, or is about to be carried on;

(iii)an officer of an organisation or a branch of an organisation; and

(b)require the relevant person to give the inspector information to help the inspector ascertain whether this Act, or a relevant industrial instrument, permit or order are being, have been or will be complied with, or should be given operation in relation to the calling.

(2)When making the requirement, the inspector must warn the relevant person it is an offence not to comply with the requirement, unless the person has a reasonable excuse.

(3)The relevant person must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

(4)It is a reasonable excuse for an individual to fail to comply with the requirement if doing so might tend to incriminate the individual.

(5)The power to question a relevant person who is an employee includes power to question the employee out of anyone else’s hearing.

s 356 amd 2013 No. 61 s 117 sch 1 pt 1; 2014 No. 36 s 55L

357Power to require name and address

(1)An inspector may require a person, for this Act, to state the person’s name and address.

(2)When making the requirement, the inspector must warn the person it is an offence to fail to state the person’s name or address, unless the person has a reasonable excuse.

(3)The inspector may require the person to give evidence of the correctness of the stated name or address if the officer reasonably suspects the stated name or address is false.

(4)A person must comply with a requirement under subsection (1) or (3), unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

358Paying employee’s wages etc. to inspector

(1)On an inspector’s written demand, an employer must pay—

(a)an employee’s unpaid wages, including an unpaid tool allowance required to be paid under an order made under section 138; and

(b)for an eligible employee—

(i)the unpaid contributions payable under a relevant industrial instrument for the employee by the employer to a complying superannuation fund; and

(ii)an amount based on the return that would have accrued had the contribution been properly paid to the fund.

Maximum penalty—40 penalty units.

(2)The payment must be made—

(a)under subsection (1) (a)—to the inspector; or

(b)under subsection (1) (b)—

(i)into a complying superannuation fund in the time specified by the inspector; or

(ii)if not paid into a complying superannuation fund in the specified time—to the inspector.

(3)A demand must not be made, or need not be complied with, if it relates or would relate to unpaid wages for which an order for recovery could not be made on an application under section 399.

(4)An Industrial Magistrates Court that hears and decides a complaint against an employer for an offence against subsection (1) (a) or (b)—

(a)apart from a penalty that it may impose; and

(b)whether or not it finds the employer guilty;

may order the employer to pay the employee the amount the court finds, on the balance of probabilities, is payable to the employee.

(5)A court that finds an employer guilty of an offence against subsection (1) (b) may make, in relation to the employer, an order that a magistrate may make on an application made under section 408.

(6)If an order is made, section 408 applies to it.

(7)In this section—

employee includes a former employee.

359Inspector’s obligation for amounts paid on demand

(1)An inspector who is paid an amount mentioned in section 358 must immediately give the payer a receipt for the amount.

(2)The receipt is a full discharge to the employer concerned for the amount stated in the receipt.

(3)The inspector must pay the amount to—

(a)for a superannuation contribution—

(i)if the employee is employed by the employer—the approved superannuation fund; or

(ii)if the employee is no longer employed by the employer—

(A)the approved superannuation fund; or

(B)a complying superannuation fund; or

(C)a superannuation fund nominated by the employee; or

(D)an eligible rollover fund; or

(E)if the amount is less than the amount of total benefits that may revert to an employee under the Superannuation Industry (Supervision) Act 1993 (Cwlth)—the employee; or

(b)otherwise—the employee.

(4)If the inspector has not accounted for the amount within 30 days after receiving it, the inspector must pay the amount immediately to the department.

(5)The department must account for the amount in the way required by subsection (3).

(6)However, the department must pay the amount into the unclaimed moneys fund if—

(a)the department can not locate the employee after making reasonable inquiries; or

(b)the employee does not nominate a superannuation fund for subsection (3) if requested by an inspector to do so.

(7)In this section—

employee includes a former employee.

superannuation contribution means—

(a)an employer’s contribution to an approved superannuation fund to the credit of an eligible employee, which is unpaid; or

(b)an amount mentioned in section 358 (1) (b) (ii).

360Obstructing inspectors

A person must not obstruct an inspector in the exercise of a power, unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

361Impersonating inspectors

A person must not pretend to be an inspector.

Maximum penalty—40 penalty units.

362Validity of inspector’s conduct despite administrative contravention

The failure of an inspector to comply with section 352 (2) or (3) or schedule 2, part 3, section 9—

(a)does not affect the lawfulness or effect of an act done or omission made by the inspector for this Act; but

(b)makes the inspector liable to disciplinary action.

363Definitions for pt 1

In this part—

authorised industrial officer means a person who holds an authority in force under section 364.

record includes a computer record if—

(a)a print-out or disk containing the contents of the record relevant to this part are separate from all other material in the print-out or disk; and

(b)the print-out or disk gives the particulars required by this part accurately and in a way convenient for an inspection under this part.

time and wages record—

(a)for an industrial instrument employee—see section 366; and

(b)for a non-industrial instrument employee—see section 367.

364Authorising industrial officers

(1)The registrar, on application by an organisation, may issue an officer or employee of the organisation with an authority under this section.

(2)An authority may be subject to conditions stated in it.

(3)A person who holds an authority that is in force (an authorised industrial officer) may exercise the powers of an authorised industrial officer under this part.

(4)The authority—

(a)must be applied for in the way prescribed under a regulation; and

(b)is in force for the term stated in it, unless it sooner stops being in force for a reason mentioned in paragraph (c); and

(c)stops being in force—

(i)on its revocation; or

(ii)on its suspension, for the period of suspension; or

(iii)on its holder ceasing to be an officer or employee of the organisation that made the application or ceasing to be an authorised industrial officer acceptable to the organisation.

(5)When an authority stops being in force under subsection (4) (c) (iii), the organisation who applied for it—

(a)must notify the registrar within 14 days after the authorisation stops being in force; and

(b)on the registrar’s request, must surrender the authority to the registrar.

Maximum penalty for subsection (5)—16 penalty units.

365Revocation and suspending industrial officer’s authorisation

(1)This section applies if, on application by an employer or a person required to produce a record under section 373A, the commission considers an authorised industrial officer has—

(a)breached a condition of the authorisation; or

(b)entered an employer’s workplace other than under section 372; or

(c)contravened section 372 (2); or

(d)exercised the officer’s power to enter in an unreasonable or vexatious way; or

(e)made unreasonable, vexatious or inappropriate use of information obtained from inspection of a record made available because of the officer’s power as an authorised industrial officer.

(2)The commission may—

(a)revoke the officer’s authorisation; or

(b)suspend the officer’s authorisation for a period it considers appropriate; or

(c)attach conditions to the officer’s authorisation it considers appropriate.

s 365 amd 2010 No. 42 s 107; 2013 No. 29 s 7

366Time and wages record—industrial instrument employees

(1)An employer must keep a time and wages record that contains the following particulars for each industrial instrument employee—

(a)the employee’s full name and address;

(b)the employee’s date of birth;

(c)for each pay period—

(i)the employee’s designation; and

(ii)the name of the industrial instrument or permit under which the employee is working; and

(iii)the number of hours worked by the employee during each day and week, the times at which the employee started and stopped work, and details of work breaks including meal breaks; and

(iv)if the industrial instrument or permit provides for—

(A)a weekly, daily or hourly wage rate—details of the wage rate for each week, day, or hour at which the employee is paid; or

(B)piecework rates—details of the piecework performed and the rate at which payment is made to the employee; and

(v)the gross and net wages paid to the employee; and

(vi)details of any deductions made from the wages; and

(vii)contributions made by the employer to a superannuation fund;

(d)if an employee’s entitlement to long service leave is worked out under section 47 or 71HJ—the total hours, other than overtime, worked by the employee since the start of the period to which the entitlement relates, worked out to and including 30 June in each year;

(e)details of sick leave credited or approved, and sick leave payments to the employee;

(f)the date when the employee became an employee of the employer;

(g)if appropriate, the date when the employee stopped employment with the employer;

(h)other particulars necessary to show compliance with the hours of work, wage rates and general employment conditions provided under the instrument, permit or order under chapter 5, part 5.

Maximum penalty—40 penalty units.

(2)The employer must ensure the time and wages record—

(a)clearly states the employer’s full name; and

(b)is kept at, or can be accessed from, a workplace of the employer in Queensland.

Maximum penalty—40 penalty units.

(3)If the industrial instrument does not limit the employee’s daily or weekly working hours, particulars of the employee’s starting and finishing times each day need not be recorded, unless the instrument requires it.

(4)The employer must keep the record for 6 years.

Maximum penalty—40 penalty units.

(5)On the employee’s request, the employer must give the employee a certificate stating the total hours recorded under subsection (1) (d) for the employee, worked out to the previous 30 June.

Maximum penalty—40 penalty units.

(6)In this section—

industrial instrument employee means a person who—

(a)is or has been employed by an employer; and

(b)works or has worked under an industrial instrument or permit.

s 366 amd 2000 No. 23 s 292 sch 1; 2001 No. 87 s 28; 2007 No. 52 s 51; 2013 No. 29 s 8; 2013 No. 61 s 117 sch 1 pt 2; 2014 No. 25 s 223 sch 1 pt 2

367Time and wages record—non-industrial instrument employees

(1)An employer must keep a time and wages record that contains the following particulars for each non-industrial instrument employee—

(a)the employee’s full name and address;

(b)the employee’s date of birth;

(c)for each pay period—

(i)the employee’s designation; and

(ii)the number of hours worked by the employee during each day and week; and

(iii)the employee’s wage rate; and

(iv)the gross and net wages paid to the employee; and

(v)details of any deductions made from the wages;

(d)if an employee’s entitlement to long service leave is worked out under section 47 or 71HJ—the total hours, other than overtime, worked by the employee since the start of the period to which the entitlement relates, worked out to and including 30 June in each year.

Maximum penalty—40 penalty units.

(1A) Subsection (1) (b) and (c) (ii) does not apply to an employee who is excluded from the operation of a general ruling for the Queensland minimum wage under section 287 (5).

(2)The employer must ensure the time and wages record—

(a)clearly states the employer’s full name; and

(b)is kept at, or can be accessed from, a workplace of the employer in Queensland.

Maximum penalty—40 penalty units.

(3)The employer must keep the record for 6 years.

Maximum penalty—40 penalty units.

(4)On the employee’s request, the employer must give the employee a certificate stating the total hours recorded under subsection (1) (d) for the employee, worked out to the previous 30 June.

Maximum penalty—40 penalty units.

(5)In this section—

non-industrial instrument employee means a person who—

(a)is or has been employed by the employer; and

(b)works or has worked other than under an industrial instrument or a permit.

s 367 amd 2000 No. 23 s 292 sch 1; 2001 No. 87 s 29; 2003 No. 27 s 617 (retro); 2007 No. 36 s 2 sch; 2007 No. 52 s 52; 2013 No. 29 s 9; 2013 No. 61 s 117 sch 1 pt 2

368Employee register

(1)An employer must keep an employee register that contains the following particulars for each employee—

(a)the employee’s full name and residential address;

(b)for a person who is residing other than at the person’s permanent residence when the person becomes an employee—the person’s permanent residential address and the address of the person’s other residence;

(c)the calling in which the employee is engaged;

(d)the date when the employee became an employee of the employer;

(e)if appropriate, the date when the employee stopped employment with the employer.

Maximum penalty—40 penalty units.

(2)If an employer has more than 100 employees and the register is not an alphabetical index itself, the employer must keep an alphabetical index of the employee’s names.

Maximum penalty—40 penalty units.

(3)The index may be in a loose-leaf, computer print-out or card index form.

(4)Within 14 days after a change in an employee’s calling, the employer must enter in the register particulars of the change and the date when the change happened.

Maximum penalty—40 penalty units.

(5)An employee must inform the employer of—

(a)the employee’s residential address whenever asked by the employer; and

(b)if the employee changes the employee’s residential address—the new address immediately.

Maximum penalty—40 penalty units.

(6)Particulars must be entered in a register opposite and relative to the name of the employee to which they relate.

(7)If an employer carries on business at more than 1 place, the employer must keep a register and index for each place.

369Records to be kept in English

A record or index kept under this part must be in the English language.

370Notation of wages details

(1)When paying an employee wages, the employer must state how the payment is made up by giving a written statement to the employee.

Maximum penalty—40 penalty units.

(2)The statement may be given on the employee’s pay envelope or advice and must include the following particulars—

(a)the date of payment;

(b)the period covered by the payment;

(c)the number of hours covered by the payment at—

(i)ordinary wage rate; and

(ii)overtime wage rate;

(d)the ordinary hourly rate and the amount paid at that rate;

(e)the overtime hourly rate and the amount paid at that rate;

(f)the gross wages paid;

(g)the net wages paid;

(h)details of any deductions made from the wages;

(i)the amount of contribution paid to a superannuation fund.

(3)The statement must also clearly state the employer’s full name.

Maximum penalty—40 penalty units.

s 370 amd 2000 No. 23 s 292 sch 1; 2001 No. 87 s 30

371Inspection of time and wages record—inspector

(1)An inspector may inspect a time and wages record at a workplace in the employer’s business hours.

(2)The employer must allow the inspector to inspect the record.

Maximum penalty—40 penalty units.

(3) Subsection (4) applies if—

(a)an employer does not produce the record to the inspector; or

(b)an inspector is obstructed during the inspection of the record; or

(c)an inspector wants to inspect the record of a former employer.

(4)The inspector may, by notice, require the employer or former employer to produce the record—

(a)at—

(i)a stated workplace of the employer; or

(ii)for an employer who has no official workplace or a former employer—a reasonably convenient place nominated by the inspector; and

(b)at a stated reasonable time.

(5)If the employer or former employer does not produce the record as required by the notice, the employer or former employer is taken to have failed to keep the record, unless he or she has a reasonable excuse.

(6)The notice may be given by post or in another way.

372Right of entry—authorised industrial officer

(1)An authorised industrial officer may enter a workplace at which an employer carries on a calling of the officer’s organisation, during the employer’s business hours, to exercise a power under section 373.

(2)On entering the workplace, the officer must first—

(a)notify the employer or the employer’s representative of the officer’s presence; and

(b)produce the officer’s authorisation, if required by the employer or representative.

(3)The employer must not refuse an authorised industrial officer entry to the workplace if the officer complies with subsection (2).

Maximum penalty—27 penalty units.

(4)If the officer does not comply with subsection (2), the officer may be treated as a trespasser.

(5) Subsection (2) does not apply if, on entering the workplace, the officer discovers that neither the employer nor the employer’s representative having charge of the workplace is present.

s 372 amd 2000 No. 23 s 292 sch 1; 2013 No. 29 s 11

sub 2015 No. 7 s 28

373Right to inspect and request information—authorised industrial officer

(1)This section applies to an authorised industrial officer who has entered a workplace under section 372.

(2)The officer may inspect the time and wages record of—

(a)a member employee; or

(b)an employee who is eligible to become a member of the officer’s organisation.

(3)The officer may also inspect a record required to be kept under the code made under section 400I.

(4)The employer—

(a)must allow the officer to inspect the record for an employee mentioned in subsection (2) (a) or (b), unless the employee has made a written request to the employer that the record not be available for inspection by an authorised industrial officer or a particular authorised industrial officer; and

(b)must not allow the officer to inspect the record for an employee who has made a written request to the employer that the record not be available for inspection by an authorised industrial officer or a particular authorised industrial officer; and

(c)must allow the officer to inspect the record mentioned in subsection (3).

Maximum penalty—27 penalty units.

(5)The officer may make a copy of the time and wages record or the record mentioned in subsection (3), but can not require any help from the employer.

(6)A person must not, by threats or intimidation, persuade or attempt to persuade an employee or prospective employee to make, or refuse to make, a written request to the employer or prospective employer that the record not be available for inspection by an authorised industrial officer.

Maximum penalty—27 penalty units.

(7)If the employer keeps particulars other than those mentioned in section 366 in the record, the employer need not make the other particulars available for inspection.

(8)The officer may discuss matters under this Act with the following persons during working or non-working time—

(a)the employer;

(b)a member employee, or an employee who is eligible to become a member of the officer’s organisation.

(9)The officer may discuss any other matter with a member employee, or an employee who is eligible to become a member of the officer’s organisation, during non-working time.

(10)A person must not obstruct the officer exercising a power under subsection (8) or (9).

Maximum penalty—27 penalty units.

(11)The officer must not—

(a)wilfully obstruct the employer, or an employee during the employee’s working time; or

(b)contravene a requirement of this section.

Maximum penalty—27 penalty units.

(12)A person must not act as an authorised industrial officer under this section, unless the person holds a current authorisation.

Maximum penalty—27 penalty units.

(13)In this section—

member employee means—

(a)an employee who is a member of the authorised industrial officer’s organisation; or

(b)a former employee who was, or is, a member of the officer’s organisation.

time and wages record means the time and wages record required to be kept under section 366.

s 373 amd 2000 No. 23 s 292 sch 1; 2010 No. 42 s 108; 2011 No. 4 s 44; 2013 No. 29 s 13; 2013 No. 31 s 38F

sub 2015 No. 7 s 31

373ARight to request information about outworkers under code

(1)An authorised industrial officer of a relevant employee organisation may, by notice, require a person to produce a record required to be kept by the person under the code made under section 400I—

(a)at a reasonably convenient place for the person as nominated by the officer; and

(b)at a reasonable time.

Maximum penalty—27 penalty units.

(2)The officer may make a copy of the record, but can not require any help from the person.

(3)In this section—

relevant employee organisation means an employee organisation that is entitled to represent the industrial interests of an employee under the code made under section 400I.

s 373A ins 2010 No. 42 s 109

374Inspection of employee register and index—registrar

(1)The registrar may inspect an employer’s employee register and index at the employer’s workplace during the employer’s business hours.

(2)The employer must allow the registrar to inspect the record or index.

Maximum penalty—40 penalty units.

(3)The registrar may, by notice, direct the employer to give the register or index to a stated person, at a stated reasonable time and place, if—

(a)the registrar requires a register or index for the taking of a ballot; or

(b)the court or commission orders the register or index be made available for another purpose.

(4)The employer must comply with the direction.

Maximum penalty for subsection (4)—40 penalty units.

375Inspection of time and wages book—employees

(1)An employee may inspect the time and wages record for the employee’s particulars relating to the 12-month period before the inspection.

(2)At the employer’s discretion, the employer may give the particulars to the employee in writing.

(3)Unless the employer otherwise consents, the employee may inspect the record only—

(a)once in any 12-month period; and

(b)during the employer’s business hours, but outside the employee’s working time.

376Definitions for pt 2

In this part—

assignment includes disposition and charge, whether legal or equitable.

contracted work means work that is, or is to be, performed under a contract or undertaking (whether written or unwritten).

employer, in division 2, means the person—

(a)with whom a prime contractor has contracted to perform work; or

(b)who has an obligation to a prime contractor to perform work.

fixed rate, in division 3, means the rate applicable under—

(a)for an apprentice or trainee—section 136; or

(b)for an employee under an industrial instrument or permit—the industrial instrument or permit; or

(c)for an employee who is entitled to the Queensland minimum wage and in relation to whom paragraph (a) or (b) does not apply—a general ruling for the Queensland minimum wage.

def fixed rate amd 2000 No. 23 s 292 sch 1

sub 2003 No. 27 s 618 (retro)

mine, in division 4, means a mine within the meaning of the Mining and Quarrying Safety and Health Act 1999 .

def mine amd 2003 No. 19 s 3 sch

mortgagee, in division 4, means a person entitled to payment under the security of an instrument of mortgage, crop lien, stock mortgage or bill of sale.

mortgagor, in division 4, means a person liable to pay a mortgagee under an instrument of mortgage, crop lien, stock mortgage or bill of sale.

prime contractor means—

(a)

a person (the contractor) who contracts with someone else for the performance of work by the other person, or at whose request, or on whose credit or behalf and with whose knowledge and consent, work is performed; or

(b)a person, claiming under the contractor, whose rights are acquired after the work begins.

rate, in division 3, includes price.

subcontractor means a person who contracts with an employer to perform work to discharge the employer’s obligation to a prime contractor.

377References to service

A reference in this part to service on a person includes reference to service on the person’s agent.

378Wages are first charge on amounts payable to employer

(1)Wages payable to employees employed on any contracted work are, subject to the prime contractor’s rights as prescribed under this Act, a first charge on the amount payable to the employer by the prime contractor for the work.

(2)Until a notice of attachment under section 381 is served on the prime contractor, the prime contractor may pay the employer all amounts payable for the contracted work.

379Assignment of amount payable ineffectual against claims for wages

(1)This section applies to an assignment by an employer of amounts that have become, or are to become, payable to the employer by a prime contractor for contracted work.

(2)The assignment is of no effect as against wages payable, or to become payable, to employees employed by the employer in performance of the work.

(3) Subsection (2) does not apply if the assignment is to the employees employed by the employer in performance of the work concerned for wages payable, or to become payable, to them for performing the work.

380Amounts paid or payable to employer to be applied in payment of wages

(1)This section applies to amounts paid or payable to an employer by a prime contractor for contracted work.

(2)The amount is not liable to be attached or charged, except by employees mentioned in subsection (5), until all wages payable, or to become payable, to the employees have been properly paid to them or have been secured to them in a way approved by a magistrate.

(3)The employer must apply the amounts received, to the extent necessary, in payment of wages payable, or to become payable, to employees employed by the employer in performance of work for which the amounts are received.

Maximum penalty—40 penalty units.

(4)The employer must keep an accurate written account of the amounts received from the prime contractor, and of the way the amounts have been disbursed or disposed of.

Maximum penalty—40 penalty units.

(5)The employer must produce the account for inspection to an employee mentioned in subsection (3)—

(a)whose wages are more than 8 days in arrears and are not paid when demanded; and

(b)who asks to see the account.

Maximum penalty—40 penalty units.

(6)The employer must allow the employee to make a copy of the account.

Maximum penalty—40 penalty units.

381Attachment notices

An employee, whose wages remain unpaid for 24 hours after they are payable and have been demanded by the employee, may serve the prime contractor with an attachment notice in the approved form.

382Effect of attachment notice

(1)This section applies if an attachment notice is served on the prime contractor.

(2)The prime contractor must retain from the amounts payable, or to become payable, by the prime contractor to the employer for the contracted work an amount sufficient to satisfy—

(a)the claim for wages specified in the notice; and

(b)all further claims for wages specified in notices of attachment served on the prime contractor within 7 days after the service of the first notice.

(3)At the end of the 7 day period, the amount claimed as wages and specified in the notices is attached in the prime contractor’s hands, and must be kept by the prime contractor until—

(a)a magistrate orders to whom, and in what way, the amount must be paid; or

(b)the prime contractor deals with the amount under subsection (4); or

(c)the notices are withdrawn.

(4)After being served with a notice, the prime contractor may pay the amount to which the notice relates to a clerk of the Magistrates Court until—

(a)a magistrate makes an order in relation to the amount; or

(b)the notice is withdrawn.

(5)The payment—

(a)must be accompanied by the notice or a copy of it; and

(b)is a full discharge of the prime contractor from liability for the amount paid and costs of proceedings for the amount.

(6)An amount paid to a clerk of the Magistrates Court may be paid out only—

(a)on the order of a magistrate; or

(b)if the relevant attachment notice is withdrawn.

(7)A prime contractor who fails to keep, or to pay under subsection (4), an amount required by subsection (2) or (3) to be kept is personally liable to each employee in the amount of the employee’s claim for wages stated in the employee’s attachment notice served on the prime contractor.

(8)An employee who has served an attachment notice on a prime contractor may withdraw the notice by giving notice of withdrawal to—

(a)the prime contractor; and

(b)the employer to whom amounts are payable, or are to become payable, by the prime contractor.

383Orders for payment by prime contractor or clerk of the court

(1) Subsection (2) applies if an employee who served an attachment notice on a prime contractor obtains judgment from a magistrate against the employer for the claim for wages.

(2)The magistrate may order the judgment be satisfied, wholly or partly, by payment of a stated amount—

(a)from amounts paid to the clerk of the Magistrates Court under section 382 (4); or

(b)if no amount was paid to the clerk under section 382 (4) or the amount paid was not enough to cover the amount ordered to be paid by the magistrate—by the prime contractor.

(3)In deciding the amount that should be ordered to be paid for an employee’s claim, the magistrate must take into account the existence of claims for wages of other employees of the employer of which the magistrate has knowledge.

(4)Subject to any appeal against the magistrate’s decision, the clerk or prime contractor must pay the amount stated in the relevant order to the employee from the amounts—

(a)paid to the clerk under section 382 (4); or

(b)attached and kept in the hands of the prime contractor.

(5)Payment must be made within 21 days after a copy of the order is served on the clerk or prime contractor.

(6)If an appeal is started and notice of it is served, the clerk or prime contractor must continue to keep or hold the amounts from which payment is to be made until the appeal is finally decided or discontinued.

(7)The prime contractor is not liable to a greater extent than the amount actually payable by the prime contractor to the employer when—

(a)the order is served; or

(b)payment is made under the order;

whichever is the greater.

384Employees to be paid according to when attachment notices are served

(1)An amount attached in the hands of a prime contractor, or paid to a clerk of the Magistrates Court, is to be paid in priority according to the order of the service of the relevant attachment notices.

(2)However, for this section, all notices served within 7 days after the service of the first notice are—

(a)taken to have been served simultaneously with the first notice; and

(b)accorded equal priority to distribution of the amount attached or paid.

(3)The claims for wages of all employees who are taken to have served notices simultaneously must be paid in full, unless the amounts attached in the hands of the prime contractor or held by the clerk are insufficient for the purpose.

(4)If the amounts are insufficient for the purpose, the claims are to abate in equal proportions among themselves.

(5) Subsection (1) is subject to sections 381 to 383.

385Employee may sue prime contractor

(1) Subsection (2) applies if—

(a)a prime contractor is served with a copy of the magistrate’s order made under section 383 (2); and

(b)the amount stated in the order and payable by the prime contractor is not paid in accordance with the order.

(2)The employee in whose favour the order is made may, in an Industrial Magistrates Court and in the employee’s own name, sue the prime contractor for the amount stated in the order and unpaid, by way of any action or proceedings the employer could have brought against the prime contractor as if—

(a)there had been no attachment of amounts under this part; and

(b)the amounts required by the attachment under section 381 to be kept were payable to the employer and unpaid.

(3)The employee’s entitlement is subject to the prime contractor’s right to set off against the employee’s claim all amounts—

(a)properly paid by the prime contractor to the employer under section 378 (2); and

(b)the employer was, when the notice was served on the prime contractor, liable to pay the prime contractor for a breach, or non-performance, of the contract or undertaking in performance of which the relevant work is or is to be performed.

386Cessation of attachment not to prejudice prime contractor

(1)This section applies if an order under section 383 stops operating because—

(a)of satisfaction of the employee’s claim; or

(b)it is set aside.

(2)A prime contractor who has paid an amount in accordance with the order before receiving notice of the satisfaction or setting aside is not to be prejudiced in relation to the payment because the order stopped operating.

387Discharge by employee for payment received

An employee who receives an amount for a claim for wages to which an order under section 383 relates must sign a discharge for the amount, in the approved form if asked by the person making the payment.

388Remedy of subcontractor’s employees

(1)If an employer has let the performance of work to a subcontractor, an employee employed by the subcontractor in that work has the same rights and remedies for a claim for wages against the employer under this division as an employee of the employer has against a prime contractor.

(2)For subsection (1), in construing this division (other than section 376 and this section) ‘employer’ is substituted for ‘prime contractor’ and ‘subcontractor’ is substituted for ‘employee’.

389Prime contractor’s right to reimbursement

(1)This section applies if—

(a)a prime contractor has paid a claim for wages payable to an employee of the employer, in satisfaction of the prime contractor’s obligations under this division; and

(b)either of the following happens—

(i)for an employer who is a corporation—winding-up proceedings are commenced;

(ii)for an employer who is an individual—the employer’s assets are distributed in insolvency of the employer or in a composition with the employer’s creditors.

(2)The prime contractor is taken to have a claim for wages against the employer’s assets, which is a preferential claim, as if the prime contractor were an employee of the employer to whom wages were payable by the employer.

(3)This section applies only to the extent that a State law may validly apply to the distribution of assets.

390Magistrate may hear claim for wages ex parte

A magistrate may hear and decide proceedings for a claim for wages in the absence of a person to whom the originating process is directed on proof, on oath or affirmation, of the service of the process.

390ADefinitions for div 3

In this division—

amount in relation to employment means wages or any other amount relating to employment.

def amount in relation to employment reloc 2013 No. 29 s 16 (3)

continuing health employee means a health employee who, immediately after ceasing to be a health employee, begins new employment, or resumes previous employment, as a health employee, on any basis.

final payment—

1

Generally, a health employee’s final payment is the total amount owing to the employee by the health employer on the day the employee ceases to be a health employee, including unpaid wages, or any other amount payable in relation to employment, to which the employee is entitled.

2

However, the final payment for a continuing health employee includes only the component of the total amount mentioned in paragraph 1 that is the amount the employee is entitled to be paid for untaken leave.

health employee means—

(a)a public service employee whose employment is with Queensland Health; or

(b)a person who is a health service employee under the Hospital and Health Boards Act 2011 , section 67.

def health employee reloc 2013 No. 29 s 16 (3)

health employer means—

(a)Queensland Health; or

(b)a Hospital and Health Service established under the Hospital and Health Boards Act 2011.

def health employer reloc 2013 No. 29 s 16 (3)

Queensland Health means the department, however named, in which the Hospital and Health Boards Act 2011 is administered.

def Queensland Health reloc 2013 No. 29 s 16 (3)

untaken leave means leave, including, for example, annual leave or long service leave, that, immediately before a health employee ceases employment with a health employer, the employee is entitled to and has not taken.

s 390A ins 2013 No. 29 s 14

391Wages etc. to be paid without deduction

(1)If an employer employs an employee to perform work for a fixed rate, the employer must pay the employee the fixed rate without deduction, other than a deduction authorised by—

(a)a relevant industrial instrument; or

(b)this division; or

(c)the employee’s consent.

(2)An employer must pay an apprentice or trainee the fixed rate without deduction, other than a deduction mentioned in subsection (1) (a), (b) or (c), until the apprentice or trainee is suspended or the apprentice’s or trainee’s training contract is cancelled.

(3)If—

(a)an employer employs an employee to perform work for a rate agreed between the employer and the employee; and

(b)either—

(i)the rate for the work is not fixed by a relevant industrial instrument or permit; or

(ii)the fixed rate is less than the agreed rate;

the employer must pay the employee the agreed rate without deduction, other than a deduction authorised by this division or the employee’s consent.

(4)If an employee’s consent authorising a deduction to be made from wages is not written, before making the deduction, the employer must give the employee written acknowledgement of the consent.

(5)A contract or authority is void to the extent it provides for a deduction to be made from wages in contravention of this section.

(6)This section is subject to section 391A.

s 391 amd 2000 No. 23 s 292 sch 1; 2003 No. 63 s 60 sch; 2005 No. 11 s 39; 2012 No. 11 s 43 sch pt 2; 2013 No. 29 s 15; 2013 No. 49 s 28 sch 1; 2013 No. 61 s 64; 2014 No. 25 s 223 sch 1 pt 2

391ADeduction for industrial association membership prohibited

(1)An employer must not deduct from an employee’s wages an amount for paying the employee’s membership subscription for an industrial association.

Maximum penalty—16 penalty units.

(2)For subsection (1), it does not matter whether the employee has authorised the amount to be paid to the industrial association or to another person.

(3)A contract or other instrument is void to the extent it provides for a deduction to be made from wages in contravention of this section.

(4)In this section—

industrial association see section 102.

membership subscription, for an industrial association, means a subscription, due or other amount payable under the association’s rules for membership, or renewal of membership, of the association.

s 391A ins 2013 No. 61 s 65

392Paying apprentices or trainees for supervised training

(1)Time spent by an apprentice or trainee undertaking supervised training is taken to be—

(a)time worked for the employer; and

(b)ordinary working hours when calculating the apprentice’s or trainee’s wages and employment conditions.

Example of paragraph (b)—

A trainee is required to work 38 ordinary working hours a week under an award. In a particular week, the trainee spends 30 hours working for the employer and 10 hours at college. The trainee is entitled to be paid 38 hours ordinary time (which includes 10 hours ordinary time for the time spent at college) and 2 hours overtime.

(2) Subsection (1) applies irrespective of the way the supervised training is delivered.

Examples of ways supervised training can be delivered—

block release, day release, workplace-delivered training or correspondence

(3)Despite subsection (1), wages are not payable for time spent by an apprentice or trainee undertaking supervised training when the apprentice or trainee is—

(a)a school-based apprentice or trainee; or

(b)the subject of a decision of the approving authority under section 162.

(4)In this section—

supervised training, for an apprentice or trainee, means training up to the maximum period required, under the Further Education and Training Act 2014 , to be delivered by a supervising registered training organisation during the apprenticeship or traineeship.

s 392 sub 2000 No. 23 s 292 sch 1

amd 2003 No. 63 s 60 sch; 2011 No. 4 s 45; 2014 No. 25 s 223 sch 1 pt 2

393Paying wages

(1)An employee’s wages must be paid at least monthly to the employee.

Maximum penalty—16 penalty units.

(2)The wages must be paid—

(a)in Australian currency; or

(b)with the employee’s written consent—

(i)wholly or partly to the employee’s credit in an account with a financial institution nominated by the employee; or

(ii)by cheque of a type mentioned in subsection (5), draft, money order or electronic fund transfer; or

(c)in another way allowed under a relevant industrial instrument.

Maximum penalty—16 penalty units.

(3)If—

(a)wages are to be paid in cash; and

(b)the amount is not a multiple of 5c;

the amount may be rounded to the nearest amount that is a multiple of 5c, even if this involves a reduction.

(4)If wages are to be paid other than in cash, they are to be paid without deduction of any charge made because of the way payment is made.

Maximum penalty—16 penalty units.

(5)Except with the employee’s written consent, a cheque by which wages are paid—

(a)must be payable to a bearer on demand; and

(b)must not be crossed.

(6)If wages are payable to an employee when the employee stops employment with the employer, the wages must be paid to the employee within 3 days after the employment stops, or for a shorter period stated in an industrial instrument, unless—

(a) section 395 applies; or

(b)the employer has complied with an inspector’s demand under section 358.

Maximum penalty—40 penalty units.

(7)If an employee accepts for wages a cheque, draft or money order that is dishonoured, the employee may recover from the employer by action in a court of competent jurisdiction as a debt payable to the employee—

(a)the wages payable; and

(b)a reasonable amount for damages suffered by the employee because of the dishonour.

(8)A contract or authority is void to the extent it provides for payment of wages other than under this section.

s 393 amd 2005 No. 11 s 40

394Contract not to stipulate mode of spending wages

(1)Subject to this division, an employer is not, directly or indirectly, to impose as a condition, express or implied, of an employee’s employment, a provision about the place where, way in which, or person with whom an employee’s wages, or a part of the wages, are to be spent.

Maximum penalty—16 penalty units.

(2)An employer must not dismiss an employee because the employee’s wages, or a part of the wages, are spent, or not spent, at a place, in a way, or with a person.

395Payment of unpaid wages if employee’s whereabouts unknown

(1) Subsection (2) applies if—

(a)an employer can not comply with section 391 because the former employee’s whereabouts are unknown to the employer and can not be discovered by the employer with reasonable diligence; and

(b)the inability continues for 30 days after cessation of employment by the former employee.

(2)The employer, immediately at the end of the 30 days, must pay the wages payable to the former employee to the nearest clerk of the Magistrates Court.

Maximum penalty—40 penalty units.

(3)The receipt of the clerk for the payment is a full discharge to the employer for the amount stated in the receipt.

(4)The clerk must pay the amount—

(a)if the former employee’s whereabouts are discovered—to the former employee; or

(b)if at the end of a further 30 days, the amounts have not been paid to the former employee—to the department’s funds for the former employee.

(5)This section does not apply if the employer has complied with an inspector’s demand made under section 358.

396Overpaid wages

(1)This division does not prevent an employer recovering an amount paid to an employee that the employee is not entitled to because of absence from work.

(2)Without limiting the employer’s right to recover, the employer may recover an amount to which the employee is not entitled by deducting amounts from the employee’s wages for a subsequent pay period or periods.

(3)Deductions under subsection (2)—

(a)must be commenced within 1 year after the payment; and

(b)may extend over a period of 6 years after the payment.

(4)A deduction can not be made in an amount that would reduce the wages payable to the employee for a pay period to less than an amount prescribed under a regulation.

396ARecovery of health employment overpayments

(1)This section applies if a health employer pays a health employee an amount in relation to employment, or purportedly in relation to employment, to which the employee is not entitled (the overpayment).

(2)A health employer may subsequently recover the overpayment by deducting an amount, or amounts in instalments, from an amount or amounts payable to the health employee by the employer in relation to employment.

(2A)However, a deduction under subsection (2) can not be made from the health employee’s final payment.

Note—

See section 396C in relation to deductions of overpayments from a health employee’s final payment.

(3)A health employer may recover an overpayment by making a deduction under subsection (2) even if the overpayment was made by another health employer during the employee’s employment with the other employer.

(4)Deductions under this section—

(a)must be commenced within 1 year after the overpayment; and

(b)may extend over a period of 6 years after the overpayment.

(5)A deduction can not be made in an amount that would result in the amount that is paid to a health employee on any single occasion, disregarding any other deductions for any other purpose, being less than the amount prescribed under a regulation.

Examples of other deductions—

an income tax deduction, a superannuation contribution paid by the employee, a deduction made with the consent of the employee

(6)This section—

(a)is of general application to health employers and health employees and is not limited by any other provision of this division; and

(b)does not affect the operation of section 396 in relation to payments made to health employees before the commencement of this section.

s 396A ins 2012 No. 17 s 19

amd 2013 No. 29 s 16

396BRecovery of health employment transition loans

(1)This section applies if a health employer makes a loan (the transition loan) to a health employee as the result of the employer altering its existing pay date arrangements.

(2)When the health employee ceases to be a health employee, a health employer may deduct from the employee’s final payment an amount up to the amount of the transition loan that has not been repaid.

(3)A health employer may make a deduction under subsection (2) even if the transition loan was made by another health employer during the employee’s employment with the other employer.

(4)This section is of general application to health employers and health employees and is not limited by any other provision of this division.

s 396B ins 2012 No. 17 s 19

amd 2013 No. 29 s 17

396CRecovery of health employment overpayments on ceasing employment

(1)This section applies if—

(a)a health employer has paid a health employee an amount in relation to employment, or purportedly in relation to employment, to which the health employee is not entitled (the overpayment); and

(b)when the employee ceases to be a health employee, all or part of the overpayment (the outstanding overpayment) has not been recovered by a health employer.

(2)When the employee ceases to be a health employee, a health employer may deduct from the employee’s final payment an amount up to the amount of the outstanding overpayment.

(3)A health employer may recover the outstanding overpayment by making a deduction under subsection (2)—

(a)even if the overpayment was made by another health employer during the health employee’s employment with the other health employer; and

(b)regardless of when the overpayment was made.

(4)This section—

(a)is of general application to health employers and health employees and is not limited by any other provision of this division; and

(b)does not affect the operation of section 396.

s 396C ins 2013 No. 29 s 18

396DWhen employee ceases to be a health employee

(1)For sections 396B and 396C, an employee ceases to be a health employee—

(a)if, on ceasing employment with a health employer, the employee is entitled to be paid an amount for untaken leave; and

(b)whether or not the employee subsequently begins new employment, or resumes previous employment, as a health employee, including employment on a casual basis.

(2)This section does not limit the circumstances in which an employee otherwise ceases to be a health employee.

s 396D ins 2013 No. 29 s 18

397Deduction of wages in lieu of notice of termination

(1)This section applies if—

(a)an industrial instrument requires an employee to give notice of termination of employment for a specified period; and

(b)an employee ceases the employment without giving the employer the notice for the specified period.

(2)The employer may deduct from the employee’s wages an amount stated by the instrument to be forfeited or payable to the employer if notice of termination is not given for the period specified.

398Minor may recover unpaid wages

A minor may bring proceedings under this Act for the minor’s wages in the same way, and to the same extent, as if the minor were 18 years.

399Recovery of unpaid wages etc.

(1)An application may be made to a magistrate for an order for payment of—

(a)an employee’s unpaid wages; or

(b)an apprentice’s unpaid tool allowance under section 138; or

(c)remuneration lost by an apprentice or trainee because the employer has contravened section 391 (2).

(2)The application may be made by—

(a)the employee; or

(b)an employee organisation of which the employee is a member, acting for the employee; or

(c)a person authorised by the employee to make the application, acting for the employee; or

(d)an inspector.

(3)The application must be made within 6 years after the amount claimed became payable.

(4)However, for an apprentice or trainee, the application can not relate to an amount payable more than 4 years before the commencement of this section.

(5)On hearing the application, the magistrate—

(a)must order the employer to pay the employee the amount the magistrate finds to be payable and unpaid to the employee within the 6 years before the date of the application; and

(b)may make an order for the payment despite an express or implied provision of an agreement to the contrary; and

(c)may order the payment to be made on the terms the magistrate considers appropriate; and

(d)may award costs to either party in an amount assessed by the magistrate.

(6)A person can not make an application under this section if an application has been made under section 278 or 400F for the same matter.

s 399 amd 2000 No. 23 s 292 sch 1; 2005 No. 11 s 41; 2007 No. 36 s 2 sch; 2014 No. 25 s 223 sch 1 pt 2

400Enforcement of magistrate’s order

(1)This section applies to an order of a magistrate for payment by an employer of—

(a)wages found to be payable; or

(b)an unpaid tool allowance required to be paid under an order made under section 138 (9); or

(c)contributions to an approved superannuation fund found to be payable; or

(d)remuneration lost by an apprentice or trainee because the employer contravened section 391 (2); or

(e)costs in proceedings relating to unpaid amounts mentioned in paragraphs (a) to (d).

(2)The order is enforceable under the Justices Act 1886 as an order for payment of money made by justices under that Act.

(3)Also, an amount ordered to be paid, including costs, may be recovered by the person from the employer as a debt.

(4)For subsection (3), the order requiring payment may be filed in the registry of a Magistrates Court under the Magistrates Courts Act 1921 , and on being filed—

(a)is taken to be an order properly made by a Magistrates Court; and

(b)without limiting subsection (2), may be enforced as an order made by the Magistrates Court.

(5)The magistrate may give particulars of the order mentioned in subsection (1) to the court registrar for the purpose of registering the prescribed particulars, in relation to the unpaid amount payable under the order, under the State Penalties Enforcement Act 1999 , section 34.

(6)In this section—

court registrar, in relation to a magistrate, means the clerk of the court of the Magistrates Court that the magistrate constitutes under the Magistrates Act 1991 .

employer includes an apparent employer to whom an order made under section 400F applies.

s 400 amd 2000 No. 23 s 292 sch 1; 2005 No. 11 s 42; 2009 No. 48 s 41; 2014 No. 25 s 223 sch 1 pt 2

div hdg ins 2005 No. 11 s 43

400ADefinitions for div 3A

In this division—

apparent employer see section 400B (2).

referred claim means a claim referred to a referred employer under section 400C (4).

referred employer see section 400C (2).

superannuation contributions means contributions to an approved superannuation fund for an outworker who, under a relevant industrial instrument, is an eligible employee for entitlement to occupational superannuation benefits.

unpaid wages claim means a claim for wages, or superannuation contributions, made under section 400B.

s 400A ins 2005 No. 11 s 43

amd 2007 No. 36 s 2 sch

400BClaims by clothing outworkers for unpaid wages and super

(1)This section applies if—

(a)all or any of the wages payable to an outworker in the clothing industry are not paid; or

(b)all or any of the superannuation contributions payable for an outworker in the clothing industry are not paid.

(2)The outworker may make a claim for the wages, or superannuation contributions, against a person who the outworker believes is his or her employer (the apparent employer).

(3)However, the claim can not be made against a person whose only connection with the clothing industry is the sale of clothing by retail.

(4)A claim, to the extent it relates to wages, must be made within 6 months after the work was finished.

(5)The outworker makes an unpaid wages claim by serving the apparent employer with a written notice that—

(a)claims payment of the wages or superannuation contributions; and

(b)states these particulars—

(i)the name of the outworker; and

(ii)the address at which the outworker may be contacted; and

(iii)a description of the work done; and

(iv)the date on which the work was done; and

(v)the amount of wages owing; and

(vi)the amount of superannuation contributions owing; and

(vii)details of the approved superannuation fund to which superannuation contributions should have been paid, that are sufficiently detailed to enable the contributions to be properly paid.

(6)The particulars stated in the claim must be verified by statutory declaration.

(7)This section applies only to wages for work done or superannuation contributions payable after the commencement of this section.

s 400B ins 2005 No. 11 s 43

400CLiability of apparent employer for unpaid wages and super

(1)Subject to subsection (5), an apparent employer served with an unpaid wages claim is liable for the amount claimed unless the apparent employer proves in proceedings under section 400F that—

(a)the work was not done; or

(b)an amount claimed is not the correct amount; or

(c)an amount claimed has already been paid.

(2)An apparent employer may, within 14 days after being served with an unpaid wages claim, refer the claim to another person whom the apparent employer reasonably believes is the person for whom the work was done (the referred employer).

(3)However, the claim can not be referred to a person whose only connection with the clothing industry is the sale of clothing by retail.

(4)An apparent employer refers an unpaid wages claim by—

(a)serving the referred employer with a copy of the unpaid wages claim and a written notice that states—

(i)the name and address of the apparent employer; and

(ii)the date on which the outworker served the apparent employer with the unpaid wages claim; and

(b)advising the outworker in writing of—

(i)the name and address of the referred employer; and

(ii)the date on which the apparent employer served the referred employer with the referred claim.

(5)The apparent employer is not liable for any part of the amount claimed in an unpaid wages claim for which the referred employer accepts liability under section 400D.

s 400C ins 2005 No. 11 s 43

400DLiability of referred employer for unpaid wages

(1)A referred employer may, within 14 days after being served with a referred claim, accept liability for all or part of the amount claimed by paying it to—

(a)for wages—the outworker; or

(b)for superannuation contributions—the superannuation fund stated in the unpaid wages claim.

(2)A referred employer who accepts liability must serve the apparent employer with a written notice of the acceptance and of the amount paid.

(3)If the apparent employer pays all or any part of the amount claimed for which the referred employer does not accept liability, the apparent employer may deduct or set off that amount from any amount that the apparent employer owes to the referred employer, whether or not in relation to the work that is the subject of the referred claim.

s 400D ins 2005 No. 11 s 43

400EReimbursement of apparent or referred employer

An application may be made to the commission or to a magistrate for an order that the employer of the outworker reimburse the apparent or referred employer for the amount that the apparent or referred employer paid to—

(a)the outworker; or

(b)an approved superannuation fund for the outworker.

s 400E ins 2005 No. 11 s 43

400FRecovery of unpaid wages

(1)An application may be made for an order that an apparent employer pay an unpaid wages claim.

(2)The application may be made to—

(a)if the total amount claimed is $50000 or less—the commission or a magistrate; or

(b)otherwise—a magistrate.

(3)The application may be made by—

(a)an outworker; or

(b)an employee organisation of which the outworker is a member, acting for the outworker; or

(c)an inspector.

(4)The application must be made within 6 years after the amount claimed in the application became payable.

(5)The commission or magistrate must order the apparent employer to pay the wages or superannuation contributions claimed unless the apparent employer proves that—

(a)the work was not done; or

(b)an amount claimed is not the correct amount; or

(c)an amount claimed has already been paid.

(6)If the commission or magistrate is satisfied that an amount claimed is not the correct amount, the commission or magistrate may order payment of the amount that the commission or magistrate is satisfied is payable.

(7)For an order about superannuation contributions, the order must require the amount to be paid to—

(a)the approved superannuation fund; or

(b)a complying superannuation fund; or

(c)a superannuation fund nominated by the outworker; or

(d)an eligible rollover fund; or

(e)if the amount is less than the amount of total benefits than may revert to an employee under the Superannuation Industry (Supervision) Act 1993 (Cwlth)—the outworker.

(8)The superannuation contributions must be paid into the unclaimed moneys fund if the outworker does not nominate a superannuation fund for the purpose of the order, if the order requires a fund to be nominated.

(9)In this section—

superannuation contributions includes an amount equal to the return that would have been accrued in relation to the superannuation contributions had they been properly paid to an approved superannuation fund.

s 400F ins 2005 No. 11 s 43

400GOffences relating to claims under this division

A person must not—

(a)by intimidation or by any other act or omission, intentionally hinder, prevent or discourage someone from making an unpaid wages claim or an application under section 400F; or

(b)make any statement that the person knows is false or misleading in a material particular in any notice given for the purposes of section 400C or 400D; or

(c)serve a referred claim on someone under section 400C if the person does not reasonably believe that the work under an unpaid wages claim was done for the other person.

Maximum penalty—100 penalty units.

s 400G ins 2005 No. 11 s 43

400HEffect of ss 400B–400G

(1)Sections 400B to 400G do not limit or exclude any other rights of a person to recover wages or superannuation contributions, or any liability of any person in relation to the wages or superannuation contributions, whether or not arising under this Act, another law, or an industrial instrument.

(2)Nothing in section 400D (3) limits or excludes any right of recovery arising under any other law in relation to any amount of money owed by the apparent employer to the referred employer.

s 400H ins 2005 No. 11 s 43

amd 2007 No. 36 s 2 sch

400IMandatory code of practice for outworkers

(1)The Governor in Council may make a code of practice for the purpose of ensuring that outworkers in the clothing industry receive their lawful entitlements.

(2)In particular, the Governor in Council may make a code of practice if it is considered—

(a)that current voluntary self-regulatory mechanisms are inadequate to achieve improvements in the level of compliance with obligations to ensure outworkers receive their lawful entitlements; or

(b)that persons engaged in the clothing industry are not in good faith attempting to negotiate improvements or extensions to the current voluntary self-regulatory mechanisms.

(3)The code may require employers or other persons engaged in the clothing industry to adopt the standards of conduct and practice relating to outworkers in the clothing industry that are set out in the code.

(4)The Governor in Council must give notice of the making of the code of practice.

(5)The notice is subordinate legislation.

(6)A contravention of the code of practice is an offence.

Maximum penalty—100 penalty units.

(7)An award prevails over a code of practice to the extent of any inconsistency.

(8)A magistrate may hear and decide a complaint for an offence under this section.

s 400I ins 2005 No. 11 s 43

amd 2010 No. 42 s 110

401Wages recoverable against mortgagee if mortgagor defaults

(1)This section applies if an employee—

(a)has performed work—

(i)in cultivating, or otherwise improving, land that is subject to a mortgage; or

(ii)in cultivating, or otherwise in connection with, a crop that is subject to a lien; or

(iii)relating to animal or vegetable matter prepared or manufactured by machinery that is subject to a bill of sale; or

(iv)in tending, feeding, driving, or otherwise in connection with, stock that is subject to a mortgage; and

(b)is prevented from, or hindered in, recovering wages for the work from the mortgagor as employer because—

(i)the mortgagee has entered into, or taken possession of the land, crop, machinery or stock, or is taken to have done so; or

(ii)the mortgagee has sold the land, crop, machinery or stock, under the mortgagee’s security; or

(iii)a cheque, draft or order drawn by the mortgagor on the mortgagee is dishonoured by the mortgagee.

(2)The mortgagee is taken to be the employee’s employer for the performance of the work.

(3)The mortgagor is taken, in engaging the employee for the work, to have acted as the mortgagee’s authorised agent.

(4) Subsections (2) and (3) do not affect appropriate accounting as between the mortgagor and the mortgagee.

(5)A mortgagee is not liable for the employee’s wages that have become payable more than 6 months before whichever of the following events happens first—

(a)the employee first applies to the mortgagee for payment of the wages;

(b)the mortgagee takes possession of, or sells, the land, crop, machinery or stock.

(6)The mortgagee’s liability under this section—

(a)is additional to the mortgagor’s liability for the employee’s wages; and

(b)does not affect rights, liabilities, functions and powers as between the mortgagor and employee.

(7)An employee does not lose a right to bring proceedings against the mortgagee for unpaid wages, and costs of the proceedings, if the employee—

(a)brings proceedings against a mortgagor for wages, whether or not the employee obtains an order for payment against the mortgagor; and

(b)because of a reason in subsection (1) (b), fails to obtain payment of the wages, or part of the wages, from the mortgagor.

402Distress warrant levied on property of mortgagor or mortgagee

(1)A warrant of distress issued to enforce an order for payment of an employee’s wages for work performed in connection with property mentioned in section 401 (1), as far as the land, crop, machinery or stock is concerned—

(a)authorises distress on and sale of the mortgagee’s property and the mortgagor’s property; and

(b)may be executed on the mortgaged land or the encumbered crop, machinery, or stock even though the mortgagee has entered into or taken possession of the land, crop, machinery or stock, or is taken to have done so, under the mortgagee’s security.

(2)An amount paid by, or recovered from, the mortgagee for the wages—

(a)is taken to be an advance made by the mortgagee to the mortgagor under the mortgagee’s security; and

(b)may be recovered by the mortgagee under the security.

(3)In this section—

land includes the fixtures on the land.

403Application of ss 401 and 402 to mines

(1)Sections 401 and 402 apply, with necessary changes, if an employee—

(a)has performed work in or about—

(i)a mine, including its fixtures, that is subject to a mortgage; or

(ii)machinery or apparatus, used in or for a mine, that is subject to a bill of sale; and

(b)is prevented from, or hindered in, recovering wages for the work from the mortgagor as employer because—

(i)the mortgagee has entered into, or taken possession of, the mine, machinery or apparatus, or is taken to have done so; or

(ii)the mortgagee has sold the mine, machinery or apparatus, under the mortgagee’s security; or

(iii)a cheque, draft or order drawn by the mortgagor on the mortgagee is dishonoured by the mortgagee.

(2)However, a mortgagee is not liable for the employee’s wages that have become payable more than 1 month before whichever of the following events happens first—

(a)the employee first applies to the mortgagee for payment of the wages;

(b)the mortgagee takes possession of, or sells, the mine, machinery or apparatus.

(3)In this section—

wages for work includes earnings for work.

s 403 amd 2009 No. 15 s 2 sch

404Priority in payment of wages earned in mine

(1)An amount of wages, of not more than 4 weeks, payable to an employee for employment in or about a mine—

(a)is a first charge on the claim or land in or on which the mine is situated; and

(b)in the winding-up of a corporation formed for or engaged in working the mine, must be paid in priority to all other debts, secured or unsecured, of the corporation.

(2) Subsection (1) (a) applies even though—

(a)the claim or land is mortgaged or charged to secure payment of other amounts; or

(b)there is a lien on the claim or land.

(3) Subsection (1) (b) applies only to the extent that a law of the State may validly apply to the distribution of assets in a winding-up.

(4)If a first charge exists under subsection (1) (a), the amount charged includes—

(a)all amounts awarded by a court as costs against an employer in proceedings brought by or for an employee to recover the wages mentioned in the subsection; and

(b)the amount of costs, charges and expenses reasonably incurred in attempting to enforce an order or orders for payment of the wages.

(5)The debts that are a first charge under subsection (1) (a) or are to be paid in priority under subsection (1) (b)—

(a)rank equally among themselves; and

(b)if necessary, abate in equal proportions among themselves.

(6)In this section—

wages for work includes earnings for work.

406Contributing occupational superannuation

(1)An employer must contribute, for eligible employees, to the approved superannuation fund at the level required by the relevant industrial instrument.

Maximum penalty—40 penalty units.

(2)The offence is a continuing offence that may be charged in 1 or more complaints for 1 or more periods.

(3)An employer who contributed—

(a)to a complying superannuation fund at a level required by a relevant industrial instrument; but

(b)to a fund that is not the approved superannuation fund;

does not commit an offence unless the employer has knowingly contravened the instrument.

(4)If the commission makes an order under section 407 (2), an employer who fails to contribute in accordance with the order is taken to fail to make the contribution under the relevant industrial instrument, whether or not the order was directed to that employer.

(5)The court by which a defendant is found guilty of an offence against subsection (1) may make, in relation to the defendant, an order that a magistrate is authorised by section 408 to make on an application under that section, and that section applies and extends accordingly.

(6)An employer may continue to contribute to another superannuation fund in accordance with an agreement under the repealed section 405.

(7)In this section—

repealed section 405 means section 405 as in force immediately before the commencement of this subsection.

s 406 amd 2005 No. 11 s 45

407Power to order contribution to particular fund

(1)This section applies if—

(a)an industrial matter relates to an allegation that an employer has been, or is, contributing to a complying superannuation fund for employees at a level required by a relevant industrial instrument; but

(b)the fund is not the approved superannuation fund.

(2)The commission, of its own initiative or on application by an inspector, organisation or employee concerned, may—

(a)decide which complying superannuation fund the employer should have been, or should be, contributing to comply with the relevant industrial instrument; and

(b)order the employer to contribute accordingly.

(3)If the commission considers it appropriate, the commission may make its order to operate from the date when a particular employee became eligible for payment of contribution to the fund decided by the commission.

(4)The commission may recognise all or any of the contribution made by an employer to a complying superannuation fund up to and including the date of the commission’s decision as having met the requirements, or a part of them, of a relevant industrial instrument, relating to employers’ contribution to the approved superannuation fund.

408Recovery of unpaid superannuation contribution

(1)An application may be made to a magistrate for an order for payment of contributions to the approved superannuation fund payable for an eligible employee that are unpaid.

(2)The application may be made by—

(a)an employee who is an eligible employee on whose behalf an employer is required to contribute to an approved superannuation fund; or

(b)an employee organisation of which the employee is a member, acting for the employee; or

(c)an inspector.

(3)The application must be made within 6 years after the amount claimed became payable.

(4)On hearing the application, the magistrate must order the employer to pay the employee—

(a)the amount the magistrate finds to be payable and unpaid to the employee within the 6 years before the date of the application; and

(b)an amount the magistrate considers appropriate, based on the return that would have accrued in relation to the contribution had it been properly paid to the fund.

(5)The magistrate may award costs to either party in an amount assessed by the magistrate.

(6)The magistrate may only make an order about the payment of the amount that the commission may make under section 278 (9) or (10).

(7)A person can not make an application under this section if an application has been made under section 278 for the same matter.

ch hdg ins 2002 No. 9 s 32

408ADefinitions for ch 11A

In this chapter—

fee includes charge, expense of any kind and reward.

manager see section 408C.

model means a person whose work is to—

(a)pose for a painter, photographer, sculptor or other artist; or

(b)put on articles of clothing or accessories, including, for example, jewellery, hats and shoes, and display them to customers, the public or for advertising purposes; or

(c)display a hairstyle or other personal body ornamentation or decoration.

performer means a person whose work is to compete in sport or to act, dance, mime, perform, play, sing or speak in advertising or entertainment.

def performer amd 2005 No. 15 s 53

private employment agent see section 408B.

publish includes—

(a)publish in writing or in any other form of media; and

(b)cause to be published.

s 408A ins 2002 No. 9 s 32

408BMeaning of private employment agent

(1)A person is a private employment agent if the person, in the course of carrying on business and for gain—

(a)offers to find—

(i)casual, part-time, temporary, permanent or contract work for a person; or

(ii)a casual, part-time, temporary, permanent or contract worker for a person; or

(b)negotiates the terms of contract work for a model or performer; or

(c)administers a contract for a model or performer and arranges payments under it; or

(d)provides career advice for a model or performer.

(2)However, a person is not a private employment agent only because the person publishes—

(a)for someone else, an advertisement about employment opportunities; or

(b)an advertisement offering employment opportunities with the person.

(3)Also, a person is not a private employment agent if, for an agreed rate of payment to the person—

(a)the person makes a worker of the person available to perform work, whether under a contract of service or a contract for service, for a client of the person; and

(b)the worker works under the client’s direction; and

(c)the person is responsible for performing the obligations owed by a person to the worker, including paying the worker for the work.

s 408B ins 2002 No. 9 s 32

amd 2005 No. 15 s 54

408CMeaning of manager

(1)A private employment agent is a manager of a model or performer if the agent, under a written agreement with the model or performer, provides for the model or performer at least 4 of the management services mentioned in paragraphs (a) to (f) of the definition management service in subsection (4).

(2)A private employment agent may be a manager of a model or performer whether or not any agreement between them states that the agent is the sole provider of management services for the model or performer.

(3)However, a private employment agent is not a manager of a model or performer only because of a written agreement under which the agent helps the model or performer find modelling or performing work.

(4)In this section—

management service includes any of the following services—

(a)handling business affairs for the model or performer;

(b)providing accounting advice for the model or performer;

(c)publicising and promoting the model or performer;

(d)providing services ancillary to a performance by the model or performer;

(e)providing continuing career or artistic advice for the model or performer;

(f)representing the model or performer in negotiations with media, entertainment industry workers or the public;

but does not include a service mentioned in section 408B (1) (a) to (c).

s 408C ins 2002 No. 9 s 32

408DWhen fees are or are not payable to private employment agent

(1)A private employment agent must not directly or indirectly demand or receive from a person, other than a model or performer, looking for work (a work seeker) a fee for finding, or attempting to find, the person work.

Maximum penalty—16 penalty units.

(2)A private employment agent must not directly or indirectly demand or receive from a model or performer looking for work (also a work seeker) a fee for finding, or attempting to find, the model or performer work unless—

(a)the agent gives the model or performer a written notice stating the particulars prescribed under a regulation; and

(b)the fee payable is not more than the percentage prescribed under a regulation of the gross amount payable to the model or performer, excluding any allowances or payments prescribed under a regulation, for the work; and

(c)the amount payable to the model or performer is at least the amount payable under an applicable industrial instrument.

Maximum penalty—16 penalty units.

(3) Subsection (2) does not apply if the private employment agent is also the manager of the model or performer and the fee is payable under a written agreement between the manager and the model or performer.

(4)In this section—

industrial instrument includes a federal industrial instrument.

s 408D ins 2002 No. 9 s 32

amd 2009 No. 49 s 50

408EMagistrate may order repayment of fees received by private employment agent in criminal proceedings

(1)A magistrate who hears and decides a complaint for an offence against section 408D (1) or (2)—

(a)must, if the magistrate finds the defendant guilty, order the defendant to repay to the work seeker the fee, if any, the magistrate finds, on the balance of probabilities, to have been received in contravention of section 408D (1) or (2), if—

(i)the fee has not been repaid to the work seeker; and

(ii)the defendant is not liable to repay the fee to the work seeker under an existing order under section 408F or 408G; or

(b)may, if the magistrate does not find the defendant guilty, order the defendant to repay to the work seeker the amount the magistrate finds, on the balance of probabilities, the defendant has received from the work seeker.

(2)The magistrate may make the order—

(a)despite an express or implied provision of an agreement to the contrary; and

(b)on the terms the magistrate considers appropriate.

s 408E amd 2002 No. 9 s 28

408FCommission may order repayment of fees received by private employment agent

(1)An application may be made to the commission for an order for the repayment of a fee received by a private employment agent in contravention of section 408D (1) or (2) from a person (claimant) for finding or attempting to find the claimant work.

(2)An application can not be made to the commission if the total fee claimed under subsection (1) is more than $20000.

(3)The application may be made by—

(a)the claimant; or

(b)an employee organisation of which the claimant is a member, acting for the claimant; or

(c)a person authorised by the claimant to make the application, acting for the claimant; or

(d)an inspector.

(4)The application must be made within 6 years after the claimant gave the agent the fee.

(5)A presidential member may, either before or after the start of a hearing, remit the application to a magistrate if the presidential member considers the application could be more conveniently heard by a magistrate, having regard to—

(a)the difficulty or expense of producing witnesses; or

(b)another good and sufficient reason, for example, cost.

(6)A magistrate may hear and decide the application as if it had been brought before the commission and the magistrate’s decision and order is taken to be a decision and order of the commission.

(7)On hearing the application, the commission or magistrate—

(a)must order the agent to repay to the claimant the amount the commission or magistrate finds to be the fee the agent has received from the claimant in contravention of section 408D (1) or (2) if—

(i)the fee has not been repaid to the claimant; and

(ii)the agent is not liable to repay the fee to the claimant under an existing order under section 408E or 408G; and

(b)may make an order for the repayment despite an express or implied provision of an agreement to the contrary; and

(c)may order the repayment to be made on the terms the commission or magistrate considers appropriate; and

(d)may order 1 party to pay costs to another party in an amount assessed by the commission or magistrate.

(8)A person can not make an application under this section if an application has been made under section 408G about the same matter.

s 408F ins 2002 No. 9 s 32

amd 2002 No. 73 s 10 sch; 2010 No. 42 s 111

408GMagistrate may order repayment of fees received by private employment agent in civil proceedings

(1)An application may be made to a magistrate for an order for the repayment of a fee received by a private employment agent in contravention of section 408D (1) or (2) from a person (claimant) for finding or attempting to find the claimant work.

(2)The application may be made by—

(a)the claimant; or

(b)an employee organisation of which the claimant is a member, acting for the claimant; or

(c)a person authorised by the claimant to make the application, acting for the claimant; or

(d)an inspector.

(3)The application must be made within 6 years after the claimant gave the agent the fee.

(4)On hearing the application, the magistrate—

(a)must order the agent to repay to the claimant the amount the magistrate finds to be the fee the agent has received from the claimant in contravention of section 408D (1) or (2) if—

(i)the fee has not been repaid to the claimant; and

(ii)the agent is not liable to repay the fee to the claimant under an existing order under section 408E or 408F; and

(b)may make an order for the repayment despite an express or implied provision of an agreement to the contrary; and

(c)may order the repayment to be made on the terms the magistrate considers appropriate; and

(d)may order 1 party to pay costs to another party in an amount assessed by the magistrate.

(5)A person can not make an application under this section if an application has been made under section 408F about the same matter.

s 408G ins 2002 No. 9 s 32

408HEnforcement of magistrate’s orders

(1)This section applies if, under section 408E or 408G, a magistrate orders—

(a)a private employment agent to repay a fee received by the agent in contravention of section 408D (1) or (2) to a work seeker mentioned in section 408E or to a claimant mentioned in section 408G; or

(b)costs in the application under section 408G of a party.

(2)The order is enforceable under the Justices Act 1886 as an order for payment of money made by a magistrate under that Act.

(3)Also, an amount ordered to be paid to the work seeker or claimant by the agent may be recovered by the work seeker or claimant from the agent as a debt.

(4)For subsection (3), the order requiring payment may be filed in the registry of a Magistrates Court under the Magistrates Courts Act 1921 , and on being filed—

(a)is taken to be an order properly made by a Magistrates Court; and

(b)may be enforced as a money order made by the Magistrates Court.

(5)The magistrate may give particulars of the order mentioned in subsection (1) to the court registrar for the purpose of registering the prescribed particulars, in relation to the unpaid amount payable under the order, under the State Penalties Enforcement Act 1999 , section 34.

(6)In this section—

court registrar, in relation to a magistrate, means the clerk of the court of the Magistrates Court that the magistrate constitutes under the Magistrates Act 1991 .

s 408H ins 2002 No. 9 s 32

amd 2009 No. 48 s 42

ch hdg amd 2013 No. 31 s 38G

409Definitions for ch 12

In this chapter—

accounts see section 555.

amalgamation means the carrying out, under part 15, of arrangements for 2 or more organisations, associations or corporations, under which—

(a)an organisation is, or 2 or more organisations are, to be deregistered; and

(b)members of the organisation or organisations to be deregistered are to become members of another organisation, whether existing or proposed.

association means an unincorporated body or entity formed or carried on to protect and promote its members’ interests.

audit report see section 558 (1) (b).

ballot records, for an election or ballot, means any ballot envelopes, papers or other records that have been prepared or used for the election or ballot.

branch of an organisation means a constituent part of the organisation, however called, that has a management committee or officers.

casual vacancy means a vacancy in an office because of the death, removal or resignation from office of the office holder.

committee meeting, for an organisation, means a meeting of its management committee.

corporation see section 410.

counterpart federal body see section 411.

defect includes an error, irregularity, nullity and an omission.

demarcation dispute undertaking from an organisation or applicant for registration means an undertaking from it to avoid demarcation disputes that might otherwise arise from an overlap between its eligibility rules and another organisation’s eligibility rules.

deregistered organisation means a former organisation whose registration has been cancelled.

deregistration, for an organisation, means the cancellation of its registration.

election means an election for an office in an organisation or branch.

electoral commission means the Electoral Commission of Queensland.

electoral officer means the electoral commissioner, the deputy electoral commissioner or a member of the staff of the electoral commission.

eligibility rules of an organisation or applicant for registration means its rules about eligibility for its membership.

employee organisation ...

def employee organisation om 2000 No. 23 s 292 sch 1

employer organisation ...

def employer organisation om 2000 No. 23 s 292 sch 1

federal organisation ...

def federal organisation om 2008 No. 5 s 4

file a document means file it with the registrar.

financial hardship payment, for an organisation, means a payment by the organisation to relieve a member or the member’s dependant from severe financial hardship.

general meeting of an organisation or applicant for registration means a general meeting of its members.

irregularity includes—

(a)a contravention of an organisation’s rules; and

(b)for an election or ballot, an act or omission by which the following is, or is attempted to be, prevented—

(i)the full and free recording of votes by all persons who may record a vote and by no other persons;

(ii)a correct working out or declaration of the results of the voting.

management committee, for an organisation, branch or applicant for registration, means the body of persons, however called, that manages its affairs.

membership subscription, for an organisation, means a subscription, due or other amount payable under its rules for membership or membership renewal.

members register, for an organisation, means the current register of its members required to be kept under section 544.

model election rules means the model election rules under section 454.

office, for an organisation, branch or applicant for registration, see section 412.

officer of an organisation, branch or applicant for registration means a person who holds an office in the organisation or branch or in the applicant association or corporation.

officers register, for an organisation, means the current register of its officers required to be kept under section 544.

ordinary election means an election held under rules under part 4.

organisation means—

(a)a body registered under this chapter as an organisation; or

(b)an association of employers or employees, the continuity of whose registration as an industrial organisation or union under an Act is continued or preserved by this Act.

postal ballot means a ballot by which—

(a)a ballot paper is sent by prepaid post to each person who may vote in the ballot; and

(b)facilities are provided for returning the completed ballot paper by post by each voter without cost to the voter.

president of an organisation, branch or applicant for registration means—

(a)its president; or

(b)its chief executive; or

(c)another officer, however called, who has the functions of its president or chief executive.

register, when used as a noun, means the register of industrial organisations the registrar keeps under section 426 (1).

registration means registration under this chapter as an organisation.

required number of members of an organisation means the number of its members that is the lesser of 5% of the membership or 250.

secretary, of an organisation, for the signing of a document to be filed means—

(a)the person who holds the office of secretary in the organisation; or

(b)if no-one holds the office of secretary of the organisation—the person authorised by the organisation under its rules to sign documents for the organisation.

withdrawal means the withdrawal, under part 15, of a constituent part from an amalgamated organisation.

410Meaning of corporation for ch 12

(1)In this chapter, corporation means—

(a)a corporation under the Corporations Act, section 57A; or

(b)an incorporated association under the Associations Incorporation Act 1981 ; or

(c)a body incorporated under a law of the State, another State or the Commonwealth, other than—

(i)a federal organisation; or

(ii)an organisation registered under a law of another State about the registration of industrial organisations or unions.

(2)Except for the purposes of the State Penalties Enforcement Act 1999 , parts 3 to 5, an organisation incorporated under section 423 is not a corporation.

s 410 amd 2001 No. 45 s 29 sch 3; 2013 No. 61 s 65A

411Meaning of counterpart federal body for ch 12

(1)In this chapter, a federal organisation or a branch or part of a federal organisation (federal body) is a counterpart federal body of an organisation (State body) if—

(a)a substantial number of members of the State body are—

(i)members or eligible to be members of the federal body; or

(ii)engaged in the same work, in aspects of the same work or in similar work as members of the federal body; or

(iii)employed in the same or similar work by employers engaged in the same industry as members of the federal body; or

(iv)engaged in work or in industries for which there is a community of interest between the federal body and the State body; or

(b)there is an agreement in force under the Commonwealth (Registered Organisations) Act, section 151, between the federal body and the State body.

(2)If subsection (1) (a) or (b) applies to more than 1 State body for the same federal body, the federal body is a counterpart federal body of each of the State bodies.

s 411 amd 2004 No. 53 s 2 sch; 2007 No. 36 s 2 sch; 2009 No. 49 s 51

412Meaning of office for ch 12

In this chapter, office, for an organisation, branch or applicant for registration (industrial association), means the following—

(a)the office of president, vice president, secretary or assistant secretary of the industrial association;

(b)the office of a member of the management committee of the industrial association;

(c)the office of a voting member of any other collective body that has power to do any of the following—

(i)manage the affairs of the industrial association;

(ii)decide the policy of the industrial association;

(iii)make, amend or repeal the rules of the industrial association;

(iv)enforce the rules of the industrial association;

(d)an office for which the holder may under the rules of the industrial association manage the association’s affairs and enforce its rules, other than a holder only participating under directions of a collective body or other person to implement—

(i)the association’s existing policy; or

(ii)decisions concerning the association;

(e)an office for which the holder may under the industrial association’s rules decide the association’s policy and make, amend or repeal its rules;

(f)the office of a person holding, whether as trustee or otherwise, the property of the industrial association or property the association has a beneficial interest in.

s 412 amd 2010 No. 42 s 112

413Application is to commission

A registration application may only be made to the commission.

414Who may apply

(1)An association may apply for registration as an employee or employer organisation.

(2)A corporation may only apply for registration as an employer organisation.

415General requirements for applications

(1)A registration application must be—

(a)signed by the applicant’s president and secretary; and

(b)accompanied by the following—

(i)the proposed address under section 425 (1) of the applicant’s proposed registered office;

(ii)2 copies of the rules the applicant proposes to have as an organisation;

(iii)a copy of the register that will, on its registration, be the applicant’s officers register;

(iv)a list of any trustees of the applicant;

(v)the appropriate fee under the rules; and

(c)filed.

(2)Notice of the application must be published by the applicant in the way prescribed under a regulation.

416Additional requirements for employee organisation application

If the application is for registration as an employee organisation, it must be accompanied by the following—

(a)a copy of a resolution in favour of the applicant’s registration passed under the applicant’s rules—

(i)by a majority of its members present at a general meeting; or

(ii)in another way allowed under the applicant’s rules;

(b)a list stating the applicant’s members on the day the resolution was made;

(c)a list stating the callings of its members or callings to which its eligibility rules relate;

(d)a list stating each locality in which its members exercise their callings.

417Additional requirements for employer organisation applications

(1)If the application is for registration as an employer organisation, it must be accompanied by the following—

(a)a list stating the name of, and the place or places where business is carried on by, each employer member of the applicant;

(b)if the applicant has more than 1 member, a copy of a resolution in favour of registration of the applicant passed under the applicant’s rules—

(i)by a majority of the employer members; or

(ii)in another way allowed under the applicant’s rules;

(c)a list stating the callings in which employees are employed by the employer members;

(d)a statement of particulars of—

(i)the control of the applicant’s property; and

(ii)investment of its funds, as distinct from the property and funds of the members of the applicant.

(2)In this section—

member includes shareholder.

rules includes constitution.

s 417 amd 2001 No. 45 s 29 sch 3

418Right to object

(1)A person may object to a registration application if the person—

(a)has an appropriate interest in the matter; and

(b)gives notice to the commission in the time and way prescribed under a regulation.

(2)The commission must hear the objection in the way prescribed under a regulation.

419Registration criteria for all applications

(1)The commission may grant the application only if satisfied of the following—

(a)the applicant exists to further or protect its members’ interests;

(b)the applicant would, if registered, comply with the obligations of an organisation under this chapter and would not contravene chapter 4;

(c)the rules the applicant proposes to have as an organisation—

(i)comply with parts 3 and 4; and

(ii)are not contrary to this Act or another law;

(d)the applicant’s name—

(i)is not the same as an organisation’s name or so similar to an organisation’s name as to be likely to cause confusion; and

(ii)will, if the applicant is registered, comply with section 424;

(e)registration of the applicant would not be inconsistent with the objects of this Act.

(2)For subsection (1) (e), the commission must consider whether recent conduct by the applicant or its members would have been an industrial conduct ground under part 16 if the applicant had been registered when the conduct happened.

420Additional criteria for registration as employee organisation

(1)If the application is for registration as an employee organisation, the commission must also be satisfied of the following—

(a)the applicant is free from control by, or improper influence from, an employer, an employer association or an employer organisation;

(b)either—

(i)there is no organisation to which the applicant’s members might belong; or

(ii)there is no organisation to which the members could conveniently belong that would effectively represent them in a way consistent with the objects of this Act;

(c)the applicant has at least 20 members who are employees;

(d)the applicant’s members who are not employees are—

(i)officers of the applicant; or

(ii)independent contractors who, if they were employees performing work of the kind that they usually perform as independent contractors, would be employees eligible for membership of the applicant.

(2)Despite subsection (1) (c) or (d), the commission may grant the application if satisfied special circumstances justify the applicant’s registration.

s 420 amd 2000 No. 23 s 292 sch 1; 2007 No. 36 s 2 sch

421Additional criteria for registration as employer organisation

(1)If the application is for registration as an employer organisation, the commission must also be satisfied of the following—

(a)the applicant has employer members;

(b)either—

(i)there is no organisation to which the applicant’s members might belong; or

(ii)there is no organisation to which the members could conveniently belong that would effectively represent them in a way consistent with the objects of this Act;

(c)the applicant effectively represents its employer members in a way that is consistent with the objects of this Act;

(d)each member of the applicant who is not an employer—

(i)is an officer of the applicant; or

(ii)was an employer on becoming a member; or

(iii)carries on a business;

(e)the applicant’s members have, in total, employed a monthly average of at least 20 employees in the 6 months before the application was made.

(2)Despite subsection (1) (e), the commission may grant the application if satisfied special circumstances justify the applicant’s registration.

422Grant of application

(1)If the commission grants a registration application, the applicant immediately becomes an organisation.

(2)The rules for which the application was granted take effect as the rules of the organisation.

(3)The registrar must, as soon as practicable—

(a)enter the organisation’s name and the day it became an organisation in the register; and

(b)give the organisation a certificate of registration in the approved form; and

(c)register the applicant’s rules.

423Incorporation on registration if not already incorporated

If an organisation was not a corporation immediately before it became an organisation, on registration it—

(a)is incorporated under its registered name; and

(b)has perpetual succession; and

(c)may purchase, take on lease or hire, hold, sell, lease, let, mortgage, exchange, accept or dispose of by way of gift, own, possess, and otherwise deal with property; and

(d)may have a common seal; and

(e)may sue and be sued.

424Registered name of organisation that is not a corporation

(1)If an organisation is not a corporation, its registered name must include the words—

(a)if it is an employee organisation—‘industrial organisation of employees’ or ‘industrial union of employees’; or

(b)if it is an employer organisation—‘industrial organisation of employers’ or ‘industrial union of employers’.

(2)The name must state the locality in which most of its members live or carry on their business or calling.

425Registered office

(1)An organisation must have a registered office in the State to which all notices to it may be given.

Maximum penalty—40 penalty units.

(2)The organisation must give notice to the registrar of a change in the address of its registered office within 7 days after the change happens.

Maximum penalty—40 penalty units.

426Registrar’s functions for register and rules

(1)The registrar must keep—

(a)a register of organisations; and

(b)a copy of each organisation’s rules.

(2)The rules are open to inspection by a person paying the fee stated in the rules of court.

427Change of callings

(1)On an application by an organisation made in the way prescribed under a regulation, the commission may, by order, change its list of callings.

(2)If the list of callings is changed under subsection (1), the organisation’s list of callings is taken to be the changed list.

(3)In this section—

list of callings means the list stating the callings that accompanied the organisation’s registration application.

428Organisation must have complying rules

(1)An organisation must have rules about the matters required of it under this part and part 4.

(2)The organisation must give a copy of its rules to a person who asks for a copy and pays the amount prescribed under a regulation.

429Requirements for all organisations

(1)An organisation’s rules must state the following—

(a)its objectives;

(b)its eligibility rules;

(c)how and when—

(i)a person may become a member; or

(ii)a person may resign from membership; or

(iii)a person’s membership ends, other than by resignation;

(d)the functions and powers of its committees, branch committees, office holders and branch office holders;

(e)how meetings of its committees, branches and members may be called;

(f)how its committees are controlled by its members;

(g)how committees of its branches are controlled by members of the branch;

(h)how documents may be signed for the organisation;

(i)that notice must be given by a stated authorised office holder to the commission of the existence or likelihood of industrial disputes, in the way required under section 229;

(j)how its property is controlled and its funds are invested;

(k)any conditions for spending its funds;

(l)that, unless exempted under part 13, its accounts must be audited yearly or in another more frequent period;

(m)that, unless exempted under part 13, it must keep a members register, arranged according to branches if it has branches;

(n)how the rules may be amended;

(o)that membership applicants must be informed in writing of—

(i)a member’s financial obligations; and

(ii)how and when a member may resign from membership.

(2)In this section—

committee of an organisation or branch means—

(a)its management committee; or

(b)any other collective body of its members or officers, however called, that has power to do any of the following—

(i)manage its affairs;

(ii)decide its policy;

(iii)make, amend or repeal its rules;

(iv)enforce its rules.

430Additional requirements for organisation that is not a corporation

If an organisation is not a corporation, its rules must also state—

(a)that an elected officer may be removed from office only on the ground that the officer has ceased to be eligible to hold the office or has been found guilty under the rules of—

(i)misappropriation of the organisation’s property; or

(ii)a substantial contravention of the rules; or

(iii)gross misbehaviour or gross neglect of duty in the office; and

(b)the procedure for removing an elected officer.

431Rules must give conditions for loans, grants and donations

(1)An organisation’s rules must state that the organisation or a branch of the organisation must not make donations, grants or loans totalling more than $1000 (the payment) to the same person unless the management committee of the organisation or branch—

(a)has approved the payment; and

(b)is satisfied the payment is not otherwise prohibited under the rules of the organisation; and

(c)if the payment is a loan—it is made on satisfactory terms.

(2)Despite subsection (1), the rules may allow a financial hardship payment of not more than $3000 if it is made on condition that, if the management committee at its next meeting does not approve the payment, it must be repaid as decided by the committee.

(3)In deciding whether to approve the payment, the management committee must consider whether it was made under the rules and on satisfactory terms.

(4)For this section, a loan is made on satisfactory terms if the management committee is satisfied—

(a)the security to be provided for the loan is sufficient; and

(b)the proposed arrangements to repay the loan are satisfactory.

432Permitted contents—general

An organisation’s rules may—

(a)state the industry for which the organisation is formed; and

(b)make another provision that does not contravene this Act.

433Filling casual vacancies

(1)The rules may provide for filling a casual vacancy in an office.

(2)However, the rules must not allow the filling of a casual vacancy other than by ordinary election, if the unexpired part of the term of the office is longer than the greater of—

(a)1 year; or

(b)three-quarters of the term of office.

(3)If a person fills a casual vacancy in an office under this section, the person is taken to have been elected to the office.

(4)In this section—

term of an office means the period for which the person last elected to the office by an ordinary election, other than by an ordinary election to fill a casual vacancy, may hold the office without being re-elected.

434Mortality benefit fund

(1)An organisation’s rules may provide for an amount to be paid on the death of a member of the organisation to an eligible nominee nominated by the member.

(2)Despite the rules, the member may, by giving notice to the organisation, cancel the nomination or change the nominee to another eligible nominee.

(3)In this section—

eligible nominee of a member means—

(a)any person who is not an officer or employee of the organisation; or

(b)a spouse of the member; or

(c)a child, grandchild, grandparent, nephew, niece, parent or sibling of the member.

435General restrictions

(1)An organisation’s rules must not—

(a)contravene this Act, another law or an industrial instrument; or

(b)prevent members of the organisation from—

(i)complying with this Act or another law, an industrial instrument or decision; or

(ii)entering into a written agreement under an industrial instrument or decision; or

(c)impose on its members, or membership applicants, conditions, obligations or restrictions that are oppressive, unreasonable or unjust.

(2)An eligibility rule does not contravene subsection (1) (c) only because it requires reasonable minimum standards for the conduct of the businesses or callings of its members or membership applicants.

436Maximum office term for organisation that is not a corporation

(1)If an organisation is not a corporation, its rules must not allow an officer to hold office for more than 4 years (the maximum term) without re-election.

(2)However, the rules may extend the maximum term for a period of not more than 1 year to synchronise elections for other offices in the organisation.

437Part does not apply to corporations

This part does not apply to a corporation.

438Meaning of direct voting system for pt 4

(1)In this part, a direct voting system, for an office in an organisation, means an electoral system in which, subject to provisions in the organisation’s rules about voting enrolment—

(a)all eligible members of an organisation may vote for the office; or

(b)if the office is for a branch of the organisation—all eligible members included in the constituent part may vote.

(2)In this section—

eligible member means a member mentioned in section 445 (c).

439Meaning of collegiate electoral system for pt 4

In this part, a collegiate electoral system means a system for the election of an organisation’s officers under which—

(a)persons are elected to a number of offices by a direct voting system; and

(b)at a subsequent stage or stages, persons are elected to offices by an electoral college consisting of the persons elected at the last preceding stage.

440General requirement of transparency

An organisation’s rules about elections must, as far as practicable, ensure—

(a)the processes under which its elections are conducted are transparent; and

(b)no irregularities can happen in an election for the organisation or a branch of the organisation.

441Rules must provide for elections

An organisation’s rules must provide for elections for all elected offices in the organisation or a branch of the organisation.

442Direct voting or collegiate electoral system must be used

An organisation’s rules must provide for the election of its elected officers by a direct voting system or a collegiate electoral system.

443Application of div 3

This division applies if an organisation’s rules provide for the election of its elected officers by a direct voting system.

444General requirements for direct voting system

The organisation’s rules must state the following—

(a)who may nominate as a candidate in the election;

(b)how a person may nominate and become a candidate;

(c)the times for nominations to open and to close;

(d)that nominations must be called in a stated way that is reasonably likely to notify the organisation’s members—

(i)that nominations have been called; and

(ii)of how to nominate;

(e)that if a nomination for an office is rejected as defective, other than because the person is not qualified to hold the office or because the nomination was made after the closing time—

(i)the nominee must be notified of the defect; and

(ii)if practicable, the nominee must be given an opportunity to remedy the defect;

(f)that a candidate must be declared elected if the number of candidates for election is not more than the number of officers to be elected;

(g)that if at the closing time there are more candidates than the number of officers to be elected a ballot must be conducted to decide the result of the election.

445Required contents—ballots

The organisation’s rules must also state the following—

(a)that a ballot to decide the result of an election must be a secret postal ballot or another type of secret ballot approved by the registrar under subdivision 3;

(b)how the ballot is to be conducted;

(c)that a person (eligible member) may vote in the ballot only if the person was a financial member of the organisation on a stated day during the period—

(i)starting no earlier than 60 days before the opening time for nominations; and

(ii)ending no later than 30 days before the opening time;

(d)that the person conducting the ballot must, when nominations for the election close, prepare a list or roll of the eligible members;

(e)the appointment, conduct and functions of scrutineers to represent the candidates in the ballot;

(f)that an eligible member may cast an absentee vote and how the member may cast the vote;

(g)the method of voting and deciding the result of the ballot, by either a first-past-the-post system or a preferential system;

(h)that a candidate or a member of the organisation has the right, up to 30 days after the declaration of the result of the election, free of charge—

(i)to inspect the list or roll of persons who may vote in the ballot at the organisation’s registered office when it is open for business; and

(ii)to be given a copy of the whole or a stated part of the list or roll.

s 445 amd 2000 No. 23 s 292 sch 1

446Compulsory voting permitted

The organisation’s rules may require compulsory voting in a ballot required for an election.

447Approval application

(1)An organisation may apply to the registrar for approval for ballots to decide the result of its elections for its elected officers not to be postal ballots.

(2)The application must include particulars of proposed amendments to the organisation’s rules that provide for secret ballots that are not postal ballots.

448Consideration of application

The registrar may grant the approval only if satisfied—

(a)the proposed amendments—

(i)are not contrary to this Act or to law; and

(ii)have been made under the organisation’s rules; and

(b)a ballot under the proposed amendments—

(i)is likely to have a higher participation by the organisation’s members than a postal ballot; and

(ii)will give members who are eligible to vote an adequate opportunity of voting without intimidation.

449Grant of approval

If the registrar grants the approval, the proposed amendments take effect from—

(a)the day the registrar gives the organisation notice of the approval; or

(b)a later day stated in the notice.

450Cancellation of approval

The registrar may cancel the approval only if—

(a)the organisation applies for the cancellation; or

(b)the registrar is no longer satisfied a ballot under the organisation’s rules—

(i)is likely to have a higher participation by the organisation’s members than a postal ballot; and

(ii)will give members who are eligible to vote an adequate opportunity of voting without intimidation.

451Application of div 4

This division applies if an organisation’s rules provide for the election of its elected officers by a collegiate electoral system.

452Restriction on persons who may be elected by electoral college

At least 80% of the persons elected by an electoral college must be elected at the stage in the collegiate electoral system that immediately preceded the stage for which the electoral college is formed.

453Requirements for second or subsequent stage

The organisation’s rules must state the following for an election at the second or subsequent stage of a collegiate electoral system—

(a)who may nominate as a candidate in the election;

(b)how a person may nominate and become a candidate;

(c)that a candidate must be declared elected if the number of candidates for election is not more than the number of officers to be elected;

(d)that if there are more candidates than the number of officers to be elected, a secret ballot must be conducted to decide the result of the election;

(e)that if a ballot must be conducted—

(i)how the ballot must be conducted; and

(ii)the methods of voting and deciding the result of the ballot; and

(iii)that a person who may vote in the ballot (a voter) may vote by an absentee or proxy vote; and

(iv)how a voter may vote by an absentee or proxy vote; and

(v)that scrutineers may be appointed for candidates; and

(vi)the functions of scrutineers.

454Model election rules

A regulation may make model election rules under this division for organisations.

455Model election rules may be adopted

An organisation may, by a resolution under its rules, adopt all or part of the model election rules, with or without change.

456Adoption without change

(1)If an organisation resolves to adopt all the model election rules without change, its secretary may give the registrar notice of the resolution.

(2)The registrar must register the model election rules as an amendment of the organisation’s rules.

(3)The amendment takes effect when it is registered.

457Effect of adoption without change

If an organisation adopts the model election rules without change, its rules are taken to comply with this part.

458Model rules apply if election rules do not comply with pt 4

The model election rules are taken to be an organisation’s election rules if its election rules do not comply with this part within 2 years after this section commences.

s 458 amd 2000 No. 23 s 292 sch 1

459Powers of commission

(1)The commission may, on application—

(a)decide whether an organisation’s rules comply with section 435; or

(b)direct a person obliged to perform or observe an organisation’s rules to perform or observe the rules.

(2)However, a direction must not be made if it invalidates—

(a)an election or purported election; or

(b)a step for an election or purported election.

(3)In deciding the application, the commission may declare—

(a)the whole, or a part of, the rules comply with or contravene section 435; or

(b)the rules contravene section 435 in a stated way.

s 459 amd 2013 No. 61 s 66

460Who may apply

An application may be made only by a member of the organisation or another person prescribed under a regulation.

461Financial help for application

(1)A member of an organisation may apply to the Minister for financial help if the member—

(a)has made, or proposes to make, an application under this part; and

(b)applies within 3 months after the application has been decided.

(2)The Minister may direct that financial help from the State be given to the member for the cost of the application if satisfied—

(a)there are, or were, reasonable grounds for making the application; and

(b)the application is proposed to be, or was, made in good faith.

(3)The registrar must decide the amount of the financial help.

462Interim orders

(1)The commission may make an interim order it considers appropriate.

Example—

If the application is for a direction, the commission may make an order to help resolve the matter within the organisation.

(2)An interim order ends—

(a)when the proceedings end; or

(b)at an earlier time stated in the order; or

(c)if it is discharged by the commission.

s 462 amd 2013 No. 61 s 67

463Hearing application

(1)The commission may adjourn the hearing for a stated period on conditions it considers appropriate to give the organisation an opportunity to amend its rules.

(2)The commission may refuse to hear an application for directions until it is satisfied the applicant has taken all reasonable steps to resolve the matter within the organisation.

s 463 amd 2013 No. 61 s 68

464Effect of declaration

If the commission declares the whole or a part of a rule contravenes section 435, the rule or the part of the rule, is taken to be void from the making of the declaration.

s 464 amd 2013 No. 61 s 69

465Direction must be complied with

If the commission directs a person to perform or observe an organisation’s rules, the person must comply with the direction unless the person has a reasonable excuse for not complying with the direction.

Maximum penalty—40 penalty units.

s 465 amd 2013 No. 61 s 70

466Breach of demarcation dispute undertaking

(1)This section applies if an organisation has given a demarcation dispute undertaking to the commission and the organisation has breached the undertaking.

(2)The commission may amend the organisation’s rules in a way it considers necessary to remove an overlap between the organisation’s eligibility rules and another organisation’s eligibility rules.

467When registrar may amend rules

The registrar may amend an organisation’s rules as follows—

(a)on the registrar’s own initiative, if the registrar considers the rules do not make a provision required by section 435;

(b)if, under section 450, the registrar has cancelled an approval under section 449 and the amendment is to provide that if a ballot is necessary for an election for the organisation it must be a secret postal ballot;

(c)if section 458 applies, so that the organisation’s election rules are the model election rules;

(d)to omit a provision declared, under section 459 (3) (a), to be in contravention of section 435;

(e)to amend a provision declared, under section 459 (3) (b), to contravene section 435 in a stated way so that the provision no longer contravenes section 435 in the stated way;

(f)to give effect to an order under section 508 (2) (b) or 536 (e);

(g)to correct a formal or clerical error.

468Amendment to cure noncompliance if rule declared void

(1)This section applies if—

(a)the court declares the whole or a part of a rule of an organisation contravenes section 435 or contravenes section 435 in a stated way; and

(b)the organisation’s rules have not been amended so as to comply with section 435 within 3 months after the declaration is made.

(2)The appropriate tribunal may amend the rules to comply with section 435 for the matters that gave rise to the declaration.

(3)In this section—

appropriate tribunal means—

(a)for an organisation’s eligibility rules—the commission; or

(b)for other rules—the registrar.

469How amendment must be made

(1)An amendment under this division may only be made by an order, direction or written decision (instrument).

(2)The amendment takes effect from the day of the instrument.

(3)The registrar must give the organisation a copy of the instrument as soon as practicable after the decision is made.

470Application of sdiv 1

(1)This subdivision applies if an organisation proposes to amend its name or eligibility rules.

(2)This subdivision does not apply if the amendment is made under section 467 or 468 or proposed to be made for an amalgamation or withdrawal.

(3)In this section—

amend includes replace.

471Requirements for amendment

The proposed amendment may be made only if it has been—

(a)proposed under the organisation’s rules; and

(b)approved under this subdivision.

472Approval to change ‘union’ to ‘organisation’ in name

If an organisation’s name contains the word ‘union’, the registrar may, by order, approve the replacement of the word with ‘organisation’ or the words ‘industrial organisation’.

473Approval for other name amendment

(1)This section applies to a name amendment other than an amendment mentioned in section 472.

(2)The commission may, by order, approve the name amendment only if satisfied the amended name—

(a)has been proposed under the organisation’s rules; and

(b)is not—

(i)the same as another organisation’s name; or

(ii)so similar to another organisation’s name as to be likely to cause confusion.

(3)Approval may be given wholly or in part.

474Approval for eligibility rule amendment

(1)The commission may, by order, approve an eligibility rule amendment only if satisfied—

(a)the amendment has been proposed under the organisation’s rules; and

(b)there is no organisation to which its members could conveniently belong that would effectively represent them in a way consistent with the objects of this Act.

(3)The commission may refuse to approve an eligibility rule amendment if satisfied—

(a)the amendment—

(i)would contravene an agreement or understanding to which the organisation is a party; and

(ii)deals with the organisation’s right to represent; or

(b)the amendment—

(i)would change the effect of a full bench order under section 279 about the organisation’s right to represent; and

(ii)would give rise to a serious risk of a demarcation dispute that would prevent or restrict the performance of work in an industry, or harm an employer’s business.

(4) Subsection (3) does not limit the grounds on which approval may be refused.

(5)Approval may be given wholly or in part.

(6)In this section—

right to represent of an organisation means a right of the organisation to represent the industrial interests of a particular class or group of persons.

s 474 amd 2000 No. 23 s 292 sch 1

475When amendment takes effect

If a name amendment or eligibility rule amendment is approved, the amendment takes effect on the day of the order or a later stated day.

476Registrar must record amendment

As soon as practicable after a name amendment or eligibility rule amendment takes effect the registrar must—

(a)for a name amendment—

(i)enter the amended name in the register; and

(ii)give the organisation whose name was amended a replacement certificate of registration in the approved form; and

(b)for an eligibility rule amendment—enter particulars of the amendment in the register.

477Application of sdiv 2

This subdivision applies if an organisation proposes to amend its rules, other than by amending its name or eligibility rules, or by, under section 456, adopting the model election rules without change.

478When amendment may be made

(1)The proposed amendment may be made only if the registrar has approved it.

(2)The registrar may approve a proposed amendment only if satisfied it—

(a)does not contravene section 435 or another law; and

(b)has been proposed under the organisation’s rules.

479When amendment takes effect

(1)If the registrar approves the proposed amendment, the registrar must register the amendment as soon as practicable.

(2)The amendment takes effect when it is registered.

480Part does not apply to corporations

This part does not apply to a corporation.

481Organisation or branch must file prescribed election information

(1)If an organisation or a branch of an organisation proposes to conduct an election, the organisation or branch must file the information prescribed under a regulation for the election in the registry.

(2)The information must be filed before the day prescribed under a regulation or a later day the registrar allows.

482Registrar must arrange for elections

The registrar must arrange for an election to be conducted by the electoral commission if—

(a)the information prescribed under a regulation is filed; and

(b)satisfied the election is required to be held under the rules of the relevant organisation or branch.

483Electoral commission to conduct elections

An election must only be conducted by the electoral commission.

Note—

See, however, part 13 (Exemptions), division 3 (Exemptions from requirement that electoral commission conduct election).

484Organisation’s rules generally to be complied with

Subject to section 485, the rules of the organisation or branch for which an election or a step in an election is being conducted must be complied with.

485Action or directions by electoral officer

(1)The electoral officer conducting an election or a step in an election may take action, and give directions, the officer considers necessary—

(a)to ensure no irregularities happen in the election; or

(b)to remedy a procedural defect that appears to the electoral officer to exist in the rules.

(2)The election or step is not invalid only because the rules of the organisation or branch are contravened by the action or direction.

486Substitute electoral officer

The electoral commissioner must arrange for another electoral officer to complete an election, or a step in an election, if the electoral officer conducting the election or taking the step—

(a)dies or can not complete the election or take the step; or

(b)ceases to be qualified to conduct the election or take the step.

487Death of candidate

(1)An election must be discontinued and a new election held if—

(a)2 or more candidates are nominated for the election; and

(b)1 of the candidates dies before the close of the ballot.

(2) Subsection (1) applies despite anything in the rules of an organisation or branch.

488Election result report

(1)The electoral commission must, within 14 days after the declaration of the result of an election, give the registrar a written election result report for the election stating the particulars prescribed under a regulation.

(2)A contravention of this section does not invalidate the election.

489Election costs to be paid by State

The costs of an election conducted by the electoral commission under this part are payable by the State.

490Ballot records must be preserved

(1)This section applies despite the rules of an organisation or branch.

(2)The electoral commission must do everything necessary to ensure all ballot records for an election are kept by it for 1 year after the election.

491Using organisation’s resources for election purposes

An organisation must not use, or permit its employees or agents, members or officers to use, the organisation’s property or resources to help a candidate for an election against another candidate for the election.

Maximum penalty—80 penalty units.

492Obstructing conduct of election

A person must not obstruct another person conducting an election.

Maximum penalty—80 penalty units.

493Failing to comply with electoral officer’s direction

A person to whom a direction is given by an electoral officer under this part must not fail to comply with the direction, unless the person has a reasonable excuse for not complying with the direction.

Maximum penalty—80 penalty units.

494Obstructing electoral officer’s direction

A person must not obstruct another person complying with a direction by an electoral officer under this part.

Maximum penalty—80 penalty units.

495Offences about ballots

A person must not, without lawful authority or excuse, do any of the following about a ballot for an election—

(a)obtain or possess a ballot paper if the person does not have the right to obtain or possess it;

(b)pretend to be and vote as someone else;

(c)amend, deface, destroy, interfere with, or remove a ballot record;

(d)vote in the ballot if the person does not have the right to vote;

(e)vote more than once;

(f)forge a ballot record;

(g)utter a ballot record knowing it to be forged;

(h)give a ballot record to someone else;

(i)put a ballot record in a ballot box or other container used for the ballot (a ballot box) if the person does not have the right to vote;

(j)deliver or post a ballot record to another person performing functions for the ballot if the person does not have the right to deliver or post it;

(k)destroy, interfere with, open, or remove a ballot box.

Maximum penalty—80 penalty units.

496Disadvantaging candidates etc.

(1)A person must not cause, inflict or procure a disadvantage to anyone or anything because of, or to induce—

(a)a candidature or withdrawal of a candidature in an election; or

(b)a vote or omission to vote in an election; or

(c)support for or opposition to a candidate in an election; or

(d)a promise of a vote, omission to vote, support or opposition for or to a candidate in an election.

Maximum penalty—80 penalty units.

(2)In this section—

cause a disadvantage includes offering, suggesting and threatening a disadvantage.

disadvantage includes damage, detriment, injury, loss, punishment and violence.

497Unauthorised access to ballot paper

A person must not, without lawful authority or excuse—

(a)ask, require or induce another person to show to, or permit the person to see, a ballot paper so the person can see the vote recorded in the ballot paper—

(i)while the paper is being marked; or

(ii)after it has been marked; or

(b)if the person is performing functions for an election—show to or permit anyone else access to a ballot paper used in the election or ballot, other than to perform the functions.

Maximum penalty—80 penalty units.

498Part does not apply to corporations

This part does not apply to a corporation.

499Commission may conduct election inquiry

The commission may, on an application referred to it by the registrar under this part, conduct an inquiry (an election inquiry) about a claimed irregularity in an election for an organisation or branch.

500Who may apply

An application for an election inquiry may be made only by—

(a)a financial member of the organisation; or

(b)a person who was a financial member of the organisation within 1 year before the application is made.

501Requirements for application

The application—

(a)may be filed only during the period that—

(i)starts on the day the prescribed information for the election is filed under section 481 (1); and

(ii)ends—

(A)6 months after the election has ended; or

(B)on a later day allowed by the registrar; and

(b)must state—

(i)the election for which the application is made; and

(ii)the irregularity that is claimed to have happened; and

(iii)the facts relied on to support the application; and

(c)must be accompanied by an affidavit by the applicant stating the facts claimed in the application are true to the best of the applicant’s knowledge and belief.

502Referral to commission

(1)The registrar may refer the application to the commission only if satisfied—

(a)there are reasonable grounds to inquire whether there has been an irregularity in the election that may have affected, or may affect, the election result; and

(b)the circumstances justify an inquiry.

(2)In deciding whether to refer, the registrar may consider other appropriate information of which the registrar has knowledge.

(3)An election inquiry is taken to have been started in the commission when the application is referred.

503Commission may authorise registrar to investigate

(1)The commission may, by order, before or after the registrar’s decision to refer, authorise the registrar to do any of the following—

(a)inspect ballot records for the election;

(b)take possession of the ballot records;

(c)enter a place of business used or occupied by the organisation or branch at which the registrar reasonably believes the ballot records are held, using necessary and reasonable help;

(d)require a person to give the registrar ballot records in the person’s possession or under the person’s control or to keep the ballot records until—

(i)an inquiry is completed; or

(ii)an earlier time ordered by the commission.

(2)If a person is required to give ballot records under subsection (1) (d), the person must not fail to comply with the direction, unless the person has a reasonable excuse for not complying with the requirement.

Maximum penalty—80 penalty units.

(3)A person must not obstruct the registrar when exercising a power under this section.

Maximum penalty—80 penalty units.

504Interim orders

After the registrar refers the application, the commission may make an interim order—

(a)stopping any further steps to—

(i)conduct the election; or

(ii)give effect to the election result; or

(b)stopping a person from acting in an office the inquiry is about, if the person has—

(i)assumed the office; or

(ii)continued to act in it; or

(iii)claims to occupy it; or

(c)directing a person who holds, or who last held before the election, an office for which the election is held to act or continue to act in the office; or

(d)directing a member of the organisation or branch or another stated person to act in an office for which the election is held, if it considers a direction under paragraph (c) would—

(i)not be practicable; or

(ii)affect the efficient conduct of the affairs of the organisation or branch; or

(iii)be inappropriate having regard to the nature of the inquiry; or

(e)consequential to, or amending or discharging, another interim order.

505Person acting under interim order

If a person is acting, or continuing to act, in an office under an interim order, the person is taken to hold the office—

(a)while the order is in force; and

(b)despite the rules of the organisation or branch.

506When interim order ends

An interim order ends—

(a)at the completion of the election inquiry and everything the commission ordered, other than under an interim order, during the inquiry; or

(b)the day stated in the order for it to end; or

(c)if it is discharged by the commission.

507Commission’s functions and powers for inquiry

(1)For an election inquiry, the commission must inquire into and decide—

(a)if an irregularity has happened in the election; and

(b)other questions it considers necessary about the conduct and results of the election.

(2)The commission may make orders it considers necessary for the inquiry, including, for example, a recount of votes for the election.

508Orders if irregularity found

(1)This section applies if the commission finds an irregularity has happened, or is likely to happen, in an election.

(2)The commission may make an order—

(a)for a fresh election or the repeat of a step in the election, including, for example, calling for and submitting nominations; or

(b)amending the election rules of the relevant organisation or branch in a way it considers necessary to correct a procedural defect in the rules; or

(c)directing safeguards it considers appropriate to stop irregularities in the election, fresh election or repeat step; or

(d)appointing a returning officer to act with any returning officer appointed under the rules; or

(e)providing for the powers of a returning officer appointed under paragraph (d).

(3)Also, the commission may, by order, if it finds the election result may have been, or may be, affected by the irregularity or a similar irregularity, declare—

(a)the election, or a step taken in or for it, to be void; or

(b)a person apparently elected in the election not to have been elected; or

(c)a person to have been elected at the election instead of a person declared not to have been elected.

(4)The commission may make any other order that is consequential to an order under this section.

509Enforcing pt 8 orders

The commission may make an order in the nature of an injunction, either mandatory or restrictive, it considers necessary to enforce an order or perform its functions or exercise its powers under this part.

510Disadvantaging applicant for inquiry

(1)A person must not cause, inflict or procure a disadvantage to another person because the other person has applied for an election inquiry.

Maximum penalty—80 penalty units.

(2)In this section—

disadvantage includes damage, detriment, injury, loss, punishment and violence.

511Obstructing orders being carried out

A person must not obstruct the carrying out of a commission order under this part.

Maximum penalty—80 penalty units.

512Financial help for application

(1)An applicant for an election inquiry may apply to the Minister for financial help.

(2)The Minister may direct that financial help from the State be given to the applicant for the cost of the application, including witness expenses, if—

(a)the commission found an irregularity happened in the election and the Minister considers the circumstances justify the payment; or

(b)the commission certifies the applicant acted reasonably in applying for the inquiry; or

(c)after considering the commission’s findings at the inquiry, it is not just the applicant who should pay any of the costs.

(3)The registrar must decide the amount of the financial help.

513Costs of fresh election ordered by inquiry

(1)If the commission orders a fresh election under this part, the State must pay the costs of the fresh election.

Example of a cost—

the cost of premises used for the fresh election

(2)In this section—

fresh election, for an organisation or branch, includes—

(a)a step in an election; and

(b)a safeguard, not allowed for under the rules of the organisation or branch, for an election or step in an election.

514Definitions for pt 9

In this part—

candidate means a candidate for election or appointment to an office.

convicted of a disqualifying offence means being found guilty of the offence, on a plea of guilty or otherwise, whether or not a conviction was recorded.

convicted person see section 515.

disqualification period see section 522 (1).

disqualifying offence means an offence—

(a)against an Act or a law of the State or another jurisdiction, involving fraud or dishonesty punishable on conviction by imprisonment for 3 months or more; or

(b)against this chapter involving a failure to keep ballot records, comply with a direction or give information or documents for an election or ballot; or

(c)against section 492, 627, 656 or 657; or

(d)involving the formation, registration or management of an association, corporation or organisation; or

(e)that is a violent offence.

elected, to an office, includes appointed to fill a casual vacancy in the office.

leave application means an application under division 2, subdivision 2.

violent offence means an offence involving the—

(a)intentional use of violence towards another person; or

(b)causing of death or injury to a person; or

(c)damage or destruction of property.

515Meaning of convicted person for pt 9

(1)In this part, a convicted person means a person who—

(a)has been convicted on indictment of a disqualifying offence; or

(b)without limiting paragraph (a), has served, or is serving, a prison term for a violent offence.

(2)A convicted person also includes a person convicted, before this part commenced, of an offence that, apart from the non-commencement of this part, would have been a disqualifying offence.

516Persons under 18

A person under 18 years is not eligible to be a candidate or to be elected as a management committee member, treasurer or trustee of an organisation.

517Convicted persons—candidature

A person convicted of a disqualifying offence may be a candidate or elected to an office in an organisation only if—

(a)the person has made a leave application to hold the office and—

(i)was given leave to hold the office; or

(ii)the court fixed a disqualification period for the person and the period has ended; or

(b)5 years has elapsed since the later of the following—

(i)the conviction;

(ii)if the person served a prison term for the offence—the person’s release from prison.

518Convicted persons—holding office

(1)This section applies if a person who holds an office in an organisation is convicted of a disqualifying offence.

(2)The person ceases to hold the office 28 days after the conviction unless the person makes a leave application within that time.

(3)However, if the person makes a leave application within that time, the person ceases to hold the office—

(a)3 months after the conviction, if the application has not been decided and the court has not extended that time; or

(b)if the court has extended that time—at the end of the extended time.

(4)The court may extend the time only if—

(a)an application for the extension is made before the time mentioned in subsection (3) (a); or

(b)if it has previously extended the time—the application for the further extension is made before the end of the time as extended.

s 518 amd 2009 No. 15 s 2 sch

519Prospective candidates

(1)This section applies if a person who wants to be a candidate for an office in an organisation has, within 5 years, been—

(a)convicted of a disqualifying offence; or

(b)released from prison after serving a prison term for a conviction for a disqualifying offence.

(2)The person may apply to the court for leave to hold the office.

(3)The court must not grant the leave if the applicant has already made a leave application for the conviction.

520Existing office holders

(1)If a person holding an office is convicted of a disqualifying offence, the person may apply to the court for leave to hold the office or another stated office.

(2)The court may grant the leave only if—

(a)the application is made within 28 days after the conviction; and

(b)the person has not already made a leave application for the conviction.

521Consideration of leave applications

In deciding a leave application, the court must consider—

(a)the nature of the disqualifying offence in relation to which leave is sought; and

(b)the circumstances and the nature of the applicant’s involvement in the commission of the offence; and

(c)the applicant’s general character and fitness to be involved in the management of organisations, having regard to the offence; and

(d)any other matter it considers appropriate.

522Disqualification period may be given if leave refused

(1)If the court decides to refuse a leave application, it may fix a period (a disqualification period) during which the applicant is disqualified from holding office in any organisation.

(2)However, the court must not fix a disqualification period that starts before or ends more than 5 years after the later of the following—

(a)the conviction that is the subject matter of the application;

(b)if the person served a prison term for the conviction—the person’s release from prison.

523Leave or fixing of disqualification period does not affect div 2

The granting of a leave application or the fixing of a disqualification period for a conviction does not affect the operation of this division for another conviction.

524Declaration about eligibility or ceasing to hold office

(1)An organisation, a member of the organisation or the registrar may apply to the court for a declaration that, because of this division, a person—

(a)is not, or was not, eligible to be a candidate or to be elected to an office in the organisation; or

(b)has ceased to hold an office in the organisation.

(2)Despite anything in the rules of the organisation, the court may make an order it considers appropriate to give effect to the declaration.

525Certificate evidence for div 2

(1)For an application under this division, a certificate stating the following about a person and purporting to be by an appropriate officer of a court of the State or another jurisdiction is evidence the person was—

(a)convicted by the court of a stated offence on a stated day;

(b)acquitted by the court of a stated offence, or that a stated charge against the person was dismissed by the court, on a stated day.

(2)A certificate purporting to be by a person in charge of a prison is evidence that a stated person was released from the prison on a stated day.

(3)In this section—

appropriate officer of a court means a registrar or other officer with registration functions for the court.

s 525 amd 2000 No. 63 s 276 sch 2

div hdg amd 2013 No. 29 s 19

526Application of div 3

This division applies to an officer of an organisation in the performance of the officer’s functions or the exercise of the officer’s powers.

s 526 amd 2013 No. 29 s 20

527Duty of honesty, good faith and proper purpose

The officer must act—

(a)honestly; and

(b)in good faith in the best interests of the organisation; and

(c)for a proper purpose.

Maximum penalty—3091 penalty units or 5 years imprisonment.

s 527 sub 2013 No. 29 s 21

528Duty of reasonable care and diligence

The officer must exercise the degree of care and diligence that a reasonable person in the officer’s position would be reasonably expected to exercise.

Maximum penalty—3091 penalty units or 5 years imprisonment.

s 528 amd 2013 No. 29 s 22

529Officers with material personal interests

(1)This section applies if the officer has a material personal interest in a matter involving the organisation’s financial management or procurement activities.

(2)The officer must by written notice (a disclosure notice) disclose the nature of the interest to the organisation’s management committee as soon as practicable after the relevant facts come to the officer’s knowledge.

Maximum penalty—3091 penalty units or 5 years imprisonment.

(3)If the matter is to be considered at an annual general or management committee meeting at which the officer is present, the officer must not—

(a)vote on the matter; or

(b)remain at the meeting when the matter is being considered.

Maximum penalty—3091 penalty units or 5 years imprisonment.

(4)In this section—

procurement activities means activities relating to—

(a)the purchase of goods and services; or

(b)the carrying out of work.

services includes auditing services and legal services.

s 529 amd 2013 No. 29 s 23

530Other duties not affected

This division does not—

(a)limit a law about the exercise of an officer’s powers or performance of an officer’s functions; or

(b)prevent the taking of proceedings about a breach of an officer’s duty to an organisation.

div 4 (s 530A) ins 2013 No. 29 s 23A

530ARegister of material personal interest disclosures

(1)This section applies if a disclosure notice is given to an organisation’s management committee by an officer of the organisation under section 529.

(2)The organisation must keep, for at least 7 years after the date the disclosure notice was given, a written register of the following for the disclosure notice—

(a)the name of the officer;

(b)the date the disclosure notice was given;

(c)a copy of the disclosure notice.

Maximum penalty—40 penalty units.

(3)The register kept under subsection (2) may be inspected by the following persons—

(a)the registrar;

(b)a member of the organisation’s management committee;

(c)another person permitted by law to inspect the register.

(4)A person mentioned in subsection (3) may ask the organisation to make the register available for inspection, free of charge, during the organisation’s business hours.

(5)The organisation must comply with a request made under subsection (4).

Maximum penalty—40 penalty units.

(6)In this section—

disclosure notice see section 529 (2).

div 4 (s 530A) ins 2013 No. 29 s 23A

div hdg ins 2013 No. 29 s 23A

530BApplication of div 5

This division applies to an officer of an organisation who holds a management office in the organisation.

s 530B ins 2013 No. 29 s 23A

530CDefinitions for div 5

(1)In this division—

management office, for an organisation, means an office of the organisation mentioned in section 412 (a) or (b).

particulars, of an interest, means the financial and non-financial particulars of the interest prescribed under a regulation.

spouse, of an officer, does not include a former spouse of the officer.

def spouse ins 2013 No. 31 s 38H

(2)A reference in this division to an interest is a reference to the matter within its ordinary meaning under the general law and the definition in the Acts Interpretation Act 1954 , section 36 does not apply.

s 530C ins 2013 No. 29 s 23A

530DOfficer must file statement of interests

(1)The officer must, within 1 month after being elected or appointed to the management office in the organisation, file a statement of the particulars of each interest held by the officer or the officer’s spouse.Maximum penalty—85 penalty units.

(2)However, the particulars of an interest held by the officer jointly or in common with the officer’s spouse need to be included in the statement only once.

(3)Nothing in subsection (1) requires the statement to include any of the following—

(a)the number or monetary value of shares;

(b)the monetary value of an asset, investment or other interest;

(c)the full street address of land;

(d)the account number of, or amount held in, an account held with a financial institution.

(4)To remove any doubt, it is declared that a person holds an interest if the person holds the interest—

(a)alone; or

(b)jointly or in common with another person.

s 530D ins 2013 No. 29 s 23A

530EOfficer must file updated particulars

(1) Subsection (2) applies if the officer becomes aware (including because of a change in the interests of the officer or the officer’s spouse) of any of the following matters—

(a)that the officer has not filed a statement of the particulars of an interest held by the officer or the officer’s spouse;

(b)that the particulars of an interest held by the officer or the officer’s spouse included in a statement filed by the officer are not, or are no longer, correct.

(2)The officer must file a statement of the particulars of the interest, or the correct particulars of the interest, within 1 month after the officer becomes aware of the matter.Maximum penalty—85 penalty units.

s 530E ins 2013 No. 29 s 23A

530FExemption

(1)This section applies if—

(a)under another Act or law—

(i)information about the interests held by the officer and the officer’s spouse is required to be recorded in a register or otherwise disclosed by the officer; and

(ii)the information is published to the public; and

(b)the officer has filed a written notice stating the matters mentioned in paragraph (a).

(2)Sections 530D and 530E do not apply to the officer.

s 530F ins 2013 No. 29 s 23A

530GInspection of statement of interests

A statement of the particulars of an interest held by the officer or the officer’s spouse and filed by the officer may be inspected by the following—

(a)the registrar;

(b)an inspector;

(c)another person permitted by law to inspect the statement.

s 530G ins 2013 No. 31 s 38I

531Eligibility

A person is eligible to become a member of an organisation if the person—

(a)by the nature of the person’s occupation or employment, engages in a calling for which the organisation is registered; and

(b)complies with the organisation’s rules.

532Obligation to admit

(1)An organisation must admit to membership a person who is eligible to become a member—

(a)within 3 months of the person applying to become a member; or

(b)if a question or dispute has within the 3 months been referred to the commission for decision under division 2—within 1 month of the commission deciding the person is, or is eligible to become, a member.

Maximum penalty—40 penalty units

(2)In this section—

admit to membership means—

(a)do what is necessary under the organisation’s rules to ensure the person is a member of the organisation; or

(b)record in the organisation’s members register the particulars required under section 545 for the person’s membership of the organisation.

s 532 amd 2001 No. 87 s 31; 2013 No. 61 s 70A

533Obligation to give union card

(1)If a person is admitted to membership of an organisation or a person’s membership of an organisation is renewed, the organisation must give a union card to the person as soon as practicable after the admission or renewal.

Maximum penalty—40 penalty units.

(2)The giving of a union card under this section does not prevent the organisation making an application under division 2 or the commission making a decision or order under division 2.

(3)In this section—

union card means a document issued by an organisation acknowledging that the person is a member of the organisation.

s 533 amd 2013 No. 61 s 70B

534Members under 18

A person under 18 years—

(a)may be or become a member of an organisation, unless its rules provide otherwise; and

(b)if the person is a member of an organisation—

(i)has the rights of a member of an organisation under this part and the organisation’s rules; and

(ii)may execute instruments and give receipts under the rules.

s 534 amd 2009 No. 15 s 2 sch

535Commission may decide

The commission may, on the application of an organisation or a person who has applied for membership of an organisation, decide a question or dispute about the following—

(a)whether a person is, or is eligible to become, a member of the organisation;

(b)when a person became a member or must be treated by the organisation and its members as if the person had become a member;

(c)the qualifications of a membership applicant;

(d)the reasonableness of a membership subscription, fine or levy, or other requirement of its members under its rules.

s 535 amd 2013 No. 61 s 71

536Deciding application

On hearing the application, the commission may do any of the following—

(a)declare a person is or is not a member of the organisation;

(b)decide a membership applicant may become a member of the organisation;

(c)order the organisation to admit a membership applicant to its membership and record the applicant as a member in its members register;

(d)order the organisation to treat a membership applicant as if the applicant had been a member of the organisation from a stated day;

(e)order an amendment or repeal of a rule of the organisation.

s 536 amd 2013 No. 61 72

537Obligation to give receipt

(1)This section applies if a person pays an organisation a membership subscription for the person’s membership or membership renewal of the organisation.

(2)The organisation must give the person a written receipt for the payment within 1 month after the payment was made.

Maximum penalty for subsection (2)—40 penalty units.

538Division applies despite rules

This division applies despite an organisation’s rules.

539Resignation

(1)A member of an organisation may resign from membership of the organisation under this section or the organisation’s rules.

(2)The person’s membership ends if the person gives the organisation a notice stating the person resigns from the organisation.

(3)The person’s membership ends—

(a)if the notice states a day or time after the notice is given when the resignation takes effect—on the day or time; or

(b)otherwise—when the notice is given.

540Resignation if membership subscription unpaid for 2 years

(1)A person’s membership of an organisation ends if the person—

(a)owes the organisation a membership subscription; and

(b)has owed the subscription for 2 years.

(2)For subsection (1), a person is taken not to owe a subscription if the person has—

(a)entered into an agreement with the organisation to pay the subscription; and

(b)complied with, and continues to comply with, the agreement.

541Meaning of member’s liability for div 5

In this division, a member’s liability to an organisation means an amount payable to the organisation under its rules by a member or former member of the organisation.

Example of a member’s liability—

a membership fee, fine, levy or subscription

542Recovering member’s liabilities

(1)A member’s liability to an organisation may only be sued for and recovered before a magistrate.

(2)Proceedings to recover a member’s liability to an organisation must be commenced within 3 years from when the member’s liability first become payable.

(3)If proceedings to recover a member’s liability to an organisation are not commenced under subsection (2), the member’s liability is not recoverable.

543Limit on liability after resignation

If a person’s membership of an organisation has ended, the person—

(a)continues to be liable for a member’s liability that—

(i)became payable within 1 year before the membership ended; and

(ii)is recoverable under section 542; and

(b)is not liable for a member’s liability that became payable—

(i)more than 1 year before the membership ended; or

(ii)after the membership ended.

544Members and officers registers

An organisation must, for each year, keep written registers stating each person who is or was—

(a)a member of the organisation during the whole or part of the year; or

(b)an officer of the organisation during the whole or part of the year.

Maximum penalty—40 penalty units.

545Requirements for members register

(1)An organisation must record the following for each person who is or was a member of the organisation during the whole or part of the year for which the register is kept—

(a)the person’s name;

(b)for an employee organisation—the person’s residential address;

(c)for an employer organisation—the person’s business address;

(d)the day the person became a member;

(e)if the person’s membership has ended—the day it ended.

Maximum penalty—40 penalty units.

(2)If the organisation has more than 100 members, it must keep the register in a way that allows the names to be read alphabetically.

Maximum penalty—40 penalty units.

546Officers register—required particulars

An organisation must record the following for each person who is or was an officer of the organisation during the whole or part of the year for which the register is kept—

(a)the person’s name and address;

(b)each office the person holds or held;

(c)the day the person was elected or appointed to each office;

(d)if a person ceased or ceases to hold an office—the day the office holding ceased or ceases.

Maximum penalty—40 penalty units.

547Annual obligation to file officers register

An organisation must, before 31 March in each year, file a copy of its officers register as at the start of the year.

Maximum penalty—40 penalty units.

548Obligation to file officers register on change of office holder

An organisation must file a copy of its officers register within 30 days after a person becomes or ceases to be an officer of the organisation.

Maximum penalty—40 penalty units.

549Inspection of registers

(1)When an organisation’s office is open for business, its members and officers registers must be open for inspection, free of charge, at the office by—

(a)the registrar, or a person with the registrar’s written authority; or

(b)the organisation’s members, or a person with a member’s written authority.

(2)A copy of an organisation’s officers register filed with the registrar may be inspected by any person who pays the fee prescribed under the rules of court.

550Registrar’s directions about registers

(1)The registrar may give a written direction to an organisation to—

(a)give the registrar its members or officers register; or

(b)correct its members or officers register in a stated way the registrar considers is necessary to ensure compliance with this part.

(2)The organisation must comply with the direction, unless it has a reasonable excuse for not complying with the direction.

Maximum penalty for subsection (2)—40 penalty units.

pt hdg sub 2013 No. 29 s 27

551Definitions for pt 12

In this part—

accounting deficiency see section 560 (d).

accounting records see section 554 (3).

candidate for election—

(a)means a candidate for election to a legislature or local government; and

(b)includes a prospective candidate.

def candidate for election reloc from s 553E 2014 No. 36 s 55Q (3)

financial affairs includes transactions.

financial year of an organisation, see section 552.

gift means—

(a)the transfer of money, other property or other benefit—

(i)without consideration; or

(ii)for a consideration substantially less than full consideration; or

(b)a loan of money or other property made on a permanent or indefinite basis, other than an overdraft facility.

def gift ins 2013 No. 29 s 28

legislature means—

(a)the Legislative Assembly; or

(b)the legislature of the Commonwealth or another State.

def legislature reloc from s 553E 2014 No. 36 s 55Q (3)

local government means a local government or a local government of another State.

def local government reloc from s 553E 2014 No. 36 s 55Q (3)

non-cash benefit means—

(a)property or services in any form other than money; but

(b)does not include a computer, mobile phone or other electronic device that is used only or mainly for work purposes.

def non-cash benefit ins 2013 No. 29 s 28

political matter means—

(a)a political party; or

(b)a candidate for election; or

(c)a matter that a reasonable person would associate with a political object.

def political matter reloc from s 553E 2014 No. 36 s 55Q (3)

political object means—

(a)a political party or other political organisation; or

(b)a political cause or belief.

def political object reloc from s 553E 2014 No. 36 s 55Q (3)

political party means an entity whose object, or 1 of whose objects, is the promotion of the election to a legislature or local government of a candidate or candidates for election endorsed by it, or by an entity of which it is a part.

def political party reloc from s 553E 2014 No. 36 s 55Q (3)

presentation meeting see section 565.

registrar’s auditor see section 575 (1).

remuneration, of a person, includes—

(a)superannuation contributions made for the person; and

(b)an amount payable, or non-cash benefit made available, to the person under the terms and conditions of the person’s appointment or employment.

def remuneration ins 2013 No. 29 s 28

sponsored hospitality benefit—

(a)means a contribution, whether financial or non-financial, for the cost of travel undertaken or accommodation used by a person, whether in the person’s official capacity or another capacity; but

(b)does not include a contribution mentioned in paragraph (a) given to a person by the person’s spouse, other family member or friend if there could not be a perception of a conflict of interest, financial or otherwise, relating to the contribution.

def sponsored hospitality benefit ins 2013 No. 29 s 28

transactions includes membership subscription payments.

552Meaning of financial year for pt 12

(1)In this part, a financial year of an organisation means—

(a)the period of 1 year starting on 1 July; or

(b)if its rules provide for another period of 1 year as its financial year—the other period.

(2)If an organisation’s rules change so that the period of its financial year changes, the time from the end of the financial year before the change and the start of the first financial year after the change is taken to be a financial year.

(3)The period from when an organisation is registered to the start of its first financial year under subsection (1) is not included in a financial year of the organisation.

552AWhen does an organisation spend money for a political purpose

(1)An organisation spends money for a political purpose if it spends money for, or by the way of, any of the following—

(a)giving a gift to a political party;

(b)giving a gift to, or paying the costs or expenses of, a candidate for election, whether before, during or after the candidate’s candidature or election;

(c)publication or distribution in any way, including through advertising, of material about a political matter;

(d)conducting opinion polling, or otherwise ascertaining opinions, about a political matter;

(e)another activity related to a political matter prescribed under a regulation;

(f)giving an amount to a person on the understanding that the person or someone else will apply, either directly or indirectly, the whole or a part of the amount for an activity mentioned in paragraph (a) to (e).

(2)However, an organisation does not spend money for a political purpose if—

(a)the organisation spends money for an activity mentioned in subsection (1) (c), (d), (e) or (f); and

(b)the activity engages or involves only members of the organisation.

Examples—

•an organisation distributes brochures containing material about a political matter only to its members

•an organisation conducts opinion polling about a political matter only of its members

(3)In this section—

publication, of material, does not include designing, printing or otherwise preparing the material.

s 552A (prev s 553D) ins 2013 No. 29 s 29

renum and reloc 2014 No. 36 s 55O

553Part applies to branches with separate financial affairs

If a branch keeps accounting records and accounts separate from its organisation’s accounts and accounting records, this part, other than this section, applies to the branch for the year, as if—

(a)it is an organisation (the notional organisation); and

(b)the members of the organisation that form the branch are members of the notional organisation; and

(c)employees of the organisation employed for the branch, whether or not they are also employed for another branch, are employees of the notional organisation; and

(d)a journal published by the organisation is a journal published by the notional organisation.

div 1A (ss 553A–553B) ins 2013 No. 29 s 29

553AFinancial policies

(1)An organisation must have a policy, complying with the requirements prescribed under a regulation, for each of the following—

(a)decision-making about, and reporting of, the organisation’s financial matters;

(b)authorisations and delegations relating to the organisation’s spending;

(c)the organisation’s credit cards, including—

(i)issuing, using and cancelling credit cards; and

(ii)accountability for, reporting about, and audit of, the use of credit cards;

(d)the organisation’s contracting activities, including the following—

(i)tender and selection processes;

(ii)reviewing significant contracts;

(iii)disclosing the identity of, and arrangements with, key service providers;

(e)travel and accommodation, including—

(i)spending by the organisation; and

(ii)receipt of sponsored hospitality benefits by its officers or employees from other entities;

(f)spending on, and receipt of, entertainment and hospitality;

Examples of entertainment and hospitality—

•providing food or beverages to a person visiting the organisation in an official capacity

•providing food or beverages for a conference, course, meeting, seminar, workshop or another forum held by the organisation for its officers, members, employees or other persons

•paying for an officer or employee of the organisation to attend a function as part of the officer’s or employee’s official duties or obligations

(g)gifts, including giving, receiving and disposing of gifts;

(h)how complaints about financial matters are dealt with;

(i)another matter relating to the financial management or accountability of the organisation prescribed under a regulation.

Maximum penalty—85 penalty units.

(2)In this section—

contracting activities means activities for the making of a contract for—

(a)the carrying out of work; or

(b)the supply of goods or services; or

(c)the lease of land; or

(d)the disposal of assets.

div 1A (ss 553A–553B) ins 2013 No. 29 s 29

553BFinancial management training

(1)This section applies if the registrar approves financial management training for this section.

(2)The organisation must ensure each of its financial management officers completes the approved financial management training—

(a)within 3 months after the relevant day; and

(b)at least once in each relevant period for the officer starting after the relevant day.

Maximum penalty—40 penalty units.

(3)The registrar must publish information about financial management training approved for this section on the QIRC website.

(4)In this section—

financial management officer, for an organisation, means an officer who holds an office that includes performing functions or exercising powers relating to the organisation’s financial management.

relevant day means—

(a)if the officer is a financial management officer on the day the training is approved—that day; or

(b)otherwise—the day the officer becomes, or again becomes, a financial management officer.

relevant period, for a financial management officer of an organisation, means each period of 2 years the officer is a financial management officer for the organisation, worked out by disregarding any period the officer is not a financial management officer for the organisation.

div 1A (ss 553A–553B) ins 2013 No. 29 s 29

554Obligation to keep accounting records

(1)An organisation must keep accounting records for its transactions for at least 7 years after the end of the transactions they are about.

Maximum penalty—40 penalty units.

(2)The accounting records must be kept in a way prescribed under a regulation.

Maximum penalty—40 penalty units.

(3)In this section—

accounting records of an organisation means financial documents that—

(a)explain the methods and calculations about how its accounts are made up and correctly record and explain the organisation’s transactions and financial position; or

(b)are prescribed under a regulation.

555Obligation to prepare accounts

(1)An organisation must prepare the accounts and other statements (accounts) prescribed under a regulation for each financial year as soon as practicable after the year ends.

Maximum penalty—40 penalty units.

(2)The organisation must include in the accounts—

(a)the relevant figures from the preceding financial year’s accounts; and

(b)the particulars prescribed under a regulation about each matter for which a compulsory levy or voluntary contribution has been paid to the organisation.

Maximum penalty—40 penalty units.

(3)A regulation may prescribe certificates that must be included in the accounts.

(4)In this section—

compulsory levy, for an organisation, means a levy payable by a member to the organisation under its rules.

556Member may apply for prescribed information

(1)A member of an organisation may apply to the organisation for information that it must, under a regulation, give its members.

(2)An application may be made by the registrar for a member.

(3)The organisation must give the member or, if the registrar applied for a member, the registrar, the information applied for in the way prescribed under a regulation.

Maximum penalty—40 penalty units.

(4)If the information is given to the registrar, the registrar must give the information to the member for whom the registrar made the application.

557Registrar’s directions about accounts and accounting records

(1)The registrar may direct an officer of an organisation to give the registrar—

(a)stated information about the organisation’s funds and accounts within the officer’s knowledge or possession; or

(b)stated accounts or accounting records of the organisation over which the officer has control or custody.

(2)The registrar may also direct any officer of an organisation with functions or powers for keeping its accounts or accounting records to—

(a)keep the organisation’s accounts in a stated form; or

(b)make a stated entry or entries of a stated type in the accounts.

(3)If an officer is given a direction under this section, the officer must comply with the direction, unless the officer has a reasonable excuse for not complying with the direction.

Maximum penalty—40 penalty units.

(4)It is a reasonable excuse for the officer not to comply with the direction if doing so might tend to incriminate the officer.

div hdg ins 2013 No. 29 s 30

557ARegister of gifts, hospitality and other benefits given and received must be kept

(1)An organisation must, for each financial year, keep a written register stating the particulars mentioned in subsection (2) for each of the following (each a benefit)—

(a)any of the following given in the year by the organisation to a person other than an officer or employee of the organisation—

(i)a gift or gifts, if the gift has a value, or the gifts have a combined value, of more than the value prescribed under a regulation;

(ii)a contribution, whether financial or non-financial, for the cost of travel undertaken or accommodation used by the person;

(b)an amount or a non-cash benefit given in the year by the organisation to an officer or employee, other than an amount or benefit given—

(i)as remuneration; or

(ii)for the costs of travel undertaken or accommodation used by the officer or employee in an official capacity;

(c)any of the following received in the year by an officer or employee of the organisation from an entity other than the organisation—

(i)a gift or gifts, if—

(A)the gift has a value, or the gifts have a combined value, of more than the value prescribed under a regulation; and

(B)the gift is, or gifts are, received by the officer or employee in an official capacity;

(ii)a sponsored hospitality benefit.

Maximum penalty—40 penalty units.

(2)The register must state the following particulars for each benefit—

(a)the name of the recipient of the benefit;

(b)the name of the entity who gave the benefit;

(c)a description of the benefit;

(d)the value of the benefit;

(e)the date the benefit was given.

(3)If an officer or employee of the organisation receives a benefit mentioned in subsection (1) (c), the officer or employee must, within 30 days after the receipt, notify the organisation of the receipt.

Maximum penalty—40 penalty units.

(4)For subsection (1) (c) a person does not receive a gift in an official capacity if—

(a)the gift was given to the person by another person who is the first person’s spouse, other family member or friend; and

(b)there could not be a perception of a conflict of interest, financial or otherwise, relating to the gift.

s 557A ins 2013 No. 29 s 30

557BRegister of political spending

(1)An organisation must, for each financial year, keep a written register stating the particulars mentioned in subsection (3) for each occasion it spends more than $10000 in the year for the same political purpose and the same political object.

Maximum penalty—40 penalty units.

(2)For subsection (1), an organisation spends more than $10000 in a financial year for the same political purpose and the same political object if—

(a)in the year, the organisation spends money for the political purpose on 1 or more occasions for the political object; and

(b)all of the spending added together is more than $10000.

(3)The register must state the following for the spending—

(a)the nature of the spending;

(b)the amount of the spending;

(c)the political object to which the spending relates.

s 557B ins 2013 No. 29 s 30

amd 2014 No. 36 s 55S

557CRegister of credit card and cab charge account spending

(1)This section applies only to an employee organisation.

(2)The organisation must, for each financial year, keep a written register complying with subsection (3) for each of the following—

(a)a credit card of the organisation;

(b)if an officer or employee of the organisation uses the officer’s or employee’s personal credit card in the year for a transaction (a relevant transaction) that is related to the organisation’s activities—the personal credit card;

(c)a cab charge account or cab charge card of the organisation.

Maximum penalty—40 penalty units.

(3)The register must include the following—

(a)for a credit card—

(i)the name of the financial institution with which the card is held; and

(ii)for a credit card of the organisation—a copy of each statement issued for the card by the financial institution in the year; and

(iii)for a personal credit card of an officer or employee of the organisation mentioned in subsection (2) (b)—a copy of each statement issued for the card by the financial institution in the year that contains information about a relevant transaction;

(b)for a cab charge account or cab charge card—

(i)the name of the taxi service with which the account or card is held; and

(ii)a copy of each statement issued for the account or card by the taxi service in the year.

(4)Nothing in subsection (2) or (3) requires the register, or a copy of a statement included in the register, to include any of the following—

(a)the number of a credit card, cab charge account or cab charge card;

(b)the name or address of a person, other than the organisation—

(i)to whom a credit card or cab charge card is issued; or

(ii)who is authorised to use a credit card, cab charge account or cab charge card;

(c)for a personal credit card—details of a transaction that is not a relevant transaction.

(5)In this section—

cab charge account means a credit facility provided to a person by the operator of a taxi service to which the person may charge the fare for hiring a taxi.

cab charge card means a card issued to a person by the operator of a taxi service to be used by the person to charge the fare for hiring a taxi to a cab charge account.

s 557C ins 2013 No. 29 s 30

557DRegister of credit card and cab charge account spending for 2012–13 financial year

(1)This section applies only to an employee organisation.

(2)Within 1 month after the commencement of this section, the organisation must, for the period 1 July 2012 to 30 June 2013, prepare a written register—

(a)for the matters mentioned in section 557C (2) (a), (b) and (c); and

(b)that complies with section 557C (3).

Maximum penalty—20 penalty units.

s 557D ins 2013 No. 29 s 30

557ERegister of loans, grants and donations

(1)An organisation must, for each financial year, keep a written register stating the particulars mentioned in subsection (4) for each occasion it makes a loan, or gives a grant or donation, to an entity, (each a payment) of more than $1000 in the year.

Maximum penalty—40 penalty units.

(2)For subsection (1), a payment of more than $1000 is made to an entity in a financial year if—

(a)1 or more payments are made to the entity in a financial year; and

(b)all of the payments added together are more than $1000.

(3)However, the register need not include any payment that is included in the register kept under section 557B.

(4)The register must state the following for each payment—

(a)the amount of the payment and the reason for making it;

(b)if it was not a financial hardship payment—

(i)the name and address of the entity to whom it was made; and

(ii)if it was a loan—the arrangements to repay the loan.

s 557E ins 2013 No. 29 s 30

557FPublication of financial registers

An organisation must ensure a copy of each register kept by the organisation under this division for a financial year—

(a)is published in the approved way; and

Note—

See section 655A for how the copy must be published.

(b)continues to be published for a period of 2 years after the end of the financial year.

Maximum penalty—40 penalty units.

s 557F ins 2013 No. 29 s 30

557GUpdating financial registers

(1)This section applies if something, the particulars of which are required to be included in a register kept by an organisation under this division, happens (the new matter).

(2)The organisation must—

(a)immediately amend the register to include the particulars of the new matter; and

(b)as soon as practicable but no later than 5 business days after the amendment is made, ensure the copy of the register published under section 557F is replaced with a copy of the register incorporating the change.

Maximum penalty—40 penalty units.

s 557G ins 2013 No. 29 s 30

557HFinancial registers must be kept for 7 years

An organisation must keep each register kept by the organisation under this division for at least 7 years after the end of the financial year to which the register relates.

Maximum penalty—40 penalty units.

s 557H ins 2013 No. 29 s 30

557IInspection of financial registers

(1)This section applies to a register during the period the organisation is required to keep the register under section 557H.

(2)A person may ask the organisation to make the register available for inspection free of charge, during the organisation’s business hours.

(3)An organisation to whom a request is made under subsection (2) must comply with the request.

Maximum penalty for subsection (3)—40 penalty units.

s 557I ins 2013 No. 29 s 30

div hdg ins 2013 No. 29 s 30

sdiv 1 (ss 557J–557K) ins 2013 No. 29 s 30

557JDefinitions for div 2B

In this division—

initial year means the period 1 July 2012 to 30 June 2013.

sdiv 1 (ss 557J–557K) ins 2013 No. 29 s 30

557KHighest paid officers and board member officers of an organisation

(1)For this division—

(a)if an organisation has less than 10 officers in the initial year or a financial year—all of the officers of the organisation are the highest paid officers of the organisation for the year; and

(b)if an organisation has 10 or more officers in the initial year or a financial year—the 10 most highly paid officers of the organisation for the year are the highest paid officers of the organisation for the year; and

(c)an officer of an organisation is a board member officer of the organisation if the officer is a member of a board and—

(i)the membership is a function of the officer’s office with the organisation; or

(ii)the organisation nominated the officer to be a member of the board.

(2)For subsection (1) (b), an officer of an organisation is more highly paid than another officer of the organisation for the initial year or a financial year if the first officer is paid more remuneration for the year than the other officer.

sdiv 1 (ss 557J–557K) ins 2013 No. 29 s 30

sdiv 2 (ss 557L–557M) ins 2013 No. 29 s 30

557LInitial financial disclosure statement

(1)Within 1 month after the commencement of this section, an organisation must, for the initial year, prepare an initial financial disclosure statement that complies with subsection (2) to the extent to which the particulars mentioned in the sections are known to, or can be reasonably ascertained by, the organisation.

Maximum penalty—20 penalty units.

(2)The initial financial disclosure statement must include the following information for each of the highest paid officers of the organisation for the initial year—

(a)the remuneration paid to the officer in the year;

(b)any non-cash benefit, including the value of the benefit, given to the officer by the organisation, other than as remuneration, in the year;

(c)any amount paid to the officer in the officer’s capacity as a board member officer in the year, other than an amount paid to the officer for the costs of travel or accommodation for the officer to attend a board meeting.

sdiv 2 (ss 557L–557M) ins 2013 No. 29 s 30

557MPublication of initial financial disclosure statement

(1)An organisation must ensure a copy of its initial financial disclosure statement—

(a)is, within the required period, published in the approved way; and

Note—

See section 655A for how the copy must be published.

(b)continues to be published for a period of 2 years after the end of the initial year.

Maximum penalty—40 penalty units.

(2)In this section—

required period means as soon as practicable but no later than 5 business days after the end of the period within which the initial disclosure statement is required to be prepared under section 557L.

sdiv 2 (ss 557L–557M) ins 2013 No. 29 s 30

sdiv hdg ins 2013 No. 29 s 30

557NFinancial year for first annual financial disclosure statement

(1)This section applies if an organisation’s first financial year after the initial year ends starts on a day other than 1 July 2013.

(2)For this subdivision, the financial year includes the period—

(a)starting on 1 July 2013; and

(b)ending on the day before the financial year would otherwise have started.

s 557N ins 2013 No. 29 s 30

557OAnnual financial disclosure statement

An organisation must, for each financial year, prepare a financial disclosure statement complying with sections 557P to 557V as soon as practicable after the year ends.

Maximum penalty—40 penalty units.

s 557O ins 2013 No. 29 s 30

557PAccounts

The financial disclosure statement must include a copy of the organisation’s accounts for the financial year.

s 557P ins 2013 No. 29 s 30

557QRemuneration and benefits for highest paid officers

The financial disclosure statement must include the following particulars for each of the highest paid officers of the organisation for the financial year—

(a)the remuneration paid to the officer in the year;

(b)any non-cash benefit, including the value of the benefit, given to the officer by the organisation, other than as remuneration, in the year;

(c)any amount paid to the officer in the officer’s capacity as a board member officer in the year, other than an amount paid to the officer for the costs of travel or accommodation for the officer to attend a board meeting.

s 557Q ins 2013 No. 29 s 30

557RFinancial registers

The financial disclosure statement must include, for each register the organisation is required to keep under division 2A, the address of the website on which the register is published under section 557F.

s 557R ins 2013 No. 29 s 30

557SSpending for political purposes

The financial disclosure statement must include the following particulars for each political purpose on which the organisation spent money in the financial year—

(a)the nature of the spending;

(b)the amount of the spending;

(c)the political object to which the spending relates.

s 557S ins 2013 No. 29 s 30

amd 2014 No. 36 s 55T

557TPolitical party affiliation fees

The financial disclosure statement must include the following particulars for each political party with which the organisation was affiliated in the financial year—

(a)the name of the political party;

(b)the amount paid to the political party for the affiliation in the year.

s 557T ins 2013 No. 29 s 30

557UFinancial policies

The financial disclosure statement must include the following particulars for each policy the organisation has under section 553A—

(a)the name of the policy;

(b)a brief description of the policy;

(c)the date the policy was adopted by the organisation;

(d)the date, if any, the policy was last reviewed by the organisation.

s 557U ins 2013 No. 29 s 30

557VOfficers’ financial management training

The financial disclosure statement must include the following particulars for each officer of the organisation to whom section 553B applies—

(a)the officer’s name;

(b)a description of the officer’s role in the organisation;

(c)the date the officer most recently completed the training required under section 553B (2).

s 557V ins 2013 No. 29 s 30

sdiv 4 (ss 557W–557X) ins 2013 No. 29 s 30

557WMid-year financial disclosure statement

(1)An organisation must, for each financial year, prepare a mid-year financial disclosure statement complying with subsection (2) within 7 months after the start of the year.

Maximum penalty—40 penalty units.

(2)The mid-year financial statement must—

(a)be prepared for the first 6 months of the financial year; and

(b)include the following information for each officer of the organisation expected to be a highest paid officer for the year—

(i)the remuneration expected to be paid to the officer in the year;

(ii)the remuneration paid to the officer in the first 6 months of the year;

(iii)any non-cash benefit, including the value of the benefit, expected to be given to the officer by the organisation, other than as remuneration, in the year;

(iv)any non-cash benefit, including the value of the benefit, given to the officer by the organisation, other than as remuneration, in the first 6 months of the year;

(v)any amount paid to the officer in the officer’s capacity as a board member officer in the year, other than an amount paid to the officer for the costs of travel or accommodation for the officer to attend a board meeting.

(3)If an organisation’s first financial year after the initial year ends starts on a day other than 1 July 2013, for this section the financial year includes the period—

(a)starting on 1 July 2013; and

(b)ending on the day before the financial year would otherwise have started.

sdiv 4 (ss 557W–557X) ins 2013 No. 29 s 30

557XPublication of mid-year financial disclosure statement

(1)An organisation must ensure a copy of its mid-year financial disclosure statement—

(a)is, within the required period, published in the approved way; and

Note—

See section 655A for how the copy must be published.

(b)continues to be published for a period of 2 years after the end of the period within which the mid-year financial disclosure statement is required to be prepared under section 557W (1).

Maximum penalty—40 penalty units.

(2)In this section—

required period means as soon as practicable but no later than 5 business days after the period within which the mid-year financial disclosure statement is required to be prepared under section 557W (1).

sdiv 4 (ss 557W–557X) ins 2013 No. 29 s 30

sdiv 5 (ss 557Y–557Z) ins 2013 No. 29 s 30

557YFinancial disclosure statements must be kept for 7 years

(1)An organisation must keep each financial disclosure statement prepared by the organisation under this division for at least 7 years after the end of the period to which the statement relates.

Maximum penalty—40 penalty units.

(2)In this section—

financial disclosure statement includes an initial financial disclosure statement and a mid-year financial disclosure statement.

sdiv 5 (ss 557Y–557Z) ins 2013 No. 29 s 30

557ZInspection of financial disclosure statements

(1)This section applies to a financial disclosure statement during the period the organisation is required to keep the statement under section 557Y.

(2)A person may ask the organisation to make the statement available for inspection free of charge, during the organisation’s business hours.

(3)An organisation to whom a request is made under subsection (2) must comply with the request.

Maximum penalty for subsection (3)—40 penalty units.

sdiv 5 (ss 557Y–557Z) ins 2013 No. 29 s 30

558Obligation to have auditor

(1)An organisation must appoint a competent person as its auditor to—

(a)inspect and audit the organisation’s accounting records for each financial year for which the auditor is appointed; and

(b)make a report (an audit report) to the organisation within 4 months after the end of each financial year.

Maximum penalty—40 penalty units.

(2)A person, other than a competent person, must not—

(a)accept an appointment as an auditor; or

(b)continue in an appointment to perform an audit or prepare an audit report.

Maximum penalty—40 penalty units.

(3)In this section—

accounting records, of an organisation for a financial year, includes the organisation’s financial disclosure statement and mid-year financial disclosure statement for the financial year.

competent person, for an audit or audit report for an organisation, means a person who is—

(a)

a registered company auditor under the Corporations Act, section 9, definition registered company auditor; and

(b)not an officer or a member of the organisation; and

(c)not employed by the organisation, other than as its auditor.

s 558 amd 2001 No. 45 s 29 sch 3; 2013 No. 29 s 31

559How auditor may be removed

An organisation’s auditor may only be removed—

(a)if the auditor was appointed by its management committee—with the agreement of a majority of the members of the committee; or

(b)if the auditor was appointed by a general meeting of the organisation—by a resolution passed at a general meeting by a majority of its members voting at the meeting.

560Requirements for audit report

An audit report must state whether, in the auditor’s opinion—

(a)the organisation kept satisfactory accounting records for the financial year, including records of—

(i)the sources and nature of the organisation’s income, including membership subscriptions and other income from members; and

(ii)the nature of and reasons for the organisation’s expenditure; and

(b)the accounts for the year were properly drawn to give a true and fair view of the organisation’s—

(i)financial affairs at the end of the year; and

(ii)income and expenditure and surplus or deficit for the year; and

(c)the accounts for the year were prepared under this Act; and

(d)the financial disclosure statement and mid-year financial disclosure statement for the year were prepared under this Act; and

(e)the organisation has the policies it is required to have under section 553A (1); and

(g)there was a deficiency, failure or shortcoming (an accounting deficiency) for a matter mentioned in paragraphs (a) to (f); and

(h)information and explanations required from the organisation’s officers or employees were given.

s 560 amd 2013 No. 29 s 32; 2014 No. 36 s 55U

561Audit report must not be knowingly false or misleading

(1)An auditor must not state anything in an audit report the auditor knows is false or misleading in a material particular.

Maximum penalty—40 penalty units.

(2)It is enough for a complaint for an offence against subsection (1) to state the statement made was ‘false or misleading’ to the auditor’s knowledge.

562Auditor must notify registrar of contravention

An auditor performing auditor’s functions for an organisation must immediately notify the registrar if the auditor—

(a)becomes aware a provision of this part has been contravened; and

(b)is of the opinion that the matter can not be adequately dealt with by comment in the auditor’s audit report.

Maximum penalty—40 penalty units.

563Auditor’s powers

(1)An organisation’s auditor has the right—

(a)to full and free access at all reasonable times to the organisation’s records about its—

(i)payments or receipts; or

(ii)acquisition, receipt, custody or disposal of property; and

(b)to ask the organisation’s employees, members or officers for information or explanations required for the audit.

(2)The auditor may authorise another appropriately qualified person (an authorised person) to exercise the rights.

(3)The organisation or an employee, member or officer of the organisation must not obstruct the auditor or an authorised person when exercising any of the rights unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

(4)The auditor or an authorised person may require the organisation or its employees, members or officers to produce to the auditor or authorised person a document in the person’s custody or control.

(5)The organisation, employee, member or officer must give the auditor or authorised person the document, unless the person has a reasonable excuse for not giving the document.

Maximum penalty—40 penalty units.

(6)It is a reasonable excuse for the person not to give the document if doing so might tend to incriminate the person.

(7)In this section—

auditor includes—

(a)the registrar’s auditor engaged under section 575 to examine the organisation’s accounting records; and

(b)a complaints auditor engaged under section 636L to examine the organisation’s accounting records.

s 563 amd 2013 No. 29 s 33

564Auditors have qualified privilege

(1)An auditor may make a statement or comment that is defamatory if it is—

(a)made in good faith; and

(b)made in the course of performing the auditor’s functions as an auditor under this Act; and

(c)relevant to the auditor’s functions.

(2)A person may print or publish in good faith a document that contains defamatory matter, if it was—

(a)prepared by an auditor for an audit under this Act; and

(b)required to be filed or made to the registrar.

(3)In this section—

auditor means—

(a)an organisation’s auditor; or

(b)the registrar’s auditor; or

(c)a complaints auditor.

s 564 amd 2013 No. 29 s 34

div hdg sub 2013 No. 29 s 35

565Obligation to present to general or committee meeting

An organisation must present its audit report and financial disclosure statement for each financial year to a general meeting or a meeting of the organisation’s management committee (a presentation meeting) within—

(a)5 months after the end of the financial year; or

(b)if the registrar has extended the time to hold the meeting—the extended time.

Maximum penalty—40 penalty units.

s 565 sub 2013 No. 29 s 36

566Obligation to publish audit report and financial disclosure statement

An organisation must, at least 28 days before each presentation meeting—

(a)give its members, free of charge, a copy of the audit report and financial disclosure statement to be presented at the meeting; or

(b)publish the report and statement in a journal or newsletter that it gives to its members free of charge.

Maximum penalty—40 penalty units.

s 566 amd 2013 No. 29 s 37

567Notice of meetings to auditor

(1)An organisation must give its auditor notice of—

(a)each presentation meeting; and

(b)any other meeting of the organisation at which business is to be conducted about the auditor, in that capacity.

Maximum penalty—40 penalty units.

(2)In this section—

notice of the meeting means the notice of the meeting that the persons who may attend the meeting have the right to receive under the organisation’s rules.

568Auditor may attend meetings

(1)An organisation’s auditor, or another person authorised by the auditor, may attend and address the part of—

(a)a presentation meeting at which the auditor’s audit report and relevant financial disclosure statement are to be considered or presented; or

(b)any other meeting of the organisation at which business is to be conducted about the auditor, in that capacity.

(2)An employee, member or officer of the organisation must not obstruct the auditor or authorised person from attending or addressing the part of the meeting, unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

s 568 amd 2013 No. 29 s 38

569False or misleading statements about reports or statements

(1)This section applies if—

(a)a member of an organisation’s management committee—

(i)gives members of the organisation a copy of its audit report and financial disclosure statement; or

(ii)presents the report and statement to a general meeting of the organisation; and

(b)the member comments on a matter dealt with in the report or statement.

(2)The member must not state anything in the comment the member knows is false or misleading in a material particular.

Maximum penalty—40 penalty units.

(3)It is enough for a complaint for an offence against subsection (2) to state the statement made was ‘false or misleading’ to the member’s knowledge.

s 569 amd 2013 No. 29 s 39

570Report and statement must be filed and published

(1)An organisation must, within the required period, file—

(a)a copy of the audit report and financial disclosure statement for each of its financial years; and

(b)a certificate by its president or secretary stating the originals of the report and statement have been presented to a general meeting or management committee meeting of the organisation.

Maximum penalty—40 penalty units.

(2)An organisation must ensure a copy of the audit report and its financial disclosure statement—

(a)is, within the required period, published in the approved way; and

Note—

See section 655A for how the copy must be published.

(b)continues to be published for a period of 2 years from the end of the required period.

Maximum penalty—40 penalty units.

(3)In this section—

required period means the period of 14 days after the report and statement are presented or a longer time allowed by the registrar.

s 570 amd 2013 No. 29 s 40; 2013 No. 31 s 38M

sdiv hdg ins 2013 No. 29 s 41

570ACompliance functions of registrar

The functions of the registrar include the following—

(a)investigating and monitoring the compliance of organisations with this part;

(b)reporting to the chief executive on all investigations conducted by the registrar;

(c)referring to the chief executive matters involving suspected unlawful conduct, other than a contravention of this part, of an organisation or an employee or officer of an organisation;

(d)in particular circumstances, engaging an auditor under section 575 to examine an organisation’s accounting records.

s 570A ins 2013 No. 29 s 41

sdiv hdg ins 2013 No. 29 s 42

571Grounds for registrar’s investigation

(1)The registrar must investigate whether an organisation has complied with this part if—

(a)an audit report for the organisation states—

(i)there was an accounting deficiency in the organisation’s accounts; or

(ii)another matter the registrar considers should be investigated; or

(b)the registrar reasonably suspects, on the basis of any information within the registrar’s knowledge or possession, that the organisation has contravened this part; or

(c)asked to do so by the chief executive; or

(d)asked to do so by the required number of members of the organisation.

(2)The registrar may also investigate whether an organisation has complied with this part in another circumstance prescribed under a regulation.

(3)However, this section does not apply if the registrar is given a direction not to investigate the matter under section 571B (2).

s 571 sub 2013 No. 29 s 43

571ANotification of particular matters to chief executive

(1)Before the registrar starts an investigation, the registrar must notify the chief executive of the matter that is to be investigated.

(2)Also, the registrar must notify the chief executive of any other matter the registrar reasonably suspects, on the basis of information within the registrar’s knowledge or possession, involves or may involve unlawful conduct, other than a contravention of this part, by—

(a)an organisation; or

(b)an employee or officer of an organisation.

s 571A ins 2013 No. 29 s 43

571BChief executive may discontinue registrar’s investigation

(1)This section applies if—

(a)the registrar gives the chief executive notice of an investigation of a matter under section 571A; and

(b)the chief executive is satisfied that the matter is being, has been or will be investigated under part 15A, division 3.

(2)The chief executive may direct the registrar not to investigate the matter.

(3)A direction under subsection (2) must be given as soon as practicable after the notice mentioned in subsection (1) (a) is given to the chief executive.

(4)If a direction under subsection (2) is given—

(a)the registrar must—

(i)take all reasonable steps to immediately stop the investigation; and

(ii)if information or documents have been given to the registrar in compliance with a direction given under section 572 or 572A—give the information or documents to the chief executive; and

(b)for a direction that has been given by the registrar under section 572 or 572A in relation to the investigation that has not been complied with—

(i)the direction is taken to be of no further effect; and

(ii)the registrar must immediately notify the person to whom the direction was given that it is of no further effect.

s 571B ins 2013 No. 29 s 43

572Registrar’s power to obtain information from current or former auditor, employee or officer of organisation

(1)The registrar may direct an auditor, employee or officer, or a former auditor, employee or officer, of the organisation to give the registrar—

(a)information relevant to the investigation within the person’s knowledge or possession; or

(b)documents relevant to the investigation over which the person has control or custody.

(2)If a direction is given to a person under this section, the person must comply with the direction, unless the person has a reasonable excuse for not complying with the direction.

Maximum penalty—40 penalty units.

(3)It is a reasonable excuse for the person not to comply with the direction if doing so might tend to incriminate the person.

s 572 sub 2013 No. 29 s 44

572ARegistrar’s power to obtain information from other persons

(1)This section applies to a person (a third party) who is not an auditor, employee or officer, or a former auditor, employee or officer, of the organisation if—

(a)the registrar has given a direction under section 572 to a person; and

(b)after considering any information or documents given in compliance with the direction, the registrar reasonably believes—

(i)there is information relevant to the investigation within the third party’s knowledge or possession; or

(ii)the third party has control or custody of documents relevant to the investigation; and

(c)the registrar reasonably believes it is unlikely the information or documents could be obtained by giving a direction under section 572 to a person who is an auditor, employee or officer, or a former auditor, employee or officer, of the organisation.

(2)The registrar may direct the third party to give the registrar—

(a)information relevant to the investigation within the third party’s knowledge or possession; or

(b)documents relevant to the investigation over which the third party has control or custody.

(3)If a direction is given to a third party under this section, the third party must comply with the direction, unless the third party has a reasonable excuse for not complying with the direction.

Maximum penalty—40 penalty units.

(4)It is a reasonable excuse for a third party who is an individual not to comply with the direction if doing so might tend to incriminate the third party.

s 572A ins 2013 No. 29 s 45

573Notice of contravention to organisation

(1)This section applies if the registrar considers an investigation has revealed a contravention of this Act or a rule of the organisation investigated about its finances or financial administration.

(2)The registrar may by notice—

(a)advise the organisation of the contravention; and

(b)require it to take stated action, within a stated period, to remedy the contravention.

574Court may order compliance with notice

If an organisation does not comply with a notice under section 573 (2), the court may, on the application of the registrar, make an order it considers appropriate to remedy the contravention stated in the notice.

574ARegistrar to report to chief executive

(1)The registrar must report the results of the investigation to the chief executive.

(2)The report must—

(a)contain or be accompanied by—

(i)all relevant information or documents obtained by the registrar for the investigation; and

(ii)if the registrar has given the organisation a notice under section 573 (2)—a copy of the notice; and

(b)state the registrar’s findings and the reasons for the findings; and

(c)if the registrar reasonably suspects the organisation, or an employee or officer of the organisation, has committed an offence against an Act or a law of another State or the Commonwealth, state—

(i)details of the suspected offence; and

(ii)the registrar’s recommendation about whether the chief executive should, under section 636G (2) (b), refer the matter of the suspected offence to the commissioner of the police service or the commissioner of a police force or service of another State or the Commonwealth; and

(iii)the reasons for the registrar’s recommendation.

s 574A ins 2013 No. 29 s 46

sdiv hdg ins 2013 No. 29 s 47

575Registrar’s examinations and audits

(1)The registrar may engage an auditor (registrar’s auditor) to examine an organisation’s accounting records for a financial year or other period for the organisation if the registrar considers—

(a)the organisation has not kept accounting records; or

(b)the organisation has an accounting deficiency for a matter mentioned in section 560 (a) to (f); or

(c)the organisation’s property has been misappropriated or improperly applied; or

(d)the organisation, or an officer of the organisation, has committed an offence about the organisation’s property.

(2)The registrar’s auditor must examine the organisation’s accounting records and give the registrar an audit report.

(3)In this section—

accounting records, of an organisation for a financial year, includes the organisation’s financial disclosure statement and mid-year financial disclosure statement for the financial year.

s 575 amd 2013 No. 29 s 48

576Powers of registrar’s auditor

The registrar’s auditor, or an appropriately qualified person authorised in writing by the auditor, has the functions and powers of an organisation’s auditor.

577Costs of examination and audit by registrar’s auditor

(1)The costs of or associated with an examination or audit by a registrar’s auditor must be paid by the organisation for which the examination or audit is carried out if demanded by the registrar.

(2)The registrar may recover the amount of the costs not paid on demand, as a debt.

pt 12A (ss 579A–579B) ins 2013 No. 29 s 50

579AWhen is an organisation affiliated with a political party

An organisation is affiliated with a political party if, under the political party’s constitution or rules—

(a)the organisation is recognised as an affiliate or a member of the political party; or

(b)the organisation is entitled to—

(i)appoint delegates to the political party’s governing body; or

(ii)participate in selecting the political party’s candidates for election.

pt 12A (ss 579A–579B) ins 2013 No. 29 s 50

579BPolitical party affiliation must be stated in political advertising

(1)This section applies to an organisation that is affiliated with a political party.

(2)The organisation must not publish or distribute in any way, including through advertising, material about a political matter unless the material includes, at its end, a statement that the organisation is affiliated with the political party.

Maximum penalty—85 penalty units.

(3)For subsection (2), the organisation publishes or distributes material about a political matter if the organisation—

(a)publishes or distributes the material; or

(b)authorises another person to publish or distribute the material.

pt 12A (ss 579A–579B) ins 2013 No. 29 s 50

580Exemption if federal election held

(1)An organisation, or 2 or more organisations jointly, may apply to the registrar for an exemption from holding an election for a stated office or offices (a stated office).

(2)The registrar may grant an exemption to an applicant for a stated office only if satisfied as follows—

(a)the applicant has a counterpart federal body;

(b)the body has held an election (the federal election) for an office (the federal office) under the Commonwealth (Registered Organisations) Act;

(c)the applicant’s rules provide that the stated office is a corresponding office to the federal office;

(d)the stated office will be filled by a person elected (the elected person) in the federal election to the federal office;

(e)if the eligibility rules of the organisation and the body differ—the interests of the organisation’s members who were ineligible to vote in the federal election have not been disadvantaged.

(3)If an exemption is granted for a stated office—

(a)the elected person is taken to have been elected to the stated office; and

(b)the organisation’s rules for the election of the elected person to the stated office are taken to be complied with; and

(c) section 441 does not apply to the rules for the election.

(4)In this section—

corresponding office, to a federal office, means an office, however called, similar to the federal office.

s 580 amd 2001 No. 87 s 32; 2009 No. 49 s 52

581Obligation to notify change in federal election result

(1)This section applies if—

(a)an organisation has been given an exemption under section 580; and

(b)an order under the Commonwealth (Registered Organisations) Act has changed the federal election result about which the exemption was given.

(2)The organisation must give the registrar notice of the change as soon as practicable after it becomes aware of the change.

Maximum penalty—40 penalty units.

(3)The organisation is taken to become aware of the change if an officer of the organisation becomes aware of it.

s 581 amd 2009 No. 49 s 53

582Exemption

(1)An organisation, or 2 or more organisations jointly, may apply to the registrar for an exemption from keeping a members or officers register.

(2)The registrar may grant an exemption to an applicant only if satisfied the applicant has a counterpart federal body and—

(a)for an exemption from keeping a members register—

(i)its members are, when the application is made, recorded as members of the body in the body’s register of members under the Commonwealth (Registered Organisations) Act; and

(ii)the body has complied with the requirements under the Commonwealth (Registered Organisations) Act about keeping its register of members and other records for its members; or

(b)for an exemption from keeping an officers register—

(i)its officers are all officers of the body; and

(ii)the body has complied with the requirements under the Commonwealth (Registered Organisations) Act about keeping and filing records for its officers.

(3)The exemption remains in force for the period stated in it or, if no period is stated, until it is cancelled.

s 582 amd 2007 No. 36 s 2 sch; 2009 No. 49 s 54

583Effect of exemption

(1)While an exemption from keeping a members register is in force for an organisation, its counterpart federal body’s register of members is taken to be the organisation’s members register.

(2)While an exemption from keeping an officers register is in force for an organisation, its counterpart federal body’s register of officers is taken to be the organisation’s officers register.

584Obligation to file copy of federal officers register

(1)This section applies if the registrar has, under section 582, granted an exemption to an organisation that exempts it from keeping an officers register.

(2)The organisation must, within 14 days after any officer’s records for its counterpart federal body are filed under the Commonwealth (Registered Organisations) Act, file a copy of the records certified by the president or secretary of the body as being a true copy of the records.

Maximum penalty—40 penalty units.

(3)In this section—

officer’s records includes a statement of changes made to the records required to be filed under the Commonwealth (Registered Organisations) Act.

s 584 amd 2007 No. 36 s 2 sch; 2009 No. 49 s 55

585Obligation to give notice of change or contravention

(1)This section applies to an organisation that has been granted an exemption under section 582 if any of the following events happen—

(a)it no longer has a counterpart federal body;

(b)if it was exempted from keeping a members register—

(i)its members are not recorded as members of the counterpart federal body of the organisation for which the exemption was granted in the body’s register of members under the Commonwealth (Registered Organisations) Act; or

(ii)the body has contravened a requirement of the Commonwealth (Registered Organisations) Act about keeping or filing records for its members;

(c)if it was exempted from keeping an officers register—

(i)not all of its officers are officers of the counterpart federal body of the organisation for which the exemption was granted; or

(ii)the body has contravened a requirement of the Commonwealth (Registered Organisations) Act about keeping or filing records for its officers.

(2)The organisation must give the registrar notice of the happening of the event as soon as practicable after it becomes aware of the happening of the event.

Maximum penalty—40 penalty units.

(3)The organisation is taken to become aware of the happening of the event if an officer of the organisation becomes aware of it.

s 585 amd 2009 No. 49 s 56

590Who may apply

An employer organisation that is a corporation may apply to the registrar for an exemption from the whole or part of part 12, divisions 2 and 3.

s 590 amd 2013 No. 29 s 52

591Grant of exemption

(1)The registrar may grant the exemption only if satisfied—

(a)another Act or law imposes accounting and audit obligations on the organisation that are an adequate substitute for each provision to be exempted; and

Examples of other laws that impose accounting and audit obligations—

•the Corporations Act, chapter 2M

•the Associations Incorporation Act 1981

(b)the organisation has complied with the provisions of the other Act or law that correspond with or substantially correspond with each provision to be exempted; and

(c)if the exemption is granted—the organisation will continue to be financially accountable to its members.

(2)However, the registrar may not exempt the organisation from the obligation to appoint a competent person as its auditor to inspect and audit the organisation’s financial disclosure statement and mid-year financial disclosure statement for a financial year.

(3)The exemption remains in force for the period stated in it or, if no period is stated, until it is cancelled.

(4)While the exemption is in force, each exempted provision does not apply to the organisation.

(5)In this section—

competent person see section 558 (3).

s 591 amd 2001 No. 45 s 29 sch 3; 2013 No. 29 s 53

592References to audit report for pt 12, div 4

(1)This section applies if—

(a)the registrar has, under section 591, granted an exemption for an organisation from the requirement to appoint an auditor to inspect and audit the organisation’s accounting records and make a report under part 12, division 3; and

(b)another Act or law requires the organisation or its counterpart federal body to appoint an auditor to inspect and audit the organisation’s accounting records and make a report.

(2)A reference in part 12, division 4 to an organisation’s audit report is taken to be a reference to the audit report prepared for the organisation under the other Act or law.

s 592 amd 2013 No. 29 s 54

593Obligation to notify registrar of contravention of other law

(1)This section applies if an organisation has contravened a provision of another Act or law that corresponds, or substantially corresponds, with the provision for which an exemption under section 591 was granted.

(2)The organisation must give the registrar notice of the contravention as soon as practicable after it becomes aware of the happening of the contravention.

Maximum penalty—40 penalty units.

(3)The organisation is taken to become aware of the happening of the contravention if an officer of the organisation becomes aware of it.

594Who may apply

(1)An organisation or branch may apply to the registrar for an exemption from the requirement that the electoral commission conduct—

(a)elections for the organisation or branch; or

(b)an election for a particular office in the organisation or branch.

(2)For this section, if an organisation’s rules require an office to be filled by an election by the members, or by some of the members, of 1 branch of the organisation, an election to fill the office is taken to be an election for the branch.

595Requirements for application

(1)An application may be made only if the management committee of the organisation or branch has—

(a)resolved to make the application; and

(b)notified the members of the organisation or branch, in the way prescribed under a regulation, of the making of the resolution.

(2)The application must be accompanied by an affidavit by a member of the management committee stating subsection (1) has been complied with.

596Publication of application

The registrar must publish, in the way prescribed under a regulation, a notice stating details of the application.

597Hearing application

The registrar may grant the exemption only if satisfied as follows—

(a)the rules of the organisation or branch comply with part 4;

(b)if the exemption is granted, for each election to which the exemption applies—

(i)the organisation’s rules and the obligations under subdivision 2 and part 7 will be complied with; and

(ii)the election will be conducted in a way that gives the organisation’s members who have the right to vote in the election an adequate opportunity of voting without intimidation;

(c)subdivision 2 and part 7 have been complied with for any previous exemption granted to the organisation or branch under this subdivision;

(d)the IO Act, sections 51 and 52, have been complied with for any previous exemption granted under the IO Act, section 50, to the organisation or branch for which the exemption is sought.

598Application of sdiv 2

This subdivision applies to an organisation or branch for each election for which an exemption under subdivision 1 is granted.

599Obligation to appoint returning officer

(1)Before calling nominations for the election, the organisation or branch must—

(a)appoint a returning officer to conduct the election; and

(b)give the registrar—

(i)notice of the returning officer’s name; and

(ii)a statutory declaration sworn by the returning officer stating the returning officer is not an employee, member or officer of the organisation or a branch of the organisation; and

(c)obtain the registrar’s written approval of the returning officer’s appointment.

Maximum penalty—40 penalty units.

(2)An employee, member or officer of the organisation or branch must not be appointed as the returning officer.

600Election result report

Within 14 days of the declaration of the result of the election, the returning officer for the election must give the registrar a written election result report for the election stating the particulars prescribed under a regulation.

Maximum penalty—40 penalty units.

601Ballot records must be preserved

The following persons must take reasonable steps to ensure all ballot records given to them for the election are kept for 1 year after the declaration of the result of the election—

(a)the returning officer for the election;

(b)the organisation or branch for which the election is held;

(c)an officer of the organisation or branch who performs a function for ballot records for the election.

Maximum penalty—40 penalty units.

602Cancellation grounds

(1)An exemption under this part may be cancelled by the registrar only—

(a)if the holder of the exemption asks for its cancellation; or

(b)on a ground mentioned in subsection (2).

(2)The grounds are as follows—

(a)for an exemption under section 580—

(i)the organisation no longer has a counterpart federal body; or

(ii)the making of an order mentioned in section 581 (1) (b);

(b)for an exemption under section 582 from keeping an officers register—the holder has contravened section 584;

(c)the happening of a contravention or an event for which the holder must, under division 1 or 2, notify the registrar;

(d)for an exemption under section 591—the registrar is no longer satisfied under section 591 (1);

(e)for an exemption under section 597—

(i)the registrar is no longer satisfied under section 597; or

(ii)there has been a contravention of part 7 or division 3, subdivision 2 for an election for which the exemption was granted; or

(iii)the required number of members of the holder ask for the cancellation.

603Alternatives to cancellation for federal election exemption

(1)This section applies if the registrar considers an exemption under section 580 may be cancelled because an order mentioned in section 581 (1) (b) has been made.

(2)The registrar may—

(a)amend the exemption instead of cancelling it; or

(b)cancel it, but grant another exemption instead to reflect the terms of the order.

604Definitions for pt 14

In this part—

act includes decision.

collective body of an organisation means—

(a)its management committee; or

(b)a conference, council, committee, panel or other body of or within the organisation.

invalidity includes defect.

organisation includes a branch of an organisation.

605Limitation on validations if substantial injustice

(1)This division operates to validate an act or event only if the operation does not or will not cause substantial injustice to—

(a)the organisation to which the act or event applies or concerns; or

(b)a member or creditor of the organisation; or

(c)a person dealing with, or who has dealt with, the organisation.

(2)However, subsection (1) does not apply to sections 607 to 609.

606Validation of certain acts done in good faith

(1)This section applies to an act done in good faith by an organisation, a collective body or officer of an organisation or a purported collective body or officer of an organisation.

(2)The act is not invalid only because—

(a)of an invalidity discovered later in—

(i)the election or appointment of a collective body or officer of the organisation; or

(ii)the organisation’s rules; or

(iii)making, amending or repealing a rule of the organisation; or

(b)of an absence of quorum or other procedural irregularity; or

(c)the organisation has a counterpart federal body.

(3)In this section—

(a)an act is taken to be done in good faith unless proved otherwise; and

(b)a person who has purported to be a member of a collective body is taken to have done so in good faith unless proved otherwise; and

(c)knowledge of facts from which an invalidity arose is not by itself knowledge of the invalidity; and

(d)an invalidity is taken not to be discovered until known by a majority of the members of the management committee of the organisation.

(4)This section—

(a)does not affect the operation of part 7 or an election inquiry under part 8; and

(b)does not validate an expulsion, suspension, fine or penalty for a member of the organisation if that act would not have been valid had this section not been enacted; and

(c)applies to an action done—

(i)before or after this section commences; or

(ii)concerning an association that became an organisation after the act was done.

s 606 amd 2009 No. 15 s 2 sch

607Certain acts by person purporting to act in an office

(1)This section applies if—

(a)a person was apparently elected to an office in an election; and

(b)the person has purported to act in the office since the election; and

(c)the commission declares the person’s election void.

(2)The person’s acts while purporting to act in the office that could have been validly done if the person were properly elected, are valid.

s 607 amd 2009 No. 15 s 2 sch

608Election not invalid because of compliance with order

An election or a step in an election conducted under a commission order is valid despite a contravention of the rules of an organisation or branch for which the election or step was conducted.

609Election not invalid because of contravention of pt 13, div 3, sdiv 2

If an exemption under part 13, division 3 applies to an election, a contravention of part 13, division 3, subdivision 2 does not invalidate the election.

610Validation of certain events after 4 years

(1)This section applies to an event as follows 4 years after the event happens—

(a)the election or appointment, or purported election or appointment, to an office in an organisation;

(b)a making or amendment, or purported making or amendment, of a rule of an organisation.

(2)The event is taken to have been done under the organisation’s rules.

(3)However, this section does not affect a decision by the court or another court, the commission or the registrar made about the event before the 4 years ends.

(4)This section applies to an event happening—

(a)before or after this section commences; or

(b)to an association before it became an organisation.

(5)In this section—

decision includes a decree, sentence, verdict and a similar act.

611Counterpart federal body not a ground for challenge

(1)In proceedings, the validity of the following about an organisation can not be challenged or in any way affected only because of a ground mentioned in subsection (2)—

(a)the organisation’s existence or registration;

(b)the election of an officer of the organisation;

(c)a rule of the organisation;

(d)a decision made by or about the organisation;

(e)the operation of a rule or a decision mentioned in paragraph (c) or (d).

(2)The grounds are as follows—

(a)the organisation has a counterpart federal body;

(b)a person is a member of the organisation and its counterpart federal body and the organisation did not receive a separate membership application or fee from the member;

(c)the organisation has the same, or substantially the same, rules as its counterpart federal body;

(d)the organisation did not keep separate members or officers registers or accounting or other records from its counterpart federal body.

612Amalgamations and withdrawals

(1)This section applies if no proceedings have been taken to challenge—

(a)an amalgamation, within 6 months after the amalgamation day for the amalgamation; or

(b)a withdrawal, within 6 months after the withdrawal day for a withdrawal.

(2)The following are taken to be, and to have always been, valid—

(a)the amalgamation or withdrawal;

(b)anything else done or purporting to have been done—

(i)concerning the amalgamation or withdrawal; or

(ii)on which the validity of the amalgamation or withdrawal depends.

(3) Subsection (2) has effect despite an order of the court, another court or tribunal, the commission or the registrar made before the end of the 6 months.

(4)In this section—

amalgamation includes a purported amalgamation and anything done or purporting to have been done under part 15 to give effect to an amalgamation or purported amalgamation.

withdrawal includes a purported withdrawal and anything done or purporting to have been done under part 15 to give effect to a withdrawal or purported withdrawal.

613Commission may decide

(1)The commission may, on application, decide whether an invalidity has happened in—

(a)the management or administration of an organisation’s affairs; or

(b)the election or appointment of an officer of an organisation; or

(c)the making, amending or repealing of a rule of an organisation.

(2)In deciding the application, the commission may declare whether or not an invalidity has happened.

614Who may apply

The application may be made only by—

(a)the organisation; or

(b)a member of the organisation; or

(c)another person the commission considers has a sufficient interest in the subject matter of the application.

615Orders about effects of invalidity

(1)This section applies if, on the hearing of the application, the commission declares an invalidity has happened.

(2)The commission may make an order it considers appropriate to—

(a)remedy the invalidity or to cause it to be remedied; or

(b)change or prevent, or cause to change or prevent, the effects of the invalidity; or

(c)validate an act, matter or thing made invalid by or because of the invalidity.

(3)The commission may also make another order consequential to an order under subsection (2).

(4)The commission must not make an order under this section if the order would cause substantial injustice to—

(a)the organisation that the invalidity concerns; or

(b)a member or creditor of the organisation; or

(c)a person dealing with or who has dealt with the organisation.

616Definitions for pt 15

In this part—

amalgamated organisation means an organisation amalgamated under division 2 or the IO Act, part 9.

amalgamation ballot means a ballot for a proposed amalgamation under division 2.

amalgamation day, for an amalgamation or proposed amalgamation, means the day the amalgamation takes effect or is to take effect.

constituent part, for an amalgamated organisation, means a part of the membership of the amalgamated organisation that would have been eligible for membership of an organisation deregistered for the formation of the amalgamated organisation had the deregistration not happened.

existing organisation means an organisation concerned in a proposed amalgamation.

newly registered organisation means an organisation registered under section 625.

proposed amalgamated organisation, for a proposed amalgamation, means the existing organisation or proposed organisation that members of the proposed deregistering organisations propose to become members of under division 2.

proposed deregistering organisation, for a proposed amalgamation, means an organisation that is, under division 2, to be deregistered as part of the amalgamation.

withdrawal ballot means a ballot for a proposed withdrawal.

withdrawal day, for a withdrawal or proposed withdrawal, means the day the withdrawal is to take effect.

617Amalgamation permitted only under div 2

An amalgamation may be carried out only under this division.

618Commission to approve proposed amalgamation

The commission may, by order, approve an amalgamation only if—

(a)the procedure for carrying out an amalgamation prescribed under a regulation has been complied with; and

(b)the rules of the proposed amalgamated organisation comply with parts 3 and 4.

619Additional regulation-making powers for amalgamations

A regulation may provide for the following—

(a)the joint representation of the members of existing organisations for an amalgamation until the amalgamation day for the amalgamation;

(b)for an amalgamation ballot by proposed members of the proposed amalgamated organisation;

(c)how an amalgamation ballot must be conducted;

(d)that the commission may inquire into any claimed irregularity in an amalgamation ballot and its powers for the inquiry;

(e)for when an approved amalgamation takes effect;

(f)the effect of an amalgamation on decisions that bound a proposed deregistering organisation for the amalgamation on the amalgamated organisation or its members;

(g)substituting the amalgamated organisation for a proposed deregistering organisation for the amalgamation in pending proceedings;

(h)any other matter necessary to give effect to an amalgamation.

620Effect of amalgamation

(1)This section applies on the amalgamation day for an amalgamation.

(2)If the proposed amalgamated organisation for the amalgamation is not already registered, the registrar must—

(a)enter in the register its name and the amalgamation day; and

(b)give it a certificate of registration in the approved form.

(3)If the amalgamated organisation was not incorporated before the entry in the register, section 423 applies to the organisation as if the commission had granted a registration application under part 2 on the amalgamation day.

(4)Despite part 6, a proposed amendment of the rules of an existing organisation for the amalgamation takes effect.

(5)If there is a proposed deregistering organisation for the amalgamation—

(a) sections 648 to 650 and 653 apply to the organisation as if a deregistration order had been made for it; and

(b)its property and liabilities vest in the amalgamated organisation; and

(c)its members become members of the amalgamated organisation, without requirement to pay an entrance fee.

(6)The amalgamated organisation must take all necessary steps to give effect to the amalgamation.

621Holding office after amalgamation

(1)This section applies to the rules of an amalgamated organisation or proposed amalgamated organisation if the organisation is not a corporation.

(2)Despite parts 3 and 4, the rules may allow an officer (an existing officer) of a proposed deregistering organisation or existing organisation who holds office immediately before the amalgamation day for the amalgamation to be an officer of the proposed amalgamated organisation.

(3)However, the rules must not allow the existing officer to hold office in the amalgamated organisation without an ordinary election for more than the longer of—

(a)the existing officer’s unexpired term immediately before the amalgamation day; or

(b)2 years from the amalgamation day.

(4)The rules must make reasonable provision for synchronising the election with elections for other offices in the organisation.

(5) Section 433 applies to an office in an amalgamated organisation held by an existing officer of a deregistered organisation for the amalgamation.

(6) Section 436 does not apply to an office in an amalgamated organisation held by an existing officer.

622Requirements for withdrawal

A constituent part may withdraw from an amalgamated organisation only if—

(a)the constituent part became part of the organisation because of an amalgamation under this division or the IO Act, part 9; and

(b)the amalgamation happened not more than 2 years before the proposed withdrawal; and

(c)the withdrawal is carried out under this division.

623Commission to approve proposed withdrawal

The commission may, by order, approve a withdrawal only if—

(a)the procedure for carrying out a withdrawal prescribed under a regulation has been complied with; and

(b)the rules of the constituent part of a proposed organisation comply with parts 3 and 4.

624Additional regulation-making powers for withdrawals

A regulation may provide for the following—

(a)a proposed withdrawal to be submitted to a ballot of members of the constituent part seeking the withdrawal;

(b)how a ballot must be conducted;

(c)that the commission may inquire into any claimed irregularity in a withdrawal ballot and its powers for the inquiry;

(d)for when an approved withdrawal takes effect;

(e)the appointment of officers of an amalgamated organisation as officers of a newly registered organisation, and the results of the appointments;

(f)any other matter necessary to give effect to a withdrawal.

625Registration of constituent part on withdrawal

(1)On the withdrawal day for a withdrawal the registrar must—

(a)enter in the register the withdrawal and the constituent part’s name as an organisation; and

(b)give the organisation a certificate of registration in the approved form.

(2) Section 423 applies to the organisation as if the commission had granted an application for its registration under part 2 on the withdrawal day.

626Members of constituent part may join newly registered organisation

(1)This section applies to a person who is a member of the amalgamated organisation from which a constituent part withdrew to form a newly registered organisation.

(2)The person may, if the person is eligible for membership, become a member of the newly registered organisation without paying an entrance fee.

627Obstructing conduct of ballot

A person must not obstruct another person conducting an amalgamation or withdrawal ballot.

Maximum penalty—40 penalty units.

628Offences about ballots

A person must not, without lawful authority or excuse, do any of the following about an amalgamation or withdrawal ballot—

(a)obtain or possess a ballot paper if the person does not have the right to obtain or possess it;

(b)pretend to be and vote as someone else;

(c)amend, deface, destroy, interfere with, or remove a ballot record;

(d)vote in the ballot if the person does not have the right to vote;

(e)vote more than once;

(f)forge a ballot record;

(g)utter a ballot record knowing it to be forged;

(h)give a ballot record to someone else;

(i)put a ballot record in a ballot box or other container used for the ballot (a ballot box) if the person does not have the right to vote;

(j)deliver or post a ballot record to another person performing functions for the ballot if the person does not have the right to deliver or post it;

(k)destroy, interfere with, open, or remove a ballot box.

Maximum penalty—80 penalty units.

629Disadvantaging another to induce vote or omission to vote

(1)A person must not cause, inflict or procure a disadvantage to anyone or anything because of, or to induce—

(a)a vote or omission to vote in an amalgamation or withdrawal ballot (a ballot); or

(b)a promise of a vote or omission to vote in a ballot.

Maximum penalty—80 penalty units.

(2)In this section—

cause a disadvantage includes offering, suggesting and threatening a disadvantage.

disadvantage includes damage, detriment, injury, loss, punishment and violence.

630Unauthorised access to ballot paper

A person must not, without lawful authority or excuse—

(a)ask, require or induce another person to show to or permit the person to see a ballot paper for an amalgamation or withdrawal ballot so the person can see the vote recorded in the ballot paper—

(i)while the paper is being marked; or

(ii)after it has been marked; or

(b)if the person is performing functions for an amalgamation or withdrawal ballot—show to or permit anyone else access to a ballot paper used in the ballot, other than to perform the functions.

Maximum penalty—80 penalty units.

631Using resources for proposed amalgamation

(1)An existing organisation for a proposed amalgamation may use its financial and other resources to support the proposed amalgamation if—

(a)its management committee has resolved to do so; and

(b)the committee has given reasonable notice of its resolution to the organisation’s members.

(2) Subsection (1) does not limit an existing organisation’s other powers to use its financial and other resources for the proposed amalgamation.

632Costs of ballot conducted by electoral commission

The costs of an amalgamation or withdrawal ballot conducted by the electoral commission under this part are payable by the State.

633No action for defamation in certain cases

A civil proceeding for defamation does not lie against the following for printing or publishing a document for an amalgamation or withdrawal ballot—

(a)the State;

(b)an electoral commission;

(c)an electoral officer;

(d)another person who may, under this chapter, conduct the ballot;

(e)a person asked to act for, or at the direction of, a person mentioned in paragraphs (a) to (d).

634Commission may resolve difficulties

(1)A person with sufficient interest may apply to the commission for an order—

(a)if a difficulty arises, or is likely to arise, in carrying out or giving effect to an amalgamation or withdrawal or in applying this part to another matter; or

(b)for the taking of a step necessary to give effect to the amalgamation or withdrawal.

(2)The commission may make an order it considers appropriate to resolve the difficulty or to give effect to a step necessary for the amalgamation or withdrawal.

(3)The order has effect despite the rules of an organisation.

635Registration of property transferred under pt 15

(1)This section applies if—

(a)property becomes the property of an amalgamated organisation (a transferee) because of an amalgamation; or

(b)property of an amalgamated organisation becomes the property of a newly registered organisation (also a transferee) because of a withdrawal.

(2)A certificate by an authorised person for a transferee is evidence of the property having become the transferee’s property if the certificate—

(a)is signed by the person; and

(b)identifies the property; and

(c)states the property has, under this part, become the transferee’s property.

(3)If the certificate is given to a person with registration functions for that kind of property under a law of the State, the person must do the following as if the certificate were an appropriate instrument of transfer of the property—

(a)register the matter in the same way as transactions for property of that kind;

(b)deal with, and give effect to, the certificate.

Examples of a person with registration functions—

•the Registrar of Titles

•the Australian Securities and Investment Commission

(4) Subsection (3) applies despite the Corporations Act, section 268 or the Corporations Act, chapter 7, part 7.11.

(5)A transfer of the property to the transferee may be registered or given effect to under the law of another State if—

(a)the certificate is given to a person with functions for registration of property of that kind under the other State’s law; and

(b)the person is permitted by law to do so.

(6)In this section—

authorised person, for an amalgamated organisation or a newly registered organisation, means its secretary or a person with its management committee’s written authority.

s 635 amd 2001 No. 45 s 29 sch 3; 2003 No. 4 s 13

636Part applies despite laws or instruments

(1)This part applies despite another Act or an instrument.

(2)Nothing done under this part—

(a)makes an organisation or other person liable for a civil wrong or a contravention of a law or for a breach of a confidence or contract; or

Example of a contract—

a contractual provision that prohibits, restricts or regulates assigning or transferring an asset or liability or disclosing information

(b)releases a surety’s obligations, wholly or in part.

(3)If apart from this section a person’s consent would be necessary to give effect to this part, the consent is taken to have been given.

(4)In this section—

instrument means any written or oral instrument, express or implied.

Examples of an instrument—

•a contract, deed, undertaking or agreement

•a mandate, instruction, notice, authority or order

•a lease, licence, transfer, conveyance or other assurance

•a guarantee, bond, power of attorney, bill of lading, negotiable instrument or order to pay an amount

•a mortgage, lien or security

pt hdg ins 2013 No. 29 s 55

div 1 (ss 636A–636E) ins 2013 No. 29 s 55

636AMaking complaint about organisation or officer

(1)A person may make a complaint to the chief executive about an organisation if the person believes—

(a)the organisation, or a branch of the organisation, has ceased to function effectively; and

(b)there are no effective means under the rules of the organisation by which the organisation or branch can function effectively.

(2)A person may make a complaint to the chief executive about an officer of an organisation if the person believes the officer has engaged in misconduct in relation to the organisation.

div 1 (ss 636A–636E) ins 2013 No. 29 s 55

636BForm of complaint

The complaint must—

(a)be in writing; and

(b)contain particulars of the allegations on which it is founded; and

(c)be verified by statutory declaration.

div 1 (ss 636A–636E) ins 2013 No. 29 s 55

636CDealing with complaints

(1)The chief executive must—

(a)expeditiously assess the complaint; and

(b)deal with the complaint in the way the chief executive considers most appropriate.

(2)Without limiting subsection (1) (b), the chief executive may take all or any of the following actions—

(a)require the complainant to give further particulars of the complaint;

(b)refer the complaint to an inspector for investigation under chapter 10, division 2;

(c)if the complaint relates to conduct that could, if proved, constitute a contravention of chapter 12, part 12—refer the complaint to the registrar for investigation under chapter 12, part 12, division 5, subdivision 2;

(d)if the complaint relates to conduct that could, if proved, constitute an offence against an Act or a law of another State or the Commonwealth—refer the matter of the suspected offence to the commissioner of the police service or the commissioner of a police force or service of another State or the Commonwealth;

(e)notify the Minister of the complaint.

(3)The chief executive may take no action, or decide to take no further action, in relation to the complaint only if—

(a)the complaint is not verified by statutory declaration; or

(b)further particulars relating to the complaint are not given under subsection (2) (a); or

(c)the chief executive is satisfied that—

(i)the complaint is frivolous or vexatious; or

(ii)dealing with the complaint would be an unjustifiable use of resources.

div 1 (ss 636A–636E) ins 2013 No. 29 s 55

636DOrganisation or officer must be advised of complaint

(1)If the chief executive decides to take action under section 636C (2) (b), (c) or (e), the chief executive must, as soon as reasonably practicable after deciding to take the action—

(a)give notice to the organisation or officer of the nature of the complaint; and

(b)invite the organisation or officer to make, within the time stated in the notice, written representations to the chief executive about the complaint.

(2)The time stated in the notice must be at least 5 business days after the notice is given.

(3)The organisation or officer may make written representations to the chief executive within the time stated in the notice.

(4)The chief executive must consider any representations made by the organisation or officer under subsection (3).

(5)If the organisation or officer makes representations about a complaint notified to the Minister under section 636C (2) (e), the chief executive must give a copy of the representations to the Minister.

div 1 (ss 636A–636E) ins 2013 No. 29 s 55

636EMinisterial direction

The Minister may direct the chief executive to refer a complaint to an inspector for investigation under chapter 10, division 2.

div 1 (ss 636A–636E) ins 2013 No. 29 s 55

div 2 (ss 636F–636H) ins 2013 No. 29 s 55

636FApplication of div 2

This division applies if the chief executive receives—

(a)a notice from the registrar under section 571A (2); or

(b)a report under section 574A of the results of an investigation conducted by the registrar.

div 2 (ss 636F–636H) ins 2013 No. 29 s 55

636GDealing with notice or report

(1)The chief executive must decide whether to take any further action on the matter to which the notice or report relates.

(2)Without limiting subsection (1), the chief executive may take all or any of the following actions—

(a)refer the matter to an inspector for investigation under chapter 10, division 2;

(b)if the matter relates to conduct that could, if proved, constitute an offence against an Act or a law of another State or the Commonwealth—refer the matter of the suspected offence to the commissioner of the police service or the commissioner of a police force or service of another State or the Commonwealth;

(c)notify the Minister of the matter.

div 2 (ss 636F–636H) ins 2013 No. 29 s 55

636HPerson to whom matter relates must be advised of matter

(1)If the chief executive decides to refer the matter to an inspector for investigation, the chief executive must, as soon as reasonably practicable after deciding to take the action—

(a)give notice of the nature of the matter to any person to whom the matter relates; and

(b)invite the person to make, within the time stated in the notice, written representations to the chief executive about the matter.

(2)The time stated in the notice must be at least 5 business days after the notice is given.

(3)The person may make written representations to the chief executive within the time stated in the notice.

(4)The chief executive must consider any representations made by the person under subsection (3).

(5)If the person makes representations about a matter notified to the Minister under section 636G (2) (c), the chief executive must give a copy of the representations to the Minister.

div 2 (ss 636F–636H) ins 2013 No. 29 s 55

div 3 (ss 636I–636N) ins 2013 No. 29 s 55

636IDefinition for div 3

In this division—

complaint includes a matter mentioned in section 636G (1).

div 3 (ss 636I–636N) ins 2013 No. 29 s 55

636JApplication of div 3

This division applies if the chief executive refers a complaint to an inspector for investigation under chapter 10, division 2.

div 3 (ss 636I–636N) ins 2013 No. 29 s 55

636KInvestigation report

After investigating the complaint, the inspector must give the chief executive a written report (the investigation report) on the findings of the investigation.

div 3 (ss 636I–636N) ins 2013 No. 29 s 55

636LAudit of organisation’s accounting records

(1)The investigation report may include a recommendation to the chief executive that an auditor be appointed to examine the organisation’s accounting records for a financial year or another period if the inspector considers—

(a)the organisation has an accounting deficiency for a matter mentioned in section 560 (a) to (f); or

(b)the organisation’s property has been misappropriated or improperly applied; or

(c)the organisation, or an officer of the organisation, has committed an offence about the organisation’s property.

(2)If the chief executive decides to implement the recommendation to engage an auditor (the complaints auditor) to examine the organisation’s accounting records, the complaints auditor must—

(a)examine the records; and

(b)give the chief executive a report on the audit (the audit complaint report).

(3)The complaints auditor, or an appropriately qualified person authorised in writing by the complaints auditor, has the powers and privileges of an organisation’s auditor.

Note—

See sections 563 (Auditor’s powers) and 564 (Auditors have qualified privilege).

(4)If a branch of an organisation keeps accounting records and accounts separate from the organisation’s accounts, subsections (1) and (2) apply in relation to the branch as if the references to the organisation were a reference to the branch.

Note—

See also section 553 (Part applies to branches with separate financial affairs).

(5)In this section—

accounting records, of an organisation for a financial year, includes the organisation’s financial disclosure statement and mid-year financial disclosure statement for the financial year.

div 3 (ss 636I–636N) ins 2013 No. 29 s 55

636MCooperating with investigation or audit

(1)An officer or employee of an organisation who is being investigated by an inspector must assist in and cooperate with the investigation unless the officer or employee has a reasonable excuse.

Maximum penalty—40 penalty units.

(2)If an organisation is being investigated by an inspector or audited by a complaints auditor, the organisation must ensure the officers and employees of the organisation assist in and cooperate with the investigation or audit unless the organisation has a reasonable excuse.

Maximum penalty—40 penalty units.

(3)For subsection (1), it is a reasonable excuse for an officer or employee not to assist in and cooperate with the investigation if doing so might tend to incriminate the officer or employee.

div 3 (ss 636I–636N) ins 2013 No. 29 s 55

636NAudit costs

The costs of an audit under this division are payable by the State.

div 3 (ss 636I–636N) ins 2013 No. 29 s 55

div 4 (ss 636O–636V) ins 2013 No. 29 s 55

636OChief executive may appoint administrator

(1)This section applies if the chief executive is reasonably satisfied, on the basis of an investigation report or audit complaint report, that—

(a)an organisation, or a branch of an organisation, has ceased to function effectively; and

(b)there are no effective means under the rules of the organisation by which the organisation or branch can function effectively.

(2)Subject to sections 636P and 636Q, the chief executive may, by gazette notice, appoint an appropriately qualified person as administrator of the organisation or branch.

(3)The notice must include—

(a)the date of appointment; and

(b)the appointee’s name; and

(c)the appointee’s business address.

(4)The gazette notice is not subordinate legislation.

(5)However, the Statutory Instruments Act 1992 , sections 49 to 51 apply to the gazette notice as if it were subordinate legislation.

(6)The administrator holds office until the administrator’s appointment is revoked.

(7)In this section—

appropriately qualified means having the qualifications, experience or standing appropriate to perform the functions and exercise the powers of an administrator.

div 4 (ss 636O–636V) ins 2013 No. 29 s 55

636POrganisation or branch must be advised of intention to appoint administrator

(1)The chief executive must not appoint an administrator for an organisation, or a branch of an organisation, unless the chief executive—

(a)gives notice to the organisation or branch about the chief executive’s intention to appoint an administrator and the reasons for the intention; and

(b)invites the organisation or branch to make, within the time stated in the notice, written representations to the chief executive about the intention; and

(c)has regard to any representations made under subsection (3).

(2)The time stated in the notice under subsection (1) (b) must be at least 5 business days after the notice is given.

(3)The organisation or branch may make written representations to the chief executive about the intention to appoint an administrator within the time stated in the notice.

div 4 (ss 636O–636V) ins 2013 No. 29 s 55

636QInjustice to organisation or branch and interests of members

The chief executive must not appoint an administrator for an organisation, or a branch of an organisation, unless the chief executive is satisfied that—

(a)the appointment of an administrator would not do substantial injustice to the organisation or branch; and

(b)it is in the interests of the members of the organisation or branch that the affairs of the organisation or branch be conducted by an administrator.

div 4 (ss 636O–636V) ins 2013 No. 29 s 55

636RPrimary function of administrator

(1)An administrator for an organisation or a branch of an organisation has, during the term of office of the administrator and to the exclusion of any other person, the function of the conduct and management of the affairs of the organisation or branch.

(2)However, the function of the administrator may be limited by the administrator’s notice of appointment.

div 4 (ss 636O–636V) ins 2013 No. 29 s 55

636SAdditional functions of administrator

The administrator for an organisation or a branch of an organisation has the following additional functions—

(a)to give the Minister a report, at intervals stated by the Minister, on the financial position of the organisation or branch, its functions and anything else the Minister requires the administrator to include in the report;

(b)to give the Minister a final report on the administration.

div 4 (ss 636O–636V) ins 2013 No. 29 s 55

636TPowers of administrator

An administrator for an organisation or a branch of an organisation may do anything necessary or convenient to be done for, or in connection with, the administrator’s functions.

div 4 (ss 636O–636V) ins 2013 No. 29 s 55

636UProviding assistance to administrator

(1)An administrator for an organisation or a branch of an organisation may, for the purpose of performing the administrator’s functions, by written notice to an officer or employee or former officer or employee of the organisation or branch, require the person to do the following—

(a)produce to the administrator documents in the person’s possession that the administrator reasonably requires to perform those functions;

(b)provide the other information or assistance that the administrator reasonably requires for the purposes of the performance of those functions.

(2)A person of whom the requirement has been made must comply with it unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

(3)It is a reasonable excuse for the person not to comply with the requirement if doing so might tend to incriminate the person.

div 4 (ss 636O–636V) ins 2013 No. 29 s 55

636VProtection from liability

(1)An administrator for an organisation or a branch of an organisation is not civilly liable for an act done, or omission made, honestly and without negligence under this Act.

(2)If subsection (1) prevents civil liability attaching to a person, the liability attaches instead to the State.

div 4 (ss 636O–636V) ins 2013 No. 29 s 55

637Definitions for pt 16

In this part—

deregistration order see section 638.

industrial conduct ground means a ground mentioned in section 638 (a) to (c).

members of an organisation means—

(a)a substantial number of the organisation’s members; or

(b)a section or class of its members.

small organisation means—

(a)an employee organisation that has less than 20 members who are employees; or

(b)an employer organisation whose employer members have, in total, employed a monthly average of less than 20 employees during any 6-month period.

638General deregistration grounds

The full bench may order the deregistration of an organisation (a deregistration order) on any of the following grounds—

(a)achieving the objects of the Act has been prevented by—

(i)the organisation’s or its members’ continued contravention of a commission order or an industrial instrument (an instrument); or

(ii)the organisation’s continued failure to ensure its members do not contravene an instrument; or

(iii)any other conduct by the organisation or its members;

(c)the organisation or its members have been, or are, engaging in industrial action that has, is having, or is likely to have a substantial adverse effect on the safety, health or welfare of the community or a part of the community;

(d)the organisation was registered by mistake;

(e)the organisation’s rules—

(i)do not allow a person who is eligible to become a member of the organisation to join it with reasonable ease; or

(ii)impose unreasonable conditions on a person’s continuing membership of the organisation; or

(iii)are harsh or oppressive; or

(iv)provide for it to end on the happening of an event and the event has happened;

(f)the administration of the organisation’s rules is harsh or oppressive;

(g)a majority of the organisation’s members have agreed to its deregistration;

(h)if the organisation is an employee organisation, it is not free from control by, or improper influence from an employer or an employer association or organisation.

s 638 amd 2005 No. 11 s 46

639Who may bring deregistration proceedings

(1)Each of the following may apply to the full bench for a deregistration order on a ground mentioned in section 638—

(a)an organisation;

(b)the Minister;

(c)the registrar;

(d)another person given leave by the full bench.

(2)The full bench may give leave only if it considers the person has sufficient interest to make the application.

(3)The full bench may, of its own initiative, bring proceedings for a deregistration order—

(a)on a ground mentioned in section 638 (d) or (e) (iv); or

(b)because the organisation has failed to comply with a demarcation dispute undertaking and amendment of its eligibility rules is inappropriate.

(4)The registrar may also apply for a deregistration order on the ground that the organisation is defunct.

640Hearing on ground other than industrial conduct

If a ground on which the proceedings are based includes a ground other than an industrial conduct ground, the full bench may make a deregistration order if satisfied the ground has been made out.

641Hearing on industrial conduct ground

(1)This section applies if at the hearing of the application a ground on which the proceedings are based is an industrial conduct ground.

(2)The full bench must make a deregistration order if it—

(a)finds the ground has been made out; and

(b)does not consider the deregistration unjust, after considering—

(i)the significance of the circumstances forming the ground; and

(ii)the action taken by or against the organisation about the ground.

(3)However, if the full bench finds the industrial conduct ground is made out wholly or mainly because of conduct by a section or class of the organisation’s membership, it may instead of making a deregistration order—

(a)order amendments of the organisation’s eligibility rules to exclude persons from the section or class from membership eligibility; or

(b)exclude a stated person from the organisation’s membership.

(4)A deregistration order may also prohibit the deregistered organisation from applying for registration before a stated day.

s 641 amd 2009 No. 15 s 2 sch

642Deferral of deregistration for industrial conduct

(1)This section applies if the full bench may make a deregistration order under section 641.

(2)The full bench may defer its decision on making the deregistration order and make an order (a deferral order)—

(a)suspending to a stated extent, the rights, privileges or capacities of the organisation or all or any of its members as members, under—

(i)this Act; or

(ii)a commission order; or

(iii)an award, certified agreement, EFA or industrial agreement; or

(b)directing how a suspended right, privilege or capacity may be exercised; or

(c)restricting the organisation or its branches in using their funds or property and controlling the funds or property to enforce the restriction.

(3)If a deferral order is made, the full bench must defer its decision on making the deregistration order until—

(a)if a party to the proceedings applies—the court considers it is just to make the decision considering—

(i)evidence given about compliance with the order; and

(ii)other relevant circumstances; or

(b)the order ends.

(4)A deferral order has effect despite the rules of the organisation or its branches.

643When deferral order ends

(1)A deferral order ends—

(a)6 months after it takes effect, if the full bench has not extended the order before that time; or

(b)if the full bench has extended the order—at the end of the extension; or

(c)if it is discharged by the full bench.

(2)The full bench may discharge or extend a deferral order only on the application of a party to the deregistration proceedings.

(3)An extension application may only be made before the time mentioned in subsection (1) (a).

644Incidental orders or directions

If the full bench makes a deregistration order, it may also make—

(a)an order or direction it considers appropriate to give effect to the deregistration; or

(b)an order under section 652 (2), whether or not anyone has applied for the order.

645Commission may review

The commission may review an organisation to inquire whether the organisation is or may be a small organisation.

646Deregistration proceedings by commission

(1)If the commission considers an organisation is or may be a small organisation, it may bring deregistration proceedings under this division against the organisation.

(2)However, the commission must not bring proceedings under this division more than once a year against the same organisation.

647Deciding proceedings

(1)The commission must make a deregistration order if satisfied the organisation is a small organisation.

(2)However, the commission may decide not to make the order if satisfied there are special circumstances and the organisation’s continued registration is in the public interest.

Example of special circumstances—

The organisation is an employee organisation and the commission is satisfied the organisation will in the near future, if its registration is continued, have more than 20 members who are employees.

648Application and purpose of div 4

(1)This division applies on the making of a deregistration order.

(2)This division provides for the effects of the order on the deregistered organisation under the order and on other persons.

649When deregistration takes effect

(1)The deregistered organisation ceases to be an organisation when the deregistration order is made.

(2)The registrar must record the deregistration and date of the order in the register.

650Effect on corporate status

(1)If the deregistered organisation was a corporation under another law, the deregistered organisation continues to be incorporated, but only under the other law.

(2)If the deregistered organisation was incorporated only because of its registration—

(a)it ceases to be incorporated and becomes an association; and

(b)its name is taken to be changed to omit the words required to be included in its registered name under section 424 (1); and

(c)its rules continue in force to the extent they can still be carried out or complied with.

s 650 amd 2004 No. 53 s 2 sch

651No release of liabilities

The deregistration does not act to satisfy a liability or penalty incurred by the deregistered organisation or any of its members before the deregistration.

652Effect on property

(1)If the deregistered organisation was incorporated only because of its registration, property owned by it immediately before the deregistration must be—

(a)held and used under its rules, to the extent they can still be carried out or complied with; and

(b)applied for the purposes of the deregistered organisation under its rules.

(2)Despite subsection (1), the full bench may, if an interested person applies, make an order it considers appropriate to satisfy the deregistered organisation’s liabilities from the property.

(3)In this section—

rules of the deregistered organisation means its rules in force immediately before its deregistration.

653Effect on certain instruments

(1)If an award, EFA, commission order, certified agreement or industrial agreement (the instrument) bound the deregistered organisation and its members before the deregistration—

(a)from the deregistration, the deregistered organisation and its members do not have the right to a benefit under the instrument; and

(b)the instrument ceases to have any effect for the deregistered organisation 21 days after the deregistration.

(2)Despite subsection (1) (b), the commission may make an order it considers appropriate about the effect, if any, of the instrument on the deregistered organisation and its members.

654Hearing to be given before making decision

(1)The court, commission or registrar (the industrial tribunal) must, before making a decision under this chapter, give the following persons an opportunity to be heard about whether the decision should be made—

(a)a person who applied for the decision or from whose application the decision is proposed to be made;

(b)a person in relation to whom the decision is sought or may be made;

(c)a person who may object to the making of the decision who has objected in the way required under this chapter;

(d)an organisation the decision concerns;

(e)any other person the industrial tribunal considers should be heard or who has a sufficient interest in the making of the decision.

(2)However, subsection (1) does not apply if the person asks the industrial tribunal to make a stated decision and it considers the decision may be made without prejudicing the rights of a person or for other sufficient reason.

(3)A regulation may provide for—

(a)objections to the making of a decision under this chapter; or

(b)the way in which the opportunity to be heard must be given.

(4)In this section—

decision includes—

(a)an amendment of a rule of an organisation, other than a correction of a formal or clerical error; and

(b)a referral.

655Notice of registrar’s decisions

(1)This section applies if the registrar makes a decision as follows—

(a)to refuse an application made to the registrar under this chapter;

(b)under section 450 to cancel an approval under section 449 or cancel or to amend an exemption under part 13 if the holder of the approval or exemption has not asked for the cancellation or amendment;

(c)under section 461 (3) or 512 (3) for an amount of financial help to be given to a person;

(d)to amend an organisation’s rules under section 467;

(e)to refuse, under section 502, to refer an application for an election inquiry to the commission.

(2)The registrar must promptly give the applicant, person who held the cancelled exemption, organisation or person to be given financial help, a notice stating the following—

(a)the decision;

(b)the reasons for the decision;

(c)that the person to whom the notice is given may appeal to the full bench against the decision within 21 days;

(d)how to start an appeal.

655ARequirements for publishing particular documents

(1)This section applies if, under this chapter, an organisation is required to ensure a a document is published in the approved way.

(2)The document must be published on—

(a)the organisation’s website; or

(b)if the organisation does not have a website—the QIRC’s website.

(3)The document must be in a form that is reasonably accessible and transparent.

(4)If the registrar receives, from an organisation, a document under this chapter together with a request to publish the document on the QIRC website, the registrar must publish the document on the QIRC website as soon as practicable.

(5)In this section—

published, on a website, means made accessible in full to the public on the website.

s 655A ins 2013 No. 29 s 56

656Falsely obtaining organisation’s property

A person must not obtain possession of an organisation’s property by false representation or imposition.

Maximum penalty—40 penalty units.

657Wrongfully applying organisation’s property

A person in possession of an organisation’s property must not—

(a)wilfully withhold it from a person who has the right to possess it; or

(b)fraudulently misapply it; or

(c)wilfully apply it to a use not authorised under the organisation’s rules.

Maximum penalty—40 penalty units.

659Disobeying penalty orders

(1)A person must obey a penalty order, unless the person has a reasonable excuse.

Maximum penalty—the penalty provided for in the order.

(2)In this section—

penalty order means an order of the court or commission that provides for payment of a penalty if the order is disobeyed.

660Improper conduct towards member, magistrate or registrar

(1)A person must not—

(a)interrupt an industrial tribunal’s proceedings; or

(b)create, take part in, or continue a disturbance in or near a place where an industrial tribunal’s proceedings are being conducted; or

(c)wilfully insult an official, including by using insulting language; or

(d)by writing or speech, use words intended to—

(i)improperly influence an official; or

(ii)improperly influence a witness before an industrial tribunal; or

(iii)bring an official or industrial tribunal into disrepute.

Maximum penalty—100 penalty units or 1 year’s imprisonment.

(2)A person who commits an offence under this section before an industrial tribunal may, by the tribunal’s order, be excluded from the place where the tribunal is sitting.

(3)The making of an order under subsection (2) does not affect the offender’s liability to be punished for the offence.

(4)A person acting under the industrial tribunal’s authority may enforce the tribunal’s order, using necessary reasonable force.

(5)In this section—

industrial tribunal means the commission, an Industrial Magistrates Court or the registrar.

official means a member, a magistrate or the registrar exercising jurisdiction or powers or performing functions under this or another Act.

s 660 amd 2000 No. 5 s 461 sch 3

661Contempt by witness

(1)A person must not, without lawful authority or excuse—

(a)if called to appear before an industrial tribunal—disobey the attendance notice requiring the appearance; or

(b)if appearing before an industrial tribunal, whether or not in response to an attendance notice—

(i)refuse to be sworn or to make an affirmation or declaration as a witness; or

(ii)refuse to answer a question that the person is required by the tribunal to answer; or

(iii)refuse to produce records that the person is required by the tribunal to produce.

Maximum penalty—40 penalty units.

(2)In this section—

industrial tribunal means the commission, an Industrial Magistrates Court or the registrar.

662False or misleading statements

(1)A person must not state anything to an official for this Act that the person knows is false or misleading in a material particular.

Maximum penalty—40 penalty units.

(2)It is enough for a complaint against a person for an offence against subsection (1) to state that the statement made was ‘false or misleading’ to the person’s knowledge.

(3)A person must not be prosecuted for an offence under this section if the person can be prosecuted for an offence under section 283.

(4)In this section—

official means—

(a)an inspector; or

(b)the registrar.

s 662 amd 2007 No. 23 s 35; 2011 No. 4 s 46; 2013 No. 61 s 117 sch 1 pt 1

663False or misleading documents

(1)A person must not, for this Act, give an official a document containing information the person knows is false or misleading in a material particular.

Maximum penalty—40 penalty units.

(2) Subsection (1) does not apply to a person if the person, when giving the document—

(a)informs the official, to the best of the person’s ability, how it is false or misleading; and

(b)if the person has, or can reasonably obtain, the correct information—gives the correct information.

(3)A person must not make an entry in a document required or permitted to be made or kept under this Act knowing the entry to be false or misleading in a material particular.

Maximum penalty—40 penalty units.

(4)It is enough for a complaint against a person for an offence against subsection (1) or (3) to state that the statement made was ‘false or misleading’ to the person’s knowledge.

(5)A person must not be prosecuted for an offence under this section if the person can be prosecuted under section 283.

(6)In this section—

official means any of the following—

(a)an inspector;

(b)an authorised industrial officer;

(c)the registrar.

s 663 amd 2007 No. 23 s 36; 2011 No. 4 s 47; 2013 No. 61 s 117 sch 1 pt 1

664Obstructing officers

(1)A person must not—

(a)obstruct an officer exercising a power, or performing a function, under this or another Act; or

(b)if lawfully required by an officer to produce or exhibit a document, or to allow a document to be examined—fail to comply with the request, unless the person has a reasonable excuse; or

(c)wilfully mislead an officer in a way likely to affect the performance of the officer’s function; or

(d)if lawfully asked a question for this or another Act by an officer—fail to answer the question truthfully and to the best of the person’s knowledge, information and belief.

Maximum penalty—40 penalty units.

(2)A person must not be prosecuted for an offence under subsection (1) if the person can be prosecuted under section 283.

(3)In this section—

officer means an officer of the court or commission.

664AInterference with protected action ballot or secret ballot conducted by commission etc.

(1)A person must not—

(a)resist or obstruct a following person performing a duty imposed, or an action directed or authorised to be done, for an employee ballot—

(i)a person acting under the direction or authority of the balloting agent for the ballot;

(ii)for a secret ballot conducted under section 285—the registrar or a public service officer; or

(b)threaten or intimidate an employee entitled to vote in a protected action ballot so that the employee would not vote or would vote in a particular way; or

(c)at or near the place where a ballot is being conducted under section 285—

(i)threaten or intimidate, or obstruct the free passage of, an employee going to or attending at the place to vote at the ballot; or

(ii)threaten or intimidate an employee so that the employee would not vote or would vote in a particular way; or

(d)obstruct an employee or another person in the performance of an action directed or authorised to be done for an employee ballot; or

(e)by a threat or intimidation, prevent an employee or another person from performing an action directed or authorised to be done for an employee ballot; or

(f)vote in an employee ballot unless the person—

(i)is entitled to vote; and

(ii)has received a ballot paper from the balloting agent for the ballot; or

(g)vote in an employee ballot in someone else’s name; or

(h)if the person is entitled to vote in an employee ballot—mark a ballot paper relating to the ballot, other than a ballot paper received by the person from the balloting agent for the ballot.

Maximum penalty—40 penalty units.

(2)A person who is performing functions or exercising powers under this Act for a protected action ballot must not show another person, or allow another person to have access to, a ballot paper used in the ballot, except in the course of performing those functions or exercising those powers.

Maximum penalty—40 penalty units.

(3)A person must not contravene any of the following—

(a)a protected action ballot order;

(b)an order made by the commission in relation to a protected action ballot order or a protected action ballot;

(c)a direction given by the commission, or the ECQ, in relation to a protected action ballot order or a protected action ballot.

Maximum penalty—40 penalty units.

(4) Subsection (3) does not apply to the ECQ.

(5)In this section—

balloting agent, for an employee ballot, means—

(a)for a protected action ballot—the ECQ; or

(b)for a secret ballot conducted under section 285—the registrar.

employee ballot means—

(a)a protected action ballot; or

(b)a secret ballot conducted under section 285.

prevent includes attempt to prevent.

resist or obstruct includes attempt to resist or obstruct.

threaten or intimidate includes attempt to threaten or intimidate.

vote includes attempt to vote.

s 664A ins 2012 No. 7 s 19

665Avoiding Act’s obligations

(1)An employer, with intent to avoid an obligation under this Act to pay an employee for a public holiday or leave, must not—

(a)dismiss the employee; or

(b)if the employee’s entitlement to long service leave is worked out under section 47 or 71HJ—interrupt the employee’s continuity of service.

Maximum penalty—40 penalty units.

(2)If the Industrial Magistrates Court finds an employer has contravened subsection (1) in relation to long service leave, it must order the defendant to pay the dismissed employee a proportionate amount of long service leave on the basis of 8.6667 weeks leave for 10 years service.

(3)The order is in addition to any order it may make imposing a penalty.

(4)In this section—

dismiss includes stand down.

leave means annual, sick, family or long service leave.

obligation under this Act includes an obligation under an industrial instrument.

s 665 amd 2001 No. 87 s 33; 2013 No. 61 s 117 sch 1 pt 2

666Non-payment of wages

(1)An employer must pay the wages payable to an employee under this Act, a relevant industrial instrument or permit—

(a)to the employee; or

(b)in accordance with the employee’s written direction.

Maximum penalty—200 penalty units.

(2)An offence under subsection (1) may consist of—

(a)a single failure to pay wages due on a particular day; or

(b)a failure to pay wages due over a period of time.

(3)The offence starts on the day of the failure and continues until the wages are paid.

(4)A complaint or a series of complaints may be made for any period over which the offence continues.

(5)However, a complaint may only relate to offences that started within 6 years before the complaint is made.

(6)A magistrate may hear and decide a complaint for an offence under this section, and in addition to any penalty that the magistrate may impose—

(a)if the magistrate finds the defendant guilty—must order the defendant to pay the employee the amount the magistrate finds to be payable to the employee; or

(b)if the magistrate does not find the defendant guilty—may order the defendant to pay the employee the amount the magistrate finds, on the balance of probabilities, to be payable to the employee.

(7)A magistrate may make the order—

(a)despite an express or implied provision of an agreement to the contrary; and

(b)on the terms the magistrate considers appropriate.

(8)In this section—

wages includes remuneration payable to an apprentice or trainee under section 391 (2).

s 666 amd 2000 No. 23 s 292 sch 1; 2003 No. 27 s 619; 2005 No. 11 s 47; 2014 No. 25 s 223 sch 1 pt 2

667Accepting reduced wages

(1)An employee must not agree with an employer to accept wages that, to the employee’s knowledge, are reduced wages.

Maximum penalty—16 penalty units.

(2)The return by or for an employee to or for the employer of a part of wages paid under a relevant industrial instrument or permit for work performed by the employee is evidence that the employee has entered into an agreement mentioned in subsection (1).

668Publishing statement about employment on reduced wages

(1)A person must not publish or cause to be published, whether or not for reward, a statement that can be reasonably interpreted to state that a person is ready and willing to—

(a)employ a person on reduced wages; or

(b)be employed on reduced wages.

Maximum penalty—16 penalty units.

(2)Proceedings for an offence under subsection (1) may be commenced against a publisher of the statement only if—

(a)the publisher has been warned by an inspector that the publication of the statement, or of a statement substantially similar, is an offence under this Act; and

(b)the publisher has published, or caused the publication of, the statement after receiving the warning; and

(c)the Minister’s consent to the proceedings is obtained.

(3)A proprietor of a newspaper or advertising medium is taken to have published the statement with knowledge of its unlawfulness, unless the proprietor shows that the proprietor—

(a)had taken all reasonable precautions against committing the offence; and

(b)had reasonable grounds to believe, and did believe, the publication to be lawful; and

(c)had no reason to suspect the publication was unlawful.

(4)In this section—

publish includes—

(a)exhibit; and

(b)broadcast; and

(c)publish to a person.

publisher means—

(a)the printer or proprietor of a newspaper; or

(b)the distributor or seller of a newspaper; or

(c)the printer, maker, operator or proprietor of an advertising device or advertising medium; or

(d)the printer of a document uttered for advertising purposes; or

(e)a person acting under the authority of a person mentioned in paragraphs (a) to (d).

669Offence to offer or accept premiums

(1)This section applies subject to section 408D.

(2)A person must not—

(a)offer an employment premium; or

(b)demand an employment premium; or

(c)ask for an employment premium; or

(d)accept, or agree to accept, an employment premium.

Maximum penalty—16 penalty units.

(3)If a court finds a person (the defendant) guilty of accepting an employment premium, it must, in addition to any penalty order it may make, order the defendant to pay an amount, equivalent to the amount or value of the premium, to the person from whom the defendant accepted the premium.

(4)In this section—

employment premium includes a consideration, gift, allowance or forbearance for the employment of a person.

s 669 amd 2002 No. 9 s 33; 2011 No. 4 s 69 sch pt 1

670Contraventions of industrial instruments

(1)A person must not contravene an industrial instrument.

Maximum penalty—

(a)for a first offence—

(i)if the offender is an employer that is a body corporate or an organisation—80 penalty units; or

(ii)if the offender is an employer that is not a body corporate—16 penalty units; or

(iii)if the offender is an employee—16 penalty units; or

(b)for a second or subsequent offence consisting of a contravention of the same provision of the instrument—

(i)if the offender is an employer that is a body corporate or an organisation—100 penalty units; or

(ii)if the offender is an employer that is not a body corporate—20 penalty units; or

(iii)if the offender is an employee—20 penalty units.

(2)For subsection (1), a second or subsequent offence is taken to be a first offence if more than 1 year has passed since the commission of the last similar offence of which the person was found guilty.

(3)An employer who pays, directly or by an agent, an employee, and an employee who receives from an employer, or the employer’s agent, reduced wages is each taken to have contravened the instrument.

(4)If an employee returns to an employer, or the employer’s agent, a part of wages paid to the employee under an industrial instrument—

(a)the employee is taken to have received reduced wages; and

(b)the employer, or the employer’s agent, is taken to have paid reduced wages;

unless the return is in discharge, or partial discharge, of a lawful debt or obligation of the employee.

(5)A magistrate may hear and decide a complaint for an offence against this section.

(6)If the magistrate finds that—

(a)the defendant contravened an industrial instrument; and

(b)the contravention resulted in an amount being unpaid;

the magistrate must order the defendant to pay an entity the amount that the magistrate finds is payable.

(7)However, even if the magistrate does not find the defendant guilty of a contravention of an industrial instrument, the magistrate may order the defendant to pay an entity the amount that the magistrate, on the balance of probabilities, finds is payable.

(8)The magistrate may order the amount to be paid in the way that the magistrate considers appropriate.

(9)The magistrate may make an order under subsection (6) or (7) in addition to any penalty that the magistrate may impose.

(10)An order must not be made for payment of an amount that became payable more than 6 years before the proceedings were brought.

(11)An order for the payment of an amount must not be made under this section if the order may be made under another section of this Act.

s 670 amd 2001 No. 87 s 34; 2005 No. 11 s 48; 2009 No. 15 s 2 sch

671Injunction restraining contraventions

(1)This section applies if a person has been found guilty of an offence involving the contravention of an industrial instrument or permit or this Act.

(2)If satisfied the contravention consisted of the person’s wilful action or default, the court, on application made to it, may grant an injunction restraining the person from—

(a)continuing the contravention; or

(b)committing further contraventions of the instrument or permit or this Act, whether similar to or different from the contraventions the person has been found guilty of.

(3)The person must obey the injunction.

Maximum penalty for subsection (3)—200 penalty units.

672Persons considered parties to offences

Without limiting the Criminal Code, section 7, an organisation or person who—

(a)takes part in the commission of an offence under this Act; or

(b)counsels or procures or aids the commission of an offence under this Act; or

(c)encourages the commission of an offence under this Act; or

(d)is concerned, directly or indirectly, in the commission of an offence under this Act;

is taken to have committed the offence and to be liable to the penalty prescribed for the offence.

674Attempt to commit offence

A person who attempts to commit an offence under this Act—

(a)commits an offence; and

(b)is liable to the same penalty as if the offence attempted had been committed.

675References to making false or misleading statements

A reference to a person making a statement knowing that it is false or misleading includes a reference to the person making the statement being reckless about whether the statement is false or misleading.

676References to engaging in conduct

A reference to a person engaging in conduct includes a reference to the person being, directly or indirectly, a party to or concerned in the conduct.

677General application of jurisdictional provisions

The provisions of this Act providing for the powers of and procedures before the court, the commission or an Industrial Magistrates Court apply in relation to the jurisdiction of the court, the commission or an Industrial Magistrates Court under this or another Act, unless the contrary intention appears.

678Evidentiary provisions affecting proceedings

In proceedings—

(a)the appointment as inspector of a person claiming to be, or stated to be, an inspector, and the authority of an inspector to take proceedings or do any act, must be presumed, until the contrary is proved; and

(b)a signature purporting to be of an inspector is taken as the signature it purports to be, until the contrary is proved; and

(c)a document purporting to be a copy of a notice or order issued under this Act by an inspector is admissible as evidence of the issue of the notice or order and of the things in it; and

(d)a document purporting to be a copy of an organisation’s officers register last filed with the registrar, certified by the registrar, is admissible as evidence of the things in it; and

(e)a document purporting to be a copy of an organisation’s rules last filed with the registrar, certified by the registrar, is admissible as evidence of the things in it; and

(f)the limits of a district or part of the State, or of a road, stated in a complaint or other document made for the proceedings must be presumed, until the contrary is proved; and

(g)judicial notice of the existence of industrial action, or of a proposed industrial action, may be taken.

679Confidential material tendered in evidence

(1) Subsection (2) applies if records, tendered to the court or commission, relate to—

(a)a person’s trade secrets; or

(b)the financial position of a party or witness.

(2)The records can not, without the consent of the person, party or witness, be inspected by anyone other than a member of the court or the commission or an expert witness.

(3) Subsection (2) does not apply to records relating to the financial position of a party or witness who claims that the financial position of a business or industry does not permit the payment of wages, or the granting of conditions—

(a)claimed in the proceedings in which the records are tendered; or

(b)under a proposed industrial instrument or order to which the proceedings relate.

(4)If the court or commission directs that information relating to a person’s trade secrets or financial position be given in evidence, the evidence must be taken in private, if the person asks.

(5)The court, commission or registrar may direct—

(a)a report, or part of a report, of proceedings in an industrial cause not be published; or

(b)evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search.

(6)The direction may prohibit the publication, release or search absolutely, or except on conditions ordered by the court, commission or registrar.

(7)The direction must be complied with by all persons to whom it is directed.

Maximum penalty—16 penalty units.

(8)The direction may be given if the court, commission or registrar considers—

(a)disclosure of the matter would not be in the public interest; or

(b)persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter.

(9)A person must not give as evidence, or publish, material in contravention of this section or of a direction under this section.

Maximum penalty—16 penalty units.

(10)In this section—

expert witness, for records, means a person appointed by the court or commission as an expert to examine the records and to report on them.

s 679 amd 2013 No. 29 s 56A

680Evidentiary value of official records

(1)The following are admissible in proceedings as evidence of a decision or action—

(a)a copy of the decision, or of a record of other action, of the court or commission, purporting to bear the seal of the court or commission;

(b)a document purporting to be an extract printed from the QIRC website that contains notice of a decision or other action of the court or commission.

(2)In proceedings—

(a)a document purporting to be an extract printed from the QIRC website that contains notice of—

(i)a declaration of a general ruling published under section 287; or

(ii)an amendment of an award or certified agreement;

is admissible as evidence of the making or approval of the declaration or amendment and, for the period for which the declaration or amendment remains in force, is evidence of the matters in the notice; and

(b)a copy of a certified agreement, certified as a true copy by the registrar, is admissible as evidence of—

(i)the agreement; and

(ii)its execution as shown in the copy; and

(iii)its certification by the commission; and

(c)a copy of a permit issued by the commission or the registrar, certified as a true copy by the registrar, is admissible as evidence of the permit; and

(d)a certificate issued by the registrar about an organisation’s registration is evidence of the matters in the certificate; and

(e)a certificate issued by the registrar that a stated person was, at a stated time—

(i)an authorised industrial officer or another stated officer of a stated organisation; or

(ii)a member of a stated organisation;

is evidence of the matters; and

(f)a certificate issued by the registrar that—

(i)a specified website is currently used, or was used during a stated period or on a stated day, to provide public access to information about matters relating to the court, the commission and the registry; or

(ii)a stated matter was published on the QIRC website on a stated day; or

(iii)a stated matter on the QIRC website was, on a stated day, published in a particular way; or

(iv)a document on the QIRC website was in force at a stated time or during a stated period;

is evidence of the matters.

s 680 amd 2009 No. 38 s 35; 2011 No. 4 s 48

681Proof of certain facts by statement

In proceedings, a statement in a complaint or other process by which the proceedings are started that—

(a)a calling was, at or about a stated time, transferred from 1 person to another; or

(b)a stated person is or is not, or was or was not, at a stated time, an officer or member of an organisation; or

(c)a stated person is liable to pay, but has not paid, contribution to the approved superannuation fund;

is evidence of the matters stated.

682Evidentiary value of certificate of trustee of superannuation fund

(1)In proceedings, a trustee’s certificate stating, for a period of relevant service of an eligible employee concerned in the proceedings—

(a)an amount was paid as contribution to a complying superannuation fund of which the trustee is a trustee; or

(b)an amount worked out on the rate of return that stated contributions would have attracted to the fund;

is evidence of the matters stated.

(2)In this section—

trustee’s certificate means a certificate given, or purporting to have been given, by a trustee of a complying superannuation fund.

683Offence proceedings generally

(1)Proceedings for an offence under this Act are to be heard and decided by the court or a magistrate, within the limits of the court’s or magistrate’s jurisdiction.

(2)Proceedings before a magistrate are to be heard and decided summarily under the Justices Act 1886 , but the Industrial Magistrates Court where the proceedings are taken is to be constituted by a magistrate sitting alone.

(3)If the parties to proceedings commenced, or to be commenced, before a magistrate agree, by notice signed by them or their representatives, that the proceedings should be continued or taken before a magistrate at a particular place in the State (other than the place where the proceedings should be heard and decided under the Justices Act 1886 )—

(a)the magistrate at the particular place is authorised to hear and decide the proceedings; and

(b)jurisdiction is conferred on each magistrate accordingly.

(4)If the proceedings have commenced before the agreement is made, the magistrate, if satisfied the agreement exists, must—

(a)adjourn the proceedings to the magistrate at the agreed place; and

(b)send the record of the proceedings taken before the magistrate to the clerk of the Magistrates Court at the agreed place.

(5)For the adjourned proceedings, evidence heard or produced in the proceedings before it was adjourned, is taken to have been heard or produced before the magistrate to whom the proceedings were adjourned, unless the parties otherwise agree.

(6)Subject to subsection (7), proceedings for an offence under this Act must be commenced—

(a)within 1 year after the offence was committed; or

(b)within 6 months after the offence comes to the complainant’s knowledge, but within 18 months after the offence was committed.

(7)Proceedings for an offence against section 138, 406 or 666 must be commenced within 6 months after the offence comes to the complainant’s knowledge, but within 6 years after the offence was committed.

s 683 amd 2000 No. 23 s 292 sch 1

684Organisations may start proceedings

Without limiting the authority of the State or a person to take proceedings, an organisation, in its registered name, may commence proceedings for—

(a)contraventions of industrial instruments or permits; or

(b)an offence under this Act; or

(c)recovery of an amount payable to an employee.

685Recovering amounts from organisations

(1)This section applies for the recovery of—

(a)a penalty imposed on an organisation under this Act; or

(b)an amount ordered to be paid by an organisation under this Act.

(2)Process may be issued and executed against the organisation’s property, whether the property is vested in trustees or is otherwise held for the organisation, as if the organisation, as a corporation, were the absolute owner of the property.

(3)In this section—

property of an organisation means property that the organisation has—

(a)legal title to; or

(b)a beneficial interest in, to the extent of the interest.

ch 15 pt 1 hdg ins 2012 No. 22 s 23A

om 2015 No. 7 s 36 sch 1

ch 15 pt 2 hdg ins 2012 No. 22s 23B

om 2015 No. 7 s 32

686Application of Act to State

(1)This Act binds the State, other than in relation to—

(a)a matter that has been, or is, the subject of an appeal under the Public Service Act 2008 , chapter 7, part 1; or

(b)a matter about which another Act excludes—

(i)the jurisdiction of the court or commission about the matter; or

(ii)the application of a decision under this Act about the matter.

(2)The following provisions do not apply to a public service employee who is subject to a ruling providing for the same matter as the provision—

(a) section 9 (3);

(b) section 9A (3);

(c) section 13 (2) (a);

(d) section 15 (4);

(e) section 46 (1);

(f) section 366 (1) (c) (iii).

(3)If subsection (2) applies, the ruling applies to the employee instead of the provision.

(4) Subsections (2) and (3) also apply as if—

(a)a reference in those provisions to a public service employee included a staff member under the Ministerial and Other Office Holder Staff Act 2010 ; and

(b)a reference in those provisions to a ruling included a directive under the Ministerial and Other Office Holder Staff Act 2010 .

(5)In this section—

ruling means a ruling under the Public Service Act 2008 .

s 686 amd 2000 No. 23 s 292 sch 1; 2007 No. 23 s 37; 2008 No. 38 s 252 sch 3; 2010 No. 36 s 47; 2012 No. 7 s 58 sch

(1)(d), (6) exp 1 July 2000 (see s 686 (6))

(1)(c), (5) exp 1 July 2001 (see s 686 (5))

687Conflict between industrial instruments etc. and statutory decision

(1)This section applies if there is an inconsistency between—

(a)any of the following directives—

(i)a directive under the Public Service Act 2008 made by the chief executive of the Public Service Commission that is the subject of a regulation under section 52 (2) of that Act;

(ii)a directive under the Public Service Act 2008 made by the Minister administering this Act;

(iii)a directive under the Ministerial and Other Office Holder Staff Act 2010 that is the subject of a regulation under section 28 (2) of that Act; and

(b)an award, industrial agreement, certified agreement or decision of the commission (the industrial instrument).

(2)If the commission decides that the subject matter of the directive is within its jurisdiction, the industrial instrument prevails to the extent of the inconsistency.

(3) Subsection (2) applies to a directive of the Minister, unless the directive otherwise provides.

(4)In this section—

directive includes a decision made in the exercise of a discretion given in a directive.

s 687 amd 2008 No. 38 s 252 sch 3; 2010 No. 36 s 48

688Protection of public property and officers

(1)Execution or attachment can not be made against property or revenues of the State or a department to enforce an industrial instrument or decision of the court, the commission or a magistrate.

(2)A person who is—

(a)an employer of employees in a department; or

(b)taken to be an employer of employees in a department for this Act;

is not personally liable under a relevant industrial instrument or for a contravention of a relevant industrial instrument.

(3)In this section—

execution or attachment includes process in the nature of execution or attachment.

689Ambit of reference to State

(1)This Act binds an instrumentality or body that is not a department or part of a department, but that is taken by an Act, or otherwise under law—

(a)to be, or to represent, the State; or

(b)to have the rights, privileges or immunities of the State;

as it binds an employer, other than the State.

(2)A reference in section 686 or 688 to the State does not include a reference to an instrumentality or body mentioned in subsection (1).

(3)In this section—

department or part of a department includes a public service office or part of a public service office.

690Representation of public sector units

(1)A public sector unit, or a person in a public sector unit, who is concerned as an employer in an industrial cause must be represented in an industrial tribunal by—

(a)the unit’s chief executive or an officer or employee of the unit authorised by the chief executive; or

(b)if allowed under this Act—a lawyer or agent.

(2)In this section—

industrial tribunal means the court, the commission or an Industrial Magistrates Court.

691Industrial cause affecting diverse employees

(1) Subsection (2) applies if the Minister decides an industrial cause is one that affects, or is likely to affect, employees in more than 1 public sector unit.

(2)The chief executive of the department is taken to be—

(a)the employer of all employees who are, or are likely to be, affected; and

(b)a party to the cause and to proceedings in the court, the commission or an Industrial Magistrates Court in the cause;

instead of all other persons who, apart from this subsection, would be employers of the employees or any of them.

(3)An agreement made by the chief executive as employer or order made in proceedings to which the chief executive is a party binds all persons, and their employees, to whom the agreement or order purports to apply.

ch hdg prev ch 16 hdg om 2005 No. 11 s 51

pres ch 16 hdg ins 2009 No. 49 s 61

pt hdg ins 2009 No. 49 s 61

692Declaration that particular employers are not to be national system employers

(1)This section applies for the purpose of the Commonwealth Act, section 14 (2).

(2)Brisbane City Council under the City of Brisbane Act 2010 is declared not to be a national system employer for the purposes of the Commonwealth Act.

(3)A regulation may declare an FWA section 14 (2) employer not to be a national system employer for the purposes of the Commonwealth Act.

(4)A regulation may revoke a declaration made under a regulation.

(5)The Minister by gazette notice may fix a relevant day for the purposes of the declaration made by subsection (2) or a declaration made by a regulation mentioned in subsection (3).

Note—

Under the Commonwealth Act, section 14 (2), an endorsement under the section by the Minister under the Commonwealth Act must be in force before a particular employer is not a national system employer as specified by the declaration. The prescription of a relevant day allows the timing of this endorsement to be taken into account for the purpose of applying the provisions of part 2.

(6)In this section—

FWA section 14(2) employer means an employer that, under section 14 (2) of the Commonwealth Act, may be declared by or under a law of the State not to be a national system employer.

s 692 prev s 692 om 2005 No. 11 s 51

pres s 692 ins 2009 No. 49 s 61

amd 2010 No. 23 s 352 sch 1

692ADefinitions for this part

In this part—

declared employee means a person employed by a declared employer.

declared employer means an entity declared not to be a national system employer by a regulation mentioned in section 692 (3).

federal industrial authority means—

(a)Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cwlth); or

(b)FWA.

federal industrial authority manager means—

(a)the registrar or deputy registrar of the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cwlth); or

(b)the General Manager of FWA.

def federal industrial authority manager amd 2011 No. 4 s 69 sch pt 1

national fair work legislation means—

(a)the Commonwealth Act; or

(b)the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cwlth).

new State instrument, for a particular employer, means the industrial instrument taken to exist on the relevant day under section 692D in relation to the employees of the employer.

old federal instrument, for a particular employer, means the federal industrial instrument mentioned in section 692D as applying to or purporting to apply to the employees of the employer immediately before the relevant day.

relevant day means—

(a)for the Brisbane City Council and employees of the Brisbane City Council—the day fixed under section 692 (5) for the declaration under section 692 (2); or

(b)for another particular employer or employee of the particular employer—the day fixed under section 692 (5) for the declaration under section 692 (3) that the employer is not to be a national system employer.

terms includes conditions, restrictions and other provisions.

692BBrisbane City Council

(1)This section applies to employees of Brisbane City Council to whom the BCC federal agreement relates immediately before the relevant day.

(2)From the relevant day, the Brisbane City Council Transitional Enterprise Bargaining Certified Agreement 2009 is taken to bind Brisbane City Council, its employees and any employee organisation that is a party to the agreement.

(3)In this section—

BCC federal agreement means the Brisbane City Council Transitional Enterprise Bargaining Certified Agreement 6 Extension 11 under the Commonwealth Act.

s 692B ins 2009 No. 49 s 61

692COperation of existing industrial instrument in relation to declared employers

(1)This section applies if a regulation provides in relation to a particular declared employer that from the relevant day an existing industrial instrument binds employees of the employer.

(2)From the relevant day, the industrial instrument binds the declared employer, the declared employees and any organisation that is a party to the agreement.

(3)A regulation—

(a)may be made for the purposes of subsection (1); and

(b)may declare the industrial instrument or any matter relating to the industrial instrument to be valid for the purposes of the operation of this section.

s 692C ins 2009 No. 49 s 61

692DNew State instrument taken to exist for declared employers in other circumstances

(1)This section applies to the extent sections 692B and 692C do not provide for declared employees.

(2)If a federal industrial instrument, immediately before the relevant day, applies to or purports to apply to the declared employees of a particular declared employer, on the relevant day, an industrial instrument binding the declared employer and declared employees is taken to exist under this Act.

(3)If a new State instrument is taken to exist because of subsection (2)—

(a)the instrument is taken to be a certified agreement; and

(b)the instrument will be taken to be on the relevant day certified under this Act; and

(c)subject to this section, the instrument is taken to have the same terms as the old federal instrument including those terms as added to or modified by—

(i)terms of a federal award incorporated into the old federal instrument; or

(ii)orders of a federal industrial authority; or

(iii)another instrument under the national fair work legislation or the Workplace Relations Act 1996 (Cwlth); and

(d)this Act will apply in relation to the instrument subject to any modifications or exclusions that may be prescribed under a regulation made for this subsection; and

(e)the commission may—

(i)on application by the Minister; or

(ii)on application by a declared employer, a declared employee or an organisation;

amend or revoke any term of the instrument if the commission is satisfied that it is fair and reasonable to do so in the circumstances.

(4)The commission may, in amending a new State instrument under subsection (3) (e), and to achieve the final effect of an amendment, provide for the amendment to take effect—

(a)immediately; or

(b)progressively, in specified stages.

(5)Despite a preceding subsection, a new State instrument applies subject to chapter 2 or 2A.

(6)A new State instrument is taken to have a specified nominal expiry date that is the earlier of the following—

(a)a day that is 2 years from the relevant day;

(b)the day that, immediately before the relevant day, was the expiry day of the old federal instrument.

s 692D ins 2009 No. 49 s 61

amd 2011 No. 4 s 49; 2013 No. 61 s 117 sch 1 pt 2

692EAbility to carry over matters

The commission may, in connection with the operation of this part, or any matter arising, directly or indirectly, out of the operation of this part—

(a)accept, recognise, adopt or rely on any step taken under, or for the purposes of, the national fair work legislation; and

(b)accept or rely on any matter or thing (including in the nature of evidence presented for the purposes of any proceedings) that has been presented, filed or provided under, or for the purposes of, the national fair work legislation; and

(c)give effect in any other way to any other thing done under, or for the purposes of, the national fair work legislation.

s 692E ins 2009 No. 49 s 61

692FReference in a new State instrument to a federal industrial authority or authority manager

(1)If a term of a new State instrument is expressed to confer a power or function on a federal industrial authority, the term has effect from the relevant day as if it conferred the power or function instead on the commission.

(2)If a term of a new State instrument is expressed to confer a power or function on a federal industrial authority manager, the term has effect from the relevant day as if it conferred the power or function instead on the registrar.

(3)This section has effect subject to—

(a)a contrary intention in this Act; and

(b)a regulation.

s 692F ins 2009 No. 49 s 61

692GReference in a new State instrument to a provision of Commonwealth law

(1)If a term of a new State instrument is expressed to refer to a provision of the Commonwealth Act or the Workplace Relations Act 1996 (Cwlth), from the relevant day it is taken to refer instead to the corresponding provision of this Act.

(2)This section has effect subject to—

(a)a contrary intention in this Act; and

(b)a regulation.

(3)In this section—

corresponding provision of this Act, to a provision of the Commonwealth Act or the Workplace Relations Act 1996 (Cwlth), means—

(a)if paragraph (b) does not apply—a provision of this Act that is of similar effect to the provision of the Commonwealth Act or the Workplace Relations Act 1996 (Cwlth); or

(b)a provision of this Act declared under a regulation to be a corresponding provision.

s 692G ins 2009 No. 49 s 61

692HReference in a new State instrument to a federal organisation

(1)If a term of a new State instrument is expressed to refer to a federal organisation, from the relevant day it is taken to refer instead to an organisation under this Act of which the federal organisation is a counterpart federal body as defined under section 411.

(2)If the federal organisation is not a counterpart federal body of an organisation under this Act, the federal organisation is taken to be an organisation under this Act for the representation in the State system of the employees of the relevant declared employer.

(3) Subsection (2) stops applying to the federal organisation when the new State instrument stops binding the relevant declared employer.

(4)This section has effect subject to—

(a)a contrary intention in this Act; and

(b)a regulation.

s 692H ins 2009 No. 49 s 61

692ICounting service under the old federal instrument

(1) Subsection (2) applies for the purpose of deciding the entitlements of a declared employee under a new State instrument.

(2)Service of the declared employee with a declared employer before the relevant day that counted under the old federal instrument also counts as service of the declared employee with the declared employer under the new State instrument.

(3)If, before the relevant day, the declared employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subsection (2) does not result in that period of service being counted again when calculating the declared employee’s entitlements of that type under the new State instrument.

s 692I ins 2009 No. 49 s 61

692JAccruing entitlements—leave accrued immediately before the relevant day

(1)This section applies to leave of the following types, however described, accruing to an employee (the leave)—

(a)annual leave;

(b)sick leave, personal leave or carer’s leave;

(c)long service leave.

(2)If a declared employee to whom a new State instrument applies had, immediately before the relevant day, an accrued entitlement to an amount of the leave, the accrued leave is taken to have accrued under the new State instrument.

(3)It does not matter whether the leave accrued under the old federal instrument, under the national fair work legislation or this Act.

Note—

The reference to the accrual of leave under this Act arises if the old federal instrument refers to leave accruing in accordance with this Act.

(4)A regulation may deal with other matters relating to how a new State instrument applies to any other accrued entitlement that, immediately before the relevant day, a declared employee had under the old federal instrument or the Commonwealth Act.

s 692J ins 2009 No. 49 s 61

692KLeave that is being, or is to be, taken under the old federal instrument

(1)If a declared employee was, immediately before the relevant day, taking a period of leave under the old federal instrument or under the Commonwealth Act, the employee is entitled to continue on that leave under the new State instrument or this Act for the remainder of the period.

(2)If a declared employee has, before the relevant day, taken a step under the old federal instrument or the Commonwealth Act that the employee is required to take so that the employee can, from the relevant day, take a period of leave under the old federal instrument or the Commonwealth Act, the employee is taken to have taken the step under the new State instrument or this Act.

(3)A regulation may deal with other matters relating to how a new State instrument applies to leave that, immediately before the relevant day, is being, or is to be, taken by a declared employee under the old federal instrument or the Commonwealth Act.

s 692K ins 2009 No. 49 s 61

ch hdg ins 2012 No. 9 s 50

693How this Act applies to prescribed Services and their employees

(1)The Hospital and Health Boards Act 2011 provides for the establishment of Hospital and Health Services.

(2)The Hospital and Health Boards Act 2011 further provides for a Hospital and Health Service to become a prescribed Service.

(3) Schedule 4A states the way this Act is modified for the prescribed Services and their employees.

s 693 prev s 693 om 2005 No. 11 s 51

pres s 693 ins 2012 No. 9 s 50

694Employees working in and outside State

(1)This section applies if an employer—

(a)has a workplace, or is present, in Queensland; and

(b)engages in Queensland an employee whose employment is, with the employer’s consent, performed partly in Queensland and partly in another State.

(2)An industrial instrument that binds the employer and employee for the employment performed in Queensland also binds them for the employment performed in the other State.

695Student’s work permit

(1)A student who is taking part in a tertiary study course may apply to the registrar to issue a permit to work in a calling for a particular period.

(2)The student’s application must provide satisfactory proof that the period of work in the calling is necessary to complete the course.

(3)The permit must state—

(a)the period of work; and

(b)the student’s wage rate; and

(c)any conditions it is subject to.

(4)On issuing a permit, the registrar must promptly notify the secretary of an employee organisation in the calling of—

(a)the issue of the permit; and

(b)the permit’s conditions.

(5)The permit has effect despite an award or certified agreement.

s 695 amd 2000 No. 23 s 292 sch 1

696Aged or infirm persons permits

(1)An application may be made to the commission for a permit for an aged or infirm person, alleged to be unable to earn the minimum wage that applies to a calling, to work in the calling for less than the minimum wage.

(1A)For subsection (1), the minimum wage is the greater of—

(a)the Queensland minimum wage; or

(b)the minimum wage provided for by a relevant industrial instrument; or

(c)the minimum wage determined by the commission, after considering—

(i)the Queensland minimum wage; and

(ii)any industrial instrument that regulates employment conditions of employees engaged in a similar kind of work as the aged or infirm person under the proposed permit.

(2)The application may be made by—

(a)the aged or infirm person; or

(b)an inspector.

(3)The commission may issue the permit, with or without conditions.

(4)On receiving an application, the registrar must promptly notify the secretary of an employee organisation in the calling of—

(a)the application; and

(b)the time when the commission will hear any objection to the issue of the permit.

(5)The commission must promptly hear any objection to the issue of the permit from the organisation’s authorised representative.

(6)The organisation may apply, at any time under the rules, to the commission to cancel the permit.

(7)This section applies, and a permit has effect, despite an award or certified agreement.

s 696 amd 2000 No. 23 s 292 sch 1; 2005 No. 11 s 49

697Copy of award and certified agreement to be displayed

(1)This section applies to a workplace where an industrial instrument has application.

(2)The employer must display a copy of the instrument, in a conspicuous place at the workplace where it is easily read by the employees in the workplace.

Maximum penalty—20 penalty units.

(3)In this section—

workplace includes a factory, workroom or shop.

s 697 amd 2011 No. 4 s 50

698Incorporating amendments in awards, certified agreements or orders

If an award, certified agreement or order under chapter 5, part 5 is amended, the registrar may reprint the award, agreement or order in a form certified as correct by the registrar.

699Obsolete industrial instrument

(1)The registrar, after making inquiry, may publish on the QIRC website notice of an intention to declare a stated industrial instrument obsolete.

(2)A person may, within the stated time and in the stated way, file an objection notice with the commission.

(3)The commission must hear and decide the objection.

(4)If no objection is filed within the stated time, or all objections filed are dismissed, the registrar may, by notice published on the QIRC website, declare that the instrument is obsolete.

(5)The instrument stops having effect on publication of the notice.

s 699 amd 2009 No. 38 s 36

700Certificate of employment on termination

(1)An employer, when asked by a person whose employment with the employer has been terminated, must give the person a certificate, signed by the employer, about the particulars prescribed under a regulation.

Maximum penalty—20 penalty units.

(2)In this section—

terminated means terminated by the employer or employee.

701False pretences relating to employment

(1)A person must not—

(a)pretend someone else has been employed by the person for a period, or in a capacity, other than that for, or in, which the other person was employed; or

(b)assert in writing that someone else has been employed by the person for a period, or in a capacity, knowing the assertion to be false; or

(c)assert in writing another matter relating to the person’s employment of someone else, knowing the assertion to be false in a material particular.

Maximum penalty—40 penalty units.

(2)A person must not—

(a)forge a document that purports to be a discharge from, or a record of, previous employment; or

(b)use a document that purports to be a discharge from, or a record of, previous employment, knowing the document is not genuine or is false; or

(c)pretend, or falsely claim, when seeking employment, to be a person named in a genuine document mentioned in paragraph (b) as a person to whom the document was given; or

(d)seek to obtain employment by assuming someone else’s name, living or dead, with intent to deceive.

Maximum penalty—40 penalty units.

(3)If in a calling, under a relevant industrial instrument or under a general ruling for the Queensland minimum wage, an employee’s wages depends wholly or partly on the employee’s age, experience or duration of previous employment, a person must not give information, or make a statement, about the particulars that the person knows is false—

(a)when seeking employment in the calling; or

(b)while an employee in the calling.

Maximum penalty—16 penalty units.

(4)A person’s liability to be dealt with for an offence under subsection (1) or (2) does not affect the person’s liability to be dealt with under the Criminal Code for forgery or false pretences.

(5)However, the person must not be dealt with under both this Act and the Criminal Code for the same conduct.

s 701 amd 2003 No. 27 s 620

702Protection from liability

(1)An official is not civilly liable for an act done, or omission made, honestly and without negligence under this or another Act mentioned in section 350 (4).

(2)If subsection (1) prevents civil liability attaching to a person, the liability attaches instead to the State.

(3)In this section—

official means—

(a)the Minister; or

(b)the chief executive; or

(c)the registrar; or

(d)another officer of the court or commission; or

(e)an inspector; or

(f)a person acting under the direction of an inspector.

s 702 amd 2007 No. 23 s 38; 2013 No. 61 s 117 sch 1 pt 1

703Payments to financially distressed

(1) Subsection (2) applies if a person is—

(a)suffering hardship because an employer has failed to pay the person the whole or part of wages; and

(b)unlikely to be able to recover by lawful means the whole or a substantial part of the unpaid wages.

(2)The Governor in Council may authorise payment of an amount, not more than the person is unlikely to recover, to the person from the unclaimed moneys fund.

(3)The payment does not relieve the employer from liability to pay the unpaid wages.

(4)If the person later receives remuneration in full or part satisfaction of the employer’s liability, the person must immediately pay the department (for payment to the unclaimed moneys fund) an amount equal to the lesser of—

(a)the value of the remuneration received, as assessed by the Minister; or

(b)the amount of the payment made to the person and not previously repaid by the person under this subsection.

(5)The amount payable to the department—

(a)is a debt payable to the department; and

(b)may be recovered by action in a court of competent jurisdiction.

(6)In this section—

remuneration means remuneration, in money or kind.

704Notices and applications to be written

If a person must give a notice or make an application under this Act, the notice or application must be written, unless otherwise provided.

705Inaccurate descriptions

No misnomer, inaccurate description or omission in or from a document given under this Act prevents or limits the operation of this Act in relation to the subject matter of the misnomer, inaccurate description or omission, if the subject matter is sufficiently clear to be understood.

706Confidentiality of information

A person must not disclose information acquired when performing functions or exercising powers under this Act to someone else, unless the disclosure is—

(a)made for this Act when performing a function under this Act; or

(b)authorised by—

(i)the Minister; or

(ii)a court order, for hearing and deciding proceedings before the court; or

(iii)a regulation; or

(c)required or permitted by another Act.

Maximum penalty—16 penalty units.

707Application of Act generally

(1)If a provision of this Act does not apply to a person or a class of person, a decision is inoperative to the extent that it purports to apply to the person or a member of the class about the provision’s subject matter.

(2)In its application, this Act does not create a right, privilege or benefit for a person for a period of service as an employee if, for the period, a similar right, privilege or benefit was given to or received by the person under a corresponding provision of the repealed Act.

708Approved forms

(1)The rules committee may approve, for this Act, forms for use by or in the court, commission, Industrial Magistrates Court or registry.

(2)When acting under subsection (1), the rules committee must consult with—

(a)for a form relating to the Industrial Magistrates Court—the Chief Magistrate; or

(b)for a form relating to the registry—the registrar.

(3)The chief executive may approve, for this Act, forms for use in circumstances not mentioned in subsection (1).

s 708 (3)–(4) exp 2 July 2001 (see s 708 (4))

amd 2005 No. 11 s 50; 2009 No. 15 s 11; 2012 No. 22 s 25 sch; 2013 No. 29 s 57A

709Regulation-making power

(1)The Governor in Council may make regulations under this Act.

(2)In particular, but without limiting subsection (1), a regulation may be made—

(a)requiring an employer who is a party to a certified agreement to supply information for statistical purposes; and

(b)regulating the conduct of persons, other than lawyers, who act for parties in an industrial cause; and

(c)regulating the conduct of persons, other than lawyers, who appear in proceedings—

(i)in the court; or

(ii)before the commission or registrar; and

(d)creating an offence under a regulation; and

(e)fixing a penalty for an offence under a regulation, including different penalties for successive offences against a regulation, of not more than 20 penalty units.

s 709 amd 2000 No. 23 s 292 sch 1; 2011 No. 4 s 51

710Savings

(1)A person prescribed under any Act to be an employee within the meaning of the repealed Act continues to be an employee within the meaning of this Act.

(2) Subsection (3) applies to an award, decision, exemption, judgment, ruling, permit or licence or other act of authority (the instrument) that was—

(a)made, given, done, granted, certified or approved by the court, the commission, a magistrate or the registrar under the repealed Act or the IO Act, and in relation to which there is a corresponding provision under this Act; and

(b)in force immediately before the commencement of this Act.

(3)The instrument—

(a)continues in force as if it had been made, given, done, granted or approved by the court, commission, magistrate or registrar, according to their respective functions and jurisdictions, under the corresponding provision of this Act; and

(b)may be amended, revoked or suspended under this Act.

(4)Proceedings started before the commencement of this section under a provision of the repealed Act or the IO Act and pending at the date of the repeal may be carried on and prosecuted as if they had been started under the corresponding provision of this Act.

(5)However, if the entity before whom proceedings were started had jurisdiction to hear and decide the proceedings under the repealed Act, but the entity no longer has jurisdiction under this Act—

(a)the proceedings may be continued and completed as if the repealed Act had not been repealed; and

(b)if a person is dissatisfied with the decision of the entity in the proceedings—an appeal against the decision may be started and completed as if the repealed Act had not been repealed.

(6)Proceedings are taken to be part heard after the start of the hearing until the decision in the proceedings is given.

712Repeals

(1)The following Acts are repealed—

(a)the Workplace Relations Act 1997 ;

(b)the Industrial Organisations Act 1997 .

(2)A proclamation commencing this section may fix different days or times for the repeal of different provisions of an Act to be repealed under subsection (1).

(3)One or more further proclamations may be made fixing different days or times for the repeal of different provisions of the Act until the Act is entirely repealed.

713Existing industrial agreement continues

(1)An industrial agreement that is in force immediately before the commencement of this section continues to have effect after the commencement.

(2)The provisions of the 1990 Act, other than those relating to the making or amendment of an industrial agreement, continue to apply to the industrial agreement, subject to this part.

(3)The commission may amend the industrial agreement only before its term expires and in accordance with a written agreement filed by the parties to the industrial agreement in the registry.

(4)However, the term of the industrial agreement can not be extended by agreement.

(5)If there is no applicable award, the commission, of its own initiative or on an application by a party to the industrial agreement, may decide that the industrial agreement has effect as an award.

(6)The industrial agreement may be terminated, before its term expires, by written agreement filed by the parties to the industrial agreement in the registry.

714Industrial agreement displaced by QWA

If a QWA comes into operation in relation to an employee who is bound by an industrial agreement, the industrial agreement stops having effect in relation to the employee.

715New termination provisions for existing certified agreements

(1)A certified agreement that is in force immediately before the commencement of this section continues to have effect after the commencement.

(2) Section 172 applies to a certified agreement entered into before the commencement of this section if, whether before or after the commencement—

(a)the period of operation stated in the agreement has ended; or

(b)if it has been extended or further extended under the repealed Act—the period as extended or further extended has ended.

716EFAs that prevail over certified agreements

(1)This section applies if—

(a)an EFA is continued in force by part 3; and

(b)any part of the period of operation stated in the agreement (the post-commencement period), or that period as extended or further extended, happens after the commencement of this section; and

(c)the EFA is, during the post-commencement period, to any extent inconsistent with a certified agreement, whether made before or after the commencement of this section; and

(d)the certified agreement was certified after implementation of the EFA was approved.

(2)The EFA prevails over the certified agreement, to the extent of the inconsistency, during the post-commencement period.

717Certified agreements that prevail over EFAs

(1)This section applies if—

(a)an EFA is continued in force by part 3; and

(b)a certified agreement, whether made before or after the commencement of this section, is to any extent inconsistent with the EFA; and

(c) section 716 does not apply to the inconsistency.

(2)The certified agreement prevails over the EFA, to the extent of the inconsistency.

718Existing EFA continues

(1)An EFA that is in force immediately before the commencement of this section continues to have effect after the commencement.

(2)The provisions of the 1990 Act, other than those relating to the making of an EFA, continue to apply to the EFA, subject to this part.

(3)However, the period of operation of the EFA can not be extended after the commencement.

719EFA displaced by QWA and determination

(1)If a QWA comes into operation in relation to an employee who is bound by the EFA, the EFA stops having effect in relation to the employee.

(2)A determination under section 149 prevails over an EFA to the extent of any inconsistency.

720Dismissals before commencement of this section

The repealed Act, chapter 5, part 2, continues to apply to a dismissal within the meaning of that part that happened before the commencement of this section.

721Applications under the repealed Act, s 293

If an application has been made under the repealed Act, section 293—

(a)the hearing of the application may be started and continued as if this Act had not been enacted; and

(b)that section continues to apply to the hearing; and

(c)an order made as a result of the hearing has effect as if it had been made under that section before its repeal.

722References to repealed Act or IO Act

In an Act or document, a reference to the repealed Act or the IO Act may, if the context permits, be taken to be a reference to this Act.

723Appointments continue

(1)A person who immediately before the commencement of this section held an appointment as a commissioner under the repealed Act continues to hold the appointment, subject to this Act, until—

(a)the end of the term of appointment; or

(b)reappointed under this Act.

(2)A person who immediately before the commencement of this section held an appointment as—

(a)the registrar; or

(b)the chief inspector; or

(c)an inspector;

under the repealed Act continues to hold the appointment, subject to this Act.

(3)A person who immediately before the commencement of this section held an appointment under the IO Act continues to hold the appointment until the end of the term of appointment, if any, subject to this Act.

724Proceedings commenced under the Vocational Education, Training and Employment Act 1991

Proceedings started under the Vocational Education, Training and Employment Act 1991 , section 98 (4), 100 (6), 103 (2) or 120 (3) (b), before the commencement of this section, and pending at the commencement, may be carried on and prosecuted as if they had been started under the corresponding provision of this Act.

Editor’s note—

Vocational Education, Training and Employment Act 1991 , section 98 (Provision of tools of trade), 100 (Recovery of moneys due and payable to, or on account of apprentice or trainee), 103 (Recovery of unpaid superannuation contribution due to apprentice or trainee) or 120 (Proceedings for offences)This Act has been repealed, see 2000 No. 23 s 294.

725Orders and determinations under the Vocational Education, Training and Employment Act 1991

(1)A continuing order continues to have effect after the commencement of this subsection as if it had been made by the commission under—

(a)for a continuing order made under section 83 of the repealed Act that relates to a person employed under a labour market program approved by the Minister under section 140—section 140; or

(b)for any other continuing order—section 137.

(2)A determination by the State Training Council under the Vocational Education, Training and Employment Act 1991 , section 86 (5) or section 87 (2), that is in force immediately before the commencement of this section, continues to have effect after the commencement as if it had been made by the commission as an order under section 137.

(3)An order made by the commission under the Vocational Education, Training and Employment Act 1991 , section 89 (1), that is in force immediately before the commencement of this section, continues to have effect after the commencement as if it had been made by the commission under section 138.

Editor’s note—

Vocational Education, Training and Employment Act 1991 , section 89 (Industrial Commission may order provision of tools of trade)This Act has been repealed, see 2000 No. 23 s 294.

(4)In this section—

continuing order means an order made by the commission under section 83, 86 (2) or 87 (5) of the repealed Act and continued in effect under subsection (1) as in force immediately before the commencement of this subsection.

repealed Act means the Vocational Education, Training and Employment Act 1991 .

s 725 amd 2000 No. 61 s 71

726Organisations with dual corporate status

(1)This section applies if, on the commencement of this section, an organisation was incorporated under a former incorporation provision and it was also—

(a)a corporation under the Corporations Act, section 57A; or

(b)an incorporated association under the Associations Incorporation Act 1981 ; or

(c)a body incorporated under a law of the State.

(2)Two years after the commencement, the organisation is taken to be no longer incorporated under the former incorporation provision for this Act.

(3)However, subsection (2) does not affect any continued incorporation of the organisation under a law mentioned in subsection (1) (a) to (c).

(4)The registrar may, on the application of the organisation made before the end of the 2 years, cancel its incorporation under the former incorporation provision.

(5)The commission may, on the referral of the registrar, make an order it considers appropriate to resolve any difficulty that may arise from the organisation no longer being incorporated under the former incorporation provision.

(6)In this section—

former incorporation provision means a provision as follows—

(a)the Industrial Conciliation and Arbitration Act 1932 , section 41(1);

(b)the Industrial Conciliation and Arbitration Act 1961 , section 69(1);

(c)the 1990 Act, section 334;

(d)the IO Act, section 18.

s 726 amd 2001 No. 45 s 29 sch 3

727Continued registration of organisations

(1)An industrial organisation registered, or taken to be registered, under the IO Act immediately before this section commences is taken to be registered as an organisation under this Act at the commencement.

(2)The name of an organisation under the IO Act is unchanged under this Act.

(3)The organisation is and continues to be the same body corporate under this Act without any break in, or change to, its corporate identity.

728Applications for exemption from membership of an organisation

The procedure under the IO Act, section 90 (3) to (5) continues to apply to the hearing of an application for exemption from membership of an organisation until a regulation is made under section 112.

729Amalgamations

(1)This section applies until a regulation is made under chapter 12, part 15 that is expressed to replace the effect of the IO Act, sections 96 to 98, 100 to 104, 106 to 115, 117 to 141, and 144 to 146 (continued provisions).

(2)Despite the repeal of the IO Act, the continued provisions continue to apply to an amalgamation or proposed amalgamation, with the changes necessary to make them consistent with this Act and to adapt their operation to the provisions of this Act.

730Withdrawals from amalgamation

(1)This section applies until a regulation is made under chapter 12, part 15 that is expressed to replace the effect of the IO Act, sections 160 to 174, 177 and 178 (continued provisions).

(2)Despite the repeal of the IO Act, the continued provisions continue to apply to a withdrawal or proposed withdrawal, with the changes necessary to make them consistent with this Act and to adapt their operation to the provisions of this Act.

731Election and ballot expenses

(1)The IO Act, section 55 continues to apply to an organisation for an election for the organisation that, immediately before this section commences, was finished or was being conducted but had not finished.

(2)If, immediately before the commencement of this section, the IO Act, section 74 applied to an election or a step in an election, that section continues to apply to the election or step if the election or step was finished or was being conducted, but had not finished.

(3)The IO Act, section 116 continues to apply to an organisation for a ballot for a proposed amalgamation if, immediately before the commencement of this section, the ballot was finished or was being conducted, but had not finished.

(4)The IO Act, section 186 continues to apply to a person who applied for a ballot for a proposed withdrawal from amalgamation if, immediately before the commencement of this section, the ballot was finished or was being conducted, but had not finished.

(5) Subsections (1) to (4) have effect despite the repeal of the IO Act.

732Political objects funds

(1)This section applies if, immediately before section 551 commences, an organisation had a political objects fund under the IO Act, part 12.

(2)The IO Act, section 227 (1) to (3) (section 227) continues to apply to any contribution to the fund for 6 months after the commencement.

(3)A direction to the organisation under section 227 expires at the end of the 6 months.

(4)At the end of the 6 months the organisation must close the fund and pay out any amount in the fund under its rules.

(5) Subsection (2) has effect despite the repeal of the IO Act.

ch hdg ins 2002 No. 73 s 7

pt hdg ins 2005 No. 16 s 36

733Transitional provision for 2002 amendment Act

(1)The person who, immediately before the commencement of the 2002 amendment Act, was the commissioner administrator continues to be a commissioner after the commencement.

(2)The 2002 amendment Act does not affect the validity of any decisions or delegations made before the commencement of that Act.

(3)A delegation made by the commissioner administrator that was in force immediately before the commencement of the 2002 amendment Act continues to have effect after the commencement as if made by the vice president.

(4)In this section—

2002 amendment Act means the Industrial Relations Amendment Act 2002 .

s 733 ins 2002 No. 73 s 7

pt hdg ins 2005 No. 16 s 37

734Continuation of decisions made by approving authority

A decision of the Training and Employment Board as the approving authority that is in force immediately before the commencement of this section is taken, on the commencement, to be a decision of the Training and Employment Recognition Council as the approving authority.

s 734 ins 2005 No. 16 s 37

pt hdg ins 2005 No. 11 s 52

735Definition for part

In this part—

2005 amendment Act means the Industrial Relations and Other Acts Amendment Act 2005 .

s 735 ins 2005 No. 11 s 52

736Continuity of service

The amendment of section 71 (9) by the 2005 amendment Act applies only to an employee’s service after the commencement of the amendment.

s 736 ins 2005 No. 11 s 52

737Dismissals

The amendment of section 72 (1) (c) and (d) by the 2005 amendment Act applies only to a dismissal after the commencement of the amendment.

s 737 ins 2005 No. 11 s 52

pt hdg ins 2005 No. 50 s 96

738Dismissal of injured employee

Section 95, as in force immediately before the commencement of this section, continues to apply to an injured employee who is dismissed before the commencement.

s 738 ins 2005 No. 50 s 96

pt hdg ins 2006 No. 2 s 58

739Provision for agreed extensions of parental leave

(1)This section applies if, before the commencement of new section 29, an employer and an employee agreed that the employee could extend the employee’s period of parental leave beyond the total period allowed under old section 18.

(2)The agreement continues to have effect according to its terms.

(3)In this section—

new section 29 means section 29 as inserted by the Child Employment Act 2006 , section 49.

old section 18 means section 18 as in force immediately before the commencement of the Child Employment Act 2006 , section 48.

s 739 ins 2006 No. 2 s 58

pt hdg ins 2007 No. 23 s 39

740Certification of agreements

(1)Sections 153, 156 and 166, as in force after the commencement of this section, apply to an agreement only if the application to certify the agreement is made on or after the commencement.

(2)However, it does not matter whether the agreement is made before or after the commencement.

s 740 ins 2007 No. 23 s 39

741Appointment as members

(1)This section applies if, immediately before the commencement of this section, a person held office as a member of the commission.

(2)From the commencement—

(a)the person continues to hold the office; and

(b)the Act as in force after the commencement applies to the person’s appointment.

s 741 ins 2007 No. 23 s 39

742Appointments by industrial gazette notice

To remove any doubt, it is declared that an appointment by industrial gazette notice made under section 261 (2), 297 (1), 302 (2) or 350 (1) before the commencement of this section and in force at the commencement continues to have effect after the commencement as if the appointment were made by gazette notice.

Editor’s note—

When this section commenced, the Acts Interpretation Act 1954 , section 36 provided—
industrial gazette means the Queensland Government Industrial Gazette.
industrial gazette notice means notice published in the industrial gazette.

s 742 ins 2007 No. 23 s 39

743Appeals to Court of Appeal from full bench

Section 340, as in force immediately before the commencement of this section, continues to apply to a decision of the full bench made before the commencement.

s 743 ins 2007 No. 23 s 39

pt hdg ins 2008 No. 5 s 5

div hdg ins 2008 No. 5 s 5

744Application of pt 7

(1)This part applies in relation to—

(a)a local government that, immediately before the commencement of the Local Government and Industrial Relations Amendment Act 2008 , section 10, was an employer within the meaning of the Commonwealth Act, section 6 (1); and

(b)an employee of a local government mentioned in paragraph (a) who, immediately before the commencement of the Local Government and Industrial Relations Amendment Act 2008 , section 10, was an employee within the meaning of the Commonwealth Act, section 5 (1).

(2)In this section—

local government does not include the Brisbane City Council.

s 744 ins 2008 No. 5 s 5

745Definitions for pt 7

In this part—

APCS, in relation to an employee, means the Australian Pay and Classification Scale applying to the employee under the Commonwealth Act.

Australian workplace agreement has the meaning given by the Commonwealth Act, section 326.

commencement means the commencement of this section.

Commonwealth Act means the Workplace Relations Act 1996 (Cwlth).

def Commonwealth Act ins 2009 No. 49 s 62

employee collective agreement has the meaning given by the Commonwealth Act, section 327.

federal instrument means any of the following—

(a)an original award;

(b)a pre-reform award;

(c)a pre-reform certified agreement;

(d)a pre-reform AWA;

(e)an Australian workplace agreement;

(f)a union collective agreement;

(g)an employee collective agreement;

(h)a notional agreement preserving State awards.

notional agreement preserving State awards has the meaning given by the Commonwealth Act, schedule 8, clause 31.

original award means an original award mentioned in the Work Choices Amendment Act, schedule 4, item 4(2).

pre-reform AWA has the meaning given by the Commonwealth Act, schedule 7, clause 1.

pre-reform award has the meaning given by the Commonwealth Act, section 4 (1).

pre-reform certified agreement has the meaning given by the Commonwealth Act, schedule 7, clause 1, but does not include a pre-reform certified agreement to which the Commonwealth Act, schedule 7, part 2, division 2 applies.

substitute State instrument means the following—

(a)for an original award—an award taken to have been made by the commission, and amended, as provided for under section 747;

(b)for a pre-reform certified agreement—a certified agreement taken to have been certified by the commission as provided for under section 748;

(c)for an Australian workplace agreement or pre-reform AWA—a QWA approved by the commission as provided for under section 749;

(d)for a union collective agreement—a certified agreement certified by the commission, and amended, as provided for under section 750;

(e)for an employee collective agreement—a certified agreement certified by the commission as provided for under section 751;

(f)for a notional agreement preserving State awards—the awards applying as provided for under section 752.

union collective agreement has the meaning given by the Commonwealth Act, section 328.

Work Choices Amendment Act means the Workplace Relations Amendment (Work Choices) Act 2005 (Cwlth).

s 745 ins 2008 No. 5 s 5

746Interpretation

(1)This section has effect for this part.

(2)A reference to the Australian Industrial Relations Commission (however described) in a substitute State instrument is taken to be a reference to the commission.

(3)A reference to a provision of the Commonwealth Act or the Work Choices Amendment Act in a substitute State instrument is taken to be a reference to a corresponding provision of this Act.

(4)A reference in a substitute State instrument to a federal organisation mentioned in column 1 of the following table is taken to be a reference to the State organisation mentioned opposite in column 2 of the table—

Table

Column 1 Federal organisations	Column 2 State organisations
The Association of Professional Engineers, Scientists and Managers, Australia	The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees
Australian Municipal, Administrative, Clerical and Services Union	Queensland Services, Industrial Union of Employees
Australian Municipal, Administrative, Clerical and Services Union, Queensland Services Branch
Australian Nursing Federation	Queensland Nurses’ Union of Employees
Australian Nursing Federation, Queensland Branch
Queensland Nurses’ Union of Employees
The Australian Workers’ Union of Employees, Queensland	The Australian Workers’ Union of Employees, Queensland
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union	Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union - Queensland Branch
Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division	The Electrical Trades Union of Employees Queensland
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland Divisional Branch
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Plumbing Division	Plumbers & Gasfitters Employees’ Union Queensland, Union of Employees
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Plumbing Division - Queensland Divisional Branch
The Plumbers and Gasfitters Employees’ Union Of Australia, Queensland Branch, Union of Employees
Construction, Forestry, Mining & Energy Union, Queensland	The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland
Construction, Forestry, Mining & Energy Union, Construction and General Division
The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland
Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees	Federated Engine Drivers’ and Firemens’ Association of Queensland, Union of Employees
Liquor, Hospitality and Miscellaneous Union	Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees
Liquor, Hospitality and Miscellaneous Union, Queensland Branch
Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees
Transport Workers’ Union of Australia –Queensland Branch	Transport Workers’ Union of Australia, Union of Employees (Queensland Branch)
Transport Workers’ Union of Australia –Queensland Branch
Transport Workers’ Union of Australia, Union of Employees (Queensland Branch)

(5)In this section—

corresponding provision of this Act, to a provision of the Commonwealth Act or the Work Choices Amendment Act, means—

(a)if paragraph (b) does not apply, a provision of this Act that is of similar effect to the provision of the Commonwealth Act or the Work Choices Amendment Act; or

(b)a provision of this Act declared under a regulation to be a corresponding provision.

federal organisation includes a transitionally registered association under the Commonwealth Act, schedule 10.

State organisation means an organisation registered under chapter 12.

s 746 ins 2008 No. 5 s 5

div hdg ins 2008 No. 5 s 5

747Provision for original awards

(1)This section makes provision in relation to each original award that, on 27 March 2006, was taken to have been replaced by a pre-reform award under the Work Choices Amendment Act, schedule 4, item 4(3) if the pre-reform award is in force immediately before the commencement.

(2)On the commencement, the original award is taken to be an award made by the commission under section 125.

(3)The award is taken to be amended so that any APCS applying to employees bound by the pre-reform award continues to apply to the employees bound by the award.

(4)Subject to subsection (3) and section 746, the award has effect according to its terms and, despite section 133, an action to enforce the award may be commenced on and after the day of the commencement.

s 747 ins 2008 No. 5 s 5

748Provision for pre-reform certified agreements

(1)This section makes provision in relation to each pre-reform certified agreement in force immediately before the commencement.

(2)On the commencement, the pre-reform certified agreement is taken to be a certified agreement certified by the commission under section 156.

(3)Subject to section 746, the certified agreement has effect according to its terms.

s 748 ins 2008 No. 5 s 5

749Provision for Australian workplace agreements and pre-reform AWAs

(1)This section makes provision in relation to each of the following federal instruments in force immediately before the commencement—

(a)an Australian workplace agreement;

(b)a pre-reform AWA.

(2)On the commencement, a federal instrument to which this section applies is taken to be a QWA approved by the commission under section 203 that is in operation until the earlier of the following—

(a)the nominal expiry date stated in the federal instrument;

(b)15 March 2009;

(c)the day the employee in relation to whom the QWA operates is bound by a certified agreement that is certified by the commission after the commencement.

(3)Subject to subsection (2) and section 746, and despite section 192 (3) (c) and (4), the QWA has effect according to its terms.

s 749 ins 2008 No. 5 s 5

750Provision for union collective agreements

(1)This section makes provision in relation to each union collective agreement in force immediately before the commencement.

(2)On the commencement, the union collective agreement is taken to be a certified agreement certified by the commission under section 156.

(3)The certified agreement is taken to be amended by omitting any dispute settlement procedure (however described) provided for in the agreement and inserting instead clause 3.2 of the Sample Award - State 2004 attached to Practice Note PN 9 issued by the commission on 30 June 2004.

Editor’s note—

Clause 3.2 of the Sample Award provides for a grievance and dispute settling procedure. On the commencement, a copy of the practice note can be found on the commission’s website at <www.qirc.qld.gov.au>.

(4)Subject to subsection (3) and section 746, and despite section 169 (7), the certified agreement has effect according to its terms.

(5)Without limiting the entities bound by the certified agreement, the certified agreement binds the following organisations—

(a)an organisation that was bound by a relevant State employment agreement with a local government if the organisation is entitled to represent the industrial interests of employees of the local government who are bound by the certified agreement;

(b)a State organisation that is mentioned in the table in section 746 (4) opposite any federal organisation or association that was bound by a pre-reform certified agreement replaced entirely or partly by the union collective agreement.

(6)In this section—

preserved collective State agreement has the meaning given by the Commonwealth Act, schedule 8, clause 10.

relevant State employment agreement means a State employment agreement as mentioned in the Commonwealth Act, schedule 8, clause 10 that, on 27 March 2006, was part of the basis on which a preserved collective State agreement came into operation.

s 750 ins 2008 No. 5 s 5

751Provision for employee collective agreements

(1)This section makes provision in relation to each employee collective agreement in force immediately before the commencement.

(2)On the commencement, the employee collective agreement is taken to be a certified agreement certified by the commission under section 156.

(3)Subject to section 746, the certified agreement has effect according to its terms.

(4) Subsection (5) applies if an employee organisation gives the commission and the employer bound by the certified agreement notice that it wants to be bound by the certified agreement.

(5)The commission must decide that the certified agreement binds the employee organisation if the organisation satisfies the commission about the following—

(a)the organisation has at least 1 member—

(i)whose employment is, or will be, subject to the agreement; and

(ii)who asked the organisation to give the notice;

(b)the organisation—

(i)is bound by an award that binds the employer; or

(ii)if there is no award that binds the employer—is entitled to represent the industrial interests of relevant employees.

s 751 ins 2008 No. 5 s 5

752Provision for notional agreements preserving State awards

(1)This section applies in relation to each employee of a local government who, immediately before the commencement, was bound by a notional agreement preserving State awards.

(2)On the commencement, the employee is subject to any award applying to the employee under this Act.

(3)However if, immediately before the commencement, an employee was paid under an APCS, on the commencement, the employee is to be paid as provided for under the APCS until the employee’s wage rate in the award is varied under a general ruling under section 287.

(4)On the day the employee’s wage rate is varied, the employee is to be paid at a rate not less than the wage rate payable under the award.

s 752 ins 2008 No. 5 s 5

div hdg ins 2008 No. 5 s 5

753Preservation of existing entitlements

(1)This section applies in relation to each employee who, after the commencement, is bound by a substitute State instrument or an industrial instrument.

(2)After the commencement, the employee is entitled to receive not less than the remuneration the employee received before the commencement.

(3)Subject to the prescribed transitional arrangements, subsection (2) has effect until the employee is bound by a certified agreement certified by the commission after the commencement.

(4)In this section—

prescribed transitional arrangements means each of the following—

(a)the South East Queensland Water (Restructuring) Act 2007 , section 90;

(b)the Local Government Reform Implementation Regulation 2008 , sections 46 and 73;

(c)the Local Government Regulation 2005 , section 89Q;

(d)the Local Government Reform Implementation (Transferring Areas) Regulation 2007 , section 50;

(e) sections 8.3.1 and 8.3.2 of the Local Government Workforce Transition Code of Practice - 2007 mentioned as having been made as a workforce transition code of practice under the Local Government Act 1993 , section 159ZH in the Local Government (Workforce Transition Code of Practice) Notice 2007 (SL No. 218 of 2007).

remuneration, in relation to an employee, includes—

(a)the wage or salary payable to the employee; and

(b)amounts payable or other benefits made available to the employee under a contract of service, a federal instrument or an industrial instrument.

s 753 ins 2008 No. 5 s 5

754Organisations bound by substitute State instruments

(1)This section applies if, under section 746 (4), in a substitute State instrument a reference to a federal organisation or association is taken to be a reference to a State organisation.

(2)To remove any doubt, it is declared that the State organisation is bound by the substitute State instrument.

s 754 ins 2008 No. 5 s 5

755Provisions for minimum entitlements

(1)Sections 8A, 9, 9A, 10, 11 and 15 do not apply in relation to an employee bound by or subject to a relevant substitute State instrument until the earlier of the following (the end date for the employee)—

(a)15 March 2009;

(b)the day, after the commencement, the employee is bound by a certified agreement certified by the commission.

(2)Until the end date for the employee, the following provisions of the Commonwealth Act, to the extent they provide a more favourable outcome for the employee, are applied as a law of the State—

(a)provisions guaranteeing a federal minimum wage for the employee;

(b)provisions relating to maximum ordinary hours of work for the employee;

(c)provisions relating to paid leave for the employee because of a personal illness or injury;

(d)provisions relating to annual leave for the employee, other than the Commonwealth Act, section 235 (2);

(e)provisions relating to entitlement to public holidays for the employee.

(3)For applying subsection (2), the provisions are to be construed by reference to the Commonwealth Act but with any necessary changes.

(4) Subsection (1) does not limit section 753.

(5)In this section—

relevant substitute State instrument means a substitute State instrument that applies to an employee other than any award applying to the employee after the commencement as provided for under section 752.

s 755 ins 2008 No. 5 s 5

pt hdg ins 2009 No. 15 s 12

756Delegations by vice president

A delegation made by the vice president that was in force immediately before the commencement of the Industrial Relations Amendment Act 2009 continues to have effect after the commencement as if made by the president.

s 756 prev s 756 ins 2008 No. 5 s 5

exp 13 March 2009 (see s 756 (4))

pres s 756 ins 2009 No. 15 s 12

pt hdg ins 2009 No. 38 s 37

757Definition for pt 9

In this part—

amending Act means the Electrical Safety and Other Legislation Amendment Act 2009.

s 757 ins 2009 No. 38 s 37

758Matters published in industrial gazette

(1)This section applies if, before the commencement of this section, a matter was published in the industrial gazette as required or permitted by a provision of this Act (relevant provision) as in force before the commencement.

(2)Despite the amendment of the relevant provision by the amending Act, after the commencement—

(a)the matter continues to have been published for the relevant provision; and

(b) section 680, as in force immediately before the commencement, continues to apply to a copy of, or a document purporting to be an extract from, the industrial gazette.

(3)In this section—

commencement means the commencement of this section.

industrial gazette means the Queensland Government Industrial Gazette.

s 758 ins 2009 No. 38 s 37

pt hdg ins 2009 No. 49 s 63

760Referral of matters to Commonwealth Parliament

(1)In this section—

designated day means the day on which a Commonwealth law in the terms, or substantially in the terms, set out in scheduled text under the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 comes into operation.

(2)This Act will operate in relation to—

(a)any matter arising under this Act before the designated day (including a matter that is not in the nature of a right or that is procedural in nature); and

(b)any matter arising, directly or indirectly, out of such a matter;

insofar as the matter is not dealt with under the Commonwealth Act on or after the designated day.

(3)Nothing in this section is intended to limit or affect the operation of this Act—

(a)in relation to industrial or other matters that are not affected by a law of the Commonwealth relating to matters referred to the Parliament of the Commonwealth under the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 ; or

(b)in any other way (other than to the extent that this Act can not apply because of a law of the Commonwealth).

s 760 ins 2009 No. 49 s 63

761Declaration about BCC Certified Agreement

(1)This section applies to the Brisbane City Council Transitional Enterprise Bargaining Certified Agreement 2009.

(2)The agreement is to be taken to be validly made and certified for the purposes of the law of the State.

s 761 ins 2009 No. 49 s 63

pt hdg ins 2010 No. 42 s 113

764Final quarterly report by ombudsman

(1)Despite the Justice and Other Legislation Amendment Act 2010 , section 106, the ombudsman must prepare a report under the pre-amended Act, section 339Z, for the period from 1 October 2010 to 31 December 2010.

(2)In this section—

pre-amended Act means this Act as it was in force immediately before the commencement of this section.

s 764 ins 2010 No. 42 s 113

765Appointment of associates

(1)To remove any doubt, it is declared that an appointment of an associate to a member of the commission that is in force under schedule 2, part 1A, section 4C immediately before the section is amended under the Justice and Other Legislation Amendment Act 2010 , section 114, is taken, from the amendment, to continue in force as if it had been made by the Minister under the new schedule 2, part 1A, section 4C.

(2)This section does not limit the Acts Interpretation Act 1954 , section 20B.

s 765 ins 2010 No. 42 s 113

pt hdg ins 2011 No. 4 s 52

div hdg ins 2011 No. 4 s 52

sdiv 1 (ss 766–772) ins 2011 No. 4 s 52

766Application of sdiv 1

(1)This subdivision applies in relation to—

(a)a local government, other than a local government mentioned in section 744 (1) (a); and

(b)an employee of a local government mentioned in paragraph (a).

(2)In this section—

local government does not include the Brisbane City Council.

sdiv 1 (ss 766–772) ins 2011 No. 4 s 52

767Definitions for sdiv 1

In this subdivision—

commencement means the commencement of this section.

division 3 pre-reform certified agreement means a division 3 pre-reform certified agreement under the Workplace Relations Act continued in existence under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cwlth).

pre-reform Act means the Workplace Relations Act as in force immediately before the commencement of the Work Choices Amendment Act, schedule 1.

remuneration, in relation to an employee—

(a)includes the wage or salary payable to the employee; and

(b)does not include amounts payable or other benefits made available to the employee under a contract of service.

substitute State agreement see section 769 (2).

substitute State award, other than for section 768 or 768A, means a substitute State award under section 768 (5) or 768A (2) (a).

substitute State instrument means the following—

(a)a substitute State award;

(b)a substitute State agreement.

transitional award means a transitional award under the Workplace Relations Act continued in existence as a continuing schedule 6 instrument under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cwlth).

Work Choices Amendment Act means the Workplace Relations Amendment (Work Choices) Act 2005 (Cwlth).

Workplace Relations Act means the Workplace Relations Act 1996 (Cwlth).

sdiv 1 (ss 766–772) ins 2011 No. 4 s 52

768Award binding particular local governments and their employees

(1) Subsection (2) applies if—

(a)immediately before the commencement, a local government was a respondent to a transitional award; and

(b)the respondents named or listed in the transitional award are the same or substantially the same as the respondents named or listed in a substitute State award as in force immediately before the commencement.

(2)On the commencement, the substitute State award mentioned in subsection (1) (b) applies to the local government and any employee of the local government.

(3)However, in relation to employees to whom a transitional award applied immediately before the commencement, the substitute State award is amended so that the remuneration under the transitional award continues to apply.

(4)Subject to subsection (3), the substitute State award has effect according to its terms.

(5)This section does not affect the operation of section 165.

(6)In this section—

substitute State award means an award taken to be made by the commission, and amended, as provided for in section 747.

sdiv 1 (ss 766–772) ins 2011 No. 4 s 52

768AAward binding other local governments and their employees

(1)This section makes provision in relation to an award as defined in the pre-reform Act, section 4 (1) that was continued as a transitional award, if—

(a)a local government, other than a local government to which section 768 (2) applies, was a respondent to the award; and

(b)immediately before the commencement, the transitional award continued in force.

(2)On the commencement, the award—

(a)is taken to be an award made by the commission under section 125 (also a substitute State award); and

(b)applies to the local government and any employee of the local government.

(3)The substitute State award is taken to be amended so that the remuneration applying to employees under the transitional award immediately before the commencement applies to the employees to whom the substitute State award applies.

(4)Subject to subsection (3) and section 770, the substitute State award has effect according to its terms and, despite section 133, an action to enforce the substitute State award may be commenced at any time.

(5)This section does not affect the operation of section 165.

sdiv 1 (ss 766–772) ins 2011 No. 4 s 52

769Provision for division 3 pre-reform certified agreements

(1)This section makes provision in relation to each division 3 pre-reform certified agreement in force immediately before the commencement.

(2)On the commencement, the division 3 pre-reform certified agreement is taken to be a certified agreement certified by the commission under section 156 (a substitute State agreement).

(3)The substitute State agreement is taken to be amended by omitting any dispute settlement procedure (however described) provided for in the agreement and inserting instead—

(a)clause 3.2 of the Sample Award - State 2004 attached to Practice Note PN 9 issued by the commission on 30 June 2004; or

(b)if the commission has replaced clause 3.2 with another grievance and dispute settling procedure—the replacement procedure.

Editor’s note—

Clause 3.2 of the Sample Award provides for a grievance and dispute settling procedure. A copy of the practice note can be found on the commission’s website at <www.qirc.qld.gov.au>.

(4)Subject to subsection (3) and section 770, and despite section 169 (7), the substitute State agreement has effect according to its terms.

sdiv 1 (ss 766–772) ins 2011 No. 4 s 52

770Interpretation

(1)This section has effect for sections 768A and 769.

(2)A reference to the Australian Industrial Relations Commission or Fair Work Australia (however described) in a substitute State instrument is taken to be a reference to the commission.

(3)A reference to a provision of the Workplace Relations Act, the Work Choices Amendment Act or the Commonwealth Act in a substitute State instrument is taken to be a reference to a corresponding provision of this Act.

(4)Sections 746(4) and 754 apply to a substitute State instrument as if a reference to a substitute State instrument in those sections were a reference to a substitute State instrument under this subdivision.

(5)In this section—

corresponding provision of this Act, to a provision of the Workplace Relations Act, the Work Choices Amendment Act or the Commonwealth Act, means—

(a)if paragraph (b) does not apply, a provision of this Act that is of similar effect to the provision of the Workplace Relations Act, the Work Choices Amendment Act or the Commonwealth Act; or

(b)a provision of this Act declared under a regulation to be a corresponding provision.

sdiv 1 (ss 766–772) ins 2011 No. 4 s 52

771Preservation of existing entitlements

(1)This section applies to an employee to whom a substitute State instrument applies after the commencement.

(2)The employee is entitled to receive not less than the remuneration the employee received immediately before the commencement.

(3) Subsection (2) has effect until—

(a)for a substitute State agreement, the earlier of the following—

(i)the day a certified agreement, certified by the commission after the commencement, applies to the employee;

(ii)the remuneration provisions of the substitute State agreement are amended;

(iii)the substitute State agreement is terminated;

(iv)the commission makes a decision in relation to the remuneration the employee is entitled to receive under the substitute State agreement; or

(b)for a substitute State award, the earlier of the following—

(i)the day a certified agreement, certified by the commission after the commencement, applies to the employee;

(ii)the remuneration provisions of the substitute State award are amended;

(iii)the commission makes a new award that replaces the substitute State award for the employee.

(4)In this section—

remuneration, in relation to an employee, includes amounts payable or other benefits made available to the employee under a contract of service.

sdiv 1 (ss 766–772) ins 2011 No. 4 s 52

772Provision for minimum entitlements

(1)Sections 8A, 9, 9A, 10, 11 and 15 do not apply in relation to an employee to whom a substitute State agreement applies until the earlier of the following—

(a)27 March 2012;

(b)the day a certified agreement, certified by the commission after the commencement, applies to the employee.

(2)Sections 8A, 9, 9A, 10, 11 and 15 do not apply in relation to an employee to whom a substitute State award applies until the earlier of the following—

(a)27 March 2012;

(b)the day a certified agreement, certified by the commission after the commencement, applies to the employee;

(c)the substitute State award is repealed;

(d)the commission makes a new award that replaces the substitute State award for the employee.

(3)Despite subsection (2), sections 8A, 9, 9A, 10, 11 and 15 continue to apply in relation to an employee to whom an industrial instrument applied immediately before the commencement.

(4) Subsections (1) and (2) do not limit section 771.

sdiv 1 (ss 766–772) ins 2011 No. 4 s 52

sdiv 2 (s 773) ins 2011 No. 4 s 52

773Application of industrial instrument for local governments and employees

(1)This section applies if, immediately before the commencement of this section, an industrial instrument applied to a local government or an employee of the local government.

(2)On the commencement of this section, subdivision 1 does not affect—

(a)the application of the industrial instrument to the local government or the employee; or

(b)the remuneration payable to the employee.

(3)In this section—

local government does not include the Brisbane City Council.

remuneration, in relation to an employee, includes—

(a)the wage or salary payable to the employee; and

(b)amounts payable or other benefits made available to the employee under a contract of service or an industrial instrument.

sdiv 2 (s 773) ins 2011 No. 4 s 52

div 2 (ss 774–777) ins 2011 No. 4 s 52

774Definitions

In this division—

amending Act means the Electrical Safety and Other Legislation Amendment Act 2011 .

previous, in relation to a stated provision that includes a number, means the provision of the Act with that number immediately before the commencement of this section.

div 2 (ss 774–777) ins 2011 No. 4 s 52

775Continuation of new State instruments taken to be QWAs

(1)This section applies if, immediately before the amendment of this Act by the amending Act, a new State instrument was taken to be a QWA under previous section 692D.

(2)The QWA continues in force subject to this division and previous section 692D (3), (4) and (5).

(3)The QWA expires on the earlier of the following—

(a)the specified nominal expiry date the instrument is taken to have under previous section 692D (6);

(b)a day that is 4 months after the commencement of this section.

div 2 (ss 774–777) ins 2011 No. 4 s 52

776Termination of QWAs

(1)The QWA may be terminated before the day it expires under section 775 (3) by written agreement (termination agreement) between the employer and employee.

(2)The termination agreement takes effect on—

(a)if a day is stated in the termination agreement as the date it takes effect—the day stated in the termination agreement; or

(b)otherwise—the day the QWA expires under section 775 (3).

(3)The termination agreement must be filed with the registrar or chief inspector.

(4)If the registrar or chief inspector is satisfied that the filing requirements for the termination agreement under previous section 200 (6) have been met, the registrar or chief inspector must issue a filing receipt to the person who filed it.

(5)Previous chapter 6, part 2, division 5 does not apply to the QWA or termination agreement.

div 2 (ss 774–777) ins 2011 No. 4 s 52

777Continuation of particular provisions for QWAs

Subject to this division, this Act as in force immediately before its amendment by the amending Act, continues to apply to a QWA continued under this division.

div 2 (ss 774–777) ins 2011 No. 4 s 52

div hdg ins 2011 No. 4 s 52

778President’s annual report—s 252

Despite the amendment of section 252 by the Electrical Safety and Other Legislation Amendment Act 2011 , section 32, the president’s report under section 252 for the financial years ending 30 June 2011 and 30 June 2012 must contain summaries of significant decisions and interpretations about QWAs and ancillary documents.

s 778 ins 2011 No. 4 s 52

pt 13 (s 780) ins 2012 No. 11 s 43 sch pt 2

780Continuation of decisions made by approving authority

(1)This section applies to a decision of the Training and Employment Recognition Council as approving authority that is in force immediately before the commencement of this section.

(2)The decision is taken, on the commencement to be a decision of Skills Queensland as the approving authority.

pt 13 (s 780) ins 2012 No. 11 s 43 sch pt 2

pt hdg (prev pt 13 hdg) ins 2012 No. 7 s 20

renum 2012 No. 22 s 25 sch

780ADefinitions for pt 13A

In this part—

amending Act means the Industrial Relations (Fair Work Act Harmonisation) and Other Legislation Amendment Act 2012.

commencement means the commencement of this part.

previous section 175 means section 175 as it was in force immediately before the commencement.

s 780A (prev s 780) ins 2012 No. 7 s 20

renum 2012 No. 22 s 25 sch

781Application of amended s 149(5)

(1) Section 149 (5), as amended by the amending Act, section 8, applies to the arbitration of a matter only if the arbitration starts on or after the commencement.

(2)For subsection (1), an arbitration starts when the requirements under section 149 (1) (a), (b) or (c) are first satisfied.

s 781 ins 2012 No. 7 s 20

782Application of provisions about protected action ballots

(1)This section applies to protected industrial action started before, on or after the commencement, if notice of the intended action was given before the commencement under previous section 175.

(2)Chapter 6, division 6 (Industrial action) as it was in force before the commencement continues to apply to the protected industrial action.

s 782 ins 2012 No. 7 s 20

783Application of new ch 6, div 6A (Termination of protected industrial action by Minister)

(1)This section applies to protected industrial action started before, on or after the commencement, if notice of the intended action was given before the commencement under previous section 175.

(2)Chapter 6, division 6A does not apply to the protected industrial action.

s 783 ins 2012 No. 7 s 20

pt 15 (ss 787–788) ins 2012 No. 22 s 24

787Definitions for pt 15

In this part—

amending Act means the Public Service and Other Legislation Amendment Act 2012 .

commencement means the commencement of this part.

pt 15 (ss 787–788) ins 2012 No. 22 s 24

788Application of amended s 319

(1) Section 319 as amended by the amending Act, section 23 applies to all proceedings before the commission started on or after the commencement.

(2)For subsection (1), an arbitration under section 149 starts when the requirements under section 149 (1) (a), (b) or (c) are first satisfied.

pt 15 (ss 787–788) ins 2012 No. 22 s 24

pt hdg ins 2013 No. 29 s 58

789Definitions for pt 16

In this part—

amended Act means this Act as amended by the amending Act.

amending Act means the Industrial Relations (Transparency and Accountability of Industrial Organisations) and Other Acts Amendment Act 2013 .

commencement means the day on which the provision in which the term is used commences.

new, for a provision of this Act, means the provision as in force after the commencement.

pre-amended Act means this Act as in force before the commencement.

previous, for a provision of this Act, means the provision as in force before the commencement.

s 789 ins 2013 No. 29 s 58

790Appointment of first vice-president of the court

(1)Despite section 246A (1), on the commencement the person holding office as the vice-president of the commission is appointed as the vice-president of the court.

(2)This Act applies to the appointee as if she had been appointed under section 246A.

s 790 ins 2013 No. 29 s 58

791Appointment of first deputy presidents of the court

(1)Despite section 246C (1), on the commencement each of the persons who is a legally qualified deputy president is appointed as a deputy president (court) of the court.

(2)This Act applies to the appointees as if they had been appointed under section 246C.

(3)In this section—

legally qualified deputy president means a deputy president of the commission who, immediately before the commencement, is a lawyer of at least 5 years standing.

Note—

See also section 806 in relation to how the definition legally qualified deputy president applies for this section.

s 791 ins 2013 No. 29 s 58

amd 2013 No. 39 s 114 (retro)

792Industrial commissioners

A person appointed as a commissioner under the pre-amended Act, section 259 is, on and from the commencement, taken to have been appointed as an industrial commissioner.

s 792 ins 2013 No. 29 s 58

793Proceedings in court started before commencement

The pre-amended Act applies to a proceeding started in the court under section 317 before the commencement as if this Act had not been amended by the amending Act.

s 793 ins 2013 No. 29 s 58

794Existing rules under this Act

(1)This section applies to rules made, before the commencement, under previous section 338 with the consent of the president.

(2)From the commencement, the rules are taken to have been made under new section 338 with the consent of the rules committee.

s 794 ins 2013 No. 29 s 58

795Existing rules of an organisation

(1)This section applies if, because of the amendment of a provision by the amending Act, an organisation’s rules—

(a)contravene this Act; or

(b)prevent members of the organisation from complying with this Act.

(2)The organisation must take reasonable steps to amend the rules to comply with section 435 within 6 months after the commencement.

(3)Action cannot be taken by a court under chapter 12, part 5, or by the registrar under chapter 12, part 6, division 1, in relation to the rule’s contravention of section 435, because of the amendment, until the period mentioned in subsection (2) has passed.

Note—

See also section 836 in relation to the reference in this subsection to action taken by a court under chapter 12, part 5.

s 795 ins 2013 No. 29 s 58

amd 2013 No. 61 s 74A

796Statement of interests of officer holding management office at commencement

(1)This section applies to an officer of an organisation who holds a management office in the organisation at the commencement.

(2)For section 530C (1), the officer is taken to have been elected or appointed to the management office in the organisation on the commencement.

s 796 ins 2013 No. 29 s 58

797Financial policies

New section 553A does not apply to an organisation until 6 months after the commencement.

s 797 ins 2013 No. 29 s 58

798Financial registers

(1) Subsection (2) applies if commencement is not on a day that is the start of a financial year for an organisation.

(2)For the purposes of the organisation keeping a register under chapter 12, part 12, division 2A, other than a register under section 557D, for the first financial year starting after commencement, the financial year is taken to have started on the day of commencement.

(3)Sections 557F and 557G do not apply to an organisation until 1 month after the commencement.

s 798 ins 2013 No. 29 s 58

799Audits for financial years ending before commencement

Previous chapter 12, part 12, divisions 3 and 4 apply in relation to a financial year that ended before commencement, as if the amending Act had not been enacted.

s 799 ins 2013 No. 29 s 58

800Application of amended ch 12, pt 12, div 5 in relation to registrar’s investigations

(1) Section 571 (1) (b), as inserted by the amending Act, and section 571A (2) apply to information whether it came into the registrar’s knowledge or possession before, on or after the commencement.

(2)Sections 572A and 574A apply to an investigation started before, on or after the commencement.

s 800 ins 2013 No. 29 s 58

801Particular exemption for organisations with counterpart federal bodies is of no effect

(1)This section applies if, immediately before the commencement, an exemption under previous section 587 from the whole or part of previous chapter 12, part 12, divisions 2 to 4 was in force for an organisation.

(2)Subject to subsections (3) and (4), the exemption stops having effect at the commencement.

(3)If the commencement is not on a day that is the start of a financial year for the organisation, the exemption continues in force until the end of that financial year despite the repeal of section 587 by the amending Act.

(4)Previous sections 588 and 589 continue to apply to the organisation for a financial year for which the exemption was in force, or continues to be in force under subsection (3), as if the amending Act had not been enacted.

s 801 ins 2013 No. 29 s 58

802Particular exemption for employer organisations that are corporations is of no effect

(1)This section applies if, before the commencement, an organisation was granted an exemption under previous section 591 from the whole or part of chapter 12, part 12, division 4.

(2)The exemption stops having effect—

(a)at the commencement; or

(b)if commencement falls within a financial year for the organisation—at the end of that financial year.

(3)Previous section 592 and section 593 continue to apply to the organisation for a financial year for which the exemption was in force or continues to be in force under subsection (2) (b), as if the amending Act had not been enacted.

s 802 ins 2013 No. 29 s 58

803Certified agreements containing newly invalid provisions

(1)This section applies if—

(a)an employer has, before the commencement, taken steps under section 144 (including because of the operation of section 147A (4)) in relation to a certified agreement proposed to be made with an employee organisation or employees; and

(b)the agreement includes a newly invalid provision; and

(c)the agreement has not been made at the commencement.

(2)The steps taken by the employer under section 144 before the commencement are not invalidated merely because the steps involve explaining the effect of a newly invalid provision.

(3)However, this section stops applying in relation to the certified agreement if, under section 151, the steps in section 144 (2) or (3) must be taken again because the agreement is amended after the commencement.

(4)In this section—

newly invalid provision means a provision to which previous section 691C did not apply but new section 691C applies.

s 803 ins 2013 No. 29 s 58

804Existing approved forms

(1)This section applies to forms approved, before the commencement, by the president under previous section 708 (1).

(2)From the commencement, the forms are taken to have been approved by the rules committee under new section 708 (1).

s 804 ins 2013 No. 29 s 58

pt hdg ins 2013 No. 39 s 115 (retro)

806Definition legally qualified deputy president for s 791

(1) Section 791 is taken to have applied on and from the commencement as if, for the definition legally qualified deputy president in section 791 (3), the following definition were substituted—

legally qualified deputy president means a deputy president of the commission who, immediately before the commencement, is a local lawyer, within the meaning of the Legal Profession Act 2007 , of at least 5 years standing.

(2) Subsections (3) and (4) apply to a person who, on the commencement—

(a)was a legally qualified deputy president within the meaning of section 791 but for the operation of subsection (1); and

(b)was not a legally qualified deputy president within the meaning of the definition legally qualified deputy president substituted under subsection (1).

(3)The person is taken never to have been appointed as a deputy president (court) under section 791.

(4)Despite section 258AA, subsection (3) does not affect the person’s appointment as a deputy president of the commission under section 258A.

(5)This section applies despite section 246D.

(6)In this section—

commencement means the commencement of section 791.

s 806 prev s 806 ins 2013 No. 29 s 58

exp 2 July 2013 (see s 806 (5))

pres s 806 ins 2013 No. 39 s 115 (retro)

pt hdg ins 2013 No. 49 s 24

806Continuation of decisions made by approving authority

(1)This section applies to a decision of Skills Queensland as the approving authority that is in force immediately before the commencement of this section.

(2)On the commencement, the decision is taken to be a decision of the chief executive (VETE) as the approving authority.

Note—

The definition of approving authority was amended by the Further Education and Training Act 2014 to mean the chief executive (training).

s 806 ins 2013 No. 49 s 24

amd 2014 No. 25 s 223 sch 1 pt 2

pt hdg ins 2013 No. 61 s 75

div 1 (s 807) ins 2013 No. 61 s 75

807Definitions for pt 18

In this part—

amended Act means this Act as amended by the amending Act.

amending Act means the Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Act 2013 .

application day, in relation to an employee to whom division 2 applies, means the day on which chapter 2A starts applying to the employee.

commencement means the day on which the provision in which the term is used commences.

introduction day means the day of introduction into the Legislative Assembly of the Bill for the amending Act.

new, for a provision of this Act, means the provision as in force on or after the commencement.

pre-amended Act means this Act as in force before the commencement.

div 1 (s 807) ins 2013 No. 61 s 75

div hdg ins 2013 No. 61 s 75

sdiv 1 (ss 808–811) ins 2013 No. 61 s 75

808Application of div 2

This division applies to an employee if chapter 2A starts applying to the employee in relation to particular employment.

sdiv 1 (ss 808–811) ins 2013 No. 61 s 75

809Leave accrued or approved before application day

(1)The employee retains all leave entitlements accrued before the application day under chapter 2 or a pre-modernisation industrial instrument.

(2) Subsection (3) applies if, before the application day, the employer approved leave relating to a period on or after the application day.

(3)The leave is taken to have been approved for the purposes of the Queensland Employment Standards or a modern industrial instrument applicable to the employee.

sdiv 1 (ss 808–811) ins 2013 No. 61 s 75

810Working out leave entitlements

(1)This section applies if—

(a)a provision of chapter 2A confers an entitlement on the employee in relation to a particular type of leave; and

(b)under the provision the entitlement is worked out—

(i)for a completed year of employment; or

(ii)in relation to a year.

(2)For working out the employee’s entitlement to the leave during the transitional year, regard must be had to the leave of that type taken during the year under chapter 2 or a pre-modernisation industrial instrument.

(3)Also, for working out the employee’s entitlement to leave, regard must be had to the employee’s period of employment with the employer before the application day.

(4)In this section—

transitional year means the year in which the application day falls.

sdiv 1 (ss 808–811) ins 2013 No. 61 s 75

811Notices etc. given before application day

(1)This section applies if—

(a)before the application day, the employee or his or her employer gives a notice or document in compliance with a pre-modernisation notice requirement; and

(b)the notice or document is relevant to a matter or circumstance occurring on or after the application day; and

(c)there is a modern requirement that has substantially the same effect as the pre-modernisation requirement.

(2)If the context permits, the employee or employer is taken to have complied with the modern requirement.

(3)In this section—

modern requirement means a requirement under the Queensland Employment Standards or a modern industrial instrument applicable to the employee.

pre-modernisation notice requirement means a requirement, under chapter 2 or a pre-modernisation industrial instrument, to give a notice or other document in relation to a matter.

Example of a pre-modernisation notice requirement—

a requirement to give a notice or document about parental leave under section 19, 20, 21 or 21A

sdiv 1 (ss 808–811) ins 2013 No. 61 s 75

sdiv 2 (ss 812–813) ins 2013 No. 61 s 75

812Order about payment for commission

(1)This section applies if, before the application day, the commission made an order in relation to the employee on an application made under section 13 (4).

(2)On and from the application day, the order continues to have effect as if it had been made under section 71EE (4).

(3) Subsection (2) does not apply if a modern industrial instrument provides that the employee is not entitled to receive an amount representing commission in the employee’s annual leave payment.

sdiv 2 (ss 812–813) ins 2013 No. 61 s 75

813Leave loading payments made before application day

An amount, however described, paid to the employee before the application day in addition to the employee’s annual leave entitlement under chapter 2, part 1, division 3 is taken to be an additional leave amount for section 71EF (2).

sdiv 2 (ss 812–813) ins 2013 No. 61 s 75

sdiv 3 (ss 814–816) ins 2013 No. 61 s 75

814Parental leave started under ch 2

(1)This section applies if, on the application day, the employee is on ch 2 parental leave.

(2)On and from the application day, the employee is taken to be on the corresponding ch 2A parental leave.

(3)A reference in chapter 2A to a type of parental leave includes, if the context permits, a reference to the corresponding type of ch 2 parental leave.

(4) Section 71GM does not apply to the employee in relation to the parental leave.

(5)The employee may apply under chapter 2A, part 2, division 5, subdivision 4 even if the person started parental leave before the commencement of the subdivision.

(6)On and from the application day—

(a)an extension of the ch 2 parental leave under section 29 (1) is taken to be an extension under section 71GZ (1); and

(b)if an application was made under section 29A or 29B, but not decided by the employer, before the application day—the application is taken to have been made under chapter 2A, part 2, division 5, subdivision 4; and

(c)a notice given to the employee under section 31 (2) is taken to have been given to the employee under section 71GZB (2); and

(d)if the employee was transferred to a safe job under section 36 before starting maternity leave—for section 71GZF, the employee is taken to have been transferred to a safe job under section 71GZG.

(7)In this section—

ch 2 parental leave means parental leave under chapter 2 or a pre-modernisation industrial instrument.

corresponding ch 2A parental leave, in relation to ch 2 parental leave, means—

(a)for ch 2 parental leave that is maternity leave, adoption leave or surrogacy leave—leave of the same name; or

(b)for ch 2 parental leave that is long parental leave other than maternity leave—long birth-related leave; or

(c)for ch 2 parental leave that is short parental leave—short birth-related leave.

sdiv 3 (ss 814–816) ins 2013 No. 61 s 75

815Application of obligation to advise about significant change

Section 71GQ applies whether or not the decision was made before the commencement of the section if the decision had not been implemented at the commencement.

sdiv 3 (ss 814–816) ins 2013 No. 61 s 75

816Spouses not to take long parental leave at same time

A reference in section 71GV to the employee’s spouse being on parental leave includes a reference to the employee’s spouse being on parental leave under chapter 2 or a pre-modernisation industrial instrument.

sdiv 3 (ss 814–816) ins 2013 No. 61 s 75

sdiv 4 (ss 817–820) ins 2013 No. 61 s 75

817Agreement or notice under s 45

(1)This section applies if, before the application day—

(a)the employer and employee made an agreement under section 45 (2) in relation to long service leave all or part of which was to be taken on or after the application day; or

(b)the employer gave the employee a notice under section 45 (3) relating to long service leave all or part of which was required to be taken on or after the application day.

(2)The agreement or notice is taken to have been made or given under section 71HD.

sdiv 4 (ss 817–820) ins 2013 No. 61 s 75

818Order about payment for commission

(1)This section applies if, before the application day, the commission made an order in relation to the employee on an application made under section 46 (7).

(2)On and from the application day, the order continues to have effect as if it had been made under section 71HF (3).

(3) Subsection (2) does not apply if a modern industrial instrument provides that the employee is not entitled to receive an amount representing commission in the employee’s long service leave payment.

sdiv 4 (ss 817–820) ins 2013 No. 61 s 75

819Decision by commission about piecework rates

(1)This section applies if the employee is paid piecework rates and, before the application day, the commission decided under section 46 (8) the rate the employee should be paid for long service leave.

(2)On and from the application day, the decision continues to have effect as if it had been made under section 71HG.

sdiv 4 (ss 817–820) ins 2013 No. 61 s 75

820Existing decisions or agreements about entitlement to, payment for, or taking of, long service leave

(1)This section applies to any of the following in effect immediately before the application day—

(a)an agreement made by an employee and employer, or a decision made by the commission, under section 46 (9), (10) or (11);

(b)an agreement made under section 48;

(c)a decision made by the commission under section 52;

(d)an agreement made by an employee and employer, or an order made by the commission, under section 53 (2) or (3).

(2)On and from the application day, the agreement, decision or ruling continues to have effect as if it had been made under the following provision of chapter 2A—

(a)if subsection (1) (a) applies—section 71HH;

(b)if subsection (1) (b) applies—section 71HK;

(c)if subsection (1) (c) applies—section 71HP;

(d)if subsection (1) (d) applies—section 71HQ.

(3) Subsection (2) applies subject to a provision in a modern industrial instrument about the payment for, or taking of, the employee’s long service leave.

sdiv 4 (ss 817–820) ins 2013 No. 61 s 75

div hdg ins 2013 No. 61 s 75

sdiv 1 (ss 821–823) ins 2013 No. 61 s 75

821Application of new ch 5, pt 2

(1)New chapter 5, part 2 is taken to have applied on and from the introduction day.

(2)An award, or an amendment of an award, made under section 125 on or after the introduction day and before the commencement is of no effect.

(3)An application made on or after the introduction day under section 125 (2) for the making or amendment of an award is, on the commencement, taken to have been withdrawn.

sdiv 1 (ss 821–823) ins 2013 No. 61 s 75

822Existing matters being heard under s 125 or 130

(1)This section applies to either of the following matters being heard by the commission immediately before the commencement—

(a)a matter relating to the making or amendment of an award under section 125;

(b)a review of an award under section 130.

(2)The commission must—

(a)on commencement, stop dealing with the matter under chapter 5, part 2; and

(b)if the commission later receives an award modernisation request under chapter 5, part 8 to which the matter is relevant—consider the matter as part of the award modernisation process.

sdiv 1 (ss 821–823) ins 2013 No. 61 s 75

823Continuation of exemptions under ch 5, pt 3

(1)This section applies if an exemption given under chapter 5, part 3 of the pre-amended Act was in effect immediately before the commencement.

(2)The employer, employee, class of employer or employee, or person who was the subject of the exemption continues, on and after the commencement, not to be bound by the award.

sdiv 1 (ss 821–823) ins 2013 No. 61 s 75

sdiv 2 (s 824) ins 2013 No. 61 s 75

824Modern award does not apply to employee covered by continuing agreement or determination

(1)A modern award does not apply to an employee, or to an employer or employee organisation in relation to the employee, at any time when the employee is covered by a continuing agreement or determination.

(2)In this section—

continuing agreement or determination means either of the following to which section 826 applies—

(a)a certified agreement;

(b)an arbitration determination under chapter 6.

sdiv 2 (s 824) ins 2013 No. 61 s 75

div 4 (ss 825–832) ins 2013 No. 61 s 75

825Retrospective operation

This division is taken to have had effect on and from the introduction day.

div 4 (ss 825–832) ins 2013 No. 61 s 75

826Certified agreements and determinations continue

(1)A certified agreement or determination, in force immediately before the introduction day, continues in force as a certified agreement or determination under this Act.

(2)In this section—

determination means an arbitration determination under chapter 6.

div 4 (ss 825–832) ins 2013 No. 61 s 75

827Continuing agreements and determinations

(1)A certified agreement is a continuing agreement for this division if its nominal expiry date was a day before the introduction day.

(2)Also, a certified agreement becomes a continuing agreement for this division if—

(a)the agreement reaches its nominal expiry date; and

(b)the relevant pre-modernisation award for the agreement (or, if there is more than one, each of the relevant pre-modernisation awards for the agreement) has not been modernised under chapter 5 by that time.

(3)However, subsections (1) and (2) do not apply to a certified agreement to which section 831 or 832 applies.

(4)If, before the introduction day, a certified agreement reached its nominal expiry date but the parties to the agreement administratively agreed to extend the nominal expiry date to a later day that is after the introduction day, then, for this section, the nominal expiry date is taken to be the later day.

(5)In this section—

certified agreement includes a determination.

pre-modernisation award see section 140B.

div 4 (ss 825–832) ins 2013 No. 61 s 75

828Extension of nominal expiry date by up to 1 year

(1)On the introduction day, the nominal expiry date of a continuing agreement mentioned in section 827 (1) becomes—

(a)the day that is 1 year after the introduction day; or

(b)if an earlier day is prescribed for the agreement under a regulation, the prescribed day.

(2)On the day that a certified agreement becomes a continuing agreement under section 827 (2), its nominal expiry date becomes—

(a)the day that is 1 year after that day; or

(b)if an earlier day is prescribed for the agreement under a regulation, the prescribed day.

div 4 (ss 825–832) ins 2013 No. 61 s 75

829Continuing agreements can not be dealt with

(1)The parties to a continuing agreement can not—

(a)apply under section 168 to extend the agreement; or

(b)apply under section 169 or 170 to amend the agreement; or

(c)terminate the agreement.

(2)Any of the following things done, or purportedly done, on or after the introduction day is, and always was, of no effect—

(a)a thing that, under subsection (1), can not be done;

(b)the making of an order by the commission on an application that, under subsection (1), can not be made.

div 4 (ss 825–832) ins 2013 No. 61 s 75

830Regulation may prescribe a wage increase

(1)A regulation may provide that, from a stated day, a stated increase in wages applies to employees covered by a continuing agreement.

(2)An increase mentioned in subsection (1) does not stop applying to the employees only because the continuing agreement reaches its nominal expiry date under section 828.

div 4 (ss 825–832) ins 2013 No. 61 s 75

831Existing arbitrations

(1)This section applies if, before the introduction day—

(a)the commission’s jurisdiction to determine a matter by arbitration was engaged under section 149 of the pre-amended Act; and

(b)the commission had not made a determination for the matter under that section.

(2)For subsection (1), it does not matter whether or not the commission has starting hearing the matter.

(3)The commission must determine the matter by arbitration under section 149 of the pre-amended Act.

(4)However, if the employer and 1 or more parties reach agreement on the terms of a proposed certified agreement to be made between them before the commission makes the arbitration determination for the matter—

(a)the parties must take the steps under chapter 6 of the pre-amended Act necessary to have the agreement certified; and

(b)if an application is made under section 156 of the pre-amended Act—the commission must deal with the application under that section; and

(c)the arbitration ends when the agreement is certified.

div 4 (ss 825–832) ins 2013 No. 61 s 75

832Existing applications for certification

(1)This section applies if—

(a)before the introduction day, an application had been made to the commission under section 153 of the pre-amended Act to certify an agreement; and

(b)immediately before the introduction day, the commission had not—

(i)certified the agreement under section 156 of the pre-amended Act; or

(ii)refused to certify the agreement under section 157 of the pre-amended Act; or

(iii)otherwise finally dealt with the application.

(2)The commission must decide the application under the provisions of chapter 6, division 2 of the pre-amended Act.

div 4 (ss 825–832) ins 2013 No. 61 s 75

div hdg ins 2013 No. 61 s 75

833Wage deductions for industrial association membership

(1)This section applies if—

(a)an authority given by an employee before the commencement provides for a deduction to be made from the employee’s wages in contravention of section 391A (1); and

(b)before 1 July 2014 an employer makes a deduction from the employee’s wages under the authority.

(2)The employer does not commit an offence under section 391A.

s 833 ins 2013 No. 61 s 75

834References to decision by commission of membership disputes

(1)This section applies if, before the commencement, an application was made to the court for decision of a question or dispute under chapter 12, part 10, division 2.

(2)Sections 532 and 533 apply from the commencement as if a reference to—

(a)the referral of a question or dispute to the commission included a reference to the referral of the question or dispute to the court; and

(b)a decision or order of the commission under chapter 12, part 10, division 2 included a reference to a decision or order of the court under the division in relation to the application.

(3)For subsection (2) (b), it does not matter whether the decision or order is made by the court before, on or after the commencement.

s 834 ins 2013 No. 61 s 75

835Continued protection from liability for ombudsman and official of QWRO

Section 702 applies from the commencement as if section 702 (3), definition official included a reference to the ombudsman and an officer of QWRO.

s 835 ins 2013 No. 61 s 75

836Reference to action taken by court under ch 12, pt 5

Section 795 (3) applies from the commencement as if a reference in the section to a court included a reference to the commission.

s 836 ins 2013 No. 61 s 75

pt 19 (s 838) ins 2014 No. 36 s 55V

838Matters relating to expenditure ballots

(1)This section applies if, during the relevant period, an entity—

(a)committed an offence against a provision in chapter 12, part 12, division 1B; or

(b)committed an offence against section 557B (1) because the entity failed to state, in a register the entity was required to keep under that subsection, a matter mentioned in section 557B (3) (d); or

(c)committed an offence against section 557O because the entity failed to include in a financial disclosure statement the entity was required to prepare under that section a matter mentioned in section 557S (d).

(2)No proceeding may be started or continued against a person, and no penalty may be imposed, in relation to the offence.

(3) Subsection (2) applies despite the Acts Interpretation Act 1954 , section 20.

(4)In this section—

relevant period means the period—

(a)starting on 1 July 2013; and

(b)ending immediately before the commencement of this section.

pt 19 (s 838) ins 2014 No. 36 s 55V

pt hdg ins 2015 No. 7 s 33

div 1 (s 839) ins 2015 No. 7 s 33

839Definitions for pt 20

In this part—

amended Act means this Act as amended by the amending Act.

amending Act means the Industrial Relations (Restoring Fairness) and Other Legislation Amendment Act 2015 .

pre-amended Act means this Act as in force immediately before the commencement.

pre-modernisation award see section 140B.

relevant certified agreement means a certified agreement that is—

(a)a modern industrial instrument; and

(b)certified by the commission before the commencement.

relevant modern award means a modern award made by the commission before the commencement.

relevant pre-modernisation award, in relation to a relevant modern award, means a pre-modernisation award that applied to all or some of the employees to whom the relevant modern award applies.

div 1 (s 839) ins 2015 No. 7 s 33

div 2 (ss 840–846) ins 2015 No. 7 s 33

840Purpose of div 2

The purpose of this division is—

(a)to provide for the review and variation by the commission of modern awards made, under the award modernisation process, before the commencement; and

(b)to ensure the awards mentioned in paragraph (a) are not inconsistent with the amended Act.

div 2 (ss 840–846) ins 2015 No. 7 s 33

841Commission must review and vary relevant modern award

(1)This section applies to a relevant modern award if the Minister gives the commission a variation notice under section 140CA in relation to the award modernisation process.

(2)The commission must review the relevant modern award and vary it under this division as soon as practicable after receiving the variation notice.

(3)For reviewing the relevant modern award under this division—

(a)the commission must carry out the review in accordance with section 140CC; and

(b) section 140CE and chapter 5A, part 3 do not apply.

(4)The award modernisation process under which the relevant modern award was made continues for the purpose of enabling the award to be reviewed and varied under this division.

div 2 (ss 840–846) ins 2015 No. 7 s 33

842Requirements for review of relevant modern award

(1)In reviewing a relevant modern award under this division, the commission must vary the award to remove—

(a)a provision required to be included by repealed section 71M, 71MA or 71MB; and

(b)any provision ancillary to a provision mentioned in paragraph (a).

Example for paragraph (b)—

clause 8.2 of the Queensland Public Service Officers and Other Employees Award—State 2014

(2)Also, the commission must vary the relevant modern award to include a provision that was in a relevant pre-modernisation award about any of the following—

(a)union encouragement;

(b)union delegates;

(c)industrial relations education leave or trade union training leave;

(d)right of entry;

(e)prevention and settlement of disputes, including employee grievance procedures;

(f)termination, change and redundancy.

(3)For subsection (2), the commission may amend the provision for insertion in the relevant modern award as the commission considers appropriate having regard to—

(a)the desirability of a modern award not duplicating provisions of the Queensland Employment Standards; and

(b)the modern awards objectives under section 140D; and

(c)in relation to a provision mentioned in subsection (2) (e)—the requirements under section 71MCA.

(4)In this section—

provision, of a relevant pre-modernisation award, includes a provision of the award that was of no effect because of repealed chapter 15, part 2

div 2 (ss 840–846) ins 2015 No. 7 s 33

843Other variations

(1)The commission may vary a relevant modern award to provide for a matter contained in a relevant pre-modernisation award.

(2)For deciding whether to vary the relevant modern award under subsection (1), the commission must have regard to—

(a)the provisions permitted to be included in a relevant modern award under section 71ND; and

(b)the desirability of a modern award not duplicating provisions of the Queensland Employment Standards; and

(c)the modern awards objectives under section 140D; and

(d)a submission made by a party covered by the relevant modern award about the proposed variation.

div 2 (ss 840–846) ins 2015 No. 7 s 33

844Commission may increase the number of modern awards

(1)This section applies if the making of the relevant modern award resulted in a significant reduction in the number of awards covering an industry or occupation.

(2)Before reviewing and varying the relevant modern award under this division, the commission must consider whether to increase the number of modern awards covering the industry or occupation.

(3)The commission must consider a submission made by a party covered by the relevant modern award about whether to increase the number of modern awards covering the industry or occupation.

(4)If the commission decides to increase the number of modern awards covering the industry or occupation, the commission must—

(a)vary the relevant modern award to reduce its coverage; and

(b)make 1 or more additional modern awards covering the employees excluded from coverage of the relevant modern award under paragraph (a).

(5)An additional modern award made under subsection (4) (b) is, for the purposes of this division, taken to be a relevant modern award.

div 2 (ss 840–846) ins 2015 No. 7 s 33

844AReview and variation of resident medical officers’ award

(1)This section applies for the review and variation of the relevant modern award called ‘Resident Medical Officers (Queensland Health) Award - State 2014’ (the RMO award).

(2)A pre-modernisation health award is, to the extent it covered senior medical officers, taken to be a relevant pre-modernisation award for the RMO award.

(3)The varied RMO award does not apply to a senior medical officer until an agreement is certified, or an arbitration determination is made, under chapter 6 that covers the senior medical officer.

(4)In this section—

pre-modernisation health award means—

(a)the ‘District Health Services - Senior Medical Officers and Resident Medical Officers’ Award - State 2012’; or

(b)the ‘Medical Superintendents with Right of Private Practice and Medical Officers with Right of Private Practice - Queensland Public Hospitals, Award - State 2012’.

senior medical officer means a senior health service employee within the meaning of the Hospital and Health Boards Act 2011 who is employed in a position at a classification level mentioned in the Hospital and Health Boards Regulation 2012 , schedule 1A, part 1.

div 2 (ss 840–846) ins 2015 No. 7 s 33

845When variation of relevant modern award comes into operation

A variation of the relevant modern award made under this division comes into operation on the day the commission makes a determination varying the award.

div 2 (ss 840–846) ins 2015 No. 7 s 33

846Application of variation of relevant modern award

(1)A variation of a relevant modern award made under this division applies to an employee who is a party covered by the award if—

(a)the variation is in operation; and

(b)one of the following applies—

(i)the employee is covered by a certified agreement that is certified after the variation comes into operation;

(ii)the employee is covered by a determination that is made after the variation comes into operation;

(iii)if the employee is not covered by a certified agreement on the day the variation comes into operation—the day the variation comes into operation or, if the commission states a later day in the determination varying the award, the stated day.

(2) Subsection (3) applies to an employee who was covered by a relevant certified agreement immediately before the commencement.

(3)To remove any doubt, it is declared that the pre-variation modern award continues to apply to the employee until the variation of the relevant modern award starts applying to the employee under subsection (1).

Note for subsections (1) to (3)—

For an employee who was not covered by a relevant certified agreement before the commencement, other than an employee mentioned in subsection (1) (b) (iii), see section 824.

(4)In this section—

pre-variation modern award means the relevant modern award as it read immediately before the commencement.

div 2 (ss 840–846) ins 2015 No. 7 s 33

div 3 (ss 847–850) ins 2015 No. 7 s 33

847Change of nominal expiry date for relevant certified agreement

(1)This section applies if—

(a)each prescribed modern award for a relevant certified agreement has been reviewed and varied under division 2; and

(b)the nominal expiry date for the relevant certified agreement is more than 3 months after the variation day.

(2)On the variation day, the nominal expiry date for the relevant certified agreement is taken to be the earlier of—

(a)the day that is 3 months after the variation day; or

(b)if an earlier day is prescribed for the expiry by regulation, the prescribed day.

Note—

See section 164 (2) (a) in relation to the continued operation of the relevant certified agreement after its nominal expiry date.

(3)On the variation day—

(a)the requirements under section 143 for a proposed agreement are taken to have been satisfied; and

(b)the parties to the relevant certified agreement are taken to have begun negotiations for a proposed agreement.

(4)For subsection (3) (a), the proposed parties to the proposed agreement are—

(a)each party to the relevant certified agreement; and

(b)an employee organisation that could have been bound by the relevant certified agreement under section 166 (2).

(5)In this section—

prescribed modern award, for a relevant certified agreement, means a relevant modern award, or a modern award made under section 844, that applies to all or some of the parties covered by the relevant certified agreement.

variation day means—

(a)if there is 1 prescribed modern award for the relevant certified agreement—the day the commission makes a determination under division 2 varying the prescribed modern award; or

(b)if there is more than 1 prescribed modern award for the relevant certified agreement—the day the commission makes a determination under division 2 varying the last of the prescribed modern awards for the relevant certified agreement.

div 3 (ss 847–850) ins 2015 No. 7 s 33

848No extension of relevant certified agreement

Section 168 does not apply to a relevant certified agreement.

div 3 (ss 847–850) ins 2015 No. 7 s 33

849Regulation may vary relevant certified agreement

(1)A regulation may vary a relevant certified agreement in the way stated in the regulation.

(2)The variation takes effect from the day the regulation commences or, if the regulation states a later day, the later day.

(3)This section applies subject to chapter 2A, part 3, of the amended Act.

div 3 (ss 847–850) ins 2015 No. 7 s 33

850Restriction on certification of agreements or determination of arbitration

(1)This section applies if—

(a)a relevant modern award has not been reviewed and varied by the commission under division 2; and

(b)after the commencement, an agreement is proposed under chapter 6 that would cover all or some of the parties covered by the relevant modern award.

(2)The commission—

(a)must refuse to certify the proposed agreement; and

(b)may not make an arbitration determination under section 150.

(3)This section is taken to have had effect on and from the day of introduction into the Legislative Assembly of the Bill for the amending Act.

div 3 (ss 847–850) ins 2015 No. 7 s 33

div 4 (ss 851–854A) ins 2015 No. 7 s 33

851What happens to incomplete award modernisation process

(1)This section applies if, before the commencement, an award modernisation process was started under section 140C.

(2)If the commission had started to modernise a pre-modernisation award before the commencement but no modern award was made—

(a)the commission must continue to modernise the pre-modernisation award under the amended Act; and

(b)any reference of the matter to the full bench ends on the commencement.

(3)If the commission had not started to modernise a pre-modernisation award before the commencement, the modernisation process must be conducted under the amended Act.

(4)For this section, the process for modernising a pre-modernisation award starts when the commission releases an exposure draft of the proposed modern award.

div 4 (ss 851–854A) ins 2015 No. 7 s 33

852Continuation of existing individual flexibility arrangements

(1)This section applies to an individual flexibility arrangement entered into under an industrial instrument before the commencement.

(2)The individual flexibility arrangement continues to operate despite the repeal of section 71MB.

div 4 (ss 851–854A) ins 2015 No. 7 s 33

853Application of s 831 for completion of arbitration or certification of agreement

(1)This section applies to a matter to which section 831 applies.

(2)For making an arbitration determination for the matter—

(a)the determination may include a provision mentioned in repealed chapter 15, part 2; and

(b) section 149D of the amended Act applies.

(3)If the employer and 1 or more parties reach agreement on the terms of a proposed certified agreement, the agreement may include a provision mentioned in repealed chapter 15, part 2.

(4)This section applies despite section 831 (3).

div 4 (ss 851–854A) ins 2015 No. 7 s 33

854Certification of agreement or making of determination if proceeding started before commencement

(1)This section applies if—

(a)before the commencement—

(i)an agreement was proposed under chapter 6 of the pre-amended Act; and

(ii)the agreement was not certified by the commission; and

(iii)no arbitration determination was made; and

(b)each prescribed modern award for the proposed agreement has been reviewed and varied by the commission under division 2.

(2)The amended Act applies for the certification of the agreement or the making of an arbitration determination under section 150.

(3)In this section—

prescribed modern awards, for a proposed agreement, means a relevant modern award, or a modern award made under section 844, that applies to all or some of the parties who would be covered by the proposed agreement.

div 4 (ss 851–854A) ins 2015 No. 7 s 33

854AEffect of repeal of ch 6A on high-income guarantee contract

(1)This section applies if, immediately before the commencement, an employee was engaged under a high-income guarantee contract (a continuing contract).

(2)From the commencement, the continuing contract continues in effect despite the repeal of chapter 6A.

(3)The repeal of chapter 6A does not—

(a)constitute a termination of the employee’s employment; or

(b)entitle the employee to a payment of money or other compensation.

(4)In this section—

high-income guarantee contract has the meaning given under the pre-amended Act.

div 4 (ss 851–854A) ins 2015 No. 7 s 33

div hdg ins 2015 No. 7 s 33

855Application of amended s 319

(1) Section 319 as amended by the amending Act applies to all proceedings before the commission started on or after the commencement.

(2)For subsection (1), an arbitration under section 149 starts when the requirements under section 149 (1) are first satisfied.

s 855 ins 2015 No. 7 s 33

856Effect of repeal of ch 15, pt 2

(1)This section applies if—

(a)before the commencement, all or part of a provision of a relevant industrial instrument was of no effect because of the operation of repealed chapter 15, part 2; and

(b)on the commencement, the instrument is still in force.

(2)On the commencement, the provision, or part of the provision, takes effect.

(3)In this section—

relevant industrial instrument has the meaning given under repealed section 691A.

s 856 ins 2015 No. 7 s 33

857Transitional regulation-making power

(1)A regulation (a transitional regulation) may make provision of a saving or transitional nature for which—

(a)it is necessary to make provision to allow or facilitate the doing of anything to achieve the transition from the operation of the pre-amended Act to the operation of the amended Act; and

(b)this Act does not make provision or sufficient provision.

(2)Without limiting subsection (1), a transitional regulation may continue the operation of a provision of the pre-amended Act that was omitted by the amending Act.

(3)A transitional regulation may have retrospective operation to a day that is not earlier than the day of the commencement.

(4)A transitional regulation must declare it is a transitional regulation.

(5)This section and any transitional regulation expire 2 years after the day of commencement.

s 857 ins 2015 No. 7 s 33

exp 11 June 2017 (see s 857 (5))

pt hdg ins 2015 No. 13 s 37AY

858Action taken by vice-president

(1)This section applies to a relevant action taken by the vice-president that is still in force immediately before the commencement.

(2)The action continues to have effect after the commencement as if the action had been taken by the president.

(3)In this section—

relevant action means an action taken by the vice-president under a provision amended by the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2015 .

s 858 ins 2015 No. 13 s 37AY

section 7 (3)

1wages, allowances or remuneration of persons employed, or to be employed, during ordinary working hours, on overtime, on special work or on public holidays

2pay equity

3whether piecework will be allowed

4whether employees are to be given particular leave on full pay

5whether and on what conditions employees may board and lodge with their employers, including where it is necessary for employers to provide the board and lodging at a reasonable standard, where it would be impractical not to

6whether monetary allowances will be paid by employers to employees for standing back or waiting time caused—

(a)by the conditions of the employer’s calling; or

(b)by the intermittency of industrial operations; or

(c)otherwise

7the length of notice to be given by an employer or employee to the other before terminating employment, and wages to be paid or deducted instead of notice

8occupational superannuation

9the hours of work, the time to be worked to entitle employees to a particular wage, allowance, remuneration or price, or what time will be taken to be overtime

10claims to restrict work before or after particular hours

11providing for shorter hours, higher wages, or other conditions for persons employed under abnormal conditions or in abnormal workplaces, and deciding what are abnormal conditions or workplaces

12the age, qualification or status of employees, or the mode and conditions of employment or non-employment, including whether a person should be disqualified for employment

13employment of young employees or of a person or class of person, or the disqualification of a person for employment because of age or impairment

14the number or proportion of aged, impaired or infirm persons or other employees that may be employed by an employer, or the lowest prices or rates payable to them

15a claim to dismiss or to refuse to employ a particular person or class of person, or whether a particular person or class of person, ought to be continued or reinstated in the employment of a particular employer, considering the public interest, despite common law rights of employers or employees

16the right to dismiss, or to refuse to employ, reinstate or re-employ a particular person, or class of person, in a particular calling

17custom or usage about employment conditions, either generally or in a particular calling or locality

18the interpretation or enforcement of an industrial instrument or a permit, unless this Act otherwise prescribes

19the subject matter of an industrial dispute, and a matter that has caused, or the court or commission considers is likely to cause, disagreement or friction between employers and employees

20what is fair and just, considering the interests of the persons immediately concerned and the community, according to the standard of the average good employer and the average competent and honest employee in all matters relating to the relations of employers and employees, whether or not the relationship of employer and employee exists or existed—

(a)at or before the making of a relevant application to the court or commission; or

(b)at the making or enforcement of a decision of the court or commission

21the regulation of relations between employer and employee, or between employees, and to that end the imposition of conditions on—

(a)the conduct of a calling; and

(b)the provision of benefits to persons engaged in a calling

22a demarcation dispute

23the authorised payment by an employer of an employee’s membership fees of an organisation of employees

24the surveillance of employees in the workplace

25discrimination in employment, including in remuneration or other employment conditions

26claims to have protective clothing or appliances, hot or cold water, or sanitary or bathing accommodation provided for the use of employees

27fixing standards of normal temperatures or atmospheric purity in workplaces, above or below ground

28balancing work and family responsibilities

sch 1 amd 2005 No. 11 s 53

section 8

pt hdg amd 2002 No. 73 s 10 sch; 2013 No. 29 s 58A(1)

1Remuneration

(1)The person first appointed as the president after the commencement of section 243 is to receive the salary and allowances that are payable to a Supreme Court judge immediately before the commencement.

(2)The person first appointed as the vice president after the commencement of section 258 is to receive the salary and allowances that were payable to the chief commissioner immediately before the commencement.

(3)After the commencement of this section, the salary and allowances payable to the president, the vice president, a deputy president or an industrial commissioner are to be provided for under the Judicial Remuneration Act 2007 .

(4)If a relevant member performs the functions of the office of a member on a part-time basis under an appointment or agreement, the salary and allowances payable to the relevant member are worked out by multiplying the percentage of the part-time basis stated in the appointment or agreement by the salary and allowances payable to a member who performs the functions of the office on a full-time basis.

Example for subsection (4)—

The annual salary of a full-time member is $200000 and the allowances are $5000. The salary of a relevant member who is appointed on a 50% part-time basis will be $100000 and the allowances will be $2500.

(5)A person acting as the president, the vice president, a deputy president or an industrial commissioner is entitled to the salary and allowances payable to the president, the vice president, a deputy president or a commissioner.

(6)The salaries and allowances are payable out of the consolidated fund, which is appropriated for the purpose.

(7)In this section—

relevant member means a member of the court or of the commission other than a president who is a Supreme Court judge.

s 1 amd 2002 No. 73 s 10 sch; 2007 No. 55 s 54 sch 1; 2010 No. 42 s 114(1)–(3); 2013 No. 29 s 58A(2)–(3)

2Benefits—Judges (Pensions and Long Leave) Act 1957

(1)The Judges (Pensions and Long Leave) Act 1957 , other than sections 2A, 2AA and 15, (the pensions Act) applies with necessary changes to a member of the court or commission (each a member) and a member’s spouse or child in the way it applies to a judge and a judge’s spouse or child.

(2)In the pensions Act, a reference to a judge may, if the context permits, be taken to be a reference to a member.

(3)In working out a person’s length of service as a member for subsection (1), the following periods must be taken into account—

(a)a period when the person has served as a member, whether under—

(i)a first appointment as a member or a renewal of the appointment; or

(ii)a subsequent appointment;

(b)a period when the person has served as an acting member.

(4)This section does not apply if section 3 applies.

(5)For the purposes of the pensions Act, the salary of a chief commissioner who retired before 2 August 1999 is the salary payable to the vice president.

s 2 amd 2000 No. 23 s 292 sch 1; 2007 No. 23 s 40(1); 2007 No. 55 s 54 sch 1; 2013 No. 29 s 58A(4)

2ABenefits for part-time members

(1)This section applies if a relevant member performs the functions of the office on a part-time basis under an appointment or agreement.

(2)For the pensions Act, sections 3, 4 and 5, the period served by the relevant member is taken to be the total number of years, including any part of a year, that the person serves as a relevant member regardless of whether the person performs the functions of the office on a full-time or part-time basis.

(3)For the pensions Act, sections 3, 4 and 5, the salary of the relevant member is taken to be the amount worked out using the formula—

where—

FTS means the salary under schedule 2, part 1, section 1 payable to a relevant member who performs the functions of the office on a full-time basis.

PS means the sum of the period served on a full-time basis and each period of equivalent full-time service of the relevant member.

TS means the total number of years, including any part of a year, that the person serves as a relevant member regardless of whether the person performs the functions of the office on a full-time or part-time basis.

Example of TS—

A person works as a commissioner full-time for 5 years 6 months and then works part-time on a 50% part-time basis for 5 years. The TS of the person is 10¹/₂ years (5¹/₂ years plus 5 years).

(4)The amount of the salary of the relevant member worked out under subsection (3) is to be calculated to 2 decimal places and rounded up or down.

(5)If the sum of the period served on a full-time basis and each period of equivalent full-time service for a relevant member is 10 years or more—

(a) subsection (3) does not apply to the relevant member for the pensions Act, sections 3, 4 and 5; and

(b)the salary of the relevant member for the pensions Act, sections 3, 4 and 5 is taken to be the salary under schedule 2, part 1, section 1 payable to a relevant member who performs the functions of the office on a full-time basis.

(6)In this section—

equivalent full-time service, for each period of part-time service, means the period of service multiplied by the percentage stated in the appointment or agreement.

relevant member means a member of the court or of the commission other than a president who is a Supreme Court judge.

s 2A ins 2010 No. 42 s 114(4)

amd 2013 No. 29 s 58A(5)

3Benefits—Superannuation (State Public Sector) Act 1990

(1) Section 2 does not confer an entitlement on a member of the court or commission or a member’s spouse or child, if either of the following apply—

(a)for a member first appointed to the commission before the commencement of this section—immediately before the commencement, the member was not a member to whom the pensions Act applied;

(b)for a member first appointed to the commission after the commencement of this section—

(i)the member is a member of the scheme and properly elects to continue as a member of the scheme; or

(ii)the member is not a member of the scheme and properly elects to be a member of the scheme; or

(iii)the member is appointed for a fixed term.

(2)A member making an election under subsection (1) (b) must do so, by signed notice in duplicate, within 3 months after being first appointed as a member.

(3)A copy of the election must be given to—

(a)the board under the Superannuation (State Public Sector) Act 1990 ; and

(b)the chief executive of the department in which this Act is administered.

(4)In this section—

scheme means the scheme under the Superannuation (State Public Sector) Act 1990 .

s 3 amd 2007 No. 23 s 3 sch; 2013 No. 29 s 58A(6); 2013 No. 61 s 76(1)

4Leave under the pensions Act

(1)The pensions Act, section 15 applies with necessary changes to a member of the court or commission in the way it applies to a judge.

(2)In the pensions Act, section 15, a reference to a judge may, if the context permits, be taken to be a reference to a member.

(3)In the pensions Act, section 15, a reference to the prescribed authority is taken to be a reference to—

(a)the Minister if the member is the president; or

(b)the president for any other member.

(4)In working out a person’s length of service as a member for subsection (1), the following periods must be taken into account—

(a)a period when the person has served as a member, whether under—

(i)a first appointment as a member or a renewal of the appointment; or

(ii)a subsequent appointment;

(b)a period when the person has served as an acting member.

s 4 amd 2002 No. 73 s 8(1); 2005 No. 11 s 54(2); 2007 No. 23 s 3 sch; 2007 No. 37 s 87; 2008 No. 59 s 57; 2009 No. 15 s 13(1); 2010 No. 42 s 114(5); 2013 No. 29 s 58A(7); 2013 No. 61 s 76(2)

4AOther leave

(1)The Minister may grant leave, other than leave mentioned in the pensions Act, section 15, to the president on the terms the Minister considers appropriate.

(2)The president may grant leave, other than leave mentioned in the pensions Act, section 15, to any other member.

s 4A ins 2002 No. 73 s 8(2)

amd 2005 No. 11 s 54(3)–(4); 2007 No. 23 ss 40(2), 3 sch; 2009 No. 15 s 13(2); 2010 No. 42 s 114(6)–(8); 2012 No. 22 s 25 sch; 2013 No. 29 s 58A(8); 2013 No. 61 s 76(3)–(5); 2015 No. 13 s 37AZ

4AALeave for part-time members

(1)If a relevant member performs the functions of the office of a member on a part-time basis under an appointment or agreement, the entitlement to leave of the relevant member is worked out by multiplying the percentage stated in the appointment or agreement by the entitlement to the leave of a relevant member who performs the functions of the office on a full-time basis.

(2)In this section—

relevant member means a member of the court or the commission other than a president who is a Supreme Court judge.

s 4AA ins 2010 No. 42 s 114(9)

amd 2013 No. 29 s 58A(9)

4BOther terms and conditions

A member of the court or commission holds office on the terms and conditions, not provided for by this Act or the Judicial Remuneration Act 2007 , decided by the Governor in Council.

s 4B ins 2005 No. 11 s 54(5)

amd 2007 No. 55 s 54 sch 1; 2013 No. 29 s 58A(10)

pt hdg ins 2005 No. 11 s 54(6)

4CAppointment conditions

(1)The Minister may appoint associates to the president, vice-president, a deputy president or an industrial commissioner.

(2)An associate holds office on the wages and conditions decided by the Minister.

(3)An associate is to be appointed under this Act, and not under the Public Service Act 2008 .

(4)The Minister may delegate the Minister’s function under this section to the chief executive.

s 4C ins 2005 No. 11 s 54(6)

amd 2008 No. 38 s 252 sch 3; 2010 No. 42 s 114(10)–(11); 2013 No. 29 s 58A(11); 2013 No. 31 s 38N

5Preservation of registrar’s rights if a public service officer

(1)This section applies if the person appointed as the registrar was, immediately before the appointment, a public service officer.

(2)The person keeps the rights the person has accrued because of employment as a public service officer, or that would accrue in the future to the person, as if service as registrar were a continuation of service as a public service officer.

(3)If the person’s term of appointment as registrar ends or the person resigns—

(a)the person has the right to be employed as a public service officer—

(i)in the department that is the nearest practical equivalent to the department in which the person was employed as a public service officer immediately before the person last stopped being a public service officer; and

(ii)at the classification level at which the person was employed as a public service officer immediately before the person last stopped being a public service officer; and

(iii)on the remuneration payable to a public service officer on the classification level mentioned in subparagraph (ii); and

(iv)for duties appropriate to the classification level mentioned in subparagraph (ii); and

(b)the person’s service as registrar is taken to be service as a public service officer for working out the person’s rights as a public service officer.

(4)If the person, immediately before the appointment, was a member of the scheme under the Superannuation (State Public Sector) Act 1990 , the person continues to be eligible to be, and to be, a member of the scheme.

6Leave of absence of registrar

The Minister may grant leave of absence to the registrar on the terms the Minister considers appropriate.

7Resignation of registrar

The registrar may resign by signed notice given to the Minister.

8Appointment conditions

(1)An inspector holds office on the conditions stated in the instrument of appointment.

(2)An inspector stops holding office—

(a)if the appointment provides for a term of appointment—at the end of the term; and

(b)if the appointment conditions provide—on ceasing to hold another office stated in the appointment conditions (the main office).

(3)An inspector may resign by signed notice of resignation given to the chief executive.

(4)However, an inspector may not resign from the office of inspector (the secondary office) if a condition of the inspector’s employment to the main office requires the inspector to hold the secondary office.

9Limitation on powers

(1)In exercising a power, an inspector is subject to the chief inspector’s directions.

(2)An inspector’s powers may be limited—

(a)under a condition of appointment; or

(b)by notice given by the chief executive to the inspector; or

(c)under a regulation.

10Identity cards

(1)The chief executive must give each inspector an identity card.

(2)The identity card must—

(a)contain a recent photo of the inspector; and

(b)be signed by the inspector; and

(c)identify the person as an inspector for this Act; and

(d)include an expiry date for the card.

(3)A person who stops being an inspector must return the person’s identity card to the chief executive as soon as possible, but within 21 days, after the person stops being an inspector, unless the person has a reasonable excuse.

Maximum penalty—10 penalty units.

(4)This section does not prevent the giving of a single identity card to a person for this and other Acts or for other purposes.

sch 2 amd 2005 No. 11 s 54(1)

section 85B

sch 3 ins 2005 No. 36 s 18

amd 2013 No. 61 s 77

section 176

1Purpose of sch 4

The purpose of this schedule is to establish a process enabling employees to choose, by a fair and democratic secret ballot, whether they wish to engage in particular industrial action in relation to a proposed agreement if negotiations for the agreement have begun.

Note—

Under section 176 of this Act, industrial action by employees in relation to a proposed agreement is not protected industrial action unless the action has been authorised in advance by a protected action ballot.

2Definition for sch 4

In this schedule—

protected action ballot order means an order of the commission requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular industrial action in relation to a proposed agreement.

3Application for protected action ballot order

(1)An application for a protected action ballot order may be made to the commission by—

(a)if the proposed agreement is an agreement with 1 or more employee organisations—an employee organisation that is a negotiating party; or

(b)if the proposed agreement is an agreement with employees—an employee who the commission is satisfied is a negotiating party.

(2) Subsection (1) does not apply if the proposed agreement is a project agreement.

(3)The application must state—

(a)the group of employees who are to be balloted; and

(b)the question to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4)For subsection (3) (a), a group of employees stated in the application is taken to include only employees who—

(a)will be bound by the proposed agreement; and

(b)if the proposed agreement is an agreement with 1 or more employee organisations—are members of an employee organisation that is an applicant.

(5)To remove any doubt, it is declared that applying for a protected action ballot order does not constitute organising industrial action.

4When application may be made

(1)This section applies if 1 or more existing certified agreements bind the employees who will be bound by the proposed agreement.

(2)An application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the existing certified agreement, or the latest nominal expiry date of those existing certified agreements, as the case may be.

(3)A reference in subsection (2) to an existing certified agreement includes a determination relating to an existing certified agreement.

s 4 amd 2013 No. 61 s 78(1)

5Notice of application

Within 24 hours after making an application for a protected action ballot order, each applicant must give a copy of the application to—

(a)the employer of the employees who are to be balloted; and

(b)the ECQ.

6When application must be decided

(1)This section applies if an application for a protected action ballot order is made and the commission is satisfied section 5 has been complied with.

(2)The commission must, as far as practicable, decide the application within 2 working days after the application is made.

7Dealing with multiple applications together

The commission may deal with 2 or more applications for a protected action ballot order at the same time if—

(a)the applications relate to industrial action by—

(i)employees of the same employer; or

(ii)employees at the same workplace; and

(b)the commission is satisfied that dealing with the applications at the same time will not unreasonably delay the deciding of any of the applications.

8Making of protected action ballot order by commission

(1)The commission must make a protected action ballot order in relation to a proposed agreement if—

(a)an application for the order has been made under section 3; and

(b)the commission is satisfied each applicant has been, and is, genuinely trying to reach agreement with the employer of the employees who are to be balloted; and

(c)negotiations for the agreement have begun.

(2)The commission must not make a protected action ballot order if the requirements under subsection (1) are not satisfied.

(3)A protected action ballot order must state the following—

(a)the name of each applicant for the order;

(b)the group of employees who are to be balloted;

(c)the date by which voting in the ballot closes;

(d)the question to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) Subsection (5) applies if the commission is satisfied that exceptional circumstances relating to the proposed industrial action justify the period of notice mentioned in section 176 (6) (b) of this Act being longer than 3 working days.

(5)The protected action ballot order may state a longer period of not more than 7 working days.

s 8 amd 2013 No. 61 s 78(2); 2015 No. 7 s 34(1)

9Notice of protected action ballot order

(1)As soon as practicable after making a protected action ballot order, the commission must give the following persons a copy of the order—

(a)each applicant for the order;

(b)the employer of the employees who are to be balloted;

(c)the ECQ.

(2)The ECQ must, as soon as practicable after the protected action ballot order is made, take all reasonable steps to notify each employee who is eligible to be included on the roll of voters for the protected action ballot.

(3)A notice for subsection (2) must—

(a)state the matters prescribed under a regulation; and

(b)be given to the employee in the way prescribed under a regulation.

(4)An employer must allow the ECQ access to the workplace to—

(a)give notice under subsection (2) to employees; or

(b)prepare for the protected action ballot.

Note—

See chapter 6, division 7 for penalty provisions applicable to contraventions of this subsection.

10Protected action ballot order may require 2 or more ballots to be held together

(1)This section applies if—

(a)the commission has made a protected action ballot order; and

(b)the commission proposes to make 1 or more other protected action ballot orders; and

(c)the orders would require a protected action ballot to be held in relation to industrial action by employees of the same employer or employees at the same workplace.

(2)The commission may make, or vary, the protected action ballot orders to require the protected action ballots to be held at the same time if the commission is satisfied—

(a)the level of disruption of the employer’s enterprise, or at the workplace, could be reduced if the ballots were held at the same time; and

(b)requiring the ballots to be held at the same time will not unreasonably delay any of the ballots.

11Variation of protected action ballot order

(1)An applicant for a protected action ballot order may apply to the commission to vary the order.

(2)The ECQ may apply to the commission to vary the order to change the date by which voting in the ballot closes.

(3)An application may be made under subsection (1) or (2)—

(a)at any time before the date by which voting in the protected action ballot closes; or

(b)if the ballot has not been held before that date and the commission consents—after that date.

(4)If an application is made under subsection (1) or (2), the commission may vary the protected action ballot order.

12Revocation of protected action ballot order

(1)An applicant for a protected action ballot order may apply to the commission to revoke the order.

(2)An application may be made under subsection (1) at any time before voting in the protected action ballot closes.

(3)If an application is made under subsection (1), the commission must revoke the protected action ballot order.

13Requirements for conduct of protected action ballot

(1)A protected action ballot must be conducted by the ECQ.

(2)Subject to this part, the ECQ must conduct the protected action ballot in accordance with each of the following—

(a)the protected action ballot order;

(b)the timetable for the ballot developed under section 15;

(c)any procedures prescribed under a regulation.

14Voting must be by post

Voting for a protected action ballot must be by post.

15Timetable for protected action ballot

(1)As soon as practicable after receiving a copy of the protected action ballot order, the ECQ must develop a timetable for the protected action ballot.

(2)In developing the timetable, the ECQ must consult with—

(a)each applicant for the protected action ballot order; and

(b)the employer of the employees who are to be balloted.

16Compiling roll of voters

(1)As soon as practicable after receiving a copy of the protected action ballot order, the ECQ must compile the roll of voters for the protected action ballot.

(2)For compiling the roll of voters, the ECQ may give either or both of the following persons a voting information direction—

(a)the employer of the employees who are to be balloted;

(b)an applicant for the protected action ballot order.

(3)For subsection (2), a voting information direction is a written direction requiring the person to whom it is given to give the ECQ—

(a)the names of the employees included in the group of employees stated in the protected action ballot order; and

(b)any other information the ECQ reasonably requires to compile the roll of voters.

17Who is eligible to be included on the roll of voters

An employee is eligible to be included on the roll of voters for the protected action ballot only if—

(a)the employee will be bound by the proposed agreement to which the ballot relates; and

(b)on the day the protected action ballot order was made, the employee was—

(i)included in the group of employees stated in the order; and

(ii)if the proposed agreement is an agreement with 1 or more employee organisations—a member of an employee organisation that is an applicant for the order.

18Variation of roll of voters

(1)The ECQ must include an employee’s name on the roll of voters for the protected action ballot if—

(a)the ECQ is asked to do so by any of the following—

(i)an applicant for the protected action ballot order;

(ii)the employee;

(iii)the employee’s employer; and

(b)the ECQ is satisfied the employee is eligible to be included on the roll of voters; and

(c)the request is made before the end of the working day before the day on which voting in the ballot starts.

(2)The ECQ must remove an employee’s name from the roll of voters for the protected action ballot if—

(a)the ECQ is asked to do so by any of the following—

(i)an applicant for the protected action ballot order;

(ii)the employee;

(iii)the employee’s employer; and

(b)the ECQ is satisfied the employee is not eligible to be included on the roll of voters; and

(c)the request is made before the end of the working day before the day on which voting in the ballot starts.

(3)The ECQ must remove a person’s name from the roll of voters for the protected action ballot if—

(a)the person (the former employee) is no longer employed by the employer (the former employer) of the employees who are to be balloted; and

(b)the ECQ is requested to do so by any of the following—

(i)an applicant for the protected action ballot order;

(ii)the former employee;

(iii)the former employer; and

(c)the request is made before the end of the working day before the day on which voting in the ballot starts.

(4)The ECQ may, on its own initiative and before the end of the working day before the day on which voting in the protected action ballot starts, do any of the following—

(a)include an employee’s name on the roll of voters for the ballot if the ECQ is satisfied the employee is eligible to be included on the roll of voters;

(b)remove an employee’s name from the roll of voters for the ballot if the ECQ is satisfied the employee is not eligible to be included on the roll of voters;

(c)remove a person’s name from the roll of voters for the ballot if the person is no longer employed by the employer of the employees who are to be balloted.

19Protected action ballot papers

The ballot paper for the protected action ballot must, if there is an approved form for the ballot paper, be in the approved form.

20Who may vote in a protected action ballot

An employee may vote in the protected action ballot only if the employee’s name is on the roll of voters for the ballot.

21Scrutineers

A regulation may provide for the qualifications, appointment, powers and duties of scrutineers for the protected action ballot.

22Results of protected action ballot

(1)As soon as practicable after voting in the protected action ballot closes, the ECQ must, in writing—

(a)make a declaration of the results of the ballot; and

(b)inform the following persons of the results—

(i)each applicant for the protected action ballot order;

(ii)the employer of the employees who were balloted;

(iii)the commission.

(2)As soon as practicable after the commission becomes aware of the results of the protected action ballot, the commission must publish the results—

(a)on its website; or

(b)by any other means the commission considers appropriate.

Note—

The commission mentioned in subsections (1) (b) (iii) and (2) is the Queensland Industrial Relations Commission.

23Report about conduct of protected action ballot

(1) Subsection (2) applies if the ECQ—

(a)receives any complaints about the conduct of the protected action ballot; or

(b)becomes aware of any irregularities in relation to the conduct of the ballot.

(2)The ECQ must prepare a written report about the conduct of the protected action ballot and give it to the commission.

(3)In this section—

conduct, in relation a protected action ballot, includes compiling the roll of voters for the ballot.

irregularity, in relation to the conduct of a protected action ballot, includes an act or omission that prevents or hinders the full and free recording of votes by all employees entitled to the vote in the ballot and not by any other person.

24Costs of protected action ballot

(1)The costs of a protected action ballot are payable by the State.

(2) Subsection (1) applies whether or not the ballot is completed.

25Records

(1)The ECQ must keep the following documents or records for a protected action ballot—

(a)the roll of voters;

(b)ballot papers, envelopes and other documents and records for the ballot;

(c)any other documents prescribed under a regulation.

(2)The ECQ must keep the documents or records—

(a)for 1 year after the day on which voting for the protected action ballot closed; and

(b)in compliance with any requirements prescribed under a regulation about how the documents or records must be kept.

sch 4 prev sch 4 om 2001 No. 87 s 35

pres sch 4 ins 2012 No. 7 s 21

section 693

pt 1 (s 1) ins 2012 No. 9 s 51

1Definitions for sch 4A

In this schedule—

chief executive means the chief executive administering the Hospital and Health Boards Act 2011 .

health service employee see the Hospital and Health Boards Act 2011 , schedule 2.

health system employer means—

(a)the department in which the Hospital and Health Boards Act 2011 is administered; or

(b)a prescribed Service.

prescribed Service see the Hospital and Health Boards Act 2011 , schedule 2.

Service see the Hospital and Health Boards Act 2011 , schedule 2.

pt 1 (s 1) ins 2012 No. 9 s 51

pt 2 (s 2) ins 2012 No. 9 s 51

2How s 77 (Matters to be considered in deciding an application) applies

(1)This section applies if the dismissal of a health service employee by a health system employer related to the employee’s conduct, capacity or performance at another health system employer.

(2)For section 77, the commission may decide that a dismissal was not harsh, unjust or unreasonable even though the dismissal related to the employee’s conduct, capacity or performance at another health system employer.

pt 2 (s 2) ins 2012 No. 9 s 51

pt hdg ins 2012 No. 9 s 51

3Chief executive to be employer for award but award binds prescribed Services and employees

(1)This section applies to awards applying to health service employees employed by a prescribed Service.

(2)The chief executive is to be a party to the award instead of the prescribed Service as if the chief executive were the employer of the health service employees.

(3)Despite the chief executive being a party to the award, the award is binding on prescribed Services and their employees.

s 3 ins 2012 No. 9 s 51

4Proceedings in relation to awards

(1)This section applies to a proceeding under chapter 5 in relation to an award for health service employees employed by a prescribed Service.

(2)The chief executive is to be a party to the proceeding instead of the prescribed Service as if the chief executive were the employer of the health service employees.

s 4 ins 2012 No. 9 s 51

5How s 125 (Making, amending and repealing awards) applies

For section 125, for health service employees employed by a prescribed Service, the chief executive is taken to be the employer instead of the prescribed Service and may make an application under that section.

s 5 ins 2012 No. 9 s 51

pt hdg ins 2012 No. 9 s 51

7Chief executive to be party to certified agreement

(1)This section applies to a certified agreement applying to health service employees employed by a prescribed Service.

(2)The chief executive is to be a party to the certified agreement instead of the prescribed Service as if the chief executive were the employer of the health service employees.

s 7 ins 2012 No. 9 s 51

8Proceedings in relation to agreements

(1)This section applies to a proceeding under chapter 6 in relation to an agreement for health service employees employed by a prescribed Service.

(2)The chief executive is to be a party to the proceeding instead of the prescribed Service as if the chief executive were the employer of the health service employees.

s 8 ins 2012 No. 9 s 51

9How s 142 (Who may make certified agreements) applies

For section 142, for health service employees employed by a prescribed Service, the chief executive is taken to be the employer instead of the prescribed Service and may make a certified agreement under that section.

s 9 ins 2012 No. 9 s 51

10How s 143 (Proposed parties to be advised when agreement is proposed) applies

For section 143, for health service employees employed by a prescribed Service, the chief executive is taken to be the employer instead of the prescribed Service and can propose to make a certified agreement as an employer under that section.

s 10 ins 2012 No. 9 s 51

11How s 144 (What is to be done when an agreement is proposed) applies

For section 144 (2) (c) and (3), for health service employees employed by a prescribed Service, the chief executive is taken to be the employer instead of the prescribed Service for negotiating with an employee organisation.

s 11 ins 2012 No. 9 s 51

12How s 147 (Peace obligation period to assist negotiations) applies

(1)This section applies to a proposed agreement between the chief executive and the health service employees employed by a prescribed Service or an employee organisation representing the employees.

(2)For section 147, the prescribed Service has the same obligations as the proposed parties during the peace obligation period.

s 12 ins 2012 No. 9 s 51

12AHow s 147A (Employer may ask employees to approve proposed agreement being negotiated with employee organisation) applies

(1)For requesting employees to approve a proposed agreement and doing other things under section 147A, the chief executive is taken to be the employer instead of the prescribed Service for health service employees employed by the Service.

(2)However, the chief executive is not taken to be the employer instead of the prescribed Service for section 147A (4).

s 12A ins 2012 No. 9 s 51

13How s 148 (Assistance in negotiating by conciliation) applies

(1)For section 148 (1) (b), a prescribed Service is also taken to be a negotiating party.

(2)For section 148A (3), a prescribed Service is also taken to be a party.

s 13 ins 2012 No. 9 s 51

amd 2013 No. 61 s 79(2)

14How s 150 (Determinations made under s 149) applies

For section 150 (4) and (5), for health service employees employed by a prescribed Service, the chief executive is taken to be the employer instead of the prescribed Service in relation to the revocation of a determination.

s 14 ins 2012 No. 9 s 51

15How s 152 (Certificate as to requested representation) applies

For section 152 (2), for health service employees employed by a prescribed Service, the chief executive is taken to be the employer instead of the prescribed Service for an application to the registrar about not negotiating about a proposed agreement.

s 15 ins 2012 No. 9 s 51

16How s 166 (Persons bound) applies

(1)This section applies to a certified agreement between the chief executive and the health service employees of the prescribed Services or an employee organisation representing the employees.

(2)For section 166, the certified agreement binds the prescribed Services.

s 16 ins 2012 No. 9 s 51

17How s 167 (Successor employers bound) applies

Section 167 (2) (b) and (c) apply subject to the modifications contained in this schedule.

s 17 ins 2012 No. 9 s 51

18How s 168 (Extending a certified agreement) applies

(1)This section applies to a certified agreement between the chief executive and the health service employees of the prescribed Services or an employee organisation representing the employees.

(2)For section 168, the chief executive is taken to be the employer instead of the prescribed Services and may apply to the commission to extend the certified agreement’s nominal expiry date.

s 18 ins 2012 No. 9 s 51

19How s 169 (Amending a certified agreement) applies

(1)This section applies to a certified agreement between the chief executive and the health service employees of the prescribed Services or an employee organisation representing the employees.

(2)For section 169 (2), the chief executive is taken to be the employer instead of the prescribed Services and may apply to the commission to amend the certified agreement.

(3)For section 169 (6), an application to amend a certified agreement may be made by the chief executive instead of a prescribed Service.

s 19 ins 2012 No. 9 s 51

20How s 170 (Amendment if discrimination between unionists and non-unionists) applies

(1)This section applies to a certified agreement between the chief executive and the health service employees of the prescribed Services or an employee organisation representing the employees.

(2)For section 170, the chief executive is taken to be the employer instead of the prescribed Services for seeking the commission’s approval to amend the agreement.

s 20 ins 2012 No. 9 s 51

21How s 172 (Terminating certified agreement on or before its nominal expiry date) applies

(1)This section applies to a certified agreement between the chief executive and the health service employees of the prescribed Services or an employee organisation representing the employees.

(2)For section 172, the chief executive is taken to be the employer instead of the prescribed Services for terminating the agreement by notice.

s 21 ins 2012 No. 9 s 51

22How s 173 (Terminating agreement after its nominal expiry date) applies

(1)This section applies to a certified agreement between the chief executive and the health service employees of the prescribed Services or an employee organisation representing the employees.

(2)For section 173, the chief executive is taken to be the employer instead of the prescribed Services for applying to the commission to terminate the agreement.

s 22 ins 2012 No. 9 s 51

22AHow s 175 (Requirements for industrial action in response to industrial action by another party) applies

For section 175, the prescribed Service for the proposed agreement is taken to be the negotiating party, instead of the chief executive, for the purpose of taking industrial action in response to industrial action by another negotiating party.

s 22A ins 2012 No. 9 s 51

22BHow s 181D (Minister may give directions to reduce or remove threat, damage or danger) applies

For section 181D (1) (c), the chief executive and a prescribed Service for a proposed agreement are each taken to be the employer who is a party to the proposed agreement and the Minister may give either or both of them written directions to take, or not take, stated action.

s 22B ins 2012 No. 9 s 51

23How s 185 (Coercion of persons to make, amend or terminate certified agreements etc.) applies

For section 185 (3), the obligation not to coerce, or attempt to coerce, an employee also applies to the chief executive for health service employees of the prescribed Services.

s 23 ins 2012 No. 9 s 51

pt 5 (ss 24–27) ins 2012 No. 9 s 51

24When chief executive taken to be party to industrial dispute

(1)This section applies if section 229 (1) applies in relation to a dispute involving a prescribed Service as an employer.

(2)The prescribed Service must give the chief executive notice of the dispute—

(a)at the same time as the registrar is first given notice of the dispute under section 229 (2); and

(b)in a way mentioned in section 229 (3).

(3)The chief executive is taken to be a party for proceedings for the dispute instead of the prescribed Service unless the chief executive gives written notice to the prescribed Service that the prescribed Service is to be a party to the dispute.

(4)In deciding whether to give a written notice under subsection (3), the chief executive is to have regard to whether the subject of the dispute may affect the terms and conditions of employment of health service employees in more than one health system employer.

(5)If the prescribed Service is to be a party to the dispute, the prescribed Service must give the commission a copy of the chief executive’s written notice under subsection (3) as soon as practicable after receiving the notice.

pt 5 (ss 24–27) ins 2012 No. 9 s 51

25When chief executive may intervene in industrial dispute

(1)This section applies if—

(a)the chief executive has given written notice under section 24 (3) of this schedule to a prescribed Service that the prescribed Service is to be a party to the dispute; and

(b)during the proceedings the chief executive considers that the subject of the dispute may affect the terms and conditions of employment of health service employees in more than one health system employer.

(2)The chief executive may intervene in the proceedings.

(3)On intervention, the chief executive becomes a party to the proceedings.

pt 5 (ss 24–27) ins 2012 No. 9 s 51

26How s 235 (Secret ballot on strike action) applies

For section 235, for health service employees employed by a prescribed Service, the chief executive—

(a)is taken to be the employer instead of the prescribed Service; and

(b)may make application under section 235 (2) for the commission to act under section 235 (4) in relation to conducting a secret ballot.

pt 5 (ss 24–27) ins 2012 No. 9 s 51

27How s 239 (Orders the commission may make) applies

For section 239, for health service employees employed by a prescribed Service, the chief executive—

(a)is taken to be the employer instead of the prescribed Service; and

(b)may make application under section 239 (2) for a contravention of section 238 (2) or (3) about payment for strikes.

pt 5 (ss 24–27) ins 2012 No. 9 s 51

pt 6 (ss 28–37) ins 2012 No. 9 s 51

28Who makes application to commission as employer

(1)This section applies to a provision of this Act (other than chapter 5, 6 or 7) under which an application may be made to the commission by an employer about a matter.

(2)If the application relates to health service employees employed by a prescribed Service, the chief executive is taken to be the employer instead of the prescribed Service and may make the application for the matter.

(3)However, the chief executive may give a written notice to the prescribed Service that the prescribed Service may make the application as the employer.

(4)In deciding whether to give a written notice under subsection (3), the chief executive is to have regard to whether the subject of the application may affect the terms and conditions of employment of health service employees in more than one health system employer.

(5)If the prescribed Service makes the application, the prescribed Service must give the commission a copy of the chief executive’s written notice under subsection (3) when making the application.

pt 6 (ss 28–37) ins 2012 No. 9 s 51

29Who is party to proceedings as employer before commission

(1)This section applies to a proceeding in the commission for a matter (other than a proceeding under chapter 5, 6 or 7) if the proceeding relates to health service employees employed by a prescribed Service.

(2)The chief executive is taken to be the employer for the proceeding instead of the prescribed Service unless—

(a)the chief executive has given written notice under section 28 (3) of this schedule that a prescribed Service may make application for a matter the subject of the proceeding; or

(b)if paragraph (a) does not apply—the chief executive gives written notice to the prescribed Service that the prescribed Service is the employer for the proceeding.

(3)In deciding whether to give a written notice under subsection (2) (b), the chief executive is to have regard to whether the matter may affect the terms and conditions of employment of health service employees in more than one health system employer.

(4)The prescribed Service must give the commission a copy of the chief executive’s written notice under subsection (2) (b) as soon as practicable after receiving the notice.

pt 6 (ss 28–37) ins 2012 No. 9 s 51

30Commission’s orders may bind prescribed Services even if chief executive is taken to be employer or party for proceeding

(1)This section applies to a proceeding before the commission if the chief executive is a party to the proceeding because the chief executive is taken to be the employer of health service employees instead of a prescribed Service.

(2)The commission may make orders, give directions or do anything else it may do under this Act in relation to the prescribed Service as if the prescribed Service was a party to the proceeding.

(3) Subsection (2) does not limit the orders, directions or other action the commission may take in relation to the chief executive.

pt 6 (ss 28–37) ins 2012 No. 9 s 51

31How s 265 (Commission’s jurisdiction) applies

(1)For section 265 (2), for health service employees employed by a prescribed Service, the chief executive is taken to be the employer instead of the prescribed Service and may make an application to regulate a calling by an award.

(2)For section 265 (5), for health service employees employed by a prescribed Service, the chief executive is taken to be the employer instead of the prescribed Service and may make an application to consolidate an award.

pt 6 (ss 28–37) ins 2012 No. 9 s 51

32How sch 4, s 5 (Notice of application) applies

For schedule 4, section 5, the chief executive and the prescribed Service for the employees are each taken to be the employer for the purpose of the applicant giving the employer a copy of the application for a protected action ballot order.

pt 6 (ss 28–37) ins 2012 No. 9 s 51

33How sch 4, s 7 (Dealing with multiple actions together) applies

For schedule 4, section 7, the commission may treat the following as being employees of the same employer for dealing with 2 or more applications for a protected action ballot order at the same time—

(a)employees of 2 or more prescribed Services;

(b)employees of 1 or more prescribed Services and the department.

pt 6 (ss 28–37) ins 2012 No. 9 s 51

34How sch 4, s 8 (Making of protected action ballot order by commission) applies

For schedule 4, section 8, the chief executive is taken to be the employer instead of a prescribed Service for the purpose of the commission being satisfied that each applicant has been, and is, genuinely trying to reach agreement with the employer of the employees who are to be balloted.

pt 6 (ss 28–37) ins 2012 No. 9 s 51

35How sch 4, s 9 (Notice of protected action ballot order) applies

For schedule 4, section 9, the chief executive and the prescribed Service for the employees who are to be balloted are each taken to be the employer for the purpose of the commission giving the employer of the employees a copy of a protected action ballot order.

pt 6 (ss 28–37) ins 2012 No. 9 s 51

36How sch 4, s 10 (Protected action ballot order may require 2 or more ballots to be held together) applies

For schedule 4, section 10, the commission may treat the following as being employees of the same employer for requiring protected action ballots to be held at the same time—

(a)employees of 2 or more prescribed Services;

(b)employees of 1 or more prescribed Services and the department.

pt 6 (ss 28–37) ins 2012 No. 9 s 51

37How sch 4, s 22 (Results of protected action ballot) applies

For schedule 4, section 22, the chief executive and the prescribed Service for the employees who were balloted are each taken to be the employer for the purpose of the ECQ informing the employer of the employees of the results of the ballot.

pt 6 (ss 28–37) ins 2012 No. 9 s 51

sch 4A ins 2012 No. 9 s 51

section 4

1990 Act means the repealed Industrial Relations Act 1990 .

accounting deficiency, for chapter 12, part 12, see section 560 (d).

accounting records, for chapter 12, part 12, see section 554 (3).

accounts, for chapter 12, see section 555.

act, for chapter 12, part 14, see section 604.

additional approval requirements ...

def additional approval requirements om 2011 No. 4 s 53(1)

administer, for chapter 8, part 6, see section 316.

administrator, for an organisation or a branch of an organisation, means an administrator appointed for the organisation or branch under section 636O.

def administrator ins 2013 No. 29 s 59(2)

adoption leave—

(a)for chapter 2, part 2, see section 17; or

(b)for chapter 2A, part 2, division 5, see section 71GB.

def adoption leave sub 2013 No. 61 s 80(1)–(2)

affiliated, with a political party, see section 579A.

def affiliated ins 2013 No. 29 s 59(2)

amalgamated organisation, for chapter 12, part 15, see section 616.

amalgamation, for chapter 12, see section 409.

amalgamation ballot, for chapter 12, part 15, see section 616.

amalgamation day, for chapter 12, part 15, see section 616.

amendment agreement ...

def amendment agreement om 2011 No. 4 s 53(1)

amount in relation to employment, for chapter 11, part 2, division 3, see section 390A.

def amount in relation to employment ins 2013 No. 29 s 59(2)

ancillary document ...

def ancillary document om 2011 No. 4 s 53(1)

apparent employer, for chapter 11, part 2, division 3A, see section 400A.

def apparent employer ins 2005 No. 11 s 55(2)

applies to, in relation to a modern award, see section 140E.

def applies to ins 2013 No. 61 s 80(2)

appointed member ...

def appointed member om 2007 No. 36 s 2 sch

apprentice see the Further Education and Training Act 2014 , schedule 1.

def apprentice sub 2000 No. 23 s 292 sch 1

amd 2003 No. 63 s 60 sch

sub 2014 No. 25 s 223 sch 1 pt 2

apprenticeship see the Further Education and Training Act 2014 , schedule 1.

def apprenticeship sub 2000 No. 23 s 292 sch 1

amd 2003 No. 63 s 60 sch

sub 2014 No. 25 s 223 sch 1 pt 2

apprenticeship contract see the Further Education and Training Act 2014 , schedule 1.

def apprenticeship contract ins 2014 No. 25 s 223 sch 1 pt 2

appropriately qualified, for a person to whom a power under this Act may be delegated, includes having the qualifications, experience or standing appropriate to exercise the power.

Example of standing—

a person’s classification level in the public service

approval notice ...

def approval notice om 2011 No. 4 s 53(1)

approved apprenticeship means an apprenticeship approved by an approving authority for section 162.

def approved apprenticeship amd 2011 No. 4 s 53(3)

approved superannuation fund means a complying superannuation fund nominated in an industrial instrument.

def approved superannuation fund sub 2005 No. 11 s 55(1)–(2)

approved traineeship means a traineeship approved by an approving authority for section 162, other than a traineeship mentioned in—

(a)the Training Wage Award—State; or

(b)the National Training Wage Award 1994.

def approved traineeship amd 2011 No. 4 s 53(3)

approved training means training for an apprentice or trainee that is approved by the approving authority.

approved way, for publishing a document, means published under section 655A.

def approved way ins 2013 No. 29 s 59(2)

approving authority means the chief executive (training).

def approving authority sub 2000 No. 23 s 292 sch 1

amd 2003 No. 63 s 60 sch

sub 2005 No. 16 s 38(1); 2012 No. 11 s 43 sch pt 2; 2013 No. 49 s 25; 2014 No. 25 s 223 sch 1 pt 2

arbitration period, for chapter 6, see section 140K.

def arbitration period ins 2013 No. 61 s 80(2)

assignment, for chapter 11, part 2, see section 376.

associated entity ...

def associated entity ins 2013 No. 31 s 38O

om 2014 No. 36 s 55W(1)

association—

(a)in relation to a demarcation dispute—see section 279 (8); or

(b)for chapter 12—see section 409.

def association sub 2007 No. 23 s 41(1)–(2)

attempt to commit an offence see Criminal Code, section 4.

attendance notice means a notice in the approved form issued by the court, the commission, an Industrial Magistrates Court or the registrar requiring a person to attend at a stated time and place until excused, for 1 or more of the following—

(a)to give evidence;

(b)to produce a stated document or thing;

(c)another purpose specified in the notice.

audit complaint report see section 636L (2) (b).

def audit complaint report ins 2013 No. 29 s 59(2)

audit report, for chapter 12, see section 558 (1) (b).

def audit report sub 2009 No. 15 s 2 sch

Australian commission means FWA.

def Australian commission sub 2009 No. 49 s 64(1)–(2)

authorised industrial officer, for chapter 11, part 1, see section 363.

award—

(a)generally, means—

(i)a modern award; or

(ii)an award made under chapter 5 or continued in force under this Act, including an award as amended under chapter 5; and

(b)for chapter 6, division 3—includes a federal award.

def award amd 2009 No. 49 s 64(3); 2011 No. 4 s 53(4); 2013 No. 61 s 80(3)

award modernisation process see section 140BB (1).

def award modernisation process ins 2013 No. 61 s 80(2)

award modernisation request, for chapter 5, part 8, see section 140C (1).

def award modernisation request ins 2013 No. 61 s 80(2)

ballot records, for chapter 12, see section 409.

bargaining agent ...

def bargaining agent om 2011 No. 4 s 53(1)

binds, in relation to an industrial instrument, includes applies to or covers.

def binds ins 2013 No. 61 s 80(2)

birth-related leave, for chapter 2A, part 2, division 5, see section 71GB.

def birth-related leave ins 2013 No. 61 s 80(2)

board member officer means an officer of an organisation who is a board member officer under section 557K (1) (c).

def board member officer ins 2013 No. 29 s 59(2)

branch, for chapter 12, see section 409.

business hours of an employer means the hours of operation of the employer’s business.

calling means—

(a)a craft, manufacture, occupation, trade, undertaking or vocation; or

(b)a section of something mentioned in paragraph (a).

candidate, for chapter 12, part 9, see section 514.

candidate for election, for chapter 12, part 12, see section 551.

def candidate for election ins 2013 No. 29 s 59(2)

amd 2014 No. 36 s 55W(2)

carer’s leave, for chapter 2A, see sections 71FC (2), 71FD (2) and 71FE (2).

def carer’s leave ins 2013 No. 61 s 80(2)

casual employee, for chapter 2A, part 2, division 6, subdivision 6, see section 71HI.

def casual employee ins 2013 No. 61 s 80(2)

casual vacancy, for chapter 12, see section 409.

certified agreement see section 141 (1).

def certified agreement amd 2011 No. 4 s 53(5)

sub 2013 No. 61 s 80(1)–(2)

certified copy ...

def certified copy om 2011 No. 4 s 53(1)

chief executive, for schedule 4A, see schedule 4A, part 1, section 1.

def chief executive ins 2012 No. 9 s 52

chief executive (training) means the chief executive of the department in which the Further Education and Training Act 2014 is administered.

def chief executive (training) ins 2014 No. 25 s 223 sch 1 pt 2

chief executive (VETE) ...

def chief executive (VETE) ins 2013 No. 49 s 25(2)

om 2014 No. 25 s 223 sch 1 pt 2

child—

(a)for chapter 2, part 2, see section 17; or

(b)for chapter 2A, part 2, division 5, see section 71GB.

def child sub 2013 No. 61 s 80(1)–(2)

claim for wages means a claim—

(a)for an employee’s wages payable under an industrial instrument or permit or under section 8A; or

(b)for an employee’s wages payable under an agreement in which wages are payable at a price or rate higher than that fixed by a relevant industrial instrument or permit; or

(c)for an employee’s wages payable under an agreement in which wages are payable at a price or rate that is not fixed by a relevant industrial instrument or permit; or

(d)for amounts payable, with an employee’s written consent, from an employee’s wages; or

(e)under chapter 11, part 2, division 2; or

(f)for amounts payable for a tool allowance under section 138; or

(g)for damages for contravention of an agreement made under an industrial instrument; or

(h)for damages suffered by an employee because the employer fails to pay the employee’s wages; or

(i)for compensation under section 83.

def claim for wages amd 2003 No. 27 s 621(3) (retro)

collective body, for chapter 12, part 14, see section 604.

collegiate electoral system, for chapter 12, part 4, see section 439.

commission see section 255.

commissioner see section 256 (1).

def commissioner ins 2013 No. 29 s 59(3)

commissioner administrator ...

def commissioner administrator om 2002 No. 73 s 10 sch

commissioners ...

def commissioners om 2013 No. 29 s 59(1A)

committee meeting, for chapter 12, see section 409.

Commonwealth Act means the Fair Work Act 2009 (Cwlth).

def Commonwealth Act sub 2009 No. 49 s 64(1)–(2)

Commonwealth award ...

def Commonwealth award om 2005 No. 36 s 19(1)

Commonwealth (Registered Organisations) Act means Fair Work (Registered Organisations) Act 2009 (Cwlth).

def Commonwealth (Registered Organisations) Act ins 2009 No. 49 s 64(2)

complaint, for chapter 12, part 15A—

(a)generally means a complaint made under section 636A; and

(b)for chapter 12, part 15A, division 3—see also section 636I.

def complaint ins 2013 No. 29 s 59(2)

complaints auditor see section 636L (2).

def complaints auditor ins 2013 No. 29 s 59(2)

complying superannuation fund see Superannuation Industry (Supervision) Act 1993 (Cwlth).

conciliating member, for chapter 6, see section 140K.

def conciliating member ins 2013 No. 61 s 80(2)

conciliation report, for chapter 6, see section 140K.

def conciliation report ins 2013 No. 61 s 80(2)

conciliation period, for chapter 6, see section 140K.

def conciliation period ins 2013 No. 61 s 80(2)

conduct, for chapter 4, see section 102.

conflict of interest issue has the meaning given by the Integrity Act 2009 , section 10.

def conflict of interest issue ins 2010 No. 42 s 115

conscientious beliefs, for chapter 4, see section 102.

constituent part, for chapter 12, part 15, see section 616.

construction means building and construction, civil and engineering construction or demolition work.

continuing health employee, for chapter 11, part 2, division 3, see section 390A.

def continuing health employee ins 2013 No. 29 s 59(2)

continuous service—

(a)for chapter 2, part 2, see section 18; and

(b)for chapter 2, part 3, see section 42; and

(c)for chapter 2A, part 2, division 6, see section 71H.

def continuous service amd 2013 No. 61 s 80(4)

contracted work, for chapter 11, part 2, see section 376.

convicted of a disqualifying offence, for chapter 12, part 9, see section 514.

convicted person, for chapter 12, part 9, see section 515.

corporation, for chapter 12, see section 410.

counterpart federal body, for chapter 12, see section 411.

court see section 242.

decision means—

(a)a decision of the court, the commission, a magistrate or the registrar; or

(b)an award, declaration, determination, direction, judgment, order or ruling; or

(c)an agreement approved, certified, or amended by the commission and an extension of the agreement.

declared employee, for chapter 16, part 2, see section 692A.

def declared employee ins 2011 No. 4 s 53(2)

declared employer, for chapter 16, part 2, see section 692A.

def declared employer ins 2011 No. 4 s 53(2)

defect, for chapter 12, see section 409.

demarcation dispute includes—

(a)a dispute arising between 2 or more organisations, or within an organisation, about the rights, status or functions of members of the organisations or organisation in relation to the employment of the members; and

(b)a dispute arising between employers and employees, or between members of different organisations, about the demarcation of functions of employees or classes of employees; and

(c)a dispute about the representation under this Act of the industrial interests of employees by an association or employee organisation.

def demarcation dispute amd 2007 No. 23 s 41(3)

demarcation dispute undertaking, for chapter 12, see section 409.

deputy president means—

(a)a deputy president (court); or

(b)a person appointed as a deputy president of the commission under section 258A.

def deputy president ins 2002 No. 73 s 9

sub 2013 No. 29 s 59(1A), (3)

deputy president (court) means a person appointed as a deputy president (court) of the court under section 246C.

def deputy president (court) ins 2013 No. 29 s 59(3)

deputy registrar see section 300.

deregistered organisation, for chapter 12, see section 409.

deregistration, for chapter 12, see section 409.

deregistration order, for chapter 12, part 16, see section 638.

designated award, in relation to a person to whom a certified agreement will apply, means an award that the commission under section 163 has decided is appropriate for deciding whether a certified agreement passes the no-disadvantage test.

def designated award amd 2011 No. 4 s 53(6)–(7)

direct voting system, for chapter 12, part 4, see section 438.

discrimination means discrimination—

(a)that would contravene the Anti-Discrimination Act 1991 ; or

(b)on the basis of sexual preference; or

(c)on the basis of family responsibilities.

dismiss ...

def dismiss om 2006 No. 22 s 33

disqualification period, for chapter 12, part 9, see section 522 (1).

disqualifying offence, for chapter 12, part 9, see section 514.

doctor’s certificate means a certificate signed by a person registered under the Health Practitioner Regulation National Law to practise in the medical profession, other than as a student.

def doctor’s certificate sub 2003 No. 19 s 3 sch

amd 2010 No. 14 s 124 sch

dual commissioner see section 306.

ECQ means the Electoral Commission of Queensland established under the Electoral Act 1992.

def ECQ ins 2012 No. 7 s 22

EFA means an enterprise flexibility agreement continued in force under this Act.

elected, for chapter 12, part 9, see section 514.

election, for chapter 12, see section 409.

electoral commission, for chapter 12, see section 409.

electoral officer, for chapter 12, see section 409.

eligibility rules, for chapter 12, see section 409.

eligible association means an association that is eligible to be, but is not, registered as an organisation.

eligible employee means an employee who, under a relevant industrial instrument, is an eligible employee for entitlement to occupational superannuation benefits.

eligible rollover fund see Superannuation Industry (Supervision) Act 1993 (Cwlth).

employee, generally, see section 5.

def employee sub 2011 No. 4 s 53(1)–(2); 2013 No. 61 s 80(1)–(2); 2015 No. 7 s 35(1)–(2)

employee organisation means an organisation of employees.

def employee organisation sub 2000 No. 23 s 292 sch 1

employee with a disability, for chapter 5A, see section 140DA.

def employee with a disability ins 2013 No. 61 s 80(2)

employer—

(a)generally—see section 6; and

(b)for chapter 6, includes—

(i)a multi-employer; and

(ii)for a project—an organisation of employers; and

(c)for chapter 11, part 2—see also section 376.

def employer amd 2009 No. 15 s 2 sch; 2011 No. 4 s 53(8)–(10)

employer notice ...

def employer notice ins 2013 No. 29 s 59(2)

om 2015 No. 7 s 35(1)

employer organisation means an organisation of employers.

def employer organisation sub 2000 No. 23 s 292 sch 1

engage in conduct for a prohibited reason, for chapter 4, see section 104.

entry notice ...

def entry notice ins 2013 No. 29 s 59(2)

om 2015 No. 7 s 35(1)

equal remuneration for work of equal or comparable value—

(a)for chapter 2, part 5, see section 59; or

(b)for chapter 2A, part 4, see section 71P.

def equal remuneration for work of equal or comparable value sub 2013 No. 61 s 80(1)–(2)

excluded provisions ...

def excluded provisions ins 2013 No. 61 s 80(2)

om 2015 No. 7 s 35(1)

exempted person, for chapter 4, see section 102.

exemption certificate, for chapter 4, see section 102.

exercising, for chapter 8, part 6, see section 316.

existing employee ...

def existing employee om 2011 No. 4 s 53(1)

existing organisation, for chapter 12, part 15, see section 616.

expected placement date see section 71GJ (2) (a).

def expected placement date ins 2013 No. 61 s 80(2)

expected residence date see section 71GK (2) (a).

def expected residence date ins 2013 No. 61 s 80(2)

expenditure ballot ...

def expenditure ballot ins 2013 No. 29 s 59(2)

om 2014 No. 36 s 55W(1)

extension agreement ...

def extension agreement om 2011 No. 4 s 53(1)

family responsibilities of an employee means the employee’s responsibilities to care for or support—

(a)a dependent child of the employee; or

(b)any other immediate family member who is in need of care or support.

federal agreement means—

(a)an Australian workplace agreement, or a certified agreement, under the Workplace Relations Act 1996 (Cwlth) continued in existence under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cwlth); or

(b)an enterprise agreement or an individual flexibility arrangement under the Commonwealth Act.

def federal agreement ins 2005 No. 36 s 19(2)

sub 2009 No. 49 s 64(1)–(2)

federal award means—

(a)an award under the Workplace Relations Act 1996 (Cwlth) continued in existence under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cwlth); or

(b)a modern award under the Commonwealth Act.

def federal award ins 2005 No. 36 s 19(2)

sub 2009 No. 49 s 64(1)–(2)

federal industrial authority, for chapter 16, part 2, see section 692A.

def federal industrial authority ins 2011 No. 4 s 53(2)

federal industrial authority manager, for chapter 16, part 2, see section 692A.

def federal industrial authority manager ins 2011 No. 4 s 53(2)

federal industrial instrument means the following—

(a)a fair work instrument under the Commonwealth Act;

(b)an instrument given continuing effect under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cwlth), schedule 3, part 2;

(c)a Division 2B State instrument under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cwlth).

def federal industrial instrument ins 2009 No. 49 s 64(2)

federal organisation means an organisation under the Commonwealth (Registered Organisations) Act.

def federal organisation sub 2008 No. 5 s 6; 2009 No. 49 s 64(1)–(2)

fee, for chapter 11A, see section 408A.

def fee ins 2002 No. 9 s 34

file, for chapter 12, see section 409.

def file sub 2011 No. 4 s 53(1)–(2)

filing receipt ...

def filing receipt om 2011 No. 4 s 53(1)

filing requirements ...

def filing requirements om 2011 No. 4 s 53(1)

final payment, for chapter 11, part 2, division 3, see section 390A.

def final payment ins 2013 No. 29 s 59(2)

financial affairs, for chapter 12, part 12, see section 551.

financial disclosure statement, for an organisation for a financial year, means a financial disclosure statement prepared by the organisation under section 557O for the year.

def financial disclosure statement ins 2013 No. 29 s 59(2)

financial hardship payment, for chapter 12, see section 409.

financial year, for chapter 12, part 12, see section 552.

fixed rate, for chapter 11, part 2, division 3, see section 376.

full bench see section 256.

full pay means payment in full for the time that an employee is absent from work.

FWA means Fair Work Australia under the Commonwealth Act.

def FWA ins 2009 No. 49 s 64(2)

general meeting, for chapter 12, see section 409.

gift, for chapter 12, part 12, see section 551.

def gift ins 2013 No. 29 s 59(2)

group training organisation see the Further Education and Training Act 2014 , schedule 1.

def group training organisation ins 2000 No. 23 s 292 sch 1

amd 2003 No. 63 s 60 sch; 2005 No. 16 s 38(2); 2012 No. 11 s 43 sch pt 2; 2013 No. 49 s 28 sch 1

sub 2014 No. 25 s 223 sch 1 pt 2

group training scheme ...

def group training scheme om 2000 No. 23 s 292 sch 1

health employee, for chapter 11, part 2, division 3, see section 390A.

def health employee ins 2013 No. 29 s 59(2)

health employer, for chapter 11, part 2, division 3, see section 390A.

def health employer ins 2013 No. 29 s 59(2)

health service employee, for schedule 4A, see schedule 4A, part 1, section 1.

def health service employee ins 2012 No. 9 s 52

health system employer, for schedule 4A, see schedule 4A, part 1, section 1.

def health system employer ins 2012 No. 9 s 52

highest paid officer means an officer of an organisation who is 1 of the organisation’s highest paid officers under section 557K (1) (a) or (b).

def highest paid officer ins 2013 No. 29 s 59(2)

high-income guarantee contract ...

def high-income guarantee contract ins 2013 No. 61 s 80(2)

om 2015 No. 7 s 35(1)

high-income position ...

def high-income position ins 2013 No. 61 s 80(2)

om 2015 No. 7 s 35(1)

high-income senior employee ...

def high-income senior employee ins 2013 No. 61 s 80(2)

om 2015 No. 7 s 35(1)

high-income threshold ...

def high-income threshold ins 2013 No. 61 s 80(2)

om 2015 No. 7 s 35(1)

host employer means a person who contracts with a group training organisation for the training of apprentices and trainees.

def host employer ins 2000 No. 23 s 292 sch 1

immediate family includes—

(a)the employee’s spouse; and

(b)a child, ex-nuptial child, stepchild, adopted child, ex-foster child, parent, grandparent, grandchild or sibling of the employee or employee’s spouse.

industrial action—

(a)generally—means a lockout or strike; and

(b)for chapter 4—see also section 103.

def industrial action amd 2009 No. 15 s 2 sch

industrial agreement means an industrial agreement continued in force under this Act.

industrial association, for chapter 4, see section 102.

industrial authority means a commission, court, board, tribunal or other entity having authority under the law of the Commonwealth or another State to exercise powers of conciliation, determination or arbitration for industrial matters or industrial disputes.

def industrial authority amd 2009 No. 49 s 64(4)

industrial body, for chapter 4, see section 102.

industrial cause includes an industrial matter and industrial dispute.

industrial commissioner means a person appointed as an industrial commissioner under section 259.

def industrial commissioner ins 2013 No. 29 s 59(3)

industrial conduct ground, for chapter 12, part 16, see section 637.

industrial dispute means—

(a)a dispute, including a threatened or probable dispute, about an industrial matter; or

(b)a situation that is likely to give rise to a dispute about an industrial matter.

industrial instrument means an award, certified agreement, industrial agreement, EFA, code of practice under section 400I or order under chapter 5, parts 5 and 6.

def industrial instrument amd 2005 No. 11 s 55(3); 2011 No. 4 s 53(11)

sub 2013 No. 29 s 59(1)–(2)

amd 2013 No. 61 s 80(4A)

sub 2015 No. 7 s 35(1)–(2)

industrial law, for chapter 4, see section 102.

industrial matter see section 7.

industrial relations commission means the Queensland Industrial Relations Commission established under section 255.

def industrial relations commission sub 2009 No. 15 s 2 sch

industrial tribunal, for chapter 9, division 5, see section 345.

initial day, for a certified agreement, means the day on which it was certified.

def initial day sub 2011 No. 4 s 53(1)–(2)

initial financial disclosure statement, for an organisation, means an initial financial disclosure statement prepared by the organisation under section 557L.

def initial financial disclosure statement ins 2013 No. 29 s 59(2)

initial year, for chapter 12, part 12, division 2B—see section 557J.

def initial year ins 2013 No. 29 s 59(2)

injured employee ...

def injured employee om 2006 No. 22 s 33

injury ...

def injury om 2006 No. 22 s 33

inspector means a person, including the chief inspector, who holds an appointment as an inspector under section 350.

intended parent—

(a)for chapter 2, part 2, see section 17; or

(b)for chapter 2A, part 2, division 5, see section 71GB.

def intended parent ins 2010 No. 42 s 115

sub 2013 No. 61 s 80(1)–(2)

invalidity, for chapter 12, part 14, see section 604.

invalid reason, for a dismissal, see section 73 (2).

investigation report see section 636K.

def investigation report ins 2013 No. 29 s 59(2)

IO Act means the repealed Industrial Organisations Act 1997 .

irregularity, for chapter 12, see section 409.

joint session means proceedings in which a member sits with a member of an industrial authority.

labour market program means a labour market program approved by the Minister.

def labour market program ins 2000 No. 23 s 292 sch 1

leave application, for chapter 12, part 9, see section 514.

legislature, for chapter 12, part 12, see section 551.

def legislature ins 2013 No. 29 s 59(2)

amd 2014 No. 36 s 55W(3)

local government, for chapter 12, part 12, see section 551.

def local government ins 2013 No. 29 s 59(2)

amd 2014 No. 36 s 55W(3)

lockout means an employer’s action in closing a workplace, or suspending or discontinuing the employer’s business, or any branch of it, or an employer’s failure to continue to employ a number of employees, with intent—

(a)to compel or induce employees to agree to employment conditions or to comply with demands made on them by the employer, or another employer, contrary to this Act; or

(b)to cause loss or inconvenience to employees; or

(c)to incite, instigate, aid, abet or procure another lockout; or

(d)to help another employer to compel or induce employees to agree to employment conditions or comply with demands made by the other employer.

long adoption leave—

(a)for chapter 2, part 2, see section 17; or

(b)for chapter 2A, part 2, division 5, see section 71GB.

def long adoption leave sub 2013 No. 61 s 80(1)–(2)

long birth-related leave, for chapter 2A, part 2, division 5, see section 71GB.

def long birth-related leave ins 2013 No. 61 s 80(2)

long parental leave—

(a)for chapter 2, part 2, see section 17; or

(b)for chapter 2A, part 2, division 5, see section 71GB.

def long parental leave sub 2013 No. 61 s 80(1)–(2)

long surrogacy leave—

(a)for chapter 2, part 2, see section 17; or

(b)for chapter 2A, part 2, division 5, see section 71GB.

def long surrogacy leave ins 2010 No. 42 s 115

sub 2013 No. 61 s 80(1)–(2)

long term casual employee—

(a)for chapter 2, part 2, see section 15A; or

(b)for chapter 2A, see section 71BB.

def long term casual employee ins 2001 No. 87 s 36

sub 2013 No. 61 s 80(1)–(2)

magistrate see section 290.

management committee—

(a)for chapter 4—see section 102; and

(b)for chapter 12—see section 409.

management office, for chapter 12, part 9, division 5, see section 530C (1).

def management office ins 2013 No. 29 s 59(2)

manager, for chapter 11A, see section 408A.

def manager ins 2002 No. 9 s 34

maternity leave—

(a)for chapter 2, part 2, see section 17; or

(b)for chapter 2A, part 2, division 5, see section 71GB.

def maternity leave sub 2013 No. 61 s 80(1)–(2)

maximum period of parental leave, for chapter 2A, see section 71GG.

def maximum period of parental leave ins 2013 No. 61 s 80(2)

meat works means a place where livestock are slaughtered or meat is boned.

member—

(a)of the court means the president, the vice-president or a deputy president (court); or

(b)of the commission means a commissioner.

def member amd 2002 No. 73 s 10 sch

sub 2013 No. 29 s 59(1A), (3)

member ...

def member for schedule 2, om 2007 No. 36 s 2 sch

members, for chapter 12, part 16, see section 637.

membership subscription, for chapter 12, see section 409.

member’s liability, for chapter 12, part 10, division 5, see section 541.

members register, for chapter 12, see section 409.

mid-year financial disclosure statement, for an organisation for a financial year, means a mid-year financial disclosure statement prepared by the organisation under section 557W for the year.

def mid-year financial disclosure statement ins 2013 No. 29 s 59(2)

mine, for chapter 11, part 2, division 4, see section 376.

Minister, for chapter 6, division 6A, see section 181A.

def Minister ins 2012 No. 7 s 22

misconduct, of an officer of an organisation or a branch of an organisation, means—

(a)conduct that could, if proved, constitute an offence against an Act or a law of another State or the Commonwealth; or

(b)gross misbehaviour or gross neglect of duty in the office.

def misconduct ins 2013 No. 29 s 59(2)

model, for chapter 11A, see section 408A.

def model ins 2002 No. 9 s 34

model election rules, for chapter 12, see section 409.

modern award means an award made under chapter 5A.

def modern award ins 2013 No. 61 s 80(2)

modern awards objectives, for chapter 5A, see section 140D.

def modern awards objectives ins 2013 No. 61 s 80(2)

modern industrial instrument—

(a)generally, see section 71BA; or

(b)for chapter 2A, part 3, see section 71L.

def modern industrial instrument ins 2013 No. 61 s 80(2)

modernising Act for chapter 2A, see section 71BA.

def modernising Act ins 2013 No. 61 s 80(2)

mortgagee, for chapter 11, part 2, division 4, see section 376.

mortgagor, for chapter 11, part 2, division 4, see section 376.

multi-employer means 2 or more associated employers, whether associated because they—

(a)are related corporations; or

(b)are engaged in a joint venture or common enterprise; or

(c)undertake similar work.

multi-employer agreement, for chapter 6, see section 140K.

def multi-employer agreement ins 2013 No. 61 s 80(2)

national fair work legislation, for chapter 16, part 2, see section 692A.

def national fair work legislation ins 2011 No. 4 s 53(2)

negotiating party, for chapter 6, see section 148 (1).

def negotiating party sub 2013 No. 61 s 80(1)–(2)

new business, for chapter 6, means the ongoing operation, once established, of a single business that the employer—

(a)proposes to establish at a new workplace; or

(b)is establishing at a new workplace; or

(c)is relocating to a new workplace;

but does not include the construction of the new workplace.

def new business amd 2011 No. 4 s 53(5)

new employee ...

def new employee om 2011 No. 4 s 53(1)

newly registered organisation, for chapter 12, part 15, see section 616.

new State instrument see section 692A.

def new State instrument ins 2011 No. 4 s 53(2)

nominal expiry date, of a certified agreement, see section 156.

def nominal expiry date sub 2011 No. 4 s 53(1)–(2)

non-allowable provisions ...

def non-allowable provisions ins 2013 No. 61 s 80(2)

om 2015 No. 7 s 35(1)

non-cash benefit, for chapter 12, part 12, see section 551.

def non-cash benefit ins 2013 No. 29 s 59(2)

non-judicial appointee ...

def non-judicial appointee ins 2007 No. 23 s 41(2)

om 2013 No. 61 s 80(1)

obstruct includes assault, hinder, intimidate, resist and threaten to obstruct.

office, for chapter 12, see section 412.

officer—

(a)of the court or commission—see sections 304 and 334(4); and

(b)of an organisation, or branch of an organisation—see section 409.

officers register, for chapter 12, see section 409.

old federal instrument, for chapter 16, part 2, see section 692A.

def old federal instrument ins 2011 No. 4 s 53(2)

ombudsman ...

def ombudsman ins 2007 No. 23 s 41(2)

om 2013 No. 61 s 117 sch 1 pt 1

ordinary election, for chapter 12, see section 409.

ordinary hours of work for chapter 2A, see section 71BA.

def ordinary hours of work ins 2013 No. 61 s 80(2)

ordinary rate, for an employee under an industrial instrument, federal award or federal agreement, means—

(a)for sections 71EE (2) (a) and 71HE (1) (b), if the employee is a public service employee—the rate the instrument, award or agreement states is payable for ordinary time in relation to the employee’s substantive position; or

(b)otherwise—the rate the instrument, award or agreement states is payable for ordinary time.

def ordinary rate sub 2000 No. 23 s 292 sch 1; 2005 No. 36 s 19

amd 2013 No. 61 s 80(4B)

ordinary working day, for chapter 2A, part 2, division 7, see section 71I.

def ordinary working day ins 2013 No. 61 s 80(2)

organisation—

(a)generally—see section 409; and

(b)for chapter 12, part 14—see also section 604.

outworker means a person engaged, for someone else’s calling or business, in or about a private residence or other premises that are not necessarily business or commercial premises, to—

(a)pack, process, or work on articles or material; or

(b)carry out clerical work.

owner—

(a)for chapter 2, part 3, see section 42; or

(b)for chapter 2A, part 2, division 6, see section 71H.

def owner sub 2013 No. 61 s 80(1)–(2)

parental leave—

(a)for chapter 2, part 2, see section 17; or

(b)for chapter 2A, part 2, division 5, see section 71GB.

def parental leave prev def om 2005 No. 11 s 55(1)

pres def ins 2013 No. 61 s 80(2)

parental leave entitlement—

(a)for chapter 2, part 2, see section 17; or

(b)for chapter 2A, part 2, division 5, see section 71GB.

def parental leave entitlement ins 2006 No. 2 s 59

sub 2013 No. 61 s 80(1)–(2)

particulars, for chapter 12, part 9, division 5, see section 530C (1).

def particulars ins 2013 No. 29 s 59(2)

party, for an industrial instrument or permit, includes a person bound by the instrument or permit.

def party sub 2011 No. 4 s 53(1)–(2)

pay an employee includes pay, with the employee’s written consent, on account of the employee.

pay equity means equal remuneration for men and women workers for work of equal or comparable value.

peace obligation period, for chapter 6, see section 140K.

def peace obligation period ins 2013 No. 61 s 80(2)

penalty provision, for chapter 6, division 7, see section 182.

def penalty provision sub 2011 No. 4 s 53(1)–(2)

pensions Act, for schedule 2, means the Judges (Pensions and Long Leave) Act 1957 .

def pensions Act ins 2007 No. 23 s 3 sch

performer, for chapter 11A, see section 408A.

def performer ins 2002 No. 9 s 34

period between seasons—

(a)for chapter 2, part 3, see section 42; or

(b)for chapter 2A, part 2, division 6, see section 71H.

def period between seasons sub 2013 No. 61 s 80(1)–(2)

periodic review see section 140F.

def periodic review ins 2013 No. 61 s 80(2)

period of operation ...

def period of operation om 2011 No. 4 s 53(1)

permit means—

(a)a students permit; or

(b)an aged or infirm persons permit.

person dissatisfied with a decision in proceedings means—

(a)a party to the proceedings; or

(b)a person bound by the decision; or

(c)if an inspector started the proceedings—any inspector.

pieceworker means a person employed in a calling on piecework rates.

place means—

(a)any land, building, structure, vehicle, vessel or aircraft; or

(b)part of anything mentioned in paragraph (a).

political matter, for chapter 12, part 12, see section 551.

def political matter ins 2013 No. 29 s 59(2)

amd 2014 No. 36 s 55W(2)

political object see section 551.

def political object ins 2013 No. 29 s 59(2)

amd 2014 No. 36 s 55W(4)

political party, for chapter 12, part 12, see section 551.

def political party ins 2013 No. 29 s 59(2)

amd 2014 No. 36 s 55W(2)

political purpose see section 552A.

def political purpose ins 2013 No. 29 s 59(2)

amd 2014 No. 36 s 55W(5)

postal ballot, for chapter 12, see section 409.

post-industrial action negotiation period, for chapter 6, division 6A, see section 181A.

def post-industrial action negotiation period ins 2012 No. 7 s 22

pre-modernisation award, for chapter 5, part 8, see section 140B.

def pre-modernisation award ins 2013 No. 61 s 80(2)

pre-modernisation industrial instrument see section 71BA.

def pre-modernisation industrial instrument ins 2013 No. 61 s 80(2)

prescribed Service, for schedule 4A, see schedule 4A, part 1, section 1.

def prescribed Service ins 2012 No. 9 s 52

presentation meeting, for chapter 12, part 12, see section 565.

president—

(a)see section 243; and

(b)for chapter 12—see section 409.

presidential member means the president, the vice president or a deputy president.

def presidential member ins 2002 No. 73 s 9

prime contractor, for chapter 11, part 2, see section 376.

private employment agent, for chapter 11A, see section 408A.

def private employment agent ins 2002 No. 9 s 34

probationary period, for chapter 5, part 5, see the Further Education and Training Act 2014 , schedule 1.

def probationary period ins 2014 No. 25 s 223 sch 1 pt 2

prohibited conduct, for chapter 4, see section 102.

prohibited reason, for chapter 4, see section 104.

project, for chapter 6, includes construction.

def project amd 2011 No. 4 s 53(5)

project agreement means a certified agreement for a project or a proposed project.

proposed amalgamated organisation, for chapter 12, part 15, see section 616.

proposed deregistering organisation, for chapter 12, part 15, see section 616.

protected action ballot see section 176 (2).

def protected action ballot ins 2012 No. 7 s 22

protected action ballot order see schedule 4, section 2.

def protected action ballot order ins 2012 No. 7 s 22

protected industrial action means industrial action protected under section 174.

public holiday means—

(a)the following days—

•New Year’s Day (1 January)

•Australia Day (26 January)

•Good Friday

•Easter Saturday (the day after Good Friday)

•Easter Monday (the Monday after Good Friday)

•Anzac Day (25 April)

•Labour Day (the first Monday in May)

•Birthday of the Sovereign (the first Monday in October)

•Christmas Day (25 December)

•Boxing Day (26 December)

•another day appointed as a public holiday under the Holidays Act 1983 , section 2, 11 or 12; or

(b)a day appointed under the Holidays Act 1983 to be a substitute holiday for a day mentioned in paragraph (a); or

(c)a show holiday.

def public holiday amd 2011 No. 44 s 8; 2012 No. 28 s 7; 2013 No. 56 s 109; 2015 No. 14 s 14

public sector unit ...

def public sector unit om 2008 No. 38 s 252 sch 3

publish, for chapter 11A, see section 408A.

def publish ins 2002 No. 9 s 34

published, in relation to the QIRC website, means published as provided under section 304B.

def published ins 2009 No. 38 s 38

QIRC website see section 304A.

def QIRC website ins 2009 No. 38 s 38

Queensland Employment Standards see section 71C.

def Queensland Employment Standards ins 2013 No. 61 s 80(2)

Queensland Health, for chapter 11, part 2, division 3, see section 390A.

def Queensland Health ins 2013 No. 29 s 59(2)

Queensland minimum wage see section 287 (11).

def Queensland minimum wage ins 2003 No. 27 s 621(2) (retro)

QWA ...

def QWA om 2011 No. 4 s 53(1)

QWA date ...

def QWA date om 2011 No. 4 s 53(1)

QWRO ...

def QWRO ins 2007 No. 23 s 41(2)

om 2013 No. 61 s 117 sch 1 pt 1

rate, for chapter 11, part 2, division 3, see section 376.

record, for chapter 11, part 1, see section 363.

records means any document containing data.

reduced wages means—

(a)for a person to whom an industrial instrument or permit applies—wages at a rate less than that provided for under the industrial instrument or permit; or

(b)for a person to whom section 8A applies—wages at a rate less than the Queensland minimum wage.

def reduced wages sub 2003 No. 27 s 621(1)–(2) (retro)

redundancy pay see section 71KF (1).

def redundancy pay ins 2013 No. 61 s 80(2)

redundancy payment see section 85B.

def redundancy payment ins 2005 No. 36 s 19(2)

referral agreement see section 273A (1) (b).

def referral agreement ins 2007 No. 23 s 41(2)

referred claim, for chapter 11, part 2, division 3A, see section 400A.

def referred claim ins 2005 No. 11 s 55(2)

referred employer, for chapter 11, part 2, division 3A, see section 400A.

def referred employer ins 2005 No. 11 s 55(2)

refusal notice ...

def refusal notice om 2011 No. 4 s 53(1)

register, for chapter 12, see section 409.

registrar see section 297.

registrar’s auditor, for chapter 12, part 12, see section 575.

registration, for chapter 12, see section 409.

registry see section 294.

def registry ins 2009 No. 15 s 2 sch

regular part-time employee means an employee who—

(a)works less than full-time ordinary working hours; and

(b)has reasonably predictable hours of work; and

(c)is entitled to receive, on a proportionate basis, equivalent wages and employment conditions to those specified in an industrial instrument for full-time employees who do the same type of work.

def regular part-time employee amd 2013 No. 61 s 80(5)

relevant award, in relation to a person to whom a certified agreement will apply, means an award—

(a)regulating any employment condition of persons engaged in the same kind of work as that of persons under the agreement; and

(b)that, immediately before the initial day of the agreement, binds the person’s employer.

def relevant award amd 2011 No. 4 s 53(12)

relevant day, for chapter 16, part 2, see section 692A.

def relevant day ins 2011 No. 4 s 53(2)

relevant employee, for a certified agreement, means an employee whose employment is, or will be, subject to the agreement.

relevant employee organisation, for chapter 6, see section 140K.

def relevant employee organisation ins 2013 No. 61 s 80(2)

relevant industrial instrument, for chapter 2A, see section 71BA.

def relevant industrial instrument ins 2013 No. 29 s 59(2)

sub 2013 No. 61 s 80(1)–(2); 2015 No. 7 s 35(1)–(2)

relevant instrument, for chapter 5A, part 4, see section 140I.

def relevant instrument ins 2013 No. 61 s 80(2)

relevant or designated award ...

def relevant or designated award om 2011 No. 4 s 53(1)

remuneration—

(a)for a provision relating to work of equal or comparable value, includes—

(i)the wage or salary payable to an employee; and

(ii)amounts payable or other benefits made available to an employee under a contract of service; and

(b)of a person, for chapter 12, part 12, see section 551.

def remuneration ins 2001 No. 87 s 36

sub 2013 No. 61 s 80(1)–(2)

amd 2015 No. 7 s 35(3)–(4)

remuneration ...

def remuneration, for chapter 12, ins 2013 No. 29 s 59(2)

om 2013 No. 61 s 80(1)

repealed Act means the Workplace Relations Act 1997 .

representative, for chapter 4, see section 102.

required number, for chapter 12, see section 409.

rules committee means the rules committee established under section 337A.

def rules committee ins 2013 No. 29 s 59(2)

school-based apprentice or trainee means an apprentice or trainee who—

(a)is a student studying at a secondary school or tertiary institution; and

(b)has entered into an arrangement about the apprenticeship or traineeship with the school or institution and the employer.

def school-based apprentice or trainee ins 2000 No. 23 s 292 sch 1

season—

(a)for chapter 2, part 3, see section 42; or

(b)for chapter 2A, part 2, division 6, see section 71H.

def season sub 2013 No. 61 s 80(1)–(2)

seasonal employment means employment related to a season.

secretary, for chapter 12, see section 409.

service—

(a)for chapter 2, part 6, see section 67; or

(b)for chapter 2A, part 5, see section 71Q.

def service sub 2013 No. 61 s 80(1)–(2)

Service, for schedule 4A, see schedule 4A, part 1, section 1.

def Service ins 2012 No. 9 s 52

short adoption leave—

(a)for chapter 2, part 2, see section 17; or

(b)for chapter 2A, part 2, division 5, see section 71GB.

def short adoption leave sub 2013 No. 61 s 80(1)–(2)

short birth-related leave, for chapter 2A, part 2, division 5, see section 71GB.

def short birth-related leave ins 2013 No. 61 s 80(2)

short parental leave—

(a)for chapter 2, part 2, see section 17; or

(b)for chapter 2A, part 2, division 5, see section 71GB.

def short parental leave sub 2013 No. 61 s 80(1)–(2)

short surrogacy leave—

(a)for chapter 2, part 2, see section 17; or

(b)for chapter 2A, part 2, division 5, see section 71GB.

def short surrogacy leave ins 2010 No. 42 s 115

sub 2013 No. 61 s 80(1)–(2)

short term casual employee—

(a)for chapter 2, part 2, see section 17; or

(b)for chapter 2A, part 2, division 5, see section 71GB.

def short term casual employee ins 2006 No. 2 s 59

sub 2013 No. 61 s 80(1)–(2)

show holiday, for chapter 2A, part 2, division 7, see section 71I.

def show holiday ins 2013 No. 61 s 80(2)

small organisation, for chapter 12, part 16, see section 637.

special maternity leave, for chapter 2A, part 2, division 5, see section 71GZC.

def special maternity leave ins 2013 No. 61 s 80(2)

sponsored hospitality benefit, for chapter 12, part 12, see section 551.

def sponsored hospitality benefit ins 2013 No. 29 s 59(2)

spouse—

(a)of an employee, includes a former spouse of the employee; or

(b)of an officer, for chapter 12, part 9, division 5, see section 530C (1).

def spouse sub 2002 No. 74 s 90 sch; 2013 No. 31 s 38P

State peak council means an association that is effectively representative of a significant number of organisations that represent employers or employees in a range of callings.

State Training Council ...

def State Training Council om 2000 No. 23 s 292 sch 1

strike—

(a)means the conduct of 2 or more employees who are, or have been, employed by the same employer, or different employers, consisting in—

(i)a wilful failure to perform work required of them under their employment contracts; or

(ii)a performance of work in a way in which it is not customarily performed; or

(iii)the adoption of a practice or strategy resulting in a restriction, limitation or delay in the performance of work or a restriction or limitation of the product of work; or

(iv)a ban, restriction or limitation on the performance of work or on acceptance or offering for work; or

(v)a wilful failure of the employees to attend for work that is not allowed by the employer; or

(vi)a wilful failure to perform any work at all by employees who attend for work that is not allowed by the employer;

that is because of a combination, agreement or understanding (expressed or implied) entered into by the employees or any of them and that has a purpose—

(vii)to compel or induce an employer to agree to employment conditions, or to employ, or cease to employ, a person or class of person, or to comply with demands made by the employees or any of them or by any other employees; or

(viii)to cause loss or inconvenience to an employer in the conduct of business; or

(ix)to incite, instigate, aid, abet or procure another strike; or

(x)to help employees in the employment of another employer to compel or induce the employer to agree to employment conditions or to employ, or cease to employ, a person or class of person or to comply with demands made by any employees; and

(b)includes conduct capable of constituting a strike even though the conduct relates to part only of the functions the employees must perform in their employment; but

(c)does not include action by an employee if—

(i)the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and

(ii)the employee did not unreasonably contravene a direction of his or her employer to perform other available work (whether at the same or another workplace) that was safe and appropriate for the employee to perform.

subcontractor, for chapter 11, part 2, see section 376.

successor includes assignee and transmittee.

surrogacy arrangement—

(a)for chapter 2, part 2, see section 17; or

(b)for chapter 2A, part 2, division 5, see section 71GB.

def surrogacy arrangement ins 2010 No. 42 s 115

sub 2013 No. 61 s 80(1)–(2)

surrogacy leave—

(a)for chapter 2, part 2, see section 17; or

(b)for chapter 2A, part 2, division 5, see section 71GB.

def surrogacy leave ins 2010 No. 42 s 115

sub 2013 No. 61 s 80(1)–(2)

take a statutory declaration, for chapter 8, part 6, see section 316.

TCR provision ...

def TCR provision ins 2013 No. 29 s 59(2)

om 2015 No. 7 s 35(1)

termination agreement ...

def termination agreement om 2011 No. 4 s 53(1)

termination declaration see section 181A.

def termination declaration ins 2012 No. 7 s 22

termination notice ...

def termination notice om 2011 No. 4 s 53(1)

terms, for chapter 16, part 2, see section 692A.

def terms ins 2011 No. 4 s 53(2)

time and wages record, for chapter 11, part 1, see section 363.

trainee see the Further Education and Training Act 2014 , schedule 1.

def trainee sub 2000 No. 23 s 292 sch 1

amd 2003 No. 63 s 60 sch

sub 2014 No. 25 s 223 sch 1 pt 2

traineeship see the Further Education and Training Act 2014 , schedule 1.

def traineeship sub 2000 No. 23 s 292 sch 1

amd 2003 No. 63 s 60 sch

sub 2014 No. 25 s 223 sch 1 pt 2

traineeship contract see the Further Education and Training Act 2014 , schedule 1.

def traineeship contract ins 2014 No. 25 s 223 sch 1 pt 2

training agreement ...

def training agreement om 2000 No. 23 s 292 sch 1

Training and Employment Recognition Council ...

def Training and Employment Recognition Council ins 2005 No. 11 s 55(2)

om 2012 No. 11 s 43 sch pt 2

training contract means—

(a)for an apprentice—an apprenticeship contract; or

(b)for a trainee—a traineeship contract.

def training contract ins 2000 No. 23 s 292 sch 1

Training Recognition Council ...

def Training Recognition Council ins 2000 No. 23 s 292 sch 1

sub 2003 No. 63 s 60 sch

om 2005 No. 11 s 55(1)

transactions, for chapter 12, part 12, see section 551.

def transactions amd 2007 No. 36 s 2 sch

transfer of a calling includes the transmission, assurance, conveyance, assignment or succession of the calling—

(a)either by—

(i)operation of law; or

(ii)agreement, including an agreement effected by a third person; and

(b)either before or after the commencement of this Act.

transferred employee, for chapter 2A, part 5, see section 71QB (1).

def transferred employee ins 2013 No. 61 s 80(2)

unpaid wages claim, for chapter 11, part 2, division 3A, see section 400A.

def unpaid wages claim ins 2005 No. 11 s 55(2)

untaken leave, for chapter 11, part 2, division 3, see section 390A.

def untaken leave ins 2013 No. 29 s 59(2)

valid majority means a majority of the relevant employees who cast a valid vote to give an approval, after the employer has given the employees a reasonable opportunity to decide whether they want to give the approval.

variation notice, for chapter 5, part 8, see section 140CA (1).

def variation notice ins 2013 No. 61 s 80(2)

vice-president means the person appointed as the vice-president of the court under section 246A.

def vice president sub 2013 No. 29 s 59(1A), (3)

violent offence, for chapter 12, part 9, see section 514.

wage rate includes pay rate and prices for work.

wages means—

(a)an amount payable to an employee for—

(i)work performed, or to be performed, by the employee; or

(ii)a public holiday; or

(iii)leave the employee is entitled to; or

(iv)termination of employment; or

(b)a salary; or

(c)an amount payable from wages for the employee, with the employee’s written consent.

def wages amd 2011 No. 4 s 53(13)

weeks pay means the ordinary rate for the relevant employee for a week, but does not include overtime, penalty rates, disability allowances, shift allowances, special rates, fares and travelling time allowances, bonuses and other ancillary payments.

def weeks pay ins 2005 No. 36 s 19(2)

withdrawal, for chapter 12, see section 409.

withdrawal ballot, for chapter 12, part 15, see section 616.

withdrawal day, for chapter 12, part 15, see section 616.

working day means a day on which employees normally perform work.

work value reasons, for chapter 5A, see section 140DA.

def work value reasons ins 2013 No. 61 s 80(2)

young employee means a person under 21 years engaged in a calling (other than an apprentice or a person subject to the Further Education and Training Act 2014 ) who receives a lower wage rate than that fixed by an industrial instrument for employees 21 years or over in the calling.

def young employee amd 2000 No. 23 s 292 sch 1; 2003 No. 63 s 60 sch

sub 2014 No. 25 s 223 sch 1 pt 2