Industrial Relations Act 2016


Queensland Crest
Industrial Relations Act 2016

An Act relating to industrial relations in Queensland

Chapter 1 Preliminary

Part 1 Introduction

1Short title

This Act may be cited as the Industrial Relations Act 2016.

2Commencement

(1)Chapter 19, part 8, other than the following provisions, commences on assent—
(a)sections 1118 to 1124;
(b)sections 1126 to 1128;
(c)section 1151;
(d)section 1152, to the extent it inserts new section 289.
(2)The remaining provisions of this Act commence on a day to be fixed by proclamation.

3Main purpose of Act

The main purpose of this Act is to provide for a framework for cooperative industrial relations that—
(a)is fair and balanced; and
(b)supports the delivery of high quality services, economic prosperity and social justice for Queenslanders.

4How main purpose is primarily achieved

The main purpose of this Act is to be achieved primarily by—
(a)supporting a productive, competitive and inclusive economy, with strong economic growth, high employment, employment security, improved living standards and low inflation; and
(b)promoting high-performing, apolitical State government and local government sectors that are responsive to democratically-decided priorities and focused on the delivery of public services in a professional and non-partisan way; and
(c)promoting and facilitating security in employment and consultation about employment matters, technological change and organisational change; and
(d)providing for a fair and equitable framework of employment standards, awards, determinations, orders and agreements; and
(e)promoting productive and cooperative workplace relations including by recognising mutual obligations of trust and confidence in the employment relationship; and
(f)providing for a guaranteed safety net of fair, relevant and enforceable minimum employment conditions through the Queensland Employment Standards; and
(g)ensuring wages and employment conditions provide fair standards in relation to living standards prevailing in the community; and
(h)promoting collective bargaining, including by—
(i)providing for good faith bargaining; and
(ii)establishing the primacy of collective agreements over individual agreements; and
(i)preventing and eliminating sexual harassment, sex or gender-based harassment, discrimination, bullying and other unfair treatment in employment; and
(j)ensuring equal remuneration for work of equal or comparable value; and
(k)promoting diversity and inclusion in the workforce, including by providing a right for employees to request flexible working arrangements to help balance their work and family responsibilities; and
(l)supporting employees experiencing domestic and family violence by conferring leave entitlements and protection from discrimination; and
(m)encouraging fairness and representation at work, and the prevention of discrimination, by recognising the right to freedom of association, the right to organise and the right to be represented; and
(n)encouraging representation of employees and employers by organisations that are registered under this Act; and
(o)being responsive to emerging labour market trends and work patterns; and
(p)providing for effective, responsive and accessible mechanisms to support negotiations and resolve industrial disputes; and
(q)establishing an independent court and tribunal to facilitate fair, balanced and productive industrial relations; and
(r)assisting in giving effect to Australia’s international obligations in relation to labour standards.

Examples of ILO conventions ratified by Australia—

the Freedom of Association and Protection of the Right to Organise Convention, 1948, No. 87
the Right to Organise and Collective Bargaining Convention, 1949, No. 98
the Equal Remuneration Convention, 1951, No. 100
the Discrimination (Employment and Occupation) Convention, 1958, No. 111
the Employment Policy Convention, 1964, No. 122
the Termination of Employment Convention, 1982, No. 158
the Part-Time Work Convention, 1994, No. 175

5Act binds all persons

(1)This Act binds all persons, including the State.
(2)Nothing in this Act makes the State liable to be prosecuted for an offence.

Part 2 Interpretation

6Definitions

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

7Who is an employer

(1)An employer is a person who—
(a)is not a national system employer within the meaning of the Commonwealth Fair Work Act; and
(b)employs, or usually employs, 1 or more individuals.
(2)Also, employer includes the following persons—
(a)for chapter 2, part 3, divisions 9, 11 and 12, a national system employer within the meaning of the Commonwealth Fair Work Act, section 14, including a national system employer mentioned in section 30N of that Act;
(b)a person for whose calling or business an outworker works;
(c)for a proceeding for an offence or for payment or recovery of amounts—a former employer;
(d)a person declared to be an employer under section 465.

8Who is an employee

(1)An employee is an individual who is employed, or usually employed, by an employer.
(2)Also, employee includes the following persons—
(a)for chapter 2, part 3, divisions 9, 11 and 12, a national system employee within the meaning of the Commonwealth Fair Work Act, section 13, including a national system employee mentioned in section 30M of that Act;
(b)for chapter 7, a worker under the Work Health and Safety Act 2011, section 7, other than a worker under the Commonwealth Fair Work Act who may apply for an order under chapter 6, part 6-4B of that Act in relation to the bullying;
(c)a person who is a member of a class of persons declared to be employees under section 465;
(d)for a proceeding for an offence or for payment or recovery of amounts—a former employee;
(e)an outworker;
(f)an apprentice;
(g)a trainee.

9What 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 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 a proceeding for—
(a)an indictable offence; or
(b)a public service appeal.
(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.

Part 3 General overview of scope of Act

10Purpose of part

(1)This part gives an overview of the scope of this Act.
(2)Without limiting subsection (1), it is declared that this part does not confer entitlements or impose liabilities.

11Definition for part

In this part—
Queensland referral Act means the Fair Work (Commonwealth Powers) and Other Provisions Act 2009.

12Who this Act applies to generally

(1)Generally speaking—
(a)the Commonwealth Fair Work Act applies to many employers and employees in Queensland; and
(b)this Act applies to employers and employees only to the extent the Commonwealth Fair Work Act does not apply to them.

Note—

The Commonwealth Fair Work Act applies to the following employers and their employees—
employers who are trading or financial corporations (see paragraph 51(xx) of the Commonwealth Constitution)
other private sector employers in relation to whom the State has referred its legislative power over industrial relations matters to the Commonwealth (see the Queensland referral Act).
(2)The following are examples of entities to whom this Act generally applies—
(a)the State government, and entities related to the State government, and their employees;

Examples—

departments
public service offices
other statutory bodies established under Queensland law for a public purpose, such as a parents and citizens association established under the Education (General Provisions) Act 2006

Note—

For more detail, see the definition public sector employer in the Queensland referral Act, section 3(1).
(b)local governments, and entities established under local government legislation, and their employees.

Note—

For more detail, see the definition local government sector employer in the Queensland referral Act, section 3(1).
(3) Also, this Act generally applies to other employers, and their employees, if—
(a)the employers are declared by Queensland law not to be national system employers for the Commonwealth Fair Work Act; and
(b)the declaration is endorsed by the Minister under the Commonwealth Fair Work Act.

Note—

See also chapter 16 and the Commonwealth Fair Work Act, section 14(2).

13Who this Act applies to—particular provisions

(1)The provisions of the Queensland Employment Standards about long service leave, jury service leave and emergency service leave may apply to employers and employees who are generally covered by the Commonwealth Fair Work Act.

Note—

See also—
the Commonwealth Fair Work Act, section 27(2)
the Queensland referral Act, section 3(1), definition excluded subject matter.
(2)Provisions of chapter 11, part 3, division 4 about civil remedies under the Fair Work Act 2009 (Cwlth), chapter 4, part 4-1 apply to employers and employees who are generally covered by that Act.

Chapter 2 Modern employment conditions

Part 1 Preliminary

14Definitions for chapter

In this chapter—
applicable industrial instrument means any of the following—
(a)a modern award;
(b)a certified agreement or bargaining award;
(c)an arbitration determination.
long term casual employee see section 15.
ordinary hours of work, for an employee, means—
(a)the employee’s ordinary hours of work as provided for under an applicable industrial instrument that applies to the employee; or
(b)if paragraph (a) does not apply—the hours agreed by the employee and the employee’s employer as the employee’s ordinary hours of work.
relevant industrial instrument, in relation to an employee, means an applicable industrial instrument that applies to the employee.
short term casual employee means a casual employee, other than a long term casual employee.

15Meaning 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 1 or more periods of employment during the 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.

Part 2 Interaction of elements of industrial relations system

16What part is about

This part explains—
(a)how elements of the industrial relations system interact with each other; and
(b)how particular elements of the industrial relations system prevail over other elements.

17Relationship between Queensland Employment Standards and other laws

The Queensland Employment Standards have effect despite an inconsistency with another law of the State, unless the other law provides an employee with a benefit that is at least as favourable for the employee as the Queensland Employment Standards.

18Relationship between Queensland Employment Standards and industrial instruments

(1)An industrial instrument may not include a provision that displaces, or is otherwise inconsistent with, the Queensland Employment Standards, unless the provision is at least as favourable for an employee as the Queensland Employment Standards.
(2)The Queensland Employment Standards have effect subject to provisions included in an industrial instrument mentioned in subsection (1).

19Relationship 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.
(3)While a project agreement operates, it operates to the exclusion of any certified agreement.

20Relationship of modern award with contract of serviceemployment

(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 contract consistent with the modern award.
(3)However, there is no inconsistency only because the contract provides for employment conditions at least as favourable for the employee as the modern award.
(4)In this section—
relevant contract means a contract of serviceemployment that is—
(a)in force when the modern award comes into operation; or
(b)made while the modern award is in operation.

Part 3 Queensland Employment Standards

Division 1 Preliminary

21Meaning of Queensland Employment Standards

(1)This part provides for minimum standards of employment of employees that apply to employees and which can not be displaced except under this chapter.
(2)The minimum standards relate to the following matters—
(a)minimum wage—division 2;
(b)maximum weekly hours—division 3;
(c)a right to request flexible working arrangements—division 4;
(d)annual leave—division 5;
(e)personal leave, including sick leave, carer’s leave, bereavement leave, compassionate leave and cultural leave—division 6;
(f)domestic and family violence leave—division 7;
(g)parental leave—division 8;
(h)long service leave—division 9;
(i)public holidays—division 10;
(j)emergency service leave—division 11;
(k)jury service leave—division 12;
(l)notice of termination and redundancy pay—division 13;
(m)information statements—division 14.
(3)Divisions 2 to 14 are the Queensland Employment Standards.

Division 2 Minimum wage

22Entitlement 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 459(2) from the operation of the full bench’s general ruling declaring the Queensland minimum wage.

Division 3 Maximum weekly hours

23Maximum weekly hours

(1)An employer must not ask or require an employee to work more than the following number of hours in a week—
(a)for a full-time employee—38 hours;
(b)for an employee who is not a full-time employee—the lesser of—
(i)38 hours; or
(ii)the employee’s ordinary hours of work.
(2)However, the employer may ask or require an employee to work additional hours if the hours are reasonable under section 26.
(3)The employee may refuse to work additional hours beyond the number of hours mentioned in subsection (1)(a) or (b) if working the additional hours is not reasonable under section 26.
(4)The hours an employee works in a week under subsection (1)(a) or (b) are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised—
(a)by the employee’s employer; or
(b)under a term or condition of the employee’s employment; or
(c)under a law of the State or an industrial instrument.

24Applicable industrial instruments may provide for averaging of hours of work

(1)An applicable industrial instrument may include terms providing for the averaging of hours of work over a stated period.
(2)However, the average weekly hours over the period stated in the applicable industrial instrument must not exceed—
(a)for a full-time employee—38 hours; or
(b)for an employee who is not a full-time employee—the lesser of—
(i)38 hours; or
(ii)the employee’s ordinary hours of work.
(3)An applicable industrial instrument may provide for average weekly hours that exceed the hours mentioned in subsection (2)(a) or (b) only if the excess hours are reasonable under section 26.
(4)If an employee works hours in a week in excess of the hours mentioned in subsection (2)(a) or (b)—
(a)the hours are additional hours under section 23; and
(b)the employee may only work the additional hours under section 23.

Note—

In deciding whether the employee may work the additional hours under section 23, regard must be had to the averaging terms under section 26(i).

25Averaging of hours of work for employees not covered by applicable industrial instruments

(1)An employer and an employee who are not covered by an applicable industrial instrument may agree in writing to an averaging arrangement under which hours of work over a stated period of not more than 26 weeks are averaged.
(2)However, the average weekly hours over the period stated in the arrangement must not exceed—
(a)for an employee employed on a full-time basis—38 hours; or
(b)for an employee employed on a part-time or casual basis—the lesser of—
(i)38 hours; or
(ii)the employee’s ordinary hours of work.
(3)The arrangement may provide for average weekly hours in excess of the hours mentioned in subsection (2)(a) or (b) only if the excess hours are reasonable under section 26.
(4)If an employee works hours in a week in excess of the hours mentioned in subsection (2)(a) or (b)—
(a)the hours are additional hours under section 23; and
(b)the employee may only work the additional hours under section 23.

Note—

In deciding whether the employee may work the additional hours under section 23, regard must be had to an averaging arrangement under section 26(i).

26Deciding whether additional hours are reasonable

In deciding whether additional hours are reasonable or not reasonable, the following matters must be taken into account—
(a)any risk to the employee’s health and safety from working the additional hours;
(b)the employee’s personal circumstances, including family responsibilities;
(c)the needs of the workplace in which the employee is employed;
(d)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, working additional hours;
(e)any notice given by the employer of any request or requirement to work the additional hours;
(f)any notice given by the employee of the employee’s intention to refuse to work the additional hours;
(g)the usual patterns of work in the calling in which the employee works;
(h)the nature of the employee’s role, and the employee’s level of responsibility;
(i)whether the additional hours are in accordance with averaging terms included under section 24 in an applicable industrial instrument that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 25;
(j)any other relevant matter.

Division 4 Flexible working arrangements

27Request for flexible working arrangements

(1)An employee may ask the employee’s employer for a change in the way the employee works, including—
(a)the employee’s ordinary hours of work; and
(b)the place where the employee works; and
(c)a change to the way the employee works, for example, the use of different equipment as a result of a disability, illness or injury.
(2)The request must—
(a)be in writing; and
(b)state the change in the way the employee works in sufficient detail to allow the employer to make a decision about the request; and
(c)state the reasons for the change.

28Decision about request for flexible working arrangements

(1)The employer may decide to—
(a)grant the request; or
(b)grant the request in part or subject to conditions; or
(c)refuse the request.
(2)The employer may grant the request in part or subject to conditions, or refuse the request, only on reasonable grounds.
(3)The employer must give the employee written notice about its decision within 21 days after receiving the request.
(4)If the employer decides to grant the request in part or subject to conditions or to refuse the request, the written notice about the decision must state—
(a)the written reasons for the decision, outlining the reasonable grounds for granting the request in part or subject to conditions or for the refusal; and
(b)that the commission has jurisdiction to hear and decide a dispute over the request under chapter 6.

29Deemed refusal of request for flexible working arrangements

If the employer does not give the written notice about the employer’s decision within 21 days after receiving the request, the employer is taken to have decided to refuse the request.

Note—

The commission has jurisdiction to hear and decide a dispute over the request under chapter 6.

Division 5 Annual leave

Subdivision 1 Entitlement to annual leave

30Application of subdivision

This subdivision does not apply to—
(a)casual employees; or
(b)pieceworkers; or
(c)school-based apprentices or trainees.

31Entitlement

(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.
(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.

32Working out completed year of employment

(1)This section applies for working out a completed year of employment for section 31.
(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 that is certified by a doctor.

Subdivision 2 Taking annual leave

33When annual leave may be taken

(1)An employee and employer may agree when the employee is to take annual leave.
(2)The employer must not unreasonably refuse to agree when the employee is to take the leave.
(3)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 8 weeks written notice of the starting date of the leave.
(4)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.
(5)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.

34Terms that may be included in applicable industrial instruments

An applicable 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.

Subdivision 3 Payment for annual leave

35Payment 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 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 amount worked out by the following formula—

Formula

      where—
dac means the default average commission.
c means the lesser of the following total commissions—
(a)total commissions payable to the employee in the 1 year before the leave is taken;
(b)total commissions payable to the employee during the employee’s period of employment.
d means the lesser of the following—
(a)365.25;
(b)the number of days in the employee’s period of employment.
ld means the number of days in the period starting on the day the leave starts and ending on the day before the employee is to return to work.

36Annual 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 17½% of the amount payable under section 35(2)(a).
(2)However, if the employee’s employer pays the employee a prescribed additional amount and the amount—
(a)is less than 17½% of the amount payable under section 35(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 17½% of the amount payable under section 35(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

Subdivision 4 Cashing out annual leave

37Requirements 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.

Subdivision 5 Payment on termination of employment

38Payment 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 pay the employee for the annual leave not taken, including—
(a)any public holiday during the period the employee is presumed to have taken the leave; and
(b)any annual leave loading the employee is entitled to under section 36.
(4)If the employee has worked part of a year, the employer must pay the employee the proportionate annual leave for the part of the year the employee worked, including any annual leave loading the employee is entitled to under section 36.
(5)The employer must pay the employee at least the ordinary rate being paid to the employee immediately before the termination day, unless an applicable industrial instrument states otherwise.

Division 6 Personal leave

Subdivision 1 Sick leave

39Application of subdivision

This subdivision does not apply to—
(a)casual employees; or
(b)pieceworkers; or
(c)school-based apprentices or trainees.

40Entitlement 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)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.

Notes—

1An employee is ordinarily required to work for 7.6 hours on a particular day and on that day becomes sick after working 3 hours. The employee may take sick leave for the remaining 4.6 hours that the employee is unable to work because of the sickness.
2An employee is ordinarily required to perform work for 38 hours a week over 5 days, but has come to an arrangement with the employer to work 9.5 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 9.5 hours sick leave, which equates to 11/4 days sick leave.
(4)Sick leave is exclusive of a public holiday that falls during the leave.
(45)This section does not confer an entitlement or an additional entitlement in relation to employment before the commencement of this section.
(56)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 an applicable 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.

41Requirement for employee to give notice etc.

(1)An employee’s entitlement under section 40 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.
(b)if the employee is absent for more than 2 days and the employer requires evidence of the illness—the employee giving the employer sufficient evidence of the illness to satisfy a reasonable person.
(2)This section does not apply if—
(a)an applicable industrial instrument provides otherwise; or
(b)the employee and employer agree otherwise.

Subdivision 2 Carer’s leave

42Entitlement—employees other than casual employees

(1)This section does not apply to a casual employee.
(2)An employee may take up to 10 days of sick leave each year on full pay (carer’s leave) to care for or support—
(a)a person who is a member of the employee’s immediate family or household—
(i)when the person is ill; or
(ii)because an unexpected emergency arises in relation to the person; or
(b)a person who has experienced domestic violence.
(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 take the leave.
(4)The employee may take additional unpaid carer’s leave with the employer’s agreement.
(5)Carer’s leave may be taken for part of a day.
(6)In this section—
sick leave includes sick leave accrued before the commencement of this section.

43Entitlement—long term casual employees

(1)This section applies to a long term casual employee.
(2)The employee is entitled to 10 days of leave (also carer’s leave) in each year to care for or support—
(a)a person who is a member of the employee’s immediate family or household—
(i)when the person is ill; or
(ii)because an unexpected emergency arises in relation to the person; or
(b)a person who has experienced domestic violence.
(3)The employee may take additional carer’s leave if the employer agrees.
(4)Carer’s leave may be taken for part of a day.
(5)The employer must not fail to re-engage the employee only because the employee has taken carer’s leave under this section.
(6)Leave taken under this section is unpaid.

44Entitlement—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 or support—
(a)a person who is a member of the employee’s immediate family or household—
(i)when the person is ill; or
(ii)because an unexpected emergency arises in relation to the person; or
(b)a person who has experienced domestic violence; or
(c)members of the employee’s immediate family or household because of the birth of a child.
(3)The employee may leave work or be unavailable to attend work to take carer’s leave for additional periods if the employer agrees.
(4)Carer’s leave may be taken for part of a day.
(5)The employer must not fail to re-engage the employee only because the employee has taken carer’s leave under this section.
(6)However, the rights of an employer not to re-engage the employee are not otherwise affected.

45Employee to provide evidence to employer

(1)If an employee takes carer’s leave to care for or support a person who is ill for more than 2 consecutive days, the employee must, if required by the employer, give the employer a doctor’s certificate or statutory declaration evidencingsufficient evidence to satisfy a reasonable person that the person is ill with an illness requiring care or support by another person.
(2)If an employee takes carer’s leave to care for or support a person who has experienced domestic violence, the employee must, if required by the employer, give the employer—
(a)a statutory declaration evidencing that the leave is necessary; or
(b)evidence mentioned in section 45(3)(a) to (d).
(3)The employee must give the employer—
(a)notice of the intention to take carer’s 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 the employee estimates the employee 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)The information mentioned in subsection (3)(a) to (e) must be given to the employer—
(a)if practicable, before the employee takes the leave; or
(b)otherwise, at the first reasonable opportunity.
(5)An employer who receives evidence under this section about a person who has experienced domestic and family violence must not disclose the evidence to someone else unless the disclosure is required or permitted under an Act.

Subdivision 3 Bereavement and compassionate leave

46Application of subdivision

This subdivision does not apply to pieceworkers.

47Entitlement—employees other than casual employees

(1)This section applies to an employee, other than a casual employee.
(2)The employee is entitled to—
(a)at least 2 days bereavement leave on full pay on each occasion when—
(i)a member of the employee’s immediate family or household dies; or
(ii)the employee, or the employee’s spouse, is pregnant and the pregnancy ends other than by the birth of a living child; 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)Also, the employee is entitled to 2 days compassionate leave on full pay on each occasion when a member of the employee’s immediate family or household—
(a)contracts or develops a personal illness that poses a serious threat to the person’s life; or
(b)sustains a personal injury that poses a serious threat to the person’s life.

48Entitlement—casual employees

(1)A long term casual employee is entitled to—
(a)at least 2 days unpaid bereavement leave on each occasion when—
(i)a member of the employee’s immediate family or household dies; or
(ii)the employee, or the employee’s spouse, is pregnant and the pregnancy ends other than by the birth of a living child; 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 for—
(a)at least 2 days on unpaid bereavement leave on each occasion when—
(i)a member of the employee’s immediate family or household dies; or
(ii)the employee, or the employee’s spouse, is pregnant and the pregnancy ends other than by the birth of a living child; 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)Also, a casual employee is entitled to 2 days unpaid compassionate leave on each occasion when a member of the employee’s immediate family or household—
(a)contracts or develops a personal illness that poses a serious threat to the person’s life; or
(b)sustains a personal injury that poses a serious threat to the person’s life.
(4)The employer must not fail to re-engage a casual employee only because the employee has taken bereavement leave or compassionate leave under this section.
(5)However, the rights of an employer not to re-engage a casual employee are not otherwise affected.

49Evidence to be provided by employee

(1)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.
(2)An employee who takes compassionate leave must give the employer sufficient evidence to satisfy a reasonable person that the employee was taking compassionate leave because a member of the employee’s family or household’s life was threatened by personal illness or personal injury.

50Additional leave

An employee may take additional leave as unpaid bereavement leave or compassionate leave if the employer agrees.

Subdivision 4 Cultural leave

51Entitlement

(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.

Division 7 Domestic and family violence leave

52Entitlement to domestic and family violence leave

(1)An employee, other than a casual employee, is entitled to 10 days of domestic and family violence leave on full pay in a year if—
(a)the employee has experienced domestic violence; and
(b)the employee needs to take domestic and family violence leave as a result of the domestic violence.
(2)A long term casual employee is entitled to 10 unpaid days of domestic and family violence leave in a year if—
(a)the employee has experienced domestic violence; and
(b)the employee needs to take domestic and family violence leave as a result of the domestic violence.
(3)A short term casual employee is entitled to 2 unpaid days of domestic and family violence leave in a year if—
(a)the employee has experienced domestic violence; and
(b)the employee needs to take domestic and family violence leave as a result of the domestic violence.
(4)Without limiting subsection (1), (2) or (3), the employee may need to take domestic and family violence leave if the employee is—
(a)recovering from an injury caused by the violence; or
(b)attending an appointment related to the violence, including an appointment to attend counselling, to obtain legal advice, for medical treatment or with police officers; or
(c)preparing for a court appearance related to the violence; or
(d)attending court for a proceeding related to the violence; or
(e)finding housing that is necessary because of the violence; or
(f)organising child care or the education of a child that is necessary because of the violence.
(5)If an employee has exhausted the entitlement under subsection (1), (2) or (3) the employee may, with the employer’s agreement, take additional days of unpaid domestic and family violence leave.
(6)Domestic and family violence leave may be taken for part of a day.
(7)An employee’s entitlement to domestic and family violence leave under subsection (1), (2) or (3) does not accumulate from year to year.
(8)The employer must not fail to re-engage a long term casual employee or short term casual employee only because the employee has taken domestic and family violence leave.
(9)In this section—
day, for an employee mentioned in subsection (1) who is paid on the basis of the number of hours worked, means 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.

53Requirement for employee to give notice

(1)An employee’s entitlement to domestic and family violence leave is conditional on the employee giving the employer notice of—
(a)the employee’s absence from work; and
(b)if it is possible to notify the employer before the leave is taken—the approximate period the employee will be absent.
(2)The employee must give the employer notice under subsection (1)—
(a)before or on the day the employee is to take the leave; or
(b)if it is not possible to notify the employer before the leave is taken—during the leave or as soon as possible after the leave ends.

54Employer may request evidence

(1)An employer may ask an employee to give the employer evidence that the employee has experienced domestic violence and needs to take leave as a result.
(2)The employee must comply with the request.
(3)Without limiting subsection (2), the employee may comply with the request by giving the employer—
(a)evidence from the police; or
(b)evidence of a legal proceeding or a court report; or
(c)evidence from a doctor or other health practitioner; or
(d)a report from a counsellor; or
(e)written advice or a statutory declaration from the employee.
(4)An employer who receives evidence under this section must not disclose the evidence to someone else unless the disclosure is required or permitted under an Act.

Division 8 Parental leave

Subdivision 1 Preliminary

55Application of division

This division does not apply to—
(a)short term casual employees; or
(b)seasonal employees; or
(c)pieceworkers.

56Explanation 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 childchild’s birth or to enable the employee to be responsible for the care of the child.
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 responsible for the care of the child).
(b)adoption leave, for an employee with whom an adoptedwho adopts a child is placed;

Note—

Adoption leave may be short (in connection with the child’s placementadoption) or long (to enable the employee to be responsible for the care of the child).
(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 responsible for the care of the child).
(d)cultural parent leave, for an employee who is a cultural parent under a cultural recognition order under the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020.

Note—

Cultural parent leave may be short (in connection with the transfer of parentage to the cultural parent) or long (to enable the employee to be responsible for the care of the child).

57Definitions for division

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 516 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; or
(c)for cultural parent leave—a child who is under the age of 516 years, but does not include a child who, immediately before the child’s parentage was transferred to the employee, had been living with the employee for a continuous period of at least 6 months.
cultural parent see the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020, section 10.
cultural parent leave means short cultural parent leave or long cultural parent leave.
cultural recognition order see the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020, schedule 1.
intended cultural parent means a cultural parent whose application for a cultural recognition order has not been decided.
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 responsible for the care of a child adopted by the employee.
long birth-related leave means—
(a)leave taken by a pregnant employee—
(i)for the birth of the employee’s child; or
(ii)to enable the employee to be responsible for the care of the child; or
(a)maternity leave; or
(b)leave taken by an employee whose spouse has given birth to a child to enable the employee to be responsible for the care of the employee’s child.
long cultural parent leave means leave taken by an employee to enable the employee to be responsible for the care of a child whose parentage is transferred to the employee under a cultural recognition order.
long parental leave means—
(a)long birth-related leave; or
(b)long adoption leave; or
(c)long surrogacy leave; or
(d)long cultural parent leave.
long surrogacy leave means leave taken by an employee to enable the employee to be responsible for the care of the employee’s surrogate child.
maternity leave means leave taken by a pregnant employee—
(a)for the birth of her child; or
(b)to enable her to be responsible for the care of the child.
parental leave means long parental leave or short parental leave.
short adoption leave means leave taken by an employee who is responsible for the care of an adopted child after the child is placed withadopted by the employee.
short birth-related leave means leave taken by an employee who is responsible for the care of a child in connection with the birth of the child of the employee’s spouse—
(a)after the birth of the child; or
(b)at the time the pregnancy ends other than by the birth of a living child or stillborn child.
short cultural parent leave means leave taken by an employee who is responsible for the care of a child after the child’s parentage is transferred to the employee under a cultural recognition order.
short parental leave means—
(a)short birth-related leave; or
(b)short adoption leave; or
(c)short surrogacy leave; or
(d)short cultural parent leave.
short surrogacy leave means leave taken by an employee who is responsible for the care of the employee’s surrogate child after the child starts residing with the employee.
stillborn child means a child—
(a)who has shown no sign of respiration or heartbeat, or other sign of life, after delivery of the child has been completed; and
(b)who—
(i)has been gestated for 20 weeks or more; or
(ii)weighs 400g or more.
surrogacy arrangement see the Surrogacy Act 2010, section 7.
surrogacy leave means long surrogacy leave or short surrogacy leave.
surrogate child, of an employee, means a child born as a result of a surrogacy arrangement in which the employee has agreed to become permanently responsible for the custody and guardianship of the child.

Subdivision 2 Parental leave entitlement

58Application of subdivision

(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)Also, this subdivision applies subject to section 87B.

Note—

Section 87B ends an employee’s entitlement to parental leave under this subdivision when the employee takes unpaid flexible parental leave under that section.
(23)In this section—
continuous service means service, including a period of authorised leave or absence, under an unbroken employment contractcontract of employment.

59Entitlement to birth-related leave

(1)A pregnant employee is entitled to an unbroken period of up to 52 weeks unpaid maternitybirth-related leave.
(2)For the birth of a child of an employee’s spouse, the employee is entitled to—
(a)a total of 8 weeks unpaid short birth-related leave; or
(b)an unbroken period of up to 52 weeks unpaid long birth-related leave.
(3)The employee’s short birth-related leave—
(a)if the employee’s spouse gave birth to a child and is taking long birth-related leave—may be taken concurrently with the employee’s spouse’s long birth-related leave; and
(a)if the employee’s spouse is taking maternity leave—may be taken concurrently with the employee’s spouse’s maternity leave; and
(b)may be taken in an unbroken period or broken periods; and
(c)if the employee takes short birth-related leave other than immediately after the birth of the child—must be for a minimum 2-week period.

60Entitlement to adoption leave

(1)For the adoption of a child, an employee is entitled to—
(a)a total of 8 weeks unpaid short adoption leave; or
(b)an unbroken period of up to 52 weeks unpaid long adoption leave.
(2)The employee’s short adoption leave—
(a)if the employee’s spouse is taking long adoption leave—may be taken concurrently with the employee’s spouse’s long adoption leave; and
(b)may be taken in an unbroken period or broken periods; and
(c)if the employee takes short adoption leave other than immediately after the placementadoption of an adopted child with the employeechild—must be taken for a minimum 2-week period.

61Entitlement to surrogacy leave

(1)An employee who is an intended parent under a surrogacy arrangement is entitled to—
(a)a total 8 weeks unpaid short surrogacy leave; or
(b)an unbroken period of up to 52 weeks unpaid long surrogacy leave.
(2)The employee’s short surrogacy leave—
(a)if the employee’s spouse is taking long surrogacy leave—may be taken concurrently with the employee’s spouse’s long surrogacy leave; and
(b)may be taken in an unbroken period or broken periods; and
(c)if the employee takes short surrogacy leave other than immediately after the employee’s surrogate child starts residing with the employee—must be for a minimum 2-week period.

61AEntitlement to cultural parent leave

(1)An employee who is a cultural parent under a cultural recognition order is entitled to—
(a)a total of 8 weeks unpaid short cultural parent leave; or
(b)an unbroken period of up to 52 weeks unpaid long cultural parent leave.
(2)The employee’s short cultural parent leave—
(a)if the employee’s spouse is taking long cultural parent leave—may be taken concurrently with the employee’s spouse’s long cultural parent leave; and
(b)may be taken in an unbroken period or broken periods; and
(c)if the employee takes short cultural parent leave other than immediately after the transfer of the child’s parentage to the employee—must be taken for a minimum 2-week period.

62Maximum period of parental leave

(1)Parental leave must not extend—
(a)beyond 52 weeks after—
(i)the child was born; or
(ii)the child was adopted; or
(iii)the child started residing with the employee under the surrogacy arrangement; or
(iv)the child’s parentage was transferred to the employee under a cultural recognition order; or
(b)if an application for an extension of parental leave under section 73 is agreed to—beyond 104 weeks after—
(i)the child was born; or
(ii)the child was adopted; or
(iii)the child started residing with the employee under the surrogacy arrangement; or
(iv)the child’s parentage was transferred to the employee under a cultural recognition order.
(2)However, if an employee takes long parental leave and the employee’s spouse takes short parental leave concurrently with the employee, the parental leave the employee is allowed to take under subsection (1) is reduced by the amount of leave concurrently taken by the employee’s spouse.
(3)The maximum period of parental leave allowed under subsection (1) or (2) is the maximum period of parental leave.
(4)This section applies despite sections 59 to 61.

Subdivision 3 Notices and information

63Employee notice—intention of pregnant employee to take maternitybirth-related leave

(1)This section applies if a pregnant employee wants to take maternitybirth-related 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 shethe employee wants to start and end the leave.
(3)The employee must, before starting the leave, give the employer—
(a)if required by the employer—sufficient evidence to satisfy a reasonable person that the employee is pregnant and the expected date of birth; and
(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 herthe employee’s spouse.
(4)Without limiting subsection (3)(a), the employer may require the evidence to be a health practitioner’s certificate confirming the matters mentioned in that subsection.

64Employee notice—intention of pregnant employee’s spouse to take birth-related leave other than maternity leave

(1)This section applies if an employee whose spouse is pregnant or has given birth to a child wants to take birth-related 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)if required by the employer—sufficient evidence to satisfy a reasonable person that the employee’s spouse is pregnant and the expected date of birth; and
(a)a doctor’s certificate confirming 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 maternitybirth-related leave sought by the employee’s spouse; and
(ii)that the employee is seeking the leave because the employee is to be responsible for the care of the child.
(4)Without limiting subsection (3)(a), the employer may require the evidence to be a health practitioner’s certificate confirming the matters mentioned in that subsection.

65Employee 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 dateexpected adoption 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 placementadoption 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 placementadoption 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 because the employee is to be responsible for the care of the child.
(4)In this section—
adoption agency means an agency, body, office or court, authorised by a Commonwealth law or State law to perform functions about adoption.

66Employee 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 the employee’s surrogate 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 because the employee is to be responsible for the care of the child.

66AEmployee notice—intention to take cultural parent leave

(1)This section applies if an employee wants to take cultural parent leave.
(2)The employee must give the employer—
(a)for long cultural parent leave—written notice of intention to take the leave at least 10 weeks before the expected date when a cultural recognition order will be made transferring a child’s parentage to the employee (the expected parental transfer 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 cultural parent; and
(b)the expected parental transfer date; and
(c)for long cultural parent leave—
(i)the period of leave sought by the employee; and
(ii)the period of any cultural parent leave sought by the employee’s spouse; and
(iii)that the employee is seeking the leave because the employee is to be responsible for the care of the child.

67Reasons not to give notice or documents

(1)An employee does not fail to comply with section 63, 64, 65 or 66 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’s adoption before the expected adoption date; 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 placementadoption or the child starts residing with the employee; and
(b)in the case of the birth of a living child—a doctorhealth practitioner’s certificate stating the date on which the child was born.; and
(c)in the case of the birth of a stillborn child—a health practitioner’s certificate stating the date on which the child was stillborn.

68Consequences of failure to give notice of intention to take parental leave

(1)This section applies if an employee fails to comply with section 63, 64, 65 or 66.
(2)Despite subdivision 2, the employer is not required to provide the parental leave until the employee complies with the section.

69Employee notice—change to situation

An employee must notify the employer of any change in the information provided under section 63, 64, 65 or 66 within 2 weeks after the change.

70Employee 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 72 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.

71Employer 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; or
(d)an employee is a cultural parent who is applying for a cultural recognition order.
(2)The employer must inform the employee of—
(a)the employee’s parental leave entitlement 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.

72Employer’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.

Subdivision 4 Application to extend parental leave or returnwork part-time

73Application 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 for an extension of the leave for an unbroken period of up to 104 weeks in total, minus the period of any short parental leave taken by the employee.
(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)if the parental leave is long parental leave other than maternity leave—for an extension of the long parental leave for an unbroken period of up to 104 weeks in total, minus the period of any short parental leave taken by the employee.
(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.

74Application 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)Also, an employee who returned to work on a full-time basis after taking parental leave may apply to the employer to change to work on a part-time basis.
(23)An employee may not make more than 1 application under this section within a 12-month period, unless the employer agrees.

75Application for extension or part-time work

(1)An application mentioned in section 73 or 74 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
(iv)for an application to change to work on a part-time basis—at least 7 weeks before change being applied for is to start; and
(c)state the application is an application for extension of parental leave under section 73 or an application to return or change to work on a part-time basis under section 74, as appropriate; and
(d)state the dates the extension, or return or change 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 or change 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 responsible for the care of the child; or
(ii)for an application to return or change 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 responsible for the care of the child when not at work.
(2)The period for which an application may be made under section 74 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.

76Employer’s decision on application for extension or part-time work

(1)In deciding whether to agree to an application under section 73 or 74, 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 refuse an application under section 73 or 74 unless the employer has given the employee a reasonable opportunity to discuss the application.
(3)The employer must not unreasonably refuse an application under section 73 or 74.
(4)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.
(5)If the employer refuses the application, the employer must provide the employee with written reasons for refusing the application.

Subdivision 5 Other provisions affecting duration of parental leave

77Spouses not to take long parental leave at same time

(1)An employee is not entitled to long parental leave when the employee’s spouse is on long 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 the employee’s spouse were on parental leave in contravention of subsection (1).

78Cancelling 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 ends other than by the birth of a living child or stillborn child; or
(c)the adoption of the child by the employee does not proceed; or
(c)the placement of the child with the employee for adoption does not proceed; or
(d)a child does not start residing with the employee under the surrogacy arrangement; or
(e)a cultural recognition order transferring the parentage of a child to the employee is not made.
(2)Subsection (3) applies if, while an employee is on parental leave—
(a)the pregnancy ends 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 adoption of the child by the employee does not proceed or continue; or
(c)the placement of the child with the employee for adoption does not proceed or continue; or
(d)the residence of the child with the employee under the surrogacy arrangement does not start or continue; or
(e)a cultural recognition order transferring the parentage of a child to the employee is discharged.
(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—
(a)special pregnancy-related leave or sick leave under section 85; or
(b)if the pregnancy of an employee’s spouse ends other than by the birth of a living child or a stillborn child—short birth-related leave; or
(c)birth-related leave for the birth of a stillborn child under section 85A.
(4)This section does not affect an employee’s entitlement to special maternity leave or sick leave under section 85.

79Parental 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)an applicable industrial instrument;
(c)an employmenta contract of employment.

80Working on a keeping in touch day during period of parental leave

(1)An employee may work for the employee’s employer on a day (a keeping in touch day) during the employee’s unpaid parental leave if—
(a)the purpose of performing the work is to enable the employee to keep in touch with the employee’s employment to facilitate a return to the employment after the end of the period of parental leave; and
(b)the employer and employee agree to the employee performing the work for the employer on the day; and
(c)the day is not within—
(i)if the employee is asked by the employer to work on the day—14 days after the child was born, adopted or started residing with the employee under a surrogacy arrangement or cultural recognition order; or
(ii)otherwise—42 days after the child was born, adopted or started residing with the employee under a surrogacy arrangement or cultural recognition order; and
(d)the employee has not worked 10 or more keeping in touch days for the employer or another entity during the relevant leave period.

Note—

The employer will be obliged, under the applicable industrial instrument or contract of employment, to pay the employee for performing work on a keeping in touch day.
(2)If the employee works on a keeping in touch day, the period of the parental leave is not broken or extended by the employee working on the keeping in touch day.
(3)The period the employee works on the keeping in touch day is not relevant for this section.
(4)In this section—
relevant leave period means—
(a)means a period of unpaid parental leave taken by the employee; or
(b)if an application for an extension of parental leave under section 73 is agreed to—the period agreed under section 73.

Note—

See the Paid Parental Leave Act 2010 (Cwlth), sections 48 to 50 for how working on a keeping in touch day within the meaning of that Act affects an employee’s eligibility for paid parental leave under that Act.

81Interruption 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 62.

82Extending 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 62(1)(a).
(4)Parental leave may be extended under subsection (1) only once.

83Shortening 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.

84Effect on parental leave of employee ceasing to be responsible for the care of the child

(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 no longer responsible for the care of the child; and
(b)considering the length of the period and any other relevant circumstances, it is reasonable to expect the employee will not be responsible for the care of the child 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.

Subdivision 6 Other entitlements

85Special maternitypregnancy-related leave and sick leave

(1)This section applies if—
(a)an employee’s pregnancy ends before the expected date of birth, other than by the birth of a living child or stillborn child; or
(b)before an employee starts maternitybirth-related leave, the employee suffers illness related to herthe employee’s pregnancy.
(2)For as long as a doctorhealth practitioner certifies leave is necessary, the employee is entitled to the following types of leave—
(a)unpaid leave (special maternitypregnancy-related leave);
(b)paid sick leave, either instead of, or as well as, special maternitypregnancy-related leave.

85A Birth-related leave—stillborn child

(1)This section applies if an employee’s pregnancy ends by the birth of a stillborn child.
(2)The employee and the employee’s spouse are each entitled to the birth-related leave that they would have been entitled to if the child had been born living.
(3)For this division, the employee and the employee’s spouse are taken to be responsible for caring for a child.

86Special 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 procedure for adoption.

87Special 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.

87ASpecial cultural recognition order leave

(1)An employee who is a birth parent or a cultural parent under an application for a cultural recognition order is entitled to up to 2 days unpaid leave to prepare material and give to the commissioner information associated with the application.
(2)In this section—
birth parent see the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020, section 9.
commissioner see the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020, schedule 1.

87BFlexible parental leave

(1)This section applies if—
(a)an employee is entitled to parental leave under subdivision 2 to be responsible for the care of a child of the employee; and
(b)the periods of the parental leave the employee has taken for the child, if any, total less than 52 weeks.
(2)The employee is entitled to a maximum of 30 days of unpaid flexible parental leave in relation to the child.
(3)However, the employee’s entitlement to flexible parental leave under subsection (2) ends when—
(a)the sum of the following amounts equals or exceeds 52 weeks—
(i)the total of the periods of parental leave taken by the employee for the child;
(ii)the total number of days of flexible parental leave taken in relation to the child, expressed as a notional 5-day work week in the way mentioned in subsection (4); or
(b)the period mentioned in subsection (6) ends.
(4)For subsection (3)(a)(ii), the number of days of flexible parental leave taken by the employee is expressed as a notional 5-day work week by adding 2 days of notional weekend for each 5 days of leave taken.
(5)The employee’s flexible parental leave under subsection (2) may be taken—
(a)whether or not the employee has taken any of the parental leave the employee is entitled to take to be responsible for the care of the child; and
(b)in an unbroken period or broken periods; and
(c)if the total period of the parental leave taken by the employee for the child concurrently with the employee’s spouse, if any, does not exceed 8 weeks—concurrently with the employee’s spouse’s parental leave for the child.
(6)The employee may take flexible parental leave within the period of 104 weeks after—
(a)the child was born; or
(b)the child was adopted by the employee; or
(c)the child started residing with the employee under the surrogacy arrangement; or
(d)the child’s parentage was transferred to the employee under a cultural recognition order.
(7)If the child and another child of the employee were born during the same multiple birth, or were adopted by the employee on the same day, the employee’s entitlement to flexible parental leave under this section—
(a)applies jointly in relation to both children; and
(b)does not apply separately in relation to each child.
(8)The employee’s entitlement to take parental leave under subdivision 2 to be responsible for the care of the child ends on the first day the employee takes flexible parental leave in relation to the child.
(9)However, subsection (8) does not affect the employee’s entitlement to flexible parental leave under this section.
(10)In this section, a reference to parental leave taken by an employee for a child—
(a)is a reference to the parental leave taken by the employee under subdivision 2 to be responsible for the care of the child; but
(b)does not include parental leave taken that is part of an extended period of parental leave agreed to in response to an application under section 73.

88Return to work after parental leave etc.

(1)This section applies to an employee who returns to work after—
(a)parental leave; or
(b)special pregnancy-related leave or sick leave under section 85.
(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 85.
(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 maternitybirth-related 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 89 before starting maternitybirth-related 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 maternitybirth-related leave, the employer must restore the employee’s hours to hours equivalent to those worked immediately before the hours were reduced.

89Transfer to a safe job

(1)This section applies whenever the present work of an employee is, because the employee is pregnant or breastfeeding, a risk to the health and safety of the employee or the employee’s unborn or newborn child.
(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 doctorhealth practitioner’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 herthe employee to the risk; and
(b)is, as nearly as possible, comparable in status and remuneration to that of herthe employee’s present work.
(5)If a transfer is not feasible or can not reasonably be required to be made, the employer must grant the employee maternitybirth-related leave, or any available paid sick leave, for as long as a doctorhealth practitioner certifies the leave is necessary to avoid exposure to the risk.

90Continuity of service

(1)Parental leave doesand flexible parental leave do not break an employee’s continuity of service.
(2)Parental leave isand flexible parental leave are 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 a period of flexible parental leave; or
(b)as expressly provided in—
(i)this Act; or
(ii)an applicable industrial instrument; or
(iii)an employmenta contract of employment.
(3)In this section—
flexible parental leave means leave an employee is entitled to under section 87B.

91Dismissal 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 the employee’s surrogate child has started residing with the employee under a surrogacy arrangement; or
(d)the employee is a cultural parent who has applied for a cultural recognition order or the child who is the subject of a cultural recognition order has started residing with the employee under the order; or
(e)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.

92Replacement 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 89; or
(b)a person replacing an employee who is temporarily promoted or transferred to replace the parent.

Division 9 Long service leave

Note—

See section 13 for the application of this division.

Subdivision 1 Preliminary

93Definitions for division

In this division—
continuous service, of an employee, means—
(a)in section 107—the period of continuous service the employee is taken to have had with an employer under section 107(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.

Subdivision 2 Relationship of this division with continuity of service provisions

94Application of pt 4 for particular purposes

To remove any doubt, it is declared that the provisions of part 4 apply for working out an employee’s rights and entitlements to long service leave under this division, an applicable industrial instrument or a federal industrial instrument.

Subdivision 3 Entitlement

95Entitlement—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
(ii)a domestic or other pressing necessity; or
(c)the termination is because the employer—
(i)dismisses the employee because of the employee’s illness; or
(ii) dismisses the employee for another reason other than the employee’s conduct, capacity or performance; or
(iii)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)In this section—
illness includes injury, incapacity or other medical condition.
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.

96Continuity 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, apply 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.

Subdivision 4 Taking long service leave

97Taking long service leave

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

Subdivision 5 Payment for long service leave etc. for employees generally

98Rate 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 107.
(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.

99Payment 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, a federal award or federal agreement that applies to the employee, or a contract between the employer and employee otherwise provides; or
(b)the commission, on application, considers 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 commission worked out using the following formula—

Formula

      where—
C means the total commission payable to the employee in the 1 year before the leave is taken.
DAC means the default average commission.
W means the number of weeks leave for which payment is being made.

100Disputes 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.

101Other 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.

Subdivision 6 Casual or regular part-time employees

102Definition for subdivision

In this subdivision—
casual employee means an employee who is employed more than once by the same employer over a period.

103Continuity 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 contractscontracts of employment; 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 contractcontract of employment and the start of the next employment contractcontract of employment.
(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 (3), 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.

104Taking long service leave—casual or regular part-time employees

(1)This section applies to a casual employee 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—

An employee—
(a)is entitled to be paid for 247 hours long service leave; and
(b)works under an award that provides for a full-time working week of 38 ordinary working hours.
      The employee and the employer may agree that the employee take 61/2 weeks leave (247 ÷ 38 = 61/2).

105Payment 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—

Formula

Example—

An employee who worked 15,600 ordinary working hours over a 10-year period and is being paid an hourly rate of $12 is entitled to be paid—

Formula

(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.

Subdivision 7 Seasonal employees in sugar industry and meat works

106Application of subdivision

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.

107Entitlement 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—

Formula

      where—
entitlement means the entitlement to long service leave of an employee under section 95.
service means actual service expressed as a part of a year.

Example—

An employee who worked half of each year, over a 10-year period, is entitled to half the 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 in years actually worked by the employee during the employee’s period of continuous service.

108Taking 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.

Subdivision 8 Other seasonal employees

109Entitlement 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, federal award or federal agreement.

Subdivision 9 Miscellaneous provisions

110Payment 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 or federal 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 relevant industrial instrument or federal 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 the payment 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 each of the following Acts—
(a)the Building and Construction Industry (Portable Long Service Leave) Act 1991;
(b) the Community Services Industry (Portable Long Service Leave) Act 2020;
(c)the Contract Cleaning Industry (Portable Long Service Leave) Act 2005.
entitlement to long service leave includes an entitlement to long service leave under each of the following Acts—
(a)the Building and Construction Industry (Portable Long Service Leave) Act 1991;
(b) the Community Services Industry (Portable Long Service Leave) Act 2020;
(c)the Contract Cleaning Industry (Portable Long Service Leave) Act 2005.

111Payment 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.

112Continuity 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 Air Force Reserve, Army Reserve or Naval Reserve within the meaning of the Defence Act 1903 (Cwlth).

113Recognition of certain exemptions

(1)This division 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.

114Person 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.

Division 10 Public holidays

115Definitions for division

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.

116Entitlement 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.

117Payment for public holiday

(1)Subsection (2) applies if—
(a)under this part, an employee is absent from 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.
(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 an applicable industrial instrument applies to the employee—the penalty rates provided for under the instrument; or
(b)otherwise—at the rate of pay that would be paid to the employee if the public holiday was not a public holiday.
(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.

Division 11 Emergency service leave

Note—

See section 13 for the application of this division.

118Entitlement

(1)An employee is entitled to unpaid emergency service leave if—
(a)the employee engages in an activity (a voluntary emergency management activity) that involves dealing with an emergency or natural disaster for a recognised emergency management entity; and
(b)the employee is a member of the recognised emergency management entity; and
(c)either—
(i)the body asked the employee to engage in the voluntary emergency management activity; or
(ii)the body did not ask the employee to engage in the voluntary emergency management activity, but would have if the circumstances had allowed the request to be made.
(2)The employee is entitled to the period of emergency service leave that is reasonable in the circumstances for—
(a)the employee to travel to and from the voluntary emergency management activity; and
(b)the employee to engage in the voluntary emergency management activity; and
(c)the employee to rest immediately after engaging in the voluntary emergency management activity.
(3)If an employee intends to take, or is taking, emergency service leave, the employee must advise the employee’s employer as soon as possible in writing stating—
(a)that the employee is to take, or is taking, emergency service leave; and
(b)the likely duration of the leave.
(4)An employee who takes emergency service leave must give the employer sufficient evidence to satisfy a reasonable person that the employee took the emergency service leave because the employee was engaged in a voluntary emergency management activity.
(5)In this section—
recognised emergency management entity means an entity that—
(a)has a role or function under a plan prepared by the Commonwealth or a State for coping with an emergency or natural disaster; or
(b)is or is part of a fire-fighting, civil defence or rescue entity; or
(c)is or is part of an entity that has a substantial purpose that involves—
(i)securing the safety of persons or animals in an emergency or natural disaster; or
(ii)protecting property in an emergency or natural disaster; or
(iii)responding to an emergency or natural disaster; or
(d)is not an entity that was established for a purpose to entitle an employee to take emergency service leave.

Division 12 Jury service leave

Note—

See section 13 for the application of this division.

119Entitlement

(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.

Division 13 Notice of termination and redundancy

Subdivision 1 Notice of termination

120Application of subdivision

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 an applicable 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 equal to or more than the high income threshold under the Commonwealth Fair Work Act, section 333;
(g)an employee participating in a labour market program.

121What 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 123; or
(ii)paid the compensation required by section 124; 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 period of notice.
(2)For subsection (1)(b), misconduct includes the following—
(a)theft;
(b)assault;
(c)sexual harassment or sex or gender based-harassment;
(cd)fraud;
(de)other misconduct prescribed by 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 period of notice.

122Employer’s failure to give notice or pay compensation

(1)If an employer dismisses an employee to whom section 121(1)(a) applies without giving the required notice or paying the required compensation—
(a)on an application under section 317—the commission may order the employer to pay the employee the compensation that the employer was required to pay under section 124; 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 124.
(2)An application for an order under subsection (1)(a) may be made by—
(a)the employee who has been dismissed; or
(b)with the employee’s consent—an organisation whose rules entitle the organisation 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.

123Minimum 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 of age 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).

124Minimum 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 contractcontract of employment.
(3)A regulation may prescribe the amount that is taken to be payable, or how to work out the amount, under an employmenta contract of employment 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.

Subdivision 2 Redundancy pay

125Application of this subdivision

(1)This subdivision applies to an employee if—
(a)an applicable 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;
(d)an employee participating in a labour market program;
(e)another employee prescribed by regulation or an applicable 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 employee’s calling, see part 4.
(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.

126Entitlement 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 127.

127Variation 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.

Division 14 Information statements

128Chief executive to prepare and publish information statement

(1)The chief executive must prepare an information statement and publish the statement on the department’s website.
(2)The information statement must contain information about the following—
(a)the Queensland Employment Standards;
(b)applicable industrial instruments, including how bargaining awards and certified agreements are made;
(c)freedom of association;
(d)the role of the commission;
(e)termination and redundancy;
(f)the rights of particular persons to enter workplaces under this Act;
(g)any other matter prescribed by regulation.

129Employer to give particular information to employees when they start working for employer

(1)An employer must give each employee the following documents before, or as soon as practicable after, the employee starts working for the employer—
(a)the information statement published under section 128;
(b)if an industrial instrument applies to the employee—another document stating the industrial instrument that applies to the employee.
(2)However, subsection (1) does not apply to an employer if—
(a)the employee starts working for the employer for a second time; and
(b)the employer has given the information statement and the document to the employee in the previous 12 months.

Part 4 Continuity of service and employment

130Definitions for part

In this part—
service includes employment.
transferred employee see section 132(1).

131How part applies

(1)This part applies for working out an employee’s rights and entitlements under this chapter, an applicable industrial instrument or a federal 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 123 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.

132Continuity of service—transfer of calling

(1)This section applies to a person (a transferred employee) who—
(a)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); or
(b)is dismissed by an employer (also the former employer) before the transfer of a calling if—
(i)the person is employed by another employer (also the new employer) after the transfer of a calling; and
(ii)the employee—
(A)was dismissed by the former employer within 1 month immediately before the transfer; and
(B)is re-employed by the new employer within 3 months after the dismissal.
(2)The transfer of the calling is taken not to break the transferred employee’s continuity of service.
(3)A period of service with the former employer, including service before the commencement, is taken to be a period of service with the new employer.
(4)In relation to the transfer, the transferred employee is not an employee to whom part 3, division 13, subdivision 2 applies, unless an applicable industrial instrument mentioned in section 125(1)(a) provides otherwise.
(5)In this section—
dismissed includes stood down.

133Continuity 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.

134Continuity 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 applicable industrial instrument or employment contractcontract of employment; 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 the corporation’s 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 applicable 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.

Part 5 Wages and employment conditions for apprentices and trainees

135Apprentice’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.

136Order 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 135, 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 the commission’s 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 a federal award or federal agreement.

137Order 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 the tools 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 the commission’s 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)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.
(9)The magistrate may express the order in the alternative so the employer may decide how to comply with the order.
(10)The court must pay an amount paid under subsection (8)(b) to the apprentice.

138Wages 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.

139Reinstatement 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 8, part 2 only because of the apprenticeship or traineeship.

Part 6 Labour market programs

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 the commission 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 the commission’s own initiative; or
(b)on application by—
(i)the chief executive (training); or
(ii)the Minister.

Chapter 3 Modern awards

Part 1 Preliminary

141General requirements for commission exercising powers

(1)In exercising its powers under this chapter, the commission must ensure a modern award—
(a)provides for fair and just wages and employment conditions that are at least as favourable as the Queensland Employment Standards; and
(b)generally reflects the prevailing employment conditions of employees covered, or to be covered, by the award.
(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 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 efficiency and effectiveness of the economy, including productivity, inflation and the desirability of achieving a high level of employment.

142General requirement about minimum wages

(1)To the extent the commission’s powers under this chapter relate to setting, varying or revoking minimum wages in a modern award, the commission must establish and maintain minimum wages that are fair and just.
(2)For subsection (1), the commission must have regard to the following—
(a)the prevailing employment conditions of employees covered by the modern award;
(b)the matters mentioned in section 141(2)(a) to (d) and (f);
(c)providing a comprehensive range of fair minimum wages to—
(i)young employees; and
(ii)employees engaged as apprentices and trainees; and
(iii)employees with a disability.

Part 2 Content of modern awards

143Content of modern awards

(1)The commission must ensure a modern award—
(a)does not include a provision that discriminates against an employee; and

Note—

See, however, subsection (2).
(b)does not include a provision that displaces, or is otherwise inconsistent with, the Queensland Employment Standards, unless the provision is at least as favourable for an employee as the Queensland Employment Standards; and
(c)provides for equal remuneration for work of equal or comparable value; and

Note—

In relation to the making of a modern award, see the further requirements under chapter 5, part 2, division 1.
(d)does not include an objectionable term within the meaning of section 301; and
(e)is stated in plain English and its structure and content is easy to understand; and
(f)does not include provisions that are obsolete; and
(g)includes a provision requiring an employer to consult employees before making a decision likely to be of particular significance to employees; and

Note—

See also subsection (3) for further requirements relating to the consultation provision mentioned in paragraph (g).
(h)includes provisions stating the employers, employees and organisations the award applies to; and
(i)provides fair standards for employees in the context of living standards generally prevailing in the community; and
(j)is suited to the efficient performance of work according to the needs of particular enterprises, industries or workplaces; and
(k)whenever possible—
(i)contains facilitative provisions about how the provisions of the award are to apply; and
(ii)contains provisions enabling the employment of regular part-time employees; and
(iii)provides support for training arrangements; and
(iv)contains facilitative provisions about work and family responsibilities; and
(l)takes into account employees’ family responsibilities.
(2)A modern award 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)For subsection (1)(g), the provision must state a consultation process to be followed that enables the employer to properly consider the views of employees and relevant employee organisations before making or implementing a final decision.
(4)In this section—
facilitative provisions, about a matter, means provisions allowing agreement to be reached at the workplace or enterprise level, between employers and employees (including individual employees), for the matter.
relevant employee organisation means an employee organisation that—
(a)is covered, or will be covered, by the modern award; or
(b)is entitled to represent the industrial interests of employees who are, or will be, covered by the modern award.

144Dispute resolution procedure

(1)The commission must ensure a modern award includes a dispute resolution procedure.
(2)The dispute resolution procedure must be—
(a)agreed on by the parties to the modern award; or
(b)if the parties can not agree, a procedure considered appropriate by the commission.
(3)Without limiting subsection (1), the procedure must include—
(a)consultation at the workplace; and
(b)the involvement of relevant organisations; and
(c)any other matter prescribed by regulation.

145Flow-on of provisions from certified agreements

(1)The commission may, on the application of a party to a modern award, include in the award provisions that are based on a certified agreement only if satisfied the provisions—
(a)are consistent with principles established by the full bench that apply for deciding wages and employment conditions; and
(b)are not contrary to the public interest.
(2)However, the commission must, on the application of a party to a modern award, include in the award provisions that are based on a certified agreement if—
(a)the parties to the certified agreement agree; and
(b)the award applies, or will apply, to the parties to the certified agreement.
(3)The provisions included under subsection (2) must apply only to the parties to the certified agreement.

146Flow-on of provisions from directives

(1)The commission must, on the application of a party to a modern award, include in the award provisions that are based on a directive if—
(a)the provisions of the directive apply, or have previously applied, to the parties to the award; and
(b)the parties to the award agree.
(2)The provisions included under subsection (1) must apply only to the persons to whom the directive applies or applied.

Part 3 Making, varying and revoking modern awards

147Commission’s power to make or vary modern awards

(1)The commission may do either of the following to provide for fair and just employment conditions—
(a)make a modern award;
(b)make an order varying a modern award.
(2)The commission may exercise a power under this section—
(a)on its own initiative; or
(b)on the application of any of the following persons—
(i)the Minister;
(ii)an organisation;
(iii)an employer;
(iv)an employee; or
(c)on a review of a modern award under part 5.

148When variation takes effect

(1)This section applies to an order varying a modern award.
(2)The order takes effect on the day stated in the order.
(3)The stated day must not be earlier than the day on which the order is made, unless—
(a)the variation removes an ambiguity or uncertainty or corrects an error; and
(b)the commission is satisfied exceptional circumstances justify stating an earlier day; and
(c)the order does not adversely affect an employee.
(4)The order 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 order takes effect under subsection (2).
(5)The retrospective operation of the order does not affect the validity of an approval, given by the commission before the order was made, of an application under chapter 4 to certify or amend a certified agreement.
(6)A person can not be punished for contravening the modern award or a certified agreement before the order was made if, but for the retrospective operation of the order, the conduct would not have contravened the modern award or certified agreement.

149Variation of modern awards to correct minor errors etc.

(1)The registrar may, on an application under the rules or on the registrar’s own initiative, vary a modern award to—
(a)correct minor or technical errors; or
(b)reflect a change to the name of a party or update another reference that has become outdated.
(2)The variation takes effect when it is approved by the commissioner nominated by the president to approve variations for this section.

150Commission’s power to revoke modern awards

(1)To provide for fair and just employment conditions, the commission may make an order revoking a modern award.
(2)However, the commission must not make the order unless satisfied no employees will be adversely affected by the revocation of the award.
(3)The commission may make the order—
(a)on its own initiative; or
(b)on the application of any of the following persons—
(i)the Minister;
(ii)an organisation;
(iii)an employer;
(iv)an employee; or
(c)on a review of the modern award under part 5.
(4)This section does not apply to the revocation of a modern award on the making of a bargaining award under chapter 4, part 5.

Part 4 Coverage and operation of modern awards

151Contravention of modern awards

A person must not contravene a provision of a modern award.

Notes—

1This section is a civil penalty provision.
2A person does not contravene a provision of a modern award unless the award applies to the person—see section 152.

152Significance of application of modern awards

(1)A modern award does not impose obligations, or confer entitlements, on a person unless the award applies to the person.
(2)A person does not contravene a provision of a modern award unless the award applies to the person.

153Who 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.
(3)Without limiting subsection (1), it is declared that a modern award may state it applies to a stated establishment or operation of a stated employer.
(4)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.

154Application to successors

(1)If a modern award applies only to a stated employer, the award applies to—
(a)the employer and any successor of the employer; and
(b)all employees of the employer and any successor.
(2)However, if a modern award applies only to a stated establishment or operation of a stated employer, the award applies to—
(a)the employer and any successor of the employer; and
(b)all employees of the employer and any successor of the employer in the establishment or operation.

155When modern awards operate

(1)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.

Part 5 Review of modern awards

156Commission’s power to review modern awards

(1)The commission may review a modern award—
(a)on its own initiative; or
(b)on the application of—
(i) a person to whom the award applies; or
(ii)an employee organisation that represents a person mentioned in subparagraph (i).
(2)An application mentioned in subsection (1)(b) may include a request to vary a provision of the modern award about wages or employment conditions.

157Review on application by Queensland Human Rights Commission

(1)The Queensland Human Rights Commission may apply to the commission for a review of a modern award on the grounds 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 if the act were not done under the award—make an order varying the award so it no longer requires the person to do the unlawful act.

Part 6 Technical matters

158Definition for part

In this part—
relevant instrument means—
(a)a modern award; or
(b)an order varying or revoking a modern award.

159Formal 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.

160Publication 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 by regulation; or
(b)if there is no prescribed way—in the way the registrar considers appropriate.

161Publication of varied awards

(1)This section applies if—
(a)the commission makes an order under this chapter or section 458 varying a modern award; or
(b)the registrar varies a modern award under section 149.
(2)The registrar must, as soon as practicable after the determination is made, publish the award as varied on the QIRC website.

162Interpretation 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 instrument.

Chapter 4 Collective bargaining

Part 1 Preliminary

Division 1 Purpose and application

163Purpose of chapter

The purpose of this chapter is—
(a)to facilitate collective bargaining by employees and employers, in good faith and with a view to reaching agreement, as the primary basis under this Act on which wages and employment conditions are decided; and
(b)if the negotiating parties can not reach agreement, to provide for the commission to—
(i)help the parties reach agreement or, if agreement can not be reached, reduce the matters in dispute; and
(ii)arbitrate the matter if conciliation is not successful; and
(c)if the negotiating parties reach agreement, to enable the parties to—
(i)make an agreement and apply to the commission for the agreement to be certified; or
(ii)in particular circumstances, apply to the commission for the making of a bargaining award and revocation of the modern award that covers the negotiating parties; and
(d)to recognise the right of negotiating parties to take protected industrial action, if particular requirements are satisfied, as part of the collective bargaining process.

Division 2 Some basic concepts about collective bargaining

164What is a certified agreement

(1)A certified agreement is a written agreement—
(a)about industrial matters relating to—
(i)an employer; and
(ii)a group of employees of the employer, whether all employees or a category of employees; and
(iii)the employee organisations covered by the agreement; and

Note—

An employee organisation is a body that is registered as an organisation under chapter 12—see schedule 5, definition organisation.
(b)that has been certified under part 5.
(2)A certified agreement covers all employees in the group, even employees who were employed after the agreement was made.

165Who may make certified agreements

A certified agreement may be made between—

(a)an employer; and
(b)either—
(i)1 or more employee organisations that represent, or are entitled to represent, any employees of the employer who are, or are eligible to be, members of the organisation; or
(ii)if subparagraph (i) does not apply, the employees of the employer at the time the agreement is made.

166What is a bargaining award

A bargaining award is an award made under part 5 that covers the following persons stated in the bargaining award—
(a)an employer;
(b)a group of employees of the employer, whether all employees or a category of employees;
(c)an employee organisation that represents, or is entitled to represent, any employees—
(i)who are, or are entitled to be, members of the organisation; and
(ii)who are covered by the bargaining award.

167Requirements for making bargaining awards

A bargaining award may be made only if—
(a)all of the parties who will be covered by the bargaining award consent to the making of the bargaining award; and
(b)immediately before the bargaining award is made, an award is in effect under which the only employers and employees covered are the employers and employees who will be covered by the bargaining award.

Division 3 Other definitions

168Definitions for chapter

In this chapter—
applies to, for a bargaining instrument, see section 220.
arbitration determination means a determination made under part 3, division 2.
bargaining award see section 166.
bargaining instrument means—
(a)a certified agreement; or
(b)a bargaining award.
certified agreement see section 164.
covers, for a bargaining instrument, see section 221.
designated award, for a person to whom a certified agreement will apply, means an award the commission has decided under section 213 is appropriate for deciding whether the agreement passes the no-disadvantage test under part 5, division 3.
employer includes—
(a)a multi-employer; and
(b)for a project—an employer organisation for whom the agreement is made.
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.
multi-employer means 2 or more employers who are associated because they—
(a)are related bodies corporate within the meaning of the Corporations Act; or
(b)are engaged in a joint venture or common enterprise; or
(c)undertake similar work.
multi-employer agreement means a certified agreement made with a multi-employer.
negotiating party means—
(a)a person who is negotiating under this chapter; or
(b)a person who has received a notice of intention under section 169 and refuses to negotiate, other than a person in relation to whom section 170 applies.
part 5 application see section 191.
party, in relation to a bargaining instrument or proposed bargaining instrument, means a person or organisation that is or will be covered by the instrument.
peace obligation period see section 174(2).
project includes construction.
project agreement means a certified agreement for a project or proposed project.
proposed bargaining instrument
(a)in relation to a part 5 application, means the agreement or proposed bargaining award that is the subject of the application; or
(b)generally, means a proposed agreement or bargaining award being negotiated under this chapter.
protected industrial action, for part 8, see section 233(1).
relevant award
(a)in relation to a person to whom a certified agreement will apply, means a modern award or bargaining award—
(i)regulating any employment condition of persons engaged in the same kind of work as the work performed by persons covered by the agreement; and
(ii)that, immediately before the day the agreement was certified, covers the person’s employer; or
(b)in relation to a person who will be covered by a proposed bargaining award, means a modern award or bargaining award that, immediately before the proposed bargaining award is made, covers only the persons who will be covered by the proposed bargaining award.
relevant employee, for a bargaining instrument, means an employee who will be covered by the instrument.
relevant employee organisation, in relation to a bargaining instrument or proposed bargaining instrument, means—
(a)if a modern award or bargaining award covers an employer under the bargaining instrument or proposed bargaining instrument, or would cover the employer apart from an award under the Commonwealth Fair Work Act—an employee organisation that is covered by the award; or
(b)if paragraph (a) does not apply—an employee organisation that is entitled to represent the industrial interests of employees of the employer.
scope order see section 184(1).

Part 2 Collective bargaining process

169Notice of intention to bargain

(1)This section applies if a person (the proposer) proposes to negotiate with a view to a bargaining instrument being made.
(2)The proposer must give each of the following persons a written notice (a notice of intention) of the proposer’s intention to start negotiating—
(a)the other proposed parties to the negotiations;
(b)if the negotiations relate to a project agreement—all relevant employee organisations and the commission.
(3)The proposer must give the notice of intention at least 14 days before the negotiations are proposed to start.
(4)If an existing bargaining instrument or arbitration determination applies to the parties, the proposer must not give the notice of intention more than 6 months before the nominal expiry date.
(5)Subsection (4) applies subject to the provisions of the bargaining instrument.

170Notice of intention to be party to bargaining

(1)This section applies if—
(a)a proposer gives a notice of intention; and
(b)the negotiations—
(i)relate to a project agreement; or
(ii)involve a multi-employer agreement; and
(c)a person who receives the notice of intention wants to be a party to the negotiations; and
(d)for negotiations relating to a project—the person mentioned in paragraph (c) is an organisation.
(2)The person must give written notice of the person’s intention to be a party to the negotiations to—
(a)the proposer; and
(b)the commission.
(3)A notice under subsection (2) must be given within 21 days after the person receives the notice of intention.
(4)An agreement, or application under part 5 for the making of a bargaining award, may only be made within the period mentioned in subsection (3) if the other proposed parties to the negotiations, and all relevant employee organisations, have given a notice under subsection (2).

171Proposed bargaining instrument to be given to employees for approval

(1)This section applies if, during negotiations under this chapter, the negotiating parties propose to—
(a)make a certified agreement, other than an excluded instrument; or
(b)seek the making of a bargaining award.
(2)The employer must take reasonable steps to ensure—
(a)each relevant employee has, or has ready access to, the proposed bargaining instrument or a copy of the proposed instrument at least 14 days before the day the relevant employees are asked to approve the proposed instrument; and
(b)the terms of the proposed instrument, 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 the employee may ask a relevant employee organisation of which the employee is a member to represent the employee in negotiating with the employer about the agreement.

Note—

See section 242 in relation to certificates about requested representation.
(3)The employer must not ask relevant employees to approve the proposed instrument until 21 days after the later of the following—
(a)the day the notice of intention for the negotiations was given;
(b)the day a scope order in relation to the proposed instrument came into effect.
(4)If a relevant employee asks a relevant employee organisation of which the employee 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 proposed instrument before—
(a)for a proposed agreement—the agreement is made; or
(b)for a proposed bargaining award—an application is made under part 5 for the making of the bargaining award.
(5)Subsection (4) stops applying if, after the request is made—
(a)the relevant employee withdraws the request; or
(b)the employee stops being a relevant employee.
(6)If the proposed instrument is amended for any reason, the steps in subsections (2) and (3) must be taken again for the instrument as amended.
(7)If the proposed instrument is amended only by adding an employer (a new employer) as a party, the steps need only be taken in relation to the new employer’s employees.
(8)However, the steps need not be taken if the commission is satisfied the proposed bargaining instrument 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.
(9)In this section—
excluded instrument means—
(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 to be made before the project commences.

172Negotiations relating to projects

(1)This section applies if 2 or more employee organisations have given notice, under section 170(2), that the organisations want to be party to negotiations relating to a project or proposed project.
(2)The employer must negotiate with the single bargaining unit, through a person nominated by the single bargaining unit to represent the unit.
(3)An organisation may withdraw as a party to the negotiations by giving 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 employee organisations that have given notice, under section 170(2), that they want to be party to the negotiations.

173Parties must negotiate in good faith

(1)The negotiating parties must negotiate in good faith.
(2)Without limiting subsection (1), each party must do the following things—
(a)attend and participate in bargaining meetings;
(b)disclose relevant information, other than confidential or commercially sensitive information, in a timely way;
(c)genuinely consider proposals made by other parties and—
(i)respond in a timely way; and
(ii)give reasons for the party’s response;
(d)not engage in capricious or unfair conduct that undermines freedom of association or the collective bargaining process.
(3)Without limiting subsection (2)(b), the parties must obtain, and disclose as soon as practicable after the start of negotiations, information relevant to the gender pay gap under the proposed instrument, including—
(a)the distribution of the employees by gender; and
(b)details of the gender pay gap; and
(c)any major factors identified as contributing to the gender pay gap; and
(d)if appropriate, the projected effect of the proposed instrument on the gender pay gap; and
(e)other information relevant to the gender pay gap reasonably requested by another party to the negotiations; and
(f)other information relevant to the gender pay gap prescribed by regulation.
(4)For subsection (3), the gender pay gap under the proposed instrument is the difference between the average weekly full-time equivalent earnings of male employees and female employees covered by the proposed instrument.
(35)Subject to subsections (1) and (2), the negotiating parties may make an agreement about procedures or principles for the conduct of the bargaining process.

174Peace obligation period to assist negotiations

(1)To enable negotiating parties to reach agreement about the matters that are the subject of the negotiations, during the peace obligation period the parties can not—
(a)take industrial action for the purpose of—
(i)supporting or advancing claims made in the course of the negotiations; or
(ii)responding to industrial action by the employer or the relevant employees; or
(b)ask the commission to help the parties to reach agreement under part 3, division 1.
(2)In this section—
peace obligation period means the period—
(a)starting on the later of the following days—
(i)the day the notice of intention for the negotiations is given;
(ii)the day a scope order for a proposed bargaining instrument comes into operation; and
(b)ending on the later of the following days—
(i)the nominal expiry date of any existing bargaining instrument;
(ii)21 days after the period started.

Part 3 Conciliation and arbitration by commission

Division 1 Conciliation

175Application of division

(1)This division applies if—
(a)the peace obligation period has ended; and
(b)a negotiating party asks the commission to help the parties reach agreement.
(2)However, this division stops applying if the negotiating parties notify the commission that the parties intend to resume negotiating without the commission’s help.

176Commission’s role in conciliation

(1)The commission’s objective in conciliating the matter under this division is to help the negotiating parties—
(a)reach agreement on all matters or as many matters as possible; and
(b)comply with the requirement under section 173 to negotiate in good faith.
(2)To achieve the objective, the commission may—
(a)give advice or make recommendations to the parties about the conduct of the negotiations; or
(b)give directions about action to be taken, or not to be taken, to ensure a party complies with the requirement mentioned in subsection (1)(b); or
(c)if the commission considers that holding a conference is desirable—by attendance notice, require a person to attend a conference at a stated time and place.
(3)A person given an attendance notice must comply with the notice.

Note—

This subsection is a civil penalty provision.
(4)To remove any doubt, it is declared that the commission may suspend or terminate protected industrial action taken during conciliation only under part 8, division 4.
(5)Things said or done in the conciliation may not be admitted into evidence for any proceeding or otherwise disclosed.

177Referral to arbitration by conciliating member

(1)This section applies if—
(a)the commissioner conciliating the matter (the conciliating member) considers—
(i)a negotiating party has tried to negotiate with the other parties; or
(ii)if the negotiating parties have been negotiating—the parties have tried to reduce the scope of the matters at issue between the parties; and
(b)the conciliating member—
(i)is satisfied the negotiating parties have been negotiating for at least the minimum period; and
(ii)does not consider there is a reasonable likelihood of further conciliation or negotiation resulting in the parties reaching agreement on the matters at issue within a reasonable period.
(2)The conciliating member may refer the matter to arbitration by giving written notice of the referral to the president and each negotiating party.
(3)The notice of the referral must not include any information other than—
(a)the names of the negotiating parties; and
(b)a statement that conciliation has not been successful and the matter is referred to arbitration.
(4)In this section—
minimum period means the later of the following periods to end—
(a)6 months from the nominal expiry date of a certified agreement or bargaining award that applies to the parties;
(b)3 months from the day conciliation of the matter started.

178Consent application for arbitration

(1)All of the negotiating parties may apply to the commission for arbitration of the matter.
(2)The application must state—
(a)whether the negotiating parties agree on the aspects of the matter that are at issue between the parties; and
(b)if the parties agree—the aspects of the matter that are at issue between the parties.; and
(c)if the parties agree—the full bench may refer arbitration of the matter to a commissioner sitting alone.
(3)The commission must consider the application and decide to grant or refuse to grant the application.
(4)The commission may grant the application only if satisfied—
(a)a negotiating party has tried to negotiate with the other parties; or
(b)if the negotiating parties have been negotiating—the parties have tried to reduce the scope of the matters at issue between the parties.
(5)The commission may make the interlocutory orders, or other orders, it considers appropriate, including, for example, an order requiring the negotiating parties to undertake—
(a)further negotiation with a view to reducing the scope of the matters to be arbitrated; or
(b)further conciliation.

Examples of reasons the commission might make an order under subsection (5)—

to reduce the scope of the matters at issue
failure of a negotiating party to bargain in good faith as required under section 173
failure of a negotiating party to bargain as required under an agreement made by the negotiating parties under section 173(3)(5)

Division 2 Arbitration

179Application of division

This division applies if—
(a)the matter is referred to arbitration by the conciliating member under section 177; or
(b)an application for arbitration of the matter made under section 178 is granted by the commission.

Note—

Industrial action organised, or engaged in, while the full benchcommission is arbitrating the matter under this division is not protected industrial action—see section 234.

179A Constitution of commission for arbitration proceedings

(1)The full bench must arbitrate the matter.
(2)However, the full bench may, with the consent of all of the negotiating parties, refer arbitration of the matter to a commissioner sitting alone.

180Full benchCommission to arbitrate disputed matters

(1)The full benchcommission must determine the matters in dispute by arbitration.
(2)To determine the matters in dispute, the full benchcommission
(a)may give directions or make orders of an interlocutory nature; and
(b)without limiting paragraph (a), before making an arbitration determination may order an increase in wages payable to employees; and
(c)may make any other order, or exercise another power, the full benchcommission considers appropriate to determine the disputed matters.

Note—

A negotiating party may not be represented by a lawyer in the proceeding before the full benchcommission—see section 530(2).
(3)The full benchcommission must ensure an arbitration determination—
(a)includes the provisions and other matters it would be required to include if the determination were a proposed bargaining instrument the subject of a part 5 application; and
(b)includes any increase in wages ordered by the full benchcommission under subsection (2)(b) or agreed by the parties during the arbitration.
(4)In determining the matters in dispute, the full benchcommission must consider at least the following—
(a)the merits of the case;
(b)the likely effect of the proposed arbitration determination, and any matters agreed between the negotiating parties before or during the arbitration, on employees and employers to whom the proposed arbitration determination will apply.

181Arbitration determination may include agreed matters

(1)An arbitration determination by the full benchcommission may include provision for a matter agreed between the negotiating parties before or during the arbitration.
(2)However, the full benchcommission may not exercise any powers under this division in relation to a matter mentioned in subsection (1).

182Full benchCommission must publish reasons

(1)The full benchcommission must publish its reasons when determining the disputed matters under this division.
(2)The reasons must address each of the things the full benchcommission considered under section 180(4).

183Operation of arbitration determinations

(1)An arbitration determination must state, as its nominal expiry date, a date that is—
(a)agreed by the negotiating parties or, if the parties can not agree, ordered by the full benchcommission; but
(b)no later than 4 years after the date on which the determination is made.
(2)The arbitration determination has effect subject to any conditions stated in the determination.
(3)The arbitration determination operates until it is terminated under part 7, division 3.
(4)While the arbitration determination operates, the determination—
(a)prevails, to the extent of any inconsistency, over an award or an order made under section 136; and
(b)can not be amended.

Part 4 Scope orders

184Applications for scope orders

(1)A negotiating party may apply to the commission for an order under section 185 (a scope order) in relation to a proposed bargaining instrument if the negotiating party has concerns the instrument—
(a)will not cover appropriate employees; or
(b)will cover employees whom it is inappropriate for the instrument to cover.
(2)The application—
(a)may be made any time after the notice of intention for the negotiations has been given; but
(b)may not be made after part 3, division 2 starts applying in relation to the negotiating parties.

185Making scope orders

(1)The commission may make an order providing for the matters mentioned in section 186 in relation to a proposed bargaining instrument if satisfied—
(a)an application for the order has been made under section 184; and
(b)the negotiating party who made the application has not contravened the requirement to negotiate in good faith under section 173; and
(c)the group of employees to be covered by the proposed bargaining instrument to be stated in the scope order was fairly chosen; and
(d)it is reasonable in all the circumstances to make the order.
(2)For subsection (1)(c), if the group of employees does not include all employees of each employer who will be covered by the proposed bargaining instrument, in deciding whether the group was fairly chosen the commission must consider whether the group is geographically, operationally or organisationally distinct.
(3)The scope order may relate to more than 1 proposed bargaining instrument.

186Matters to be stated in scope orders

A scope order in relation to a proposed bargaining instrument must state—
(a)the employer, or employers, to be covered by the instrument; and
(b)the employees to be covered by the instrument; and
(c)the employee organisations to be parties to the instrument.

187Power to make or vary other orders etc.

(1)This section applies if the commission makes a scope order in relation to a proposed bargaining instrument.
(2)The commission may take the action it considers appropriate to give effect to the scope order, including, for example—
(a)making other orders, determinations or instruments;
(b)varying other orders, determinations or instruments made by the commission;
(c)taking any other action.

188Duration of scope order

A scope order in relation to a proposed bargaining instrument—
(a)takes effect on the day the order is made; and
(b)continues in force until the earliest of the following times—
(i)if the order is revoked by the commission—the time stated in the instrument revoking the order;
(ii)when the proposed bargaining instrument is certified or made by the commission under part 5;
(iii)when an arbitration determination covering the employees stated in the scope order is made;
(iv)when the negotiating parties agree the negotiations have ended.

Part 5 Certifying agreements and making bargaining awards

Division 1 Making and hearing applications

189Application for certification of agreement

(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 of 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 the agreement is signed.

190Application for making of bargaining award

(1)This section applies to an application for the commission to do both of the following—
(a)make a bargaining award;
(b)terminate the relevant modern award.
(2)The application may be made by a party to the proposed bargaining award.
(3)The application may be made only if—
(a)all the parties have agreed on the terms of the proposed bargaining award; and
(b)the proposed bargaining award has been approved by a valid majority of the relevant employees at the time in a properly conducted ballot.

191Notice of hearing

The registrar must, at least 7 days before an application under section 189 or 190 (a part 5 application) will be heard, place a notice in the registry stating details of—
(a)the names of the parties to the proposed bargaining instrument; and
(b)the relevant award or designated award; and
(c)the hearing date.

192Entities that may be heard on application

(1)An employee organisation is entitled to be heard on a part 5 application if the organisation will be a party to the proposed bargaining instrument.
(2)As soon as practicable after the part 5 application is made, the commission must notify each employee organisation mentioned in subsection (1) that—
(a)the application has been made; and
(b)the organisation is entitled to be heard on the application.
(3)An employee organisation that will not be a party to the proposed bargaining instrument may be heard on the part 5 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, the commission will not be informed of an issue relevant to the commission’s decision to grant, or refuse to grant, the application.
(5)This section does not affect another right of an employee organisation, or any other person, to be heard on, or to intervene in, an application.

Division 2 Deciding applications

Subdivision 1 Commission’s decision on applications

193Requirements for commission’s decision

(1)The commission must grant a part 5 application if—
(a)each requirement under subdivision 2 is satisfied for the application; and
(b)the commission is not required under subdivision 3 to refuse to grant the application.
(2)If subsection (1) does not apply, the commission must refuse to grant the application.
(3)Subsection (2) applies subject to section 194.

194Opportunity to take action before commission refuses to grant application

(1)Before refusing to grant a part 5 application, the commission must give the persons who will be covered by the proposed bargaining instrument an opportunity to take action that may be necessary to enable the commission to grant the application.
(2)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 grant the application.

Subdivision 2 Requirements for granting applications

195Compliance with bargaining process requirements

The commission must be satisfied that—
(a)the things required by sections 169, 171 and 172 were done, and, in particular, the terms of the proposed bargaining instrument were explained in a way that was appropriate having regard to the persons’ particular circumstances and needs; and
(b)the employer did not coerce, or attempt to coerce, an employee—
(i)not to make a request mentioned in section 171(2)(c); or
(ii)to withdraw the request.

196Proposed bargaining instrument to be in writing and signed by parties

(1)The commission must be satisfied the proposed bargaining instrument—
(a)is in writing; and
(b)is signed by or for all the parties.
(2)Subsection (1)(b) does not apply if the commission is satisfied, in the particular circumstances, that—
(a)although the proposed bargaining instrument has not been signed by or for all the parties, all parties have agreed on the terms of the instrument; and
(b)the part 5 application was made within a reasonable time after the instrument was approved by a valid majority of the relevant employees at the time in a properly conducted ballot.
(3)For subsection (2), in deciding whether all parties have agreed on the terms of the proposed bargaining instrument, the commission may consider—
(a)whether the parties negotiated in good faith as required under section 173; and
(b)any other evidence supporting or not supporting the alleged agreement.

197Approval by relevant employees

The commission must be satisfied a valid majority of the relevant employees employed at the time approved the proposed bargaining instrument.

198Provisions and other information to be included

(1)The commission must be satisfied the proposed bargaining instrument—
(a)includes a provision requiring an employer to consult employees before making a decision likely to be of particular significance to the employees; and
(b)states a nominal expiry date that is—
(i)for a project agreement—the day the project ends; or
(ii)otherwise—no later than 4 years after the day the instrument will come into operation; and
(c)includes or is accompanied by—
(i)the information required under section 250; and
(ii)any other information prescribed by regulation.
(2)For subsection (1)(a), the provision must state a consultation process to be followed that enables the employer to properly consider the views of employees and relevant employee organisations before making or implementing a final decision.

199No-disadvantage test

The commission must be satisfied the proposed bargaining instrument passes the no-disadvantage test under division 3.

200Agreements—requirements about parties

(1)The commission must be satisfied—
(a)for a project agreement—each employee organisation that has given notice of wanting to be a party to the negotiations under section 170(2), and that has not withdrawn as a party under section 172(3), is a party to the agreement; or
(b)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; or
(c)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 who will be covered by 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.
(2)Subsection (1)(b) 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 covered by the agreement.

201Equal remuneration

The commission must be satisfied—
(a)for a multi-employer agreement or project agreement—the agreement provides forincludes information about the way equal remuneration for work of equal or comparable value is implemented, or is to be implemented, in relation to the employees to be covered by the agreement; or
(b)for any other proposed bargaining instrument—the employer—
(i)has implemented equal remuneration for work of equal or comparable value in relation to all employees of the employer; or
(ii)will, if the instrument is certified or made, implement equal remuneration for work of equal or comparable value in relation to all employees of the employer; or
(iii)is implementing equal remuneration for work of equal or comparable value in relation to all employees of the employer.
(b)for any other proposed bargaining instrument—the proposed bargaining instrument contains information about the way the employer has implemented, will implement (if the instrument is certified or made) or is implementing equal remuneration for work of equal or comparable value in relation to the employees to be covered by the agreement.

202Proposed bargaining awards—requirement about relevant modern award

(1)This section applies if the proposed bargaining instrument is a bargaining award.
(2)The commission must be satisfied a modern award or bargaining award is in effect under which the only employers and employees covered are the employers and employees who will be covered by the proposed bargaining award.

203Consistency with scope order

(1)This section applies if a scope order in relation to the proposed bargaining instrument is in effect.
(2)The commission must be satisfied the instrument is not inconsistent with the order.

Subdivision 3 Refusal to grant applications

204Inconsistency with equal remuneration orders etc.

The commission must refuse to grant a part 5 application if the commission considers a provision of the proposed bargaining instrument—
(a)is inconsistent with a provision of chapter 5, part 3; or
(b)is inconsistent with an order by the commission under a provision mentioned in paragraph (a); or
(c)seeks to prohibit or restrict an application being made under chapter 5, part 3.

205Objectionable terms

The commission must refuse to grant a part 5 application if the commission considers a provision of the proposed bargaining instrument is an objectionable term within the meaning of section 301.

206Contravention of ch 8, pt 1, div 4

(1)The commission must refuse to grant a part 5 application if the commission is satisfied—
(a)the employer has, in connection with negotiating the proposed bargaining instrument, contravened a provision of chapter 8, part 1, division 4; or
(b)the employer has caused an entity to engage, in connection with negotiations for the proposed bargaining instrument, in conduct that, had the employer engaged in the conduct, would be a contravention by the employer of a provision of chapter 8, part 1, division 4; or
(c)an entity has, for the employer, engaged in conduct mentioned in paragraph (b) or caused another entity to engage in the conduct.
(2)Subsection (1) does not apply if the commission is satisfied the contravention or conduct, and its effects, have been fully remedied.

207Discriminatory provisions

(1)The commission must refuse to grant a part 5 application if the commission considers a provision of the proposed bargaining instrument is a discriminatory provision.
(2)Subsection (1) does not apply only because a provision of the proposed bargaining instrument 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).

208Displacement of Queensland Employment Standards

(1)The commission must refuse to grant a part 5 application if the commission considers a provision of the proposed bargaining instrument displaces, or is otherwise inconsistent with, the Queensland Employment Standards.
(2)Subsection (1) does not apply to a provision that is at least as favourable for an employee as the Queensland Employment Standards.

209Employees covered by the proposed bargaining instrument

(1)The commission must refuse to grant a part 5 application if—
(a)the proposed bargaining instrument applies only to a group or category of employees; and
(b)the commission considers the instrument defines the group or category in a way that results in other employees not being covered by the instrument, if it would be reasonable for the other employees to be covered by the instrument; and
(c)the commission considers it unfair the other employees are not covered by the instrument.
(2)For subsection (1)(b), in deciding whether it would be reasonable for the other employees to be covered by the proposed bargaining instrument, the commission must consider—
(a)the nature of the work performed by the other employees; and
(b)the organisational and operational relationships between the group or category and the other employees.

Division 3 No-disadvantage test

210When proposed bargaining instrument passes the no-disadvantage test

(1)A proposed bargaining instrument passes the no-disadvantage test if the instrument does not disadvantage employees in relation to the employees’ employment conditions.
(2)A proposed bargaining instrument disadvantages employees only if the commission considers the proposed bargaining instrument would result in a reduction in the employees’ entitlements or protections.
(3)Subsection (2) applies subject to sections 211 and 212.
(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.
(5)If the president considers exceptional circumstances exist, the president may require the registrar to give the commission a report comparing the proposed bargaining instrument with the employees’ entitlements or protections.
(6)In this section—
entitlements or protections means the entitlements or protections under—
(a)a relevant award, designated award, or order under chapter 2, part 5; or
(b)chapter 2, part 3.

211Special case—employee eligible for supported wage system

(1)This section applies if a proposed bargaining instrument 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.

Note—

See the Supported Wage Award—State 2012.
(2)The proposed bargaining instrument does not disadvantage the employee in relation to the employee’s employment conditions only because of the reduction of the employee’s wages.

212Special case—employee undertaking approved apprenticeship or traineeship

(1)This section applies if—
(a)a proposed bargaining instrument provides for the payment of wages to an employee undertaking approved training (a training employee) in a particular trade, occupation or work (the particular work); and
(b)there is a relevant award, designated award or order providing for the payment of wages to employees undertaking benchmark training for—
(i)the particular work; or
(ii)a trade, occupation or work that is similar to the particular work.
(2)The proposed bargaining instrument is taken to disadvantage the training employee in the employee’s employment conditions if the proposed bargaining instrument provides for the payment of wages to the employee at a rate less than the rate payable to an employee (a benchmark employee) undertaking benchmark training 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)a training employee; and
(b)a benchmark employee.
(4)Subsection (5) applies if the proposed bargaining instrument 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).
(5)For this section, the relevant award, designated award or order is taken to have effect as if the decided criterion were substituted for the award criterion.
(6)This section does not apply to a trainee covered by—
(a)the Training Wage Award—State 2012; or
(b)the National Training Wage Schedule of a modern award under the Commonwealth Fair Work Act.
(7)In this section—
approved training means training for an apprentice or trainee approved by the approving authority.
benchmark training means training for an apprentice or trainee in a particular trade, occupation or work if that is recognised under an award or under an order made under section 136.

213Deciding designated awards

(1)This section applies if—
(a)an employer, or an employee organisation, 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 that regulates 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 give the employer or organisation in written notice of the commission’s decision.

Division 4 Other provisions

214Procedures for preventing and settling disputes

The procedures for preventing and settling disputes contained in a bargaining instrument may, with the commission’s approval, authorise the commission to settle a dispute.

215Publication of bargaining instruments

(1)This section applies if the commission grants a part 5 application.
(2)As soon as practicable after granting the application, the commission must give the registrar—
(a)a copy of the bargaining instrument certified or made by the commission; and
(b)written reasons for the certification or making of the instrument.
(3)As soon as practicable after the registrar receives a copy of the bargaining instrument under subsection (2), the registrar must—
(a)give the parties to whom the instrument will apply notice of—
(i)the making of the instrument; and
(ii)if the instrument is a bargaining award—notice of the revocation of the relevant modern award; and
(b)ensure a copy of the instrument is published on the QIRC website.

Part 6 Effect of bargaining instruments

216When certified agreements operate

(1)A certified agreement starts operating when it is certified.
(2)A certified agreement continues to operate until the agreement is terminated under section 227 or 228.

217When bargaining awards operate

(1)A bargaining award starts operating on the day stated in the award as the day on which the award comes into operation.
(2)The stated day must not be earlier than the day on which the bargaining award is made.
(3)A bargaining award continues to operate until—
(a)after the nominal expiry date, the award is replaced by another bargaining award; or
(b)the award stops having effect as a bargaining award under section 229.

218Contravening bargaining instruments

A person must not contravene a bargaining instrument.

Notes—

1This section is a civil penalty provision.
2A person does not contravene a bargaining instrument unless the instrument applies to the person—see section 219.

219Significance of application of bargaining instrument

(1)A bargaining instrument does not impose obligations, or confer entitlements, on a person unless the instrument applies to the person.
(2)A person does not contravene a bargaining instrument unless the instrument applies to the person.

220Who a bargaining instrument applies to

(1)A bargaining instrument applies to an employee, employer or organisation if—
(a)the instrument is in operation; and
(b)the instrument covers the employee, employer or organisation.
(2)However, a bargaining instrument does not apply to an employee, employer or organisation if this Act provides that the instrument does not apply to the employee, employer or organisation.
(3)A reference in this Act to a bargaining instrument applying to an employee is a reference to the instrument applying to the employee in relation to particular employment.

221Who is covered by a bargaining instrument

(1)A bargaining instrument covers an employee or employer if the instrument states that it covers (however described) the employee or employer.
(2)A bargaining instrument covers an employee organisation if—
(a)the instrument is made with the organisation; or
(b)for an instrument made between employees and the employer—
(i)before the instrument is certified or made, the organisation gives the commission and employer notice that the organisation wants the instrument to apply to it; and
(ii)the organisation satisfies the commission the organisation is a relevant employee organisation and has at least 1 member to whom the instrument applies and who has asked the organisation to give the notice; and
(iii)the instrument itself, or a decision of the commission certifying or making the instrument, states that the instrument covers the organisation.
(3)A bargaining instrument also covers an employee, employer or employee organisation if this Act, or an order made under this Act, provides or has the effect that the instrument covers the employee, employer or organisation.
(4)However, a bargaining instrument does not cover an employee, employer or employee organisation if any of the following provides or has the effect that the instrument does not cover the employee, employer or organisation—
(a)another provision of this Act;
(b)an order made by the commission under another provision of this Act;
(c)an order of a court.
(5)Despite subsections (1) to (3), a bargaining instrument that has stopped operating does not cover an employee, employer or employee organisation.
(6)A reference in this Act to a bargaining instrument covering an employee is a reference to the instrument covering the employee in relation to particular employment.

222Application of bargaining instrument to successor employers

(1)This section applies if—
(a)a bargaining instrument applies to an employer; 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 to whom the instrument applies.
(2)From the later time—
(a)the bargaining instrument applies to the new employer, to the extent the instrument relates to the whole or part of the business; and
(b)the bargaining instrument stops applying to the previous employer, to the extent the instrument 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 stops referring to the previous employer, to the extent the context relates to the whole or part of the business.

Part 7 Extending, amending and terminating bargaining instruments etc.

Division 1 Extension of bargaining instruments

223Extension of nominal expiry date

(1)On or before the nominal expiry date of a bargaining instrument, the following persons may apply to the commission to extend the bargaining instrument’s nominal expiry date—
(a)if the instrument applies to 1 or more organisations—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 bargaining instrument—4 years after the date on which the instrument came into operation.
(3)The extension has no effect unless the commission approves the extension.
(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)a bargaining instrument to which section 210(4) applies.

Division 2 Amendment of bargaining instruments

224Power to amend bargaining instruments

A bargaining instrument may only be amended under—
(a)this division; or
(b)section 223.

225Amendment on application

(1)The following persons may apply to the commission to amend a bargaining instrument—
(a)if the instrument applies to 1 or more organisations—the employer and the organisations to which the instrument applies;
(b)if the amendment amends the parties to a multi-party agreement—the person who wants to become a party to the agreement;
(c)otherwise—the employer.
(2)The commission must approve the amendment if, and must not approve the amendment unless, satisfied—
(a)the amendment has been approved by—
(i)for an amendment mentioned in subsection (1)(b)—the approving parties; 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 or make the instrument as amended if it were an instrument for which an application for certification or making were made under part 5.
(3)In applying subsection (2)(b)—
(a)a requirement about a majority of persons approving the instrument is taken to be satisfied; and
(b)section 194 is to be disregarded.
(4)The amendment takes effect when the commission’s approval takes effect.
(5)The commission may, on application by a person to whom a bargaining instrument applies, amend the instrument—
(a)to remove ambiguity; or
(b)to include, omit or amend a term, however described, allowing an employer to stand down an employee; or
(c)in another way, if—
(i)the approving parties have agreed to the amendment; 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.
(6)This section does not apply to an amendment to add or omit a party to a bargaining instrument, other than an amendment mentioned in subsection (1)(b).
(7)In this section—
approving parties means—
(a)for an instrument that applies to an employer and an employee organisation—the employer and organisation; or
(b)for another instrument—the employer and a valid majority of the relevant employees at the time.

226Amendment of parties to bargaining award by consent

(1)This section applies if an employer, or an employee organisation, to whom a bargaining award does not apply (the proposed new party) would like the award to apply to the proposed new party.
(2)All the parties to the award, and the proposed new party, may apply to the commission to amend the bargaining award so the award applies to the proposed new party.
(3)The commission may approve the amendment if satisfied—
(a)if the proposed new party is an employer—the bargaining instrument should apply to the employer; or
(b)if the proposed new party is an employee organisation—the organisation is entitled to represent the industrial interests of employees covered by the bargaining award.

Division 3 Termination of certified agreements and arbitration determinations

227Termination on or before nominal expiry date

(1)On or before the nominal expiry date of a certified agreement or arbitration determination, the employer and the organisations to which the agreement or determination applies may apply to the commission to terminate the agreement or determination.
(2)The commission must approve the termination if, and must not approve the termination unless, satisfied a valid majority of the relevant employees at the time approve the termination.
(3)The termination takes effect when the commission’s approval takes effect.

228Termination after nominal expiry date

(1)After the nominal expiry date of a certified agreement or arbitration determination, the following persons may apply to the commission to terminate the agreement or determination—
(a)the employer;
(b)a valid majority of the relevant employees;
(c)an employee organisation to which the agreement or determination applies and that has at least 1 member who is a relevant employee.
(2)The person who intends to apply to terminate the agreement or determination must give all other persons to whom the agreement or determination applies notice of the intention.
(3)The commission must approve the termination if, and must refuse to approve the termination unless, satisfied subsection (2) has been complied with and—
(a)for an agreement or determination that provides that it may be terminated if particular conditions are met—the conditions have been met; or
(b)for an agreement or determination that does not provide for the way it may be terminated—
(i)the other parties to the agreement or determination agree to it being terminated; and
(ii)termination of the agreement or determination is not contrary to the public interest.
(4)The termination takes effect when the commission’s approval takes effect.

Division 4 Termination of bargaining awards

229Termination of bargaining awards and conversion into modern awards

(1)This section applies if, after the nominal expiry date of a bargaining award, either of the following events (each a conversion event) happens—
(a)the commission certifies a certified agreement that applies to any of the parties to the bargaining award;
(b)an arbitration determination is made that applies to any of the parties to the bargaining award.
(2)When the conversion event happens, the bargaining award—
(a)stops having effect as a bargaining award; and
(b)is taken to be, and starts operating as, a modern award.
(3)Subsection (2)(b) applies despite section 155.
(4)Despite section 153, the modern award that takes effect under subsection (2) applies to the employees, employers and organisations to whom the bargaining award applied immediately before the conversion event happened.
(5)Sections 143 to 147 and 160 do not apply in relation to the modern award taking effect under subsection (2)(b).

230Publication of modern award

(1)This section applies if a modern award takes effect under section 229.
(2)As soon as practicable after the modern award takes effect, the registrar must—
(a)give the parties to whom the modern award applies notice of—
(i)the taking effect of the modern award; and
(ii)the revocation of the bargaining award that applied to the parties immediately before the modern award took effect; and
(b)ensure a copy of the modern award is published on the QIRC website.

Part 8 Protected industrial action

Division 1 Preliminary

231Definition for part

In this part—
protected industrial action see section 233(1).

232Right to take protected industrial action

A negotiating party for a proposed bargaining instrument has a right to take protected industrial action for the proposed instrument, subject to this part.

Division 2 Process for taking protected industrial action

233When industrial action is protected industrial action

(1)Industrial action is protected industrial action for a proposed bargaining instrument if the industrial action—
(a)meets the requirements of this section; and
(b)is not industrial action to which section 234 applies.
(2)The industrial action must be—
(a)organised, or engaged in, by a protected person for the purpose of—
(i)supporting or advancing claims made in relation to the proposed instrument; or
(ii)responding to industrial action mentioned in paragraph (b)(i) by an employer who will be covered by the proposed instrument; or
(b)organised, or engaged in, by an employer who will be covered by the proposed instrument for the purpose of—
(i)supporting or advancing claims made in relation to the proposed instrument; or
(ii)responding to industrial action mentioned in paragraph (a)(i) by an employee who will be covered by the proposed instrument.
(3)The following persons have not contravened, before the industrial action starts, the requirement to negotiate in good faith under section 173
(a)if the industrial action is a strike by an employee who will be covered by the proposed instrument—the negotiating party for the employee;
(b)if the industrial action is a lockout by an employer who will be covered by the proposed instrument—the employer.
(4)If the industrial action is engaged in by employees, the employees likely to be engaging in the industrial action have, before the industrial action is engaged in, been approved by the registrar under section 235 to engage in the industrial action.
(5)Before the industrial action is engaged in, notice of the industrial action must have been given under section 236.
(6)The industrial action may be engaged in during conciliation for the proposed bargaining instrument.

Note—

However, see sections 240 and 241.
(7)In this section—
protected person, for a proposed bargaining instrument, means—
(a)an employee organisation that is a negotiating party for the proposed instrument; or
(b)an officer or employee of that employee organisation acting in that capacity; or
(c)an employee who is a member of that employee organisation and will be covered by the proposed instrument.

234When industrial action is not protected industrial action

(1)Industrial action is not protected industrial action for a proposed bargaining instrument if the industrial action is engaged in—
(a)on or before the nominal expiry date of any existing bargaining instrument or arbitration determination that will be replaced by the proposed instrument; or
(b)during any peace obligation period for the proposed instrument.
(2)Industrial action is not protected industrial action for a proposed bargaining instrument if the industrial action is engaged in during arbitration for the proposed instrument.
(3)The following persons must not engage in industrial action to which subsection (1) or (2) applies—
(a)an employee who will be covered by the proposed instrument;
(b)an employee organisation that is a negotiating party for the proposed instrument;
(c)an officer or employee of that employee organisation acting in that capacity;
(d)an employer who will be covered by the proposed instrument.

Note—

This subsection is a civil penalty provision.

235Approval to engage in industrial action

(1)For section 233(4), the registrar must, on application by an employee organisation, approve the employees likely to be engaging in the proposed industrial action doing so if satisfied that—
(a)before making the application, the employee organisation followed the process approved under subsection (2) and the result was that a majority of employees who participated in the process expressed support for the industrial action; and
(b)the employees are members of the employee organisation; and
(c)the employees will be covered by the proposed bargaining agreement the subject of the industrial action; and
(d)the employees are not proposing to engage in the industrial action—
(i)before the end of the nominal expiry date of any existing bargaining instrument or arbitration determination that will be replaced by the proposed bargaining instrument; or
(ii)during any peace obligation period for the proposed bargaining instrument.
(2)For subsection (1)(a), the employee organisation must provide its members likely to be engaging in the proposed industrial action with a process, approved by the registrar, to express their democratic views about the industrial action.
(3)An approval remains in force for the period stated by the registrar.

236Notice of industrial action must be given

(1)For section 233(5), the protected person or employer intending to take the industrial action must give written notice of the intention to all of the negotiating parties for the proposed bargaining instrument—
(a)at least 3 working days before the day the intended action starts, unless paragraph (b) applies; or
(b)if the intended action is in response to industrial action as mentioned in section 233(2)(a)(ii) or (b)(ii) or the intended action is taken after industrial action is taken by a negotiating party—at any time before the day the intended action starts.
(2)However, an employer may, instead of giving written notice, take any other reasonable steps to notify employees of the intended action.
(3)Notice under this section must indicate—
(a)the nature of the intended action; and
(b)the day on which the intended action will start.
(4)Notice under this section may be given before the end of any peace obligation period for the proposed bargaining instrument, as long as the intended action does not start during that period.

Division 3 Consequences of protected industrial action

237Legal effect of protected industrial action

(1)No legal proceedings lie under any law for action taken for protected industrial action except proceedings for action resulting in any of the following—
(a)personal injury;
(b)wilful or reckless destruction of, or damage to, property;
(c)the unlawful taking, keeping or use of property.
(2)Despite subsection (1), proceedings for defamation may be brought for anything that happens during protected industrial action.
(3)If protected industrial action is the lockout of an employee by an employer—
(a)the employer may refuse to pay the employee remuneration for the period of the lockout; but
(b)the continuity of the employee’s employment, for the purposes prescribed by regulation, is not affected by the lockout.

238Employer must not prejudice employee for engaging in protected industrial action

(1)An employer must not do any of the following wholly or partly because an employee is proposing to engage in, is engaging in, or has engaged in, protected industrial action—
(a)dismiss the employee, injure the employee in the employee’s employment or change the employee’s position to the employee’s prejudice; or
(b)threaten to dismiss the employee, injure the employee in the employee’s employment or change the employee’s position to the employee’s prejudice.

Note—

This subsection is a civil penalty provision.
(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 that is itself protected industrial action.
(3)In proceedings under chapter 11, part 8 for an alleged contravention of subsection (1), it is to be presumed the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage in, was engaging in, or had engaged in protected industrial action, unless the contrary is proved.

239Remedies if employee prejudiced for engaging in protected industrial action

(1)The commission may order an employer who contravenes section 238(1)—
(a)if the contravention was dismissing the employee—
(i)to reinstate the employee to the position the employee occupied immediately before the dismissal; or
(ii)to re-employ the employee in a position at least as favourable as that position; and
(b)to pay the employee who is 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.

Division 4 Suspension or termination by commission of protected industrial action

240Suspension or termination if significant economic harm to employers or employees

(1)The commission may, on application by a person mentioned in subsection (3), make an order to suspend or terminate protected industrial action for a proposed bargaining instrument being engaged in if satisfied of the following—
(a)if section 233(2)(a) applies—the industrial action is causing, or threatening to cause, significant economic harm to—
(i)an employer who will be covered by the proposed instrument; or
(ii)an employee who will be covered by the proposed instrument; or
(b)if section 233(2)(b) applies—the industrial action is causing, or threatening to cause, significant economic harm to an employee who will be covered by the proposed instrument;
(c)if the industrial action is threatening to cause significant economic harm—the harm is imminent;
(d)the industrial action has been protracted;
(e)the dispute about the terms of the proposed instrument will not be resolved in the reasonably foreseeable future.
(2)For subsection (1)(a) and (b), the factors relevant to deciding whether protected industrial action is causing, or threatening to cause, significant economic harm to an employer or employee include the following—
(a)the source, nature and degree of harm suffered or likely to be suffered;
(b)the likelihood the harm will continue to be caused or will be caused;
(c)the capacity of the employer or employee to bear the harm;
(d)the views of the employer or employee;
(e)the views of the negotiating parties for the proposed bargaining instrument;
(f)whether the negotiating parties for the proposed instrument have met the requirement to negotiate in good faith under section 173;
(g)if the commission is considering making an order to terminate the industrial action—
(i)whether the negotiating parties are genuinely unable to reach agreement on the terms of the proposed instrument; and
(ii)whether there is any reasonable prospect of agreement being reached;
(h)the objective of promoting and facilitating bargaining for the proposed instrument.
(3)For subsection (1), an application may be made by—
(a)a negotiating party for the proposed bargaining instrument; or
(b)the Minister; or
(c)a person prescribed by regulation.

241Suspension or termination if life, property, health or welfare is endangered

(1)The commission must, on application by a person mentioned in subsection (2), suspend or terminate protected industrial action for a proposed bargaining instrument being engaged in, or threatened to be engaged in, if satisfied the industrial action has threatened, is threatening or would threaten—
(a)to endanger the life, personal safety or health, or welfare of the State’s population or part of it; or
(b)to cause significant damage to the State’s economy or an important part of it.
(2)For subsection (1), an application may be made by—
(a)a negotiating party for the proposed bargaining instrument; or
(b)the Minister; or
(c)a person prescribed by regulation.
(3)The commission must, as far as practicable, decide an application under this section within 5 days after it is made.
(4)If the commission is unable to decide the application in that time, the commission must, before the time ends, make an interim order to suspend the protected industrial action to which the application relates.
(5)The interim order continues in force until the application is decided.

Part 9 General

242Certificate as to requested representation

(1)An employee organisation may apply to the registrar for a certificate stating that an employee has asked the organisation, under section 171, to represent the employee in negotiating with the employer under this chapter.
(2)An employer may apply to the registrar for a certificate stating that the employer need not negotiate with an employee organisation under this chapter because of a circumstance mentioned in section 171(5).
(3)A certificate must identify the organisation, the employer and any proposed bargaining instrument.
(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.

243Secret ballot on valid majority

(1)This section applies if—
(a)the commission is required under this chapter to be satisfied a valid majority of the persons employed at a particular time—
(i)have made or terminated a bargaining instrument; or
(ii)have given an approval in relation to a bargaining instrument; and
(b)the commission is not satisfied.
(2)The commission may order a vote be taken by secret ballot, in accordance with the commission’s directions, of employees to whom the bargaining instrument applies or will apply to find out whether the employees would make or terminate the bargaining instrument or give the approval.
(3)An order under subsection (2) may include a provision for absent voting.
(4)If a majority of the validly cast votes is in favour of making or terminating the bargaining instrument, or giving the approval, the commission is taken to be satisfied of the requirement.
(5)Before a vote is taken, the commission may revoke an order under subsection (2) if the commission becomes satisfied the requirement mentioned in subsection (1)(a) has been met.
(6)In this section—
bargaining instrument includes a proposed bargaining instrument.

244Coercion

(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, a bargaining instrument; or
(b)approving anything mentioned in paragraph (a).

Note—

This subsection is a civil penalty provision.
(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 171(2)(c) in relation to a proposed bargaining instrument; or
(b)to withdraw the request.

Note—

This subsection is a civil penalty provision.
(4)A person must not coerce, or attempt to coerce, an employee—
(a)not to express to an organisation the employee’s views about proposed industrial action before it is engaged in; or
(b)to express to an organisation views about proposed industrial action before it is engaged in that are different from the employee’s views.

Note—

This subsection is a civil penalty provision.
(5)In this section—
take or refrain from taking includes threaten to take or refrain from taking.

Chapter 5 Equal remuneration

Part 1 Preliminary

245Purpose of chapter

The purpose of this chapter is—
(a)to require the commission, in making modern awards, to ensure—
(i)the value of work is identified appropriately; and
(ii)equal remuneration for work of equal or comparable value is provided for; and
(b)to ensure the commission, in certifying or making bargaining instruments, is informed about the steps taken by the parties to provide for equal remuneration for work of equal or comparable value; and
(c)to enable the commission, in performing functions in relation to bargaining instruments and other instruments affecting wages, to obtain information from the parties about equal remuneration for work of equal or comparable value; and
(d)to enable the commission to make orders, on application, to ensure employees receive equal remuneration for work of equal or comparable value.

246Definition for chapter

In this chapter—
wage-related information, for employees covered by a proposed bargaining instrument or an instrument mentioned in section 7(1), means information about each of the following matters—
(a)the distribution of the employees by gender;
(b)
the difference between the average weekly full-time equivalent earnings of male employees and female employees covered by the instrument (the gender pay gap);
(c)any major factors identified as contributing to the gender pay gap;
(d)if appropriate, the projected effect of the instrument on the gender pay gap.;
(e)other information relevant to the gender pay gap prescribed by regulation.

Part 2 Instruments affecting wages

Division 1 Making of modern awards

247Application of division

This division applies, for the purposes of section 143(1)(c), in relation to the making of a modern award under chapter 3.

248Requirements for commission—ensuring modern award provides for equal remuneration

(1)The commission must be satisfied—
(a)the work to which the award relates is appropriately valued; and
(b)the award provides for equal remuneration for work of equal or comparable value.
(2)For subsection (1)(a), the commission must assess the current value of the work that is the subject of the modern award, having regard to—
(a)the nature of the work, skill and responsibility required; and
(b)the conditions under which the work is performed; and
(c)any other matters the commission considers relevant.
(3)The assessment of the current value of the work must be free of assumptions based on gender.
(4)For subsection (1)(b)—
(a)comparisons within and between occupations and industries—
(i)may be used, but are not required, to establish whether the work has been undervalued on a gender basis; and
(ii)are not restricted to similar work; and
(b)discrimination on the basis of gender is not necessary to establish the work has been undervalued; and
(c)the commission must consider previous valuations of the work and whether historically the work has been undervalued; and
(d)the commission may have regard to other industrial instruments or federal industrial instruments.

249Commission to make order if test not passed

(1)This section applies if the commission is not satisfied the modern award provides for equal remuneration for work of equal or comparable value.
(2)The commission must make an order under part 3 to ensure the modern award provides for equal remuneration for work of equal or comparable value.

Division 2 Bargaining instruments and other instruments

250Requirement for application relating to proposed bargaining instrument

(1)This section applies to an application for the certification of an agreement, or the making of a bargaining award, under chapter 4, part 5.
(2)The application must be accompanied by an affidavit that—
(a)contains the wage-related information for the employees who are or will be covered by the proposed bargaining instrument; and
(b)states the steps taken by the parties to the instrument to provide for equal remuneration for work of equal or comparable value in the instrument; and
(c)for a provision that allows differential treatment of wages for different groups of employees—states the justification for including the provision in the instrument.
(3)The affidavit must be in the form required under the rules.
(3)The affidavit must—
(a)be in the form required under the rules; and
(b)be signed by or for each of the parties to the instrument.
(4)In this section—
proposed bargaining instrument see section 168.

251Commission may give directions about wage-related information

(1)This section applies if the commission is performing any of the following functions under this Act—
(a)making an order varying a modern award;
(b)certifying an agreement or making a bargaining award;
(c)making an order varying a certified agreement or bargaining award, if the variation—
(i)relates to equal remuneration for work of equal or comparable value; or
(ii)otherwise affects wages;
(d)making an arbitration determination;
(e)making an order under chapter 6 in relation to an industrial dispute, if the order—
(i)relates to equal remuneration for work of equal or comparable value; or
(ii)otherwise affects wages;
(f)making an order under chapter 2, part 5.
(2)In performing the function, the commission may direct any of the relevant parties to obtain and give the commission, at a stated time or within a stated period, wage-related information in relation to the proposed instrument.
(3)The direction may require the information to be given by an affidavit—
(a)in the form required under the rules; and
(b)signed by the party to whom the direction is given.
(4)A party to whom a direction is given under subsection (2) must comply with the direction.

Note—

This subsection is a civil penalty provision.
(5)If the president considers exceptional circumstances exist, the president may require the registrar to give the commission a report comparing the proposed instrument mentioned in subsection (1) with the entitlements of the employees who are or will be covered by the proposed instrument.
(6)In this section—
function includes power.
relevant parties means the parties to the proposed instrument mentioned in subsection (1) to which the performance of the function relates.

Part 3 Equal remuneration orders

252Orders 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.

Examples of orders the commission may make—

orders reclassifying work
orders establishing new career paths
orders implementing changes to incremental scales
orders providing for wage increases
orders providing for new allowances
orders about reassessing definitions and descriptions of work to properly reflect the value of the work
(2)Without limiting subsection (1), the order may provide for an increase in remuneration rates, including minimum rates.

253Orders on application etc.

(1)The commission may make an order under this part 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 human rights commissioner under the Anti-Discrimination Act 1991.
(2)Also, the commission must make an order under this part on its own initiative if required to do so under section 249.

254Requirements about making of order on application

(1)This section applies if an application for an order under this part is made under section 253.
(2)The commission must make the order if, and must not make the order unless, it is satisfied the employees to be covered by the order do not receive equal remuneration for work of equal or comparable value.

255Immediate 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.

256Employer 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)A purported reduction by an employer is of no effect.

257Part does not limit other rights

(1)This part does not limit a 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 258.

258Applications under this part

(1)An application can not be made under section 253 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 section 253 has been made, the person who made the application 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.

Part 4 Miscellaneous

259Commission may make statement of policy about operation of chapter

(1)The commission may make a statement of policy about the operation of this chapter.
(2)This section does not limit section 461.

Chapter 6 Industrial disputes

Part 1 Preliminary

260Definitions for chapter

In this chapter—
dispute means an industrial dispute.
party, to a dispute, means any of the parties between whom the dispute exists.
show cause notice see section 265(7).

Part 2 Notice of industrial dispute

261Notice must be given to registrar

(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 to the dispute have genuinely attempted to settle the dispute.
(2)Each party to the dispute must immediately give the registrar written notice of the dispute.
(3)The notice—
(a)may be given by letter, facsimile, email or other means of written communication; and
(b)must state each of the following—
(i)the names of the parties to the dispute;
(ii)the place where the dispute exists;
(iii)the subject matter of the dispute;
(iv)anything else required by the rules.

Part 3 Action for preventing or settling industrial disputes

262Action on industrial dispute

(1)This section applies if—
(a)notice of a dispute has been given by a party under section 261(2); or
(b)whether or not a notice of a dispute has been given under section 261—the commission considers it is in the public interest to take action under this section in relation to the dispute.
(2)Subsection (1)(b) 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 any industrial action in relation to the dispute to stop or not happen;
(b)make orders, or give directions, of an interlocutory nature;
(c)exercise the commission’s powers under section 473 (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 of, or the 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.

263Mediation 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 of the cause is desirable in the public interest.

264Compulsory conference

(1)This section applies if the commission, when taking action under section 262 in relation to a dispute, considers that holding a conference is desirable to prevent or settle the 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 the conference even though not directly involved in the dispute if the commission considers the person’s presence would be conducive to the prevention of, or the 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.

Note—

This subsection is a civil penalty provision.

265Enforcing commission’s orders

(1)The commission may direct an order about a 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 to file an affidavit with the registrar within a stated time—
(i)the organisation or person to whom the order is directed;
(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 or extended for filing an affidavit, the registrar must—
(a)examine all affidavits filed; and
(b)if not all affidavits required to be filed have been filed by that time—make all necessary further inquiries; and
(c)having examined the affidavits filed and made the inquiries necessary, 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 (a show cause 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 266.
(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).

266Remedies on show cause notice

(1)If an organisation issued with a show cause 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 1,000 penalty units;
(b)amend a bargaining instrument to which the organisation is a party;
(c)if the organisation is an employee organisation—suspend the date of operation of a wage increase otherwise 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)to restrict the use of the organisation’s property; and
(ii)to control 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 an organisation.
stated time means the time stated in the notice to show cause under section 265(7) or the time to which the proceedings are adjourned.

Part 4 Industrial action

267Indemnity 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.

268Payments for strikes not compellable

(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) or (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, but the commission may make an order for the contravention.
(7)In this section—
strike does not include the failure to perform work in excess of work required under a bargaining instrument.

269Orders for contravention of s 268

(1)The commission may, on application, make an order for a contravention of section 268.
(2)An application may be made by any of the following—
(a)the Minister;
(b)a person or organisation who has an interest in the matter;
(c)the employer against whom the strike was organised, engaged in or threatened;
(d)a person prescribed by regulation.
(3)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 or organisation who contravenes section 268 a penalty of not more than 135 penalty units;
(b)an order requiring a person or organisation who contravenes section 268 to pay the employer against whom the strike was organised, engaged in or threatened compensation of an 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.

270Commission must not deal with claims for payments for strikes

(1)The commission must not deal with a claim for the making of a payment under section 268(1) to an employee for a period when the employee engages in a strike.
(2)Subsection (1) applies in relation to a claim whether the claim is for a period before or after—
(a)the making of the claim; or
(b)the commencement.

271Right to refuse work if imminent health or safety risk

This Act does not prevent 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 herthe employee’s health or safety; and
(b)the employee does not unreasonably contravene a direction of his or herthe employee’s employer to perform other available work (whether at the same or another workplace) that is safe and appropriate for the employee to perform.

Chapter 7 Employees bullied in the workplace

272When is an employee bullied in the workplace

(1)An employee is bullied in the workplace if—
(a)while the employee is at work, an individual or group of individuals repeatedly behaves unreasonably towards—
(i)the employee; or
(ii)a group of employees of which the employee is a member; and
(b)that behaviour creates a risk to the health and safety of the employee.

Note—

For the meaning of employee for this chapter, see section 8(2).
(2)To remove any doubt, it is declared that subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

273Application for a commission order to stop bullying

An employee who reasonably believes the employee has been bullied in the workplace may apply to the commission for an order under section 275.

274Commission to deal with applications promptly

The commission must start to deal with an application under section 273 within 14 days after the application is made.

Note—

For example, the commission may, under section 451, start to inform itself of the matter or decide to hold a conference or conduct a hearing about the matter.

275Commission may make orders to stop bullying

(1)This section applies if—
(a)an employee has made an application under section 273; and
(b)the commission is satisfied that—
(i)the employee has been bullied in the workplace; and
(ii)there is a risk that the employee will continue to be bullied in the workplace.
(2)The commission may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the employee from being bullied in the workplace.
(3)In considering the terms of an order, the commission must take into account—
(a)if the commission is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another entity—those outcomes; and
(b)if the commission is aware of any procedure available to the employee to resolve grievances or disputes—that procedure; and
(c)if the commission is aware of any final or interim outcomes arising out of any procedure available to the employee to resolve grievances or disputes—those outcomes; and
(d)any other matter the commission considers relevant.

276Contravening an order to stop bullying

A person must not contravene an order under section 275.

Note—

This section is a civil penalty provision.

277Actions under work health and safety laws permitted

The Work Health and Safety Act 2011, section 115 and a provision of a corresponding WHS law (within the meaning of that Act) that corresponds to section 115 of that Act do not apply in relation to an application under section 273.

Note—

Ordinarily, if an employee who is a worker under the Work Health and Safety Act 2011 makes an application under section 273 for an order to stop the worker from being bullied in the workplace, section 115 of that Act and a corresponding provision of a corresponding WHS law would prohibit a proceeding from being commenced, or an application from being made or continued, under that law in relation to the bullying. This section removes that prohibition.

Chapter 8 Rights and responsibilities of employees, employers, organisations etc.

Part 1 General protections

Division 1 Introduction

278Purposes of part

(1)The purposes of this part are as follows—
(a)to protect workplace rights;
(b)to protect freedom of association by ensuring that persons are—
(i)free to become, or not become, members of industrial associationsorganisations; and
(ii)free to be represented, or not represented, by industrial associationsorganisations; and
(iii)free to participate, or not participate, in lawful industrial activities;
(c)to provide protection from workplace discrimination;
(d)to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this part.
(2)The protections contained in subsection (1) are provided to a person (whether an employee, an employer or otherwise).

279Definitions

In this part—
action includes omission.
adverse action see section 282.
engages in industrial activity see section 290.
industrial association means any of the following—
(a)an employee organisation;
(b)an association of employees having as a principal purpose the protection and promotion of their interests in matters concerning their employment;
(c)an employer organisation;
(d)an association of employers having as a principal purpose the protection and promotion of their interests in matters concerning employment;
(e)a branch of an industrial association under paragraphs (a) to (d).

Note—

An organisation is a body that is registered as an organisation under chapter 12—see schedule 5, definition of organisation.

process or proceedings under an industrial law or industrial instrument see section 283.
workplace right see section 284.

Division 2 Application of this part

280Action to which this part applies

Subject to section 281, this part applies to the following action—
(a)action taken by an employer;
(b)action that affects, is capable of affecting or is taken with intent to affect the activities, relationships or business of an employer;
(c)action that consists of advising, encouraging or inciting, or action taken with intent to coerce, an employer—
(i)to take, or not take, particular action in relation to another person; or
(ii)to threaten to take, or not take, particular action in relation to another person.

281Action to which this part does not apply

This part does not apply to—
(a)action mentioned in section 280 if the Commonwealth Fair Work Act, chapter 3, part 3–1 applies to the action; or
(b)an action for unfair dismissal.

Note—

See part 2 for actions for unfair dismissal.

Division 3 Workplace rights

282Meaning of adverse action

(1)
Adverse action is taken by an employer against an employee if the employer—
(a)dismisses the employee; or
(b)injures the employee in his or herthe employee’s employment; or
(c)alters the position of the employee to the employee’s prejudice; or
(d)discriminates between the employee and other employees of the employer.
(2)
Adverse action is taken by a prospective employer against a prospective employee if the prospective employer—
(a)refuses to employ the prospective employee; or
(b)discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.
(3)
Adverse action is taken by an employee against an employer if the employee—
(a)ceases work in the service of the employer; or
(b)takes industrial action against the employer.
(4)
Adverse action is taken by an industrial associationorganisation, or an officer or member of an industrial associationorganisation, against a person if the associationorganisation, or the officer or member of the associationorganisation
(a)organises or takes industrial action against the person; or
(b)takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment; or
(c)if the person is a member of the associationorganisation—imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to an amount legally owed to the associationorganisation by the member).
(5)
Adverse action includes—
(a)threatening to take action covered by subsections (1) to (4); and
(b)organising to take action covered by subsections (1) to (4).
(6)
Adverse action does not include action that is authorised under—
(a)this Act or any other law of the State; or
(b)a law of the Commonwealth.
(7)Without limiting subsection (6), adverse action does not include an employer standing down an employee who is engaged in protected industrial action and employed under a contract of employment that provides for the employer to stand down the employee in the circumstances.

283Meaning of process or proceedings under an industrial law or industrial instrument

Each of the following is a process or proceedings under an industrial law or industrial instrument
(a)any conference conducted, or hearing held, by the commission or the court;
(b)court proceedings under an industrial law or industrial instrument;
(c)protected industrial action;
(d)a process under section 235(2) for employees to express their democratic views about proposed industrial action before it is engaged in;
(e)certifying, making, amending or terminating a bargaining instrument under chapter 4;
(f)agreeing to cash out paid annual leave;
(g)making a request under chapter 2, part 3, division 4;
(h)dispute settlement for which provision is made by, or under, an industrial law or industrial instrument;
(i)any other process or proceedings under an industrial law or industrial instrument.

284Meaning of workplace right

(1)A person has a workplace right if the person—
(a)has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or
(b)is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or
(c)is able to make a complaint or inquiry—
(i)to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or
(ii)if the person is an employee—in relation to his or herthe person’s employment.
(2)In this section—
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.

285Protection

(1)A person must not take adverse action against another person—
(a)because the other person—
(i)has a workplace right; or
(ii)has, or has not, exercised a workplace right; or
(iii)proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person.

Note—

This subsection is a civil penalty provision.
(2)A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes to or has at any time proposed to exercise, a workplace right for the second person’s benefit or for the benefit of a class of persons to which the second person belongs.

Note—

This subsection is a civil penalty provision.

286Prospective employees taken to have workplace rights

(1)A prospective employee is taken to have the workplace rights he or shethe person would have if he or shethe person were employed in the prospective employment by the prospective employer.
(2)Despite section 284(1)(a), a prospective employer does not contravene section 285(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of a bargaining instrument that the prospective employer is bound by under section 222 because of the transfer of the whole or part of a business to the prospective employer from another employer.

287Coercion

(1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person or a third person—
(a)to exercise or not exercise, or to propose to exercise or not exercise, a workplace right; or
(b)to exercise, or to propose to exercise, a workplace right in a particular way.

Note—

This subsection is a civil penalty provision.
(2)Subsection (1) does not apply to protected industrial action.

288Undue influence or pressure

An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee—
(a)to make or not make an agreement or arrangement under the Queensland Employment Standards; or
(b)to make or not make an agreement or arrangement under a term of an industrial instrument; or
(c)to agree or not agree to a deduction from amounts payable to the employee in relation to the performance of work.

Note 1—

This section is a civil penalty provision.

Note 2—

This section can apply to decisions whether to agree to performing work on keeping in touch days—see section 80.

289Misrepresentations

(1)A person must not knowingly or recklessly make a false or misleading representation to another person about—
(a)the workplace rights of the other person or a third person; or
(b)the exercise, or the effect of the exercise, of a workplace right by the other person or a third person.

Note—

This subsection is a civil penalty provision.
(2)Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

Division 4 Industrial activities

290Meaning of engages in industrial activity

A person engages in industrial activity if the person—
(a)becomes or does not become, or remains or stops being, an officer or member of an industrial associationorganisation; or
(b)does or does not—
(i)become involved in establishing an industrial associationorganisation; or
(ii)organise or promote a lawful activity for, or on behalf of, an industrial associationorganisation; or
(iii)encourage, or participate in, a lawful activity organised or promoted by an industrial associationorganisation; or
(iv)comply with a lawful request made by, or a lawful requirement of, an industrial associationorganisation; or
(v)represent or advance the views, claims or interests of an industrial associationorganisation; or
(vi)pay a fee (however described) to an industrial associationorganisation or to someone instead of an industrial associationorganisation; or
(vii)seek to be represented by an industrial associationorganisation; or

Note—

For subparagraph (vii), representation of a person by an industrial association includes a member, delegate or officer of an organisation making representations or advocating on the person’s behalf. An organisation is a body that is registered as an organisation under chapter 12—see schedule 5, definition organisation.

Note—

For subparagraph (vii), representation of a person by an industrial organisation includes a member, delegate or officer of the industrial organisation making representations or advocating on the person’s behalf.
(c)gives or distributes information, or organises or encourages discussion, about the following matters for, or on behalf of, an industrial organisation—
(i)the wages and employment conditions of employees;
(ii)workplace rights; or
(cd)organises or promotes an unlawful activity for, or on behalf of, an industrial associationorganisation; or
(de)encourages, or participates in, an unlawful activity organised or promoted by an industrial associationorganisation; or
(ef)complies with an unlawful request made by, or an unlawful requirement of, an industrial associationorganisation; or
(fg)takes part in industrial action that is not protected industrial action.

291Protection

A person must not take adverse action against another person because the other person—
(a)is or is not, or was or was not, an officer or member of an industrial associationorganisation; or
(b)engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of section 290(a) or (b); or
(c)does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of section 290(c)(d) to (f)(g).

Note—

This section is a civil penalty provision.

292Coercion

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person or a third person to engage in industrial activity.

Note—

This section is a civil penalty provision.

293Misrepresentations—engaging in industrial activity

(1)A person must not knowingly or recklessly make a false or misleading representation to another person about either of the following—
(a)the other person’s or a third person’s obligation to engage in industrial activity;
(b)the other person’s or a third person’s obligation to disclose whether a person—
(i)is or is not, or was or was not, an officer or member of an industrial associationorganisation; or
(ii)is or is not engaging, or has or has not engaged, in industrial activity.

Note—

This subsection is a civil penalty provision.
(2)Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

293A Misrepresentations—right to represent

(1)This section applies in relation to an entity that is not an organisation.
(2)A person or other entity must not make a false or misleading representation to another person that the person or entity has the right to represent the industrial interests of a person or a particular group of persons.

Note—

This subsection is a civil penalty provision.
(3)For subsection (2), an entity does not have the right to represent the industrial interests of a person or a particular group of persons only because the entity’s rules state it has that right.

294Inducements—membership action

(1)An employer must not induce an employee to take, or propose to take, membership action.

Note—

This subsection is a civil penalty provision.
(2)A person takes membership action if the person becomes, does not become, remains or stops being an officer or member of an industrial associationorganisation.

Division 5 Other protections

295Discrimination

(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s sex, relationship status, pregnancy, parental status, breastfeeding, age, race, impairment, religious belief or religious activity, political belief or activity, trade union activity, lawful sexual activity, gender identity, sexuality, family responsibilities or association with, or in relation to, a person identified on the basis of any of these attributes.

Note—

This subsection is a civil penalty provision.
(2)However, subsection (1) does not apply to action that is—
(a)not unlawful under an anti-discrimination law; or
(b)taken because of the inherent requirements of the particular position concerned; or
(c)if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, taken—
(i)in good faith; and
(ii)to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3)Each of the following is an anti-discrimination law
(a)the Age Discrimination Act 2004 (Cwlth);
(b)the Disability Discrimination Act 1992 (Cwlth);
(c)the Racial Discrimination Act 1975 (Cwlth);
(d)the Sex Discrimination Act 1984 (Cwlth);
(e)the Anti-Discrimination Act 1991.

296Domestic violence

(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because someone has committed, or is committing, domestic violence against the person.

Note—

This subsection is a civil penalty provision.
(2)For subsection (1), it is not necessary that the person have the benefit of, or be named as the aggrieved under, any of the following—
(a)a domestic violence order;
(b)a police protection notice;
(c)an application for a domestic violence order.
(3)In this section—
aggrieved has the meaning given by the Domestic and Family Violence Protection Act 2012.
domestic violence order has the meaning given by the Domestic and Family Violence Protection Act 2012.
police protection notice has the meaning given by the Domestic and Family Violence Protection Act 2012.

297Temporary absence—illness or injury

(1)An employer must not dismiss an employee because the employee is temporarily absent from work—
(a)because of prescribed illness or prescribed injury; or
(b)for any of the following reasons if, having regard to all the circumstances, the period of absence is reasonable—
(i)the employee is an SES member or ESU member under the Fire and Emergency Services Act 1990 and is absent for the purpose of performing an SES function or ESU function under that Act in an emergency situation;
(ii)the employee is a member of a rural fire brigade under the Fire and Emergency Services Act 1990 and is absent for the purpose of performing a function of a rural fire brigade under that Act in an emergency situation;
(iii)the employee is an honorary ambulance officer under the Ambulance Service Act 1991 and is absent for the purpose of performing a function of an honorary ambulance officer under that Act in an emergency situation.

Note—

This subsection is a civil remedy provision.
(2)In this section—
prescribed means prescribed by regulation.

298Bargaining services fees

(1)An industrial associationorganisation, or an officer or member of an industrial associationorganisation, must not demand payment of a bargaining services fee from any person.

Note—

This subsection is a civil penalty provision.
(2)Subsection (1) does not apply if the bargaining services fee is payable to the industrial associationorganisation under a contract for the provision of bargaining services.
(3)In this section—
bargaining services means services provided by, or for, an industrial associationorganisation in relation to a bargaining instrument or proposed bargaining instrument, including in relation to bargaining for, or certifying, making, amending or terminating, the bargaining instrument or proposed bargaining instrument.
bargaining services fee
(a)means a fee (however described) payable to—
(i)an industrial associationorganisation; or
(ii)someone instead of an industrial associationorganisation; but
(b)does not include a membership fee.
demand includes—
(a)purport to demand; and
(b)do anything that would—
(i)have the effect of demanding; or
(ii)purport to have the effect of demanding.

299Coverage by particular instruments

(1)A person must not discriminate against an employer because—
(a)employees of the employer are covered, or not covered, by—
(i)provisions of the Queensland Employment Standards; or
(ii)a particular type of industrial instrument (including a particular kind of industrial instrument within a type of industrial instrument); or
(iii)a bargaining instrument that does, or does not, cover an employee organisation, or a particular employee organisation; or
(b)it is proposed that employees of the employer be covered, or not be covered, by—
(i)a particular type of industrial instrument (including a particular kind of industrial instrument within a type of industrial instrument); or
(ii)a bargaining instrument that does, or does not, cover an employee organisation or a particular employee organisation.

Note—

This subsection is a civil penalty provision.
(2)Subsection (1) does not apply to protected industrial action.

300Coercion—allocation of duties etc. to particular person

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person or a third person to—
(a)employ, or not employ, a particular person; or
(b)allocate, or not allocate, particular duties or responsibilities to a particular employee; or
(c)designate a particular employee as having, or not having, particular duties or responsibilities.

Note—

This section is a civil penalty provision.

301Objectionable terms

(1)A term of an industrial instrument, or an agreement or arrangement (whether written or unwritten), has no effect to the extent that it is an objectionable term.
(2)In this section—
objectionable term means a term that permits or has the effect of permitting, or purports to permit or have the effect of permitting, either of the following—
(a)a contravention of this part;
(b)the payment of a bargaining services fee as defined under section 298.
permit includes require.

Division 6 Sham arrangements

302Misrepresenting employment as independent contracting arrangement

(1)An employer who employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor.

Note—

This subsection is a civil penalty provision.
(2)Subsection (1) does not apply if the employer proves that, when the representation was made, the employer—
(a)did not know the contract was a contract of employment rather than a contract for services; and
(b)was not reckless as to whether or not that was the case.

303Dismissing to engage as independent contractor

(1)This section applies if an individual—
(a)is an employee of an employer; and
(b)performs particular work for the employer.
(2)The employer must not dismiss or threaten to dismiss the employee to engage the employee as an independent contractor to perform the same, or substantially the same, work under a contract for services.

Note—

This section is a civil penalty provision.

304Misrepresentation to engage as independent contractor

An employer who employs, or has at any time employed, an individual to perform particular work must not make a statement that the employer knows is false in order to persuade or influence the individual to enter into a contract for services under which the individual will perform, as an independent contractor, the same, or substantially the same, work for the employer.

Note—

This section is a civil penalty provision.

Division 7 Ancillary rules

305Multiple reasons for action

For this part, a person takes action for a particular reason if the reasons for the action include that reason.

306Reason for action to be presumed unless proved otherwise

(1)Subsection (2) applies if—
(a)in an application in relation to a contravention of a provision of this part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would be a contravention of the provision.
(2)It is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(3)Subsection (2) does not apply in relation to orders for an interim injunction.

307Advising, encouraging, inciting or coercing action

A person is taken to contravene a provision of this part if—
(a)for a particular reason, the person advises, encourages or incites, or takes any action with intent to coerce, another person to take action; and
(b)the action, if taken by the other person for that reason, would contravene the provision.

308Actions of industrial associationsorganisations

(1)For this part, each of the following is taken to be action of an industrial associationorganisation
(a)action taken by the committee of management of the industrial associationorganisation;
(b)action taken by an officer or agent of the industrial associationorganisation acting in that capacity;
(c)action taken by a member, or group of members, of the industrial associationorganisation if the action is authorised by—
(i)the rules of the associationorganisation; or
(ii)the committee of management of the associationorganisation; or
(iii)an officer or agent of the associationorganisation acting in that capacity;
(d)action taken by a member of the industrial associationorganisation who performs the function of dealing with an employer on behalf of the member and other members of the industrial associationorganisation, acting in that capacity;
(e)if the industrial associationorganisation is an unincorporated industrial associationorganisation that does not have a committee of management—action taken by a member, or group of members, of the industrial associationorganisation.
(2)Subsections (1)(c) and (d) do not apply if all reasonable steps to prevent the action have been taken by—
(a)the committee of management of the industrial associationorganisation; or
(b)a person authorised by the committee; or
(c)an officer of the industrial associationorganisation.
(3)If, for this part, it is necessary to establish the state of mind of an industrial associationorganisation in relation to particular action, it is enough to show—
(a)that the action was taken by a person, or a group, mentioned in subsection (1)(a) to (d); and
(b)that the person, or a person in the group, had that state of mind.

Division 8 Compliance

309Application for commission to deal with a dispute

(1)This section applies if—
(a)a person has been dismissed or has been affected by another contravention of this part; and
(b)the person or an organisation that has a right to represent the industrial interests of the person claims that the person has been dismissed or has been affected by another contravention of this part.
(2)The person or organisation may apply to the commission for the commission to deal with the dispute.

310Time for application

(1)An application relating to dismissal must be made within—
(a)21 days after the dismissal took effect; or
(b)if the commission allows a further period under subsection (2)—the further period.
(2)The commission may allow a further period if the commission is satisfied there are exceptional circumstances, taking into account—
(a)the reason for the delay; and
(b)any action taken by the person to dispute the dismissal; and
(c)prejudice to the employer (including prejudice caused by the delay); and
(d)the merits of the application; and
(e)fairness as between the person and other persons in a similar position.
(3)An application relating to a contravention of this part (other than dismissal) must be made within 6 years after the contravention occurs.

311Application fees

(1)The application must be accompanied by the fee prescribed by regulation.
(2)A regulation may prescribe—
(a)a fee for making the application to the commission; and
(b)the circumstances in which all or part of the fee may be waived or refunded.

312Conciliation before application heard

(1)If an application is made under section 309, the commission must hold a conference to attempt to settle it 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 have been, or are likely to be, unsuccessful, it must issue a written certificate to that effect.
(4)Also, if the commission considers, taking into account all the material before it, that arbitration of the dispute under section 313 would not have a reasonable prospect of success, the commission must advise the parties accordingly.

313Arbitration when conciliation unsuccessful

If the commission considers all reasonable attempts to settle the matter by conciliation have been made, but have been unsuccessful, the commission may hear and decide the application by—
(a)making an order under section 314; or
(b)dismissing the application.

314Orders on deciding application

(1)Without limiting the commission’s jurisdiction to make orders, the commission may make 1 or more of the following orders on deciding an application mentioned in section 313
(a)an order for reinstatement of the person;
(b)an order for the payment of compensation to the person;
(c)an order for payment of an amount to the person for remuneration lost;
(d)an order to maintain the continuity of the person’s employment;
(e)an order to maintain the period of the person’s continuous service with the employer;
(f)an order granting an interim or other injunction or make any other order it considers appropriate to prevent, stop, or remedy the effects of, a contravention of this part.
(2)A person to whom an order under subsection (1) applies must not contravene a term of the order.

Note—

This subsection is a civil penalty provision.

Part 2 Dismissals

Division 1 Exclusions

315Employees to whom this part does not apply

(1)Section 316 does not apply to any of the following—
(a)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
(b)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;
(c)a short term casual employee;
(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 division 2; or
(ii)the employee is participating in a labour market program and is dismissed before the period ends or the task is complete;
(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 equal to or more than the amount of the high income threshold under the Fair Work Act 2009 (Cwlth), section 333.
(2)Subsection (3) applies 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 (9).
(3)Periods of employment with a former employer that are taken to be service with a new employer because of section 132 must be taken into account.
(4)Division 3 does not apply to—
(a)a casual employee; or
(b)an employee engaged by the hour or day;
(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 equal to or more than the amount of the high income threshold under the Fair Work Act 2009 (Cwlth), section 333.
(5)Division 3 does not apply to an employee with less than 1 year of continuous service.
(6)A regulation may exclude particular employees from the operation of particular provisions of this part.
(7)Without limiting subsection (6), the regulation may identify as a class of employees the employees whose wages or salary immediately before dismissal was more than an amount, or an amount worked out in a way, prescribed by the regulation.
(8)Divisions 3 to 5 do not apply to an employee participating in a labour market program.
(9)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 year6 months; 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.

Division 2 Unfair dismissals

316When is a dismissal unfair

A dismissal is unfair if it is harsh, unjust or unreasonable.

317Application for reinstatement

(1)If it is claimed 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 part.
(2)The application must be made within—
(a)21 days after the dismissal takes effect; or
(b)if the commission allows a further period on an application made at any time—the further period.
(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 315(1) as a person to whom section 316 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 315(1) as a person to whom section 316 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.

318Conciliation before application heard

(1)The commission must hold a conference to attempt to settle an application under section 317 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 316 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 316 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 316 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 321 or 322.
(6)The president may delegate the functions of the commission under this section to the registrar or a deputy registrar.

319Arbitration 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 321 or 322; or
(b)dismissing the application.

320Matters to be considered in deciding an application

(1)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 claim about the conduct, capacity or performance; and
(d)any other matters the commission considers relevant.
(2)Without limiting subsection (1), the commission may decide a dismissal was not harsh, unjust or unreasonable if—
(a)the dismissal related to conduct of the employee while at work or otherwise in connection with the employee’s employment; and
(b)the employee’s conduct was, wholly or partly—
(i)unlawful; or
(ii)sexual harassment or sex or gender-based harassment.

321Remedies—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.

322Remedies—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 of the high income threshold under the Fair Work Act 2009 (Cwlth), section 333.
(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.

323Further 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 321 or this section.
(2)This section does not affect another provision of this Act allowing proceedings to be taken against the employer.

324Effect of order on leave

If the commission makes an order under section 321, 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 part.

Division 3 Requirements for dismissal

Subdivision 1 Orders giving effect to article 12 of Termination of Employment Convention

325When this subdivision applies

This subdivision applies to an application about severance allowance or other separation benefits.

326Orders 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 321(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.

327Time for making application under this subdivision

An application for an order under this subdivision 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.

Subdivision 2 Order giving effect to article 13 of Termination of Employment Convention

328When this subdivision applies

This subdivision applies if an employer decides to dismiss 15 or more employees for an economic, technological or structural reason.

329Employer 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 321(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)If a part of a penalty is ordered to be paid to a person under subsection (5), that part of the penalty must be paid first.
(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.

330Employer 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 give it a right to represent the industrial interests of a dismissed employee.

331Time for making application under this subdivision

An application for an order under this subdivision must be made—
(a)before, or within 21 days after, the dismissal takes effect; or
(b)if the commission allows a further period on an application made at any time—within the further period.

Division 4 Stand-down of employees

332Employee 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 Eve (from 6p.m. to midnight), 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.

333Permissible 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.

Division 5 General

334Part does not limit other rights

This part 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.

335Inconsistent instruments and orders

An industrial instrument or order that is inconsistent with an order under this part does not apply to the extent the inconsistency detrimentally affects the rights of employees concerned.

Chapter 9 Records and wages

Part 1 Employers records

Division 1 Definitions

336Definitions for part

In this part—
authorised officer see section 337(3).
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.
non-industrial instrument employee means a person who—
(a)is or has been employed by an employer; and
(b)works or has worked other than under an industrial instrument or a permit.
time and wages record
(a)for an industrial instrument employee—means a time and wages record required to be kept under section 339; and
(b)for a non-industrial instrument employee—means a time and wages record required to be kept under section 340.

Division 2 Authorised officers

337Authorising 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 (an authorised officer) who holds an authority that is in force may exercise the powers of an authorised officer under this part.
(4)The authority—
(a)must be applied for in the way prescribed by 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 officer acceptable to the organisation.
(5)If 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.

338Revoking and suspending officer’s authorisation

(1)The following persons may apply to the commission for an authorised officer’s authority under section 337 to be revoked or suspended—
(a)an employer;
(b)a person required to produce a record under section 345.
(2)If, after considering an application under subsection (1), the commission considers an authorised officer has abused the officer’s powers, 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.
(3)For subsection (2), an authorised officer has abused the officer’s powers if the officer has—
(a)contravened a condition of the authorisation; or
(b)entered an employer’s workplace other than under section 348; or
(c)contravened section 348(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 inspecting a record made available because of the officer’s powers as an authorised officer.

Division 3 Employers to keep certain records

339Time 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 103—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 the employee became an employee of the employer;
(g)if appropriate, the date 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 2, 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 after the date the work to which the record relates is performed.

Maximum penalty—40 penalty units.

(5)If asked by the employee, 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.

340Time 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

Note—

See, however, section 941.
(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 103—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.

(2)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 458(2).
(3)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.

(4)The employer must keep the record for 6 years after the date the work to which the record relates is performed.

Maximum penalty—40 penalty units.

(5)If asked by the employee, 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.

341Employee 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 the employee became an employee of the employer;
(e)if appropriate, the date 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, the employer must keep an alphabetical index of the employee’s names.

Maximum penalty—40 penalty units.

(3)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 the change happened.

Maximum penalty—40 penalty units.

(4)An employee must tell the employer—
(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.

(5)Particulars must be entered in a register opposite and relative to the name of the employee to whom the particulars relate.
(6)If an employer carries on business at more than 1 place, the employer must keep a register for each place.

342Records and indices to be kept in English

An employer must ensure a record or index kept under this part is kept, or is capable of being produced in, the English language.

343Notation 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 in accordance with subsection (2).

Maximum penalty—40 penalty units.

(2)The statement must include the following particulars—
(a)the employer’s full name;
(b)the date of payment;
(c)the period covered by the payment;
(d)the number of hours covered by the payment at—
(i)ordinary wage rate; and
(ii)overtime wage rate;
(e)the ordinary hourly rate and the amount paid at that rate;
(f)the overtime hourly rate and the amount paid at that rate;
(g)the gross wages paid;
(h)the net wages paid;
(i)details of any deductions made from the wages;
(j)the amount of contribution paid to a superannuation fund.
(3)The statement may be given on the employee’s pay envelope or advice.

Division 4 Power to inspect certain records

344Inspecting time and wages record—inspector

(1)An inspector may inspect a time and wages record—
(a)at a workplace in the employer’s business hours; or
(b)by asking for electronic access to the time and wages record.
(2)The employer must—
(a)if the inspector asks to inspect the time and wages record at a workplace under subsection (1)(a)—allow the inspector to inspect the record; or
(b)if the inspector asks for electronic access of the time and wages record under subsection (1)(b)—give the inspector electronic access to the record.

Maximum penalty—40 penalty units.

(3)Subsection (4) applies if—
(a)an employer does not produce the time and wages record to the inspector or provide electronic access to the record; or
(b)an inspector is obstructed during the inspection of the time and wages record; or
(c)an inspector wants to inspect the time and wages record of a former employer.
(4)The inspector may, by notice, require the employer or former employer to produce the time and wages 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 the employer has a reasonable excuse.
(6)The notice may be given by post or in another way.

345Right to request information about outworkers under code—authorised officer

(1)An authorised officer who is an officer or employee of an organisation that is entitled to represent the industrial interests of an employee under the code made under section 389 may, by notice, require a person to—
(a)produce a record required to be kept by the person under the code at a reasonable time and reasonable place; or
(b)give the authorised officer electronic access to the record.
(2)The person must comply with the notice.

Maximum penalty—27 penalty units.

(3)The officer may make a copy of the record, but can not require any help from the person.

346Inspecting employee register and index—registrar

(1)The registrar may inspect an employer’s employee register and index—
(a)at a workplace in the employer’s business hours; or
(b)by requesting electronic access to the time and wages record.
(2)The employer must—
(a)if the registrar inspects the time and wages record at a workplace under subsection (1)(a)—allow the registrar to inspect the record; or
(b)if the registrar requests access to an electronic copy of the time and wages record under subsection (1)(b)—give the registrar electronic access to the record.

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 the register or index for a ballot; or
(b)the registrar considers the direction is necessary to ensure an order of the court or commission requiring the register or index to be made available is complied with.
(4)The employer must comply with the direction.

Maximum penalty for subsection (4)—40 penalty units.

347Inspecting 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)Unless the employer otherwise agrees, 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.
(3)The employer may give the particulars to the employee in writing.

Division 5 Entry and inspection of applicable documents—authorised officers

Subdivision 1 Right of entry

348Right of entry

(1)An authorised officer who is an officer or employee of an organisation 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 subdivision 2.
(2)On entering the workplace, the authorised officer must first—
(a)notify the employer or the employer’s representative that has charge of the workplace of the officer’s presence; and
(b)produce the officer’s authorisation, if required by the employer or representative.
(3)Subsection (2) does not apply if neither the employer nor the employer’s representative having charge of the workplace is present when the authorised officer enters the workplace.
(4)The employer must not refuse an authorised officer entry to the workplace if the officer complies with subsection (2).

Maximum penalty—27 penalty units.

(5)If the authorised officer does not comply with subsection (2), the officer may be treated as a trespasser.

Subdivision 2 Powers after entry

349Definitions for subdivision

In this subdivision—
member employee means—
(a)an employee who is a member of the organisation of which the authorised officer is an employee or officer; or
(b)a former employee who was, or is, a member of the organisation of which the authorised officer is an employee or officer.
time and wages record means time and wages record required to be kept under section 339 or 340.

350Right to inspect particular records

(1)After entering a workplace under section 348, an authorised officer may ask—
(a)to inspect an applicable record; or
(b)to be given electronic access to an applicable record; or
(c)to be given a document or other record reasonably required by the officer to verify the accuracy of a record inspected or accessed under paragraph (a) or (b).
(2)Subject to section 354, an employer must comply with the request.

Maximum penalty—27 penalty units.

(3)However, an employer must not comply with the request to the extent that doing so is contrary to a written direction about the time and wages records of an employee, or a person eligible to be a member employee, given under section 351.

Maximum penalty—27 penalty units.

(4)The officer may make a copy of the record or document, but can not require help from the employer.
(5)If the employer keeps particulars other than those mentioned in section 339 in an applicable record, the employer need not make the other particulars available for inspection under subsection (2).
(6)In this section—
applicable record means—
(a)the time and wages record of—
(i)a member employee; or
(ii)a person who is eligible to become a member employee; or
(b)a record required to be kept under the code made under section 393.

351Written direction that records not be available for inspection

(1)A member employee, or a person eligible to be a member employee, may give an employer a written direction that a time and wages record for the employee not be available for inspection or electronic access by—
(a)an authorised officer; or
(b)a particular authorised officer.
(2)A person must not threaten or intimidate another person to persuade, or attempt to persuade, the person to give, or refuse to give, a written direction under subsection (1).

Maximum penalty—27 penalty units.

352Discussing matters with employer or employee

(1)An authorised officer may discuss matters under this Act with the following persons during working or non-working time—
(a)an employer;
(b)a member employee, or a person eligible to become a member employee.
(2)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.
(3)A person must not obstruct the officer exercising a power under this section.

Maximum penalty—27 penalty units.

353Authorised officer must not obstruct an employer or employee

An authorised officer must not wilfully obstruct an employer, or an employee during the employee’s working time.

Maximum penalty—27 penalty units.

354Person must not act as authorised officer without authorisation

A person must not act as an authorised officer unless the person holds a current authorisation.

Maximum penalty—27 penalty units.

Division 6 Providing employee information to registered employee organisations

354A Definition for division

In this division—
registered employee organisation means an employee organisation that is registered under chapter 12.

354B Authority to give information

(1)An employee may authorise the employee’s employer to give information about the employee to a registeredan employee organisation.
(2)The authorisation may be given to the employer—
(a)directly by the employee; or
(b)by a registeredan employee organisation on behalf of the employee.
(3)The authorisation—
(a)must be in writing and legible; and
(b)must state—
(i)the name of the employee; and
(ii)the name of the employee’s employer; and
(iii)the information to which the authorisation applies; and
(iv)the name of the registered employee organisation that may request the information and to which the information must be given; and
(c)must be signed by the employee, including by electronic signature; and
(d)may be made electronically.
(4)The authorisation has effect until the earliest of the following events happens—
(a)the authorisation is withdrawn by the employee;
(b)the employee’s employment with the employer ends;
(c)there is a break in the employee’s continuity of employment of longer than 3 months.
(5)The employer must keep an authorisation given under this section at, or in a place where it can be accessed from, a workplace of the employer in Queensland.

Note—

This subsection is a civil penalty provision.

354C Requirement to give information

(1)This section applies if—
(a)an employee has authorised an employer under section 354B to give information about the employee to a registeredan employee organisation; and
(b)the registered employee organisation gives the employer a written request for the information about the employee.
(2)The employer must, within 15 business days after receiving the request, give the registered employee organisation—
(a)the information requested to the extent it is held, or able to be accessed, by the employer; or
(b)if some or all of the information requested can not be given because it is not held, or able to be accessed, by the employer or because subsection (3) applies—a notice identifying the information that can not be given and the reason it can not be given.

Note—

This subsection is a civil penalty provision.
(3)Subsection (2)(a) does not apply if giving the information is inconsistent with an Act or law.
(4)The information—
(a)must be given in writing and be legible; and
(b)may be given electronically.
(5)If the employer gives information to the registered employee organisation under subsection (2)(a), the employer must notify the employee.
(6)If the employee is employed in a department (the first department), the information required to be given to the registered employee organisation by the first department includes information that—
(a)is held by another department; and
(b)relates to the employee’s employment in the first department.
(7)However, if the employee is employed in more than 1 department, the information required to be given by the department to which the request is given is limited to the information about the employee’s employment in that department.
(8)In this section—
department includes a public service office.

354D Unlawful access

A person must not wilfully deceive or mislead an employer in order to gain access under this division to information about an employee.

Maximum penalty—40 penalty units.

Part 2 Wages and occupational superannuation

Division 1 Interpretation

355Definitions for part

In this part—
attachment notice means an attachment notice serviced on a prime contractor under section 360.
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.
mine, in division 5, means a mine within the meaning of the Mining and Quarrying Safety and Health Act 1999.
mortgagee, in division 5, 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 5, 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.
subcontractor means a person who contracts with an employer to perform work to discharge the employer’s obligation to a prime contractor.

356References to service

A reference in this part to service on a person includes reference to service on the person’s agent.

Division 2 Protection for wages

357Wages 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 360 is served on the prime contractor, the prime contractor may pay the employer all amounts payable for the contracted work.

358Assignment 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.
(4)In this section—
assignment includes disposition and charge, whether legal or equitable.

359Amounts 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, other than by employees mentioned in subsection (5), until all wages payable, or to become payable, to the employees have been—
(a)properly paid to the employees; or
(b)have been secured to the employees 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—
(a)employed by the employer in performance of work for which the amounts are received; and
(b)whose wages are more than 8 days in arrears and are not paid when demanded; and
(c)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.

360Attachment notices

An employee, whose wages remain unpaid for 24 hours after the wages are payable and have been demanded by the employee, may serve the prime contractor with an attachment notice in the approved form.

361Effect of attachment notice

(1)This section applies if an attachment notice is served on the prime contractor.
(2)The prime contractor must keep 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 stated in the notice; and
(b)all further claims for wages stated 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 stated 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.

362Orders 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 361(4); or
(b)if no amount was paid to the clerk under section 361(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 an 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 361(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 for an amount that is more than the greater of the following amounts—
(a)the amount actually payable by the prime contractor to the employer when the order is served;
(b)the amount actually payable by the prime contractor to the employer when payment is made under the order.

363Employees 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 360 to 362.

364Employee may sue prime contractor

(1)Subsection (2) applies if—
(a)a prime contractor is served with a copy of a magistrate’s order made under section 362(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 360 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 357(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.

365Cessation of attachment not to prejudice prime contractor

(1)This section applies if an order under section 362 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.

366Discharge by employee for payment received

An employee who receives an amount for a claim for wages to which an order under section 362 relates must sign a discharge for the amount, in the approved form, if asked by the person making the payment.

367Remedy 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 applying this division (other than section 355 and this section) ‘employer’ is substituted for ‘prime contractor’ and ‘subcontractor’ is substituted for ‘employee’.

368Prime 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 a State law may validly apply to the distribution of assets.

369Magistrate 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.

Division 3 Paying and recovering wages

370Definitions for division

In this division—
fixed rate means the rate applicable under—
(a)for an apprentice or trainee—section 135; 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.
rate includes price.

371Wages 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)Subsection (4) applies 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.
(4)The employer must pay the employee the agreed rate without deduction, other than a deduction authorised by this division or the employee’s consent.
(5)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.
(6)A contract or authority is void to the extent it provides for a deduction to be made from wages in contravention of this section.

372Paying 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 212.
(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.

373Paying wages

(1)An employer must pay each employee’s wages at least monthly to the employee.

Maximum penalty—16 penalty units.

(2)An employer must pay each employee’s wages—
(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 wages are to be paid in cash and 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 an employer pays an employee’s wages other than in cash, the employer must pay the employee’s wages 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 employer must pay the wages to the employee within 3 days after the employment stops, or for a shorter period stated in an industrial instrument, unless—
(a)section 375 applies; or
(b)the employer has complied with an inspector’s demand under section 915.

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.

374Contract not to stipulate mode of spending wages

(1)An employer must not, directly or indirectly, 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, unless the condition is consistent with a requirement under this division.

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.

375Payment of unpaid wages if employee’s whereabouts unknown

(1)Subsection (2) applies if—
(a)an employer can not comply with section 373 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 Courtpublic trustee.

Maximum penalty—40 penalty units.

(3)The receipt of the clerkpublic trustee for the payment is a full discharge to the employer for the amount stated in the receipt.
(4)The public trustee must deal with the amount as unclaimed moneys under the Public Trustee Act 1978.
(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 915.
(6)In this section—
public trustee means the public trustee under the Public Trustee Act 1978.

376Overpaid 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 start 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 by a regulation.

377Deduction 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 stated period; and
(b)an employee ceases the employment without giving the employer the notice for the stated 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 stated.

378Child may recover unpaid wages

A child may bring proceedings under this Act for the child’s wages in the same way, and to the same extent, as if the child were an adult.

379Recovery 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 137; or
(c)remuneration lost by an apprentice or trainee because the employer has contravened section 371(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)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 a contract, certified agreement or bargaining award 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.
(5)A person can not make an application under this section if an application has been made under section 475 or 396 for the same matter.

380Enforcement 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 137(8); 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 371(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 registering the particulars prescribed by regulation, 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 386 applies.

Division 4 Recovery of wages for clothing outworkers

381Definitions for division

In this division—
apparent employer see section 382(2).
referred claim means a claim referred to a referred employer under section 383(4).
referred employer see section 383(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 382.

382Claims by clothing outworkers for unpaid wages and superannuation

(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 the outworker’s 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 the following particulars—
(i)the name of the outworker;
(ii)the address at which the outworker may be contacted;
(iii)a description of the work done;
(iv)the date on which the work was done;
(v)the amount of wages owing;
(vi)the amount of superannuation contributions owing;
(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.

383Liability of apparent employer for unpaid wages and superannuation

(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 386 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 384.

384Liability 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 an amount the apparent employer owes to the referred employer, whether or not in relation to the work the subject of the referred claim.

385Reimbursement 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 the apparent or referred employer paid to—
(a)the outworker; or
(b)an approved superannuation fund for the outworker.

386Recovery 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 $50,000 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 an amount claimed is not the correct amount, the commission or magistrate may order payment of the amount 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 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 the contributions been properly paid to an approved superannuation fund.

387Offences 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 another person from making an unpaid wages claim or an application under section 386; or
(b)make a statement the person knows is false or misleading in a material particular in a notice given for under section 383 or 384; or
(c)serve a referred claim on another person under section 383 if the person does not reasonably believe the work under an unpaid wages claim was done for the other person.

Maximum penalty—100 penalty units.

388Effect of ss 382387

(1)Sections 382 to 387 do not limit or exclude any other rights of a person to recover wages or superannuation contributions, or the liability of a 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 384(3) limits or excludes any right of recovery arising under any other law in relation to an amount of money owed by the apparent employer to the referred employer.

389Mandatory code of practice for outworkers

(1)The Governor in Council may make a code of practice for the purpose of ensuring outworkers in the clothing industry receive the outworkers’ lawful entitlements.
(2)In particular, the Governor in Council may make a code of practice if satisfied—
(a)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)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 set out in the code.
(4)The Governor in Council must give written notice of the making of the code of practice.
(5)The written notice is subordinate legislation.
(6)A person must not contravene the code of practice.

Maximum penalty—100 penalty units.

(7)An award prevails over a code of practice to the extent of any inconsistency.

Division 5 Wages in rural and mining industries

390Wages 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)The 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.

391Distress 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 390(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.

392Application of ss 390 and 391 to mines

(1)Sections 390 and 391 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 includes earnings for work.

393Priority in payment of wages earned in mine

(1)An amount of wages, of not more than 4 weeks, payable to an employee for work performed 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 subject to a mortgage or charge to secure payment of other amounts; or
(b)the claim or land is subject to a lien.
(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 includes earnings for work.

Division 6 Occupational superannuation

394Contributing 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 does not commit an offence if the employer—
(a)contributed—
(i)to a complying superannuation fund at a level required by a relevant industrial instrument; but
(ii)to a fund that is not the approved superannuation fund; and
(b)the employer did not knowingly contravene the instrument.
(4)If the commission makes an order under section 395(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 a magistrate is authorised by section 396 to make on an application under that section, and that section applies and extends accordingly.

395Power to order contribution to particular fund

(1)This section applies if—
(a)an industrial matter relates to an allegation 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, on 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 in order 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 contributions 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 the requirements, of a relevant industrial instrument, relating to employers’ contribution to the approved superannuation fund.

396Recovery 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 477(1) or (2).
(7)A person can not make an application under this section if an application has been made under chapter 11, part 2, division 4, subdivision 9 for the same matter.

Chapter 10 Fees charged by private employment agents

Part 1 Preliminary

397Definitions for chapter

In this chapter—
claimant, for part 3, division 2, see section 403.
fee includes charge, expense of any kind and reward.
finder’s fee means a fee for finding, or attempting to find, work for a person looking for work.
manager see section 399.
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.
private employment agent see section 398.
publish includes—
(a)publish in writing or in any other form of media; and
(b)cause to be published.
work seeker see section 400(1) or (2).

398Meaning 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 another person, 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 serviceemployment or a contract for serviceservices, 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.

399Meaning 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 management services.
(2)A private employment agent may be a manager of a model or performer whether or not any agreement between them states 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)For this section, management service
(a)includes any of the following services—
(i)handling business affairs for the model or performer;
(ii)providing accounting advice for the model or performer;
(iii)publicising and promoting the model or performer;
(iv)providing services ancillary to a performance by the model or performer;
(v)providing continuing career or artistic advice for the model or performer;
(vi)representing the model or performer in negotiations with media, entertainment industry workers or the public; but
(b)does not include a service mentioned in section 398(1)(a), (b) or (c).

Part 2 Requirements about payment of fees to private employment agents

400When fees are or are not payable to private employment agent

(1)A private employment agent must not directly or indirectly demand or receive a finder’s fee from a person looking for work (a work seeker) other than a model or performer.

Maximum penalty—16 penalty units.

(2)A private employment agent must not directly or indirectly demand or receive a finder’s fee from a person looking for work who is a model or performer (also a work seeker) unless—
(a)the agent gives the work seeker a written notice stating the particulars prescribed by regulation; and
(b)the fee payable is not more than the percentage prescribed by regulation of the gross amount payable to the work seeker for the work, excluding any allowances or payments prescribed by regulation; and
(c)the amount payable to the work seeker is at least the amount payable under an applicable industrial instrument.

Maximum penalty—16 penalty units.

(3)Subsection (2) does not apply if—
(a)the private employment agent is also the manager of the work seeker; and
(b)the fee is payable under a written agreement between the manager and the work seeker.
(4)In this section—
industrial instrument includes a federal industrial instrument.

Part 3 Recovery of fees

Division 1 Orders for repayment by magistrates

401Magistrate may order repayment of fees—criminal proceedings

(1)This section applies if a magistrate hears and decides a complaint for an offence against section 400(1) or (2).
(2)Subsection (3) applies if—
(a)the magistrate finds the defendant guilty; and
(b)the magistrate finds, on the balance of probabilities, a fee to have been received in contravention of section 400(1) or (2); and
(c)the fee has not been repaid to the work seeker; and
(d)the defendant is not liable to repay the fee to the work seeker under an existing order under section 402 or 405.
(3)The magistrate must order the defendant to repay the fee to the work seeker.
(4)If the magistrate does not find the defendant guilty, the magistrate may 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.
(5)The magistrate may make an order under this section—
(a)despite an express or implied provision of an agreement to the contrary; and
(b)on the terms the magistrate considers appropriate.

402Magistrate may order repayment of fees—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 400(1) or (2) from a person (claimant).
(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)another person authorised to act 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 400(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 401 or 405; 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 403 about the same matter.

Division 2 Orders for repayment on application to commission

403Application to commission

(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 400(1) or (2) from a person (claimant).
(2)An application can not be made to the commission if the total fee claimed under subsection (1) is more than $20,000.
(3)The application may be made by any of the following persons—
(a)the claimant;
(b)an employee organisation, of which the claimant is a member, acting for the claimant;
(c)another person authorised to act for the claimant;
(d)an inspector.
(4)The application must be made within 6 years after the claimant gave the agent the fee.
(5)A person can not make an application under this section if an application has been made under section 402 about the same matter.

404Remission to a magistrate

(1)This section applies if a presidential member considers an application made under section 403 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.
(2)The presidential member may, either before or after the start of a hearing, remit the application to a magistrate.
(3)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.

405Hearing of application by commission or magistrate

On hearing an application made under section 403, 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 400(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 division 1; 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.

Part 4 Enforcement

406Enforcement of magistrate’s orders

(1)This section applies if, under part 3, division 1, a magistrate orders—
(a)a private employment agent to repay a fee received by the agent in contravention of section 400(1) or (2) to a work seeker mentioned in section 401 or a claimant mentioned in section 402; or
(b)costs of a party under section 402.
(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, 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 registrar for the purpose of registering the particulars prescribed by regulation, in relation to the unpaid amount payable under the order, under the State Penalties Enforcement Act 1999, section 34.
(6)In this section—
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.

Chapter 10A Independent couriers

Part 1 Preliminary

406ADefinitions for chapter

In this chapter—
applied provision means a provision of this Act (other than a provision of this chapter) that a provision of this chapter states is an applied provision.
applies to, for a contract instrument, see section 406H.
certification application means an application under section 406ZC to certify an agreement proposed to be a negotiated agreement.
contract includes—
(a)an arrangement or understanding; and
(b)a collateral contract relating to a contract.
contract determination see section 406N(1)(a).
contract instrument means—
(a)a contract determination; or
(b)a negotiated agreement.
courier service contract see section 406D.
courier vehicle means—
(a)a motor vehicle within the meaning of the Transport Operations (Road Use Management) Act 1995; or
(b)a bicycle, including a bicycle that has an auxiliary motor; or
(c)a scooter within the meaning of the Transport Operations (Road Use Management) Act 1995.
covers, for a contract instrument, see section 406I.
independent courier see section 406B.
negotiated agreement see section 406V(1).
negotiating party, in relation to negotiations under part 4 with a view to a negotiated agreement being made, means—
(a)a person who is a party to the negotiations; or
(b)a person who has given notice under section 406X of the person’s intention to be a party to the negotiations; or
(c)another person who has received a notice of intention to start negotiations under section 406W and refuses to negotiate.
principal contractor see section 406C.
proposed negotiated agreement means—
(a)in relation to negotiations under part 4—the negotiated agreement proposed to be made as a result of the negotiations; or
(b)in relation to a certification application—the agreement the subject of the application.
relevant contract determination, in relation to a proposed negotiated agreement, see section 406ZD(2).
relevant employee organisation
(a)in relation to a proposed negotiated agreement—see section 406W(4); or
(b)in relation to a negotiated agreement—means an employee organisation or federal organisation of employees the agreement applies to; or
(c)in relation to an independent courier—means an employee organisation or federal organisation of employees of which the independent courier is a member.
scope order, in relation to a proposed negotiated agreement, see section 406ZB(1).
unfair contract see section 406ZU.
unfairly terminated, for a courier service contract, see section 406ZX.
valid majority means a majority of the independent couriers who are covered by a negotiated agreement, or who will be covered by a proposed negotiated agreement, who cast a valid vote to give an approval in relation to the agreement or proposed agreement, after the principal contractor has given the independent couriers a reasonable opportunity to decide whether they want to give the approval.

406BWho is an independent courier

(1)An independent courier is a person who provides a service transporting goods using a courier vehicle if, in the course of providing the service, the courier vehicle is driven only by—
(a)if the person is an individual—the individual; or
(b)if the person is a partnership—a partner in the partnership; or
(c)if the person is a corporation—
(i)an executive officer of the corporation; or
(ii)a member of the family of an executive officer of the corporation.
(2)It does not matter whether—
(a)a person mentioned in subsection (1)(b) or (c) is employed by the independent courier or engaged in another way; or
(b)a person other than the independent courier is temporarily employed, or temporarily engaged in another way, to provide the service, and drive the courier vehicle in the course of providing the service, while the independent courier is sick, taking leave or otherwise temporarily unavailable.
(3)In this section—
drive, a courier vehicle, includes ride the vehicle.
executive officer, of a corporation, means a person who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.

406CWho is a principal contractor

A principal contractor is a person who—
(a)carries on a business that includes arranging for goods to be transported by independent couriers; and
(b)in carrying on the business, uses 2 or more independent couriers to transport the goods.

406DWhat is a courier service contract

(1)A courier service contract is a contract between a principal contractor and an independent courier—
(a)under which the independent courier transports goods under arrangements made by the principal contractor; and
(b)that is not a contract of employment.
(2)A courier service contract includes a contract declared to be a courier service contract by an order of the commission under section 406E.
(3)Without limiting subsection (1) or (2), a courier service contract may be a franchise arrangement.

406EDeclaration that contract is courier service contract

The commission may make an order declaring that a contract is a courier service contract if satisfied the contract—
(a)has the effect of avoiding the provisions of this chapter; and
(b)provides for, or affects, the remuneration and working conditions of an independent courier who transports goods under arrangements made by another person; and
(c)is not a contract of employment between the independent courier and another person.

Part 2 General provisions for contract instruments

Division 1 General requirements for commission exercising powers

406FCriteria and considerations for commission exercising powers

(1)In exercising its powers under this chapter, the commission must ensure a contract instrument provides for remuneration and working conditions for independent couriers, for the work performed to provide services transporting goods under the instrument, that—
(a)are fair and just; and
(b)are comparable to the remuneration and working conditions an employee would receive under an industrial instrument or this Act for performing similar work; and
(c)generally reflect the prevailing minimum remuneration and working conditions of independent couriers covered, or to be covered, by the instrument.
(2)For subsection (1), the commission must consider the following matters—
(a)whether the remuneration provided for by the contract instrument represents, for the work performed by an independent courier under the instrument—
(i)fair recovery for the costs likely to be incurred by the independent courier to perform the work; and
(ii)a fair return for the independent courier’s work and capital investment likely to be required to perform the work;
(b)the market for the services to transport goods;
(c)the level of financial risk assumed by the independent courier to provide the services;
(d)the certainty and security of the services the independent courier is required to provide under the instrument;
(e)whether the contract instrument allows the independent courier to use the courier’s courier vehicle and other equipment to provide services for another principal contractor, or for the courier’s personal use;
(f)the matters mentioned in section 141(2);
(g)the value of the annual leave, personal leave, long service leave and other leave to which an employee mentioned in subsection (1)(b) is entitled under an industrial instrument or this Act.
(3)The commission may also consider any other matters the commission considers relevant.
(4)Section 141(2) is an applied provision for the commissioner exercising powers under this chapter.

Note—

See section 406ZZF about interpreting an applied provision.

Division 2 Effect of contract instruments

406GContravening contract instruments

(1)A person must not contravene a contract instrument that applies to the person.

Note—

This subsection is a civil penalty provision.
(2)A contract instrument does not impose obligations, or confer entitlements, on a person unless the instrument applies to the person.

406HWho a contract instrument applies to

(1)A contract instrument applies to a principal contractor, independent courier, organisation or federal organisation if—
(a)the instrument is in operation; and
(b)the instrument covers the principal contractor, independent courier, organisation or federal organisation.
(2)However, a contract determination does not apply to a principal contractor or independent courier to the extent an exemption under section 406R excludes the principal contractor or independent courier from the operation of the determination.
(3)A reference in this Act to a contract instrument applying to an independent courier is a reference to the instrument applying to the independent courier in relation to a particular class of courier service contracts.

406IWho a contract instrument covers

(1)This section applies in relation to a contract instrument that is in operation.
(2)A contract instrument covers a principal contractor, independent courier, organisation or federal organisation if—
(a)the instrument states that it covers (however described) the principal contractor, independent courier, organisation or federal organisation; or
(b)this Act, or an order made under this Act, has the effect that the instrument covers the principal contractor, independent courier, organisation or federal organisation.
(3)However, a contract instrument does not cover a principal contractor, independent courier, organisation or federal organisation if another provision of this Act, or an order made under this Act, provides or has the effect that the instrument does not cover the principal contractor, independent courier, organisation or federal organisation.
(4)A negotiated agreement also covers an employee organisation or federal organisation of employees if—
(a)the agreement is made with the organisation or federal organisation; or
(b)a decision of the commission certifying the agreement states that the agreement covers the organisation or federal organisation.
(5)A negotiated agreement to which a group of independent couriers is a party covers all of the independent couriers in the group, including independent couriers who enter a courier service contract with the principal contractor after the negotiated agreement is made.
(6)A reference in this Act to a contract instrument covering an independent courier is a reference to the instrument covering the independent courier in relation to a particular class of courier service contracts.

406JApplication of contract determination to successor principal contractors

To the extent a contract determination applies to a stated principal contractor, the determination applies to—
(a)the principal contractor and any successor of the principal contractor; and
(b)each independent courier who enters a courier service contract with the principal contractor and any successor.

406KApplication of negotiated agreement to successor principal contractors

(1)This section applies if—
(a)a negotiated agreement applies to a principal contractor; and
(b)at a later time, a new principal contractor becomes the successor (whether or not immediate) of the whole or part of the business of the principal contractor.
(2)From the later time—
(a)to the extent the negotiated agreement applies to the whole or part of the business, the negotiated agreement—
(i)applies to the new principal contractor; and
(ii)does not apply to the previous principal contractor; and
(b)a reference in this chapter to the principal contractor, to the extent the context relates to the whole or part of the business—
(i)is a reference to the new principal contractor; and
(ii)is not a reference to the previous principal contractor.

Division 3 Interaction of contract instruments and courier service contracts

406LRelationship of contract determination with negotiated agreement

(1)A contract determination may apply to an independent courier in relation to a particular class of courier service contracts at the same time a negotiated agreement applies to the independent courier in relation to the same class of courier service contracts.
(2)If both a contract determination and negotiated agreement apply to an independent courier in relation to a class of courier service contracts, the negotiated agreement applies to the extent of any inconsistency.

406MRelationship of contract instrument with courier service contract

(1)This section applies to a courier service contract—
(a)in effect when a contract instrument came into operation; or
(b)entered into after a contract instrument came into operation.
(2)The contract instrument prevails over the courier service contract to the extent of any inconsistency.
(3)The courier service contract must be interpreted, and takes effect, as if it were amended to the extent necessary to make the contract consistent with the contract instrument.
(4)However, there is no inconsistency only because the courier service contract provides for working conditions at least as favourable for the independent courier as the contract instrument.

Part 3 Contract determinations

406NContract determination fixing minimum remuneration and working conditions for independent couriers

(1)The commission may, on an application by an entity mentioned in section 406O or its own initiative—
(a)make a determination (a contract determination) fixing minimum remuneration and working conditions for independent couriers under—
(i)a class of courier service contracts; or
(ii)different classes of courier service contracts; or
(b)make an order varying a contract determination.

Note—

See section 406F for the matters the commission must consider in exercising its powers under this chapter in relation to a contract instrument.
(2)A contract determination must state the class of courier service contracts, or different classes of courier service contracts, for which the determination operates.
(3)A contract determination may state that it stops operating on a stated day.
(4)A class of courier service contracts may be identified by reference to a stated principal contractor.

406OWho may apply for contract determination

(1)The following entities may, under section 406N, apply for the making or variation of a contract determination for a class of courier service contracts—
(a)a principal contractor who engages independent couriers under the class of courier service contracts;
(b)2 or more principal contractors who engage independent couriers under the class of courier service contracts and who—
(i)are related bodies corporate within the meaning of the Corporations Act; or
(ii)are engaged in a joint venture or common enterprise; or
(iii)undertake similar work;
(c)an employer organisation, federal organisation of employers, or State peak council of which principal contractors who may be directly affected by the contract determination are members;
(d)an employee organisation, federal organisation of employees, or State peak council of which independent couriers who may be directly affected by the contract determination are members.
(2)An entity who applies for the making or variation of a contract determination for a class of courier service contracts must serve a copy of the application on—
(a)each other entity mentioned in subsection (1) in relation to the class of courier service contract; and
(b)each other person directed by the commission.

406PNotice of application and hearing

(1)As soon as practicable after an application for the making or variation of a contract determination is made under section 406O, the registrar must publish on the QIRC website—
(a)a copy of the application; and
(b)a notice stating—
(i)details of the class of courier service contracts that the application relates to; and
(ii)the hearing date for the application; and
(iii)that any person may make a written submission to the commission about the application before the hearing date.
(2)Also, the registrar must ensure a copy of the notice mentioned in subsection (1)(b) is published at least 21 days before the hearing date—
(a)in a newspaper circulating throughout the State; and
(b)in another newspaper or publication the registrar considers gives sufficient notice of the application to the public or the part of the public likely to be affected by or concerned with the application.
(3)Publication of the notice under subsection (2) may be in the electronic or online version of a newspaper or other publication.

406QEntities that may be heard on application

(1)A person, organisation, federal organisation or State peak council that will be covered by the proposed contract determination are entitled to be heard on an application for the contract determination.
(2)Another person may be heard only with the leave of the commission.
(3)The commission may give leave under subsection (2) only if the commission is satisfied there is a reasonable possibility that, if leave is not given, the commission will not be informed of an issue relevant to deciding the application.
(4)This section does not affect another right of an organisation, federal organisation or another person to be heard on, or to intervene in, the application.

406RExemptions from contract determination

(1)The commission may, on application, make an order exempting a person, contract, negotiated agreement or other matter from the operation of a contract determination, including, for example—
(a)a class of principal contractors or independent couriers; or
(b)a class of courier service contracts; or
(c)principal contractors or independent couriers in a particular locality.
(2)The commission may make the order if satisfied the exemption is not contrary to the public interest.
(3)An exemption has effect for the period, of not more than 3 years, stated in the exemption.
(4)The commission may review, vary or revoke an exemption on application or on its own initiative.

406SWhen contract determination operates

(1)A contract determination starts operating on the day stated in the determination.
(2)The stated day may be earlier than the day the contract determination is made but must not be earlier than the earliest of the following days—
(a)the day the application for the determination was made;
(b)the day the commission initiated the proceeding for the determination;
(c)the day the commission was given notice of the dispute giving rise to the determination.
(3)A contract determination continues in operation until—
(a)the determination is replaced by another contract determination; or
(b)if the determination states a day it stops operating—the stated day; or
(c)the determination is revoked under section 406T.

406TCommission’s power to revoke contract determination

(1)To provide for fair and just remuneration and working conditions for independent couriers, the commission may make an order revoking a contract determination.
(2)However, the commission must not make the order unless satisfied no independent couriers will be adversely affected by the revocation of the contract determination.
(3)The commission may make the order—
(a)on its own initiative; or
(b)on the application of—
(i)an organisation or federal organisation that represents, or is entitled to represent, the industrial interests of a person covered by the contract determination; or
(ii)a principal contractor covered by the contract determination; or
(c)on a review of the contract determination under section 406U.

406UCommission’s power to review contract determination

(1)The commission may review a contract determination—
(a)on its own initiative; or
(b)on the application of—
(i)a person the determination applies to; or
(ii)an organisation or federal organisation that represents, or is entitled to represent, a person the determination applies to.
(2)An application mentioned in subsection (1)(b) may include a request to vary a provision of the contract determination about remuneration or working conditions.

Part 4 Negotiated agreements

Division 1 Preliminary

406VWhat is a negotiated agreement

(1)A negotiated agreement is a written agreement—
(a)about the remuneration and working conditions of independent couriers engaged by a principal contractor in relation to a class of courier service contracts; and
(b)that has been certified under division 3.
(2)A negotiated agreement for a class of courier service contracts is made between—
(a)a party or parties representing 1 or more principal contractors under the class of courier service contracts, as mentioned in subsection (3); and
(b)a party or parties representing independent couriers engaged under the class of courier service contracts, as mentioned in subsection (4).
(3)For subsection (2)(a), the party or parties are—
(a)1 principal contractor; or
(b)2 or more principal contractors, collectively taken to be 1 party to the negotiated agreement, who—
(i)are related bodies corporate within the meaning of the Corporations Act; or
(ii)are engaged in a joint venture or common enterprise; or
(iii)undertake similar work; or
(c)an employer organisation or federal organisation of employers that represents, or is entitled to represent, 1 or more principal contractors.
(4)For subsection (2)(b), the party or parties are—
(a)1 or more employee organisations that represent, or are entitled to represent, the independent couriers who are, or are eligible to be, members of the organisation; or
(b)a group of the independent couriers at the time the agreement is made, whether all or a category of the independent couriers, who are collectively taken to be 1 party to the negotiated agreement.

Division 2 Negotiation process

406WNotice of intention to negotiate

(1)This section applies if a person (the proposer) proposes to negotiate with a view to a negotiated agreement being made.
(2)The proposer must give each other proposed party to the negotiations a written notice of the proposer’s intention to start negotiating.
(3)Without limiting subsection (2), a principal contractor who proposes to negotiate with a group of independent couriers must give the notice to each relevant employee organisation.
(4)A relevant employee organisation, in relation to a proposed negotiated agreement, is each employee organisation or federal organisation of employees that—
(a)is to be covered by the proposed agreement; or
(b)is entitled to represent the industrial interests of independent couriers who are to be covered by the proposed agreement.
(5)The notice must be given at least 14 days before the negotiations are proposed to start.
(6)If an existing negotiated agreement applies to the parties, the notice must not be given more than 6 months before the nominal expiry date of the existing agreement.

406XNotice of intention to be party to negotiations

(1)This section applies if—
(a)a person (the proposer) gives notice under section 406W of the proposer’s intention to start negotiating with a view to making negotiated agreement; and
(b)a person who receives the notice wants to be a party to the negotiations.
(2)The person must give written notice of the person’s intention to be a party to the negotiations to—
(a)the proposer; and
(b)the commission.
(3)A notice under subsection (2) must be given within 21 days after the person receives the proposer’s notice under section 406W.
(4)An agreement proposed to be a negotiated agreement may only be made during the period mentioned in subsection (3) if notice of intention to be a party to the negotiations has been given under subsection (2) by—
(a)each proposed party to the negotiations; and
(b)each relevant employee organisation for the proposed agreement.

406YProposed negotiated agreement to be given to independent couriers for approval

(1)This section applies if, during negotiations under this part, the negotiating parties propose to make a negotiated agreement.
(2)The principal contractor must take reasonable steps to ensure that, at least 14 days before the day the independent couriers who are to be covered by the proposed negotiated agreement are asked to approve the proposed agreement—
(a)each independent courier has, or has ready access to, a copy of the proposed agreement; and
(b)the terms of the proposed agreement are explained to each independent courier; and
(c)for an agreement with a group of independent couriers—each independent courier is informed that the independent courier may be represented in the negotiations by a relevant employee organisation.
(3)The principal contractor must not ask the independent couriers to approve the proposed negotiated agreement until 21 days after the later of the following—
(a)the day notice of intention to start the negotiations was given under section 406W;
(b)the day a scope order in relation to the proposed negotiated agreement came into effect.
(4)If an independent courier is represented in the negotiations by a relevant employee organisation, the principal contractor must give the organisation a reasonable opportunity to represent the independent courier in the negotiations before the proposed negotiated agreement is made.
(5)Subsection (4) stops applying if—
(a)the independent courier stops being represented by the relevant employee organisation; or
(b)the independent courier stops being an independent courier who will be covered by the proposed negotiated agreement.
(6)If the proposed negotiated agreement is amended, the steps in subsections (2) and (3) must be taken again for the proposed agreement as amended.
(7)However, subsection (6) does not apply if the commission is satisfied the amendment was only—
(a)for a formal or clerical reason; or
(b)in another way that does not adversely affect an independent courier’s interests.

406ZParties must negotiate in good faith

(1)The negotiating parties must negotiate in good faith.
(2)Without limiting subsection (1), each party must do the following things—
(a)attend and participate in negotiating meetings;
(b)disclose relevant information, other than confidential or commercially sensitive information, in a timely way;
(c)genuinely consider proposals made by other parties, respond in a timely way and give reasons for the party’s response;
(d)not engage in capricious or unfair conduct that undermines freedom of association or the negotiating process.
(3)Without limiting subsection (2)(b), the parties must obtain, and disclose as soon as practicable after the start of the negotiations, information relevant to the gender pay gap under the proposed negotiated agreement, including—
(a)the distribution of the independent couriers by gender; and
(b)details of the gender pay gap; and
(c)any major factors identified as contributing to the gender pay gap; and
(d)if appropriate, the projected effect of the proposed negotiated agreement on the gender pay gap; and
(e)other information relevant to the gender pay gap reasonably requested by another party to the negotiations; and
(f)other information relevant to the gender pay gap prescribed by regulation.
(4)For subsection (3), the gender pay gap under the proposed negotiated agreement is the difference between the average weekly full-time equivalent earnings of male independent couriers and female independent couriers covered by the proposed negotiated agreement.
(5)Subject to subsections (1) and (2), the negotiating parties may make an agreement about procedures or principles for the conduct of the negotiations.

406ZA Conciliation and arbitration by commission

(1)A negotiating party may ask the commission to help the parties reach agreement.
(2)The commission has jurisdiction to—
(a)conciliate the matter to help the negotiating parties reach agreement on all matters or as many matters as possible; and
(b)determine, by arbitration, matters in dispute following conciliation.
(3)Chapter 4, part 3
(a)is an applied provision for this section; and

Note—

See section 406ZZF about interpreting an applied provision.
(b)without limiting section 406ZZF, applies for this section as if the reference in section 180(3)(a) to a proposed bargaining instrument the subject of a part 5 application were a reference to the proposed negotiated agreement for the certification application.
(4)If the commission makes an arbitration determination under chapter 4, part 3, the determination is taken to be a negotiated agreement certified by the commission under division 3.

406ZB Scope orders

(1)A negotiating party may apply to the commission for an order providing for the matters mentioned in subsection (2) in relation to a proposed negotiated agreement (a scope order) if the negotiating party has concerns the proposed negotiated agreement—
(a)will not cover appropriate independent couriers; or
(b)will cover independent couriers whom it is inappropriate for the agreement to cover.
(2)A scope order in relation to a proposed negotiated agreement must state—
(a)the principal contractor, or principal contractors, to be covered by the agreement; and
(b)the independent couriers to be covered by the agreement; and
(c)the organisations or federal organisations to be parties to the agreement.
(3)Chapter 4, part 4 (other than sections 184(1) and 186)—
(a)is an applied provision for this section; and

Note—

See section 406ZZF about interpreting an applied provision.
(b)without limiting section 406ZZF, applies for this section as if the application referred to in section 184(2) were the application under subsection (1).

Division 3 Certifying negotiated agreements

Subdivision 1 Making and hearing applications

406ZC Application for certification of negotiated agreement

(1)A party to an agreement proposed to be a negotiated agreement may apply to the commission to certify the agreement.
(2)The application must be made within 21 days after—
(a)the day the agreement is signed by or for all of the parties; or
(b)the day the agreement was approved by the independent couriers who will be covered by the agreement as required under section 406ZH.

406ZD Notice of hearing

(1)The registrar must, at least 7 days before a certification application will be heard, place a notice in the registry stating details of—
(a)the names of the parties to the agreement proposed to be a negotiated agreement; and
(b)a relevant contract determination for the proposed negotiated agreement; and
(c)the hearing date.
(2)A relevant contract determination for a proposed negotiated agreement is a contract determination that—
(a)regulates any working conditions of the independent couriers engaged in the same kind of work as the work performed by the independent couriers to be covered by the proposed agreement; and
(b)immediately before the day the proposed agreement is certified, covers a principal contractor who engages independent couriers mentioned in paragraph (a).

406ZE Entities that may be heard on application

(1)The following are entitled to be heard on a certification application—
(a)a person who will be covered by the proposed negotiated agreement;
(b)an organisation or federal organisation that will be a party to the proposed agreement.
(2)Another organisation or federal organisation may be heard only with the leave of the commission.
(3)The commission may give leave under subsection (2) only if the commission is satisfied there is a reasonable possibility that, if leave is not given, the commission will not be informed of an issue relevant to deciding the application.
(4)This section does not affect another right of an organisation, federal organisation or another person to be heard on, or to intervene in, the application.

Subdivision 2 Deciding applications

406ZF Requirements for commission’s decision

(1)The commission must grant a certification application if—
(a)each requirement under section 406ZG is satisfied for the application; and
(b)the commission is not required to refuse to grant the application under section 406ZL, 406ZM or 406ZN.
(2)If subsection (1) does not apply, the commission must refuse to grant the certification application.
(3)Before refusing to grant the certification application, the commission must give persons who will be covered by the proposed negotiated agreement an opportunity to take action that may be necessary to enable the commission to grant the application.
(4)The commission may conciliate an industrial matter concerned with a view to helping the persons take the action necessary to enable the commission to grant the application.

406ZG Requirements for granting application

(1)The commission must be satisfied about the following matters in relation to the proposed negotiated agreement—
(a)notice of intention to start negotiating the agreement was given under section 406W;
(b)the principal contractor took the reasonable steps required under section 406Y;
(c)the principal contractor did not coerce, or attempt to coerce, an independent courier not to be represented, or to stop being represented, by a relevant employee organisation as mentioned in section 406Y(2)(c);
(d)the agreement is agreed by parties as required under section 406ZH;
(e)the agreement states—
(i)the parties to the agreement; and
(ii)for an agreement to which a group of independent couriers is a party—the name of each member of the group; and
(iii)the class of courier service contracts to which the agreement relates; and
(iv)a nominal expiry date that is no later than 4 years after the day the agreement will come into operation;
(f)the agreement passes the no-disadvantage test under section 406ZI;
(g)the agreement passes the equal remuneration test under section 406ZK;
(h)subject to subsection (2), each relevant employee organisation is a party to the agreement;
(i)if a scope order in relation to the agreement is in effect—the agreement is not inconsistent with the scope order;
(j)the agreement is stated in plain English and its structure and content is easy to understand.
(2)Subsection (1)(h) does not apply in relation to a relevant employee organisation if the commission is satisfied the organisation—
(a)has been given the opportunity to be a party to the proposed negotiated agreement, but does not want to be a party; or
(b)has no members who are to be covered by the proposed negotiated agreement.

406ZH Proposed negotiated agreement agreed by all parties

(1)An agreement that is proposed to be a negotiated agreement is agreed by all of the parties if—
(a)the agreement is signed by or for all of the parties; or
(b)the commission is satisfied all parties have agreed on the terms of the agreement and the agreement was approved by—
(i)for an agreement to which a group of independent couriers is a party—at least 65% of the independent couriers who will be covered by the agreement in a secret ballot; or
(ii)otherwise—a valid majority of the independent couriers who will be covered by the agreement in a properly conducted ballot.
(2)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 406Z; and
(b)any other evidence supporting or not supporting the alleged agreement.

406ZI No-disadvantage test

(1)The commission must be satisfied the proposed negotiated agreement does not disadvantage independent couriers in relation to their working conditions.
(2)The agreement disadvantages independent couriers only if the commission considers the agreement would result in—
(a)a reduction in the independent couriers’ entitlements and protections under—
(i)a relevant contract determination; or
(ii)a contract determination decided by the commission under section 406ZJ(3) for the proposed agreement; or
(b)remuneration and working conditions that—
(i)are not fair and just; or
(ii)are less favourable than the remuneration and working conditions an employee would receive under an industrial instrument or this Act for performing similar work.

Note—

See section 406F for the matters the commission must consider in exercising its powers under this chapter in relation to a contract instrument.
(3)Subsection (2) does not apply if the commission considers that, in the context of the remuneration and working conditions as a whole, the reduction or less favourable conditions are not against the public interest.
(4)If the president considers exceptional circumstances exist, the president may require the registrar to give the commission a report comparing the proposed negotiated agreement with—
(a)a relevant contract determination; or
(b)a contract determination decided by the commission under section 406ZJ(3) for the proposed agreement; or
(c)the remuneration and working conditions an employee would receive under an industrial instrument or this Act for performing similar work.

406ZJ Deciding relevant contract determination

(1)This section applies if—
(a)a principal contractor, organisation or federal organisation proposes to make a negotiated agreement; and
(b)there is no relevant contract determination for some or all of the independent couriers to whom the agreement will apply.
(2)The principal contractor, organisation or federal organisation must apply to the commission for a decision under subsection (3).
(3)On application, the commission must decide that a contract determination that regulates the remuneration and working conditions of independent couriers engaged in similar work as the independent couriers under the proposed agreement is appropriate for deciding whether the agreement passes the no-disadvantage test under section 406ZI.

406ZK Equal remuneration test

The commission must be satisfied, in relation to the independent couriers to be covered by the agreement—
(a)a proposed negotiated agreement provides for equal remuneration for work of equal or comparable value; and
(b)a principal contractor to whom the proposed negotiated agreement applies has implemented, is implementing or, if the agreement is certified, will implement equal remuneration for work of equal or comparable value.

406ZL Refusal to grant application—generally

(1)The commission must refuse to grant a certification application for an agreement proposed to be a negotiated agreement if the commission considers—
(a)a provision of the agreement—
(i)is inconsistent with an equal remuneration order; or
(ii)seeks to prohibit or restrict an application being made for an equal remuneration order; or
(b)a provision of the agreement is an objectionable term; or
(c)a provision of the agreement is discriminatory.
(2)For subsection (1)(c), a provision of the agreement is not discriminatory only because it provides for minimum remuneration for—
(a)all independent couriers under 21 years; or
(b)all independent couriers with disability; or
(c)a class of independent couriers mentioned in paragraph (a) or (b).
(3)The commission has jurisdiction to make an equal remuneration order in relation to the agreement.
(4)Chapter 5, part 3 and chapter 8, part 1 are applied provisions for this section.

Note—

See section 406ZZF about interpreting an applied provision.
(5)In this section—
equal remuneration order means an order made under chapter 5, part 3.
objectionable term means a term that permits, or has the effect of permitting, or purports to permit or have the effect of permitting—
(a)a contravention of chapter 8, part 1; or
(b)the payment of a bargaining services fee within the meaning of section 298.
permit includes require.

406ZM Refusal to grant application—contravention of industrial action provision

(1)The commission must refuse to grant a certification application if the commission is satisfied that, in connection with negotiations for the proposed negotiated agreement—
(a)the principal contractor has contravened an industrial activity provision; or
(b)the principal contractor has caused an entity to engage in conduct that, had the principal contractor engaged in the conduct, would be a contravention by the principal contractor of an industrial activity provision; or
(c)an entity has, for the principal contractor, engaged in conduct mentioned in paragraph (b) or caused another entity to engage in the conduct.
(2)Subsection (1) does not apply if the commission is satisfied the contravention or conduct, and its effects, have been fully remedied.
(3)Chapter 8, part 1, division 4 is an applied provision for this section.

Note—

See section 406ZZF about interpreting an applied provision.
(4)In this section—
industrial activity provision means a provision of chapter 8, part 1, division 4.

406ZN Refusal to grant application—independent couriers covered by proposed negotiated agreement

(1)The commission must refuse to grant a certification application for an agreement proposed to be a negotiated agreement if—
(a)the agreement applies only to a group or category of independent couriers engaged by a principal contractor; and
(b)the commission considers—
(i)the agreement defines the group or category in a way that results in other independent couriers not being covered by the proposed negotiated agreement; and
(ii)it would be reasonable for the other independent couriers to be covered by the proposed negotiated agreement; and
(iii)it is unfair that the other independent couriers are not covered by the proposed negotiated agreement.
(2)For subsection (1)(b)(ii), in deciding whether it would be reasonable for the other independent couriers to be covered by the proposed negotiated agreement, the commission must consider—
(a)the nature of the work performed by the other independent couriers; and
(b)the geographical, organisational and operational relationship between the group or category and the other independent couriers.

Subdivision 3 Other provisions

406ZO Provisions for preventing and settling disputes

The procedures for preventing and settling disputes contained in a negotiated agreement may, with the commission’s approval, authorise the commission to settle a dispute.

406ZP Publication of negotiated agreements

(1)As soon as practicable after granting a certification application for a proposed negotiated agreement, the commission must give the registrar—
(a)a copy of the negotiated agreement certified by the commission; and
(b)written reasons for the certification.
(2)As soon as practicable after the registrar receives a copy of the negotiated agreement, the registrar must—
(a)give notice of certification of the agreement to the parties; and
(b)ensure a copy of the agreement is published on the QIRC website.

406ZQ When negotiated agreements operate

A negotiated agreement—
(a)starts operating when it is certified; and
(b)continues to operate until it is terminated under section 406ZS or 406ZT.

Division 4 Amending and terminating negotiated agreements

406ZR Amendment on application

(1)An application to amend a negotiated agreement may be made by—
(a)if the agreement applies to 1 or more relevant employee organisations—the principal contractor and each relevant employee organisation the agreement applies to; or
(b)if the amendment amends the parties to the agreement—the person who wants to become a party to the agreement; or
(c)otherwise—the principal contractor.
(2)The commission must approve the amendment if, and must not approve the amendment unless, satisfied—
(a)the amendment is approved as required under subsection (3) or (4); and
(b)the commission would be required to certify the negotiated agreement as amended if it were an agreement for which a certification application were made.
(3)An amendment that amends the parties to the agreement must be approved by—
(a)the principal contractor; and
(b)either—
(i)for a negotiated agreement that applies to a relevant employee organisation—the relevant employee organisation; or
(ii)for a negotiated agreement to which a group of independent couriers is a party—at least 65% of the independent couriers covered by the agreement in a secret ballot.
(4)Any other amendment must be approved by—
(a)for an agreement to which a group of independent couriers is a party—at least 65% of the independent couriers covered by the agreement in a secret ballot; or
(b)otherwise—a valid majority of the independent couriers covered by the agreement in a properly conducted ballot.
(5)In applying subsection (2)(b)—
(a)the requirement in section 406ZG(1)(d) about the agreement being agreed by all of the parties is taken to be satisfied; and
(b)section 406ZF(3) and (4) is to be disregarded.
(6)The amendment takes effect when the commission’s approval takes effect.

406ZS Termination on or before nominal expiry date

(1)On or before the nominal expiry date of a negotiated agreement, all of the parties to which the agreement applies may apply to the commission to terminate the agreement.
(2)The commission must approve the termination if, and must not approve the termination unless, satisfied the termination is approved by—
(a)for a negotiated agreement to which a group of independent couriers is a party—at least 65% of the independent couriers covered by the agreement in a secret ballot; or
(b)otherwise—a valid majority of the independent couriers covered by the agreement in a properly conducted ballot.
(3)The termination takes effect when the commission’s approval takes effect.

406ZT Termination after nominal expiry date

(1)After the nominal expiry date of a negotiated agreement, the following persons may apply to the commission to terminate the agreement—
(a)the principal contractor;
(b)an employer organisation or federal organisation of employers the agreement applies to, if the organisation or federal organisation has at least 1 member who is a principal contractor;
(c)for a negotiated agreement to which a group of independent couriers is a party—at least 65% of the independent couriers covered by the agreement in a secret ballot;
(d)if paragraph (c) does not apply—a valid majority of the independent couriers covered by the agreement in a properly conducted ballot;
(e)a relevant employee organisation the agreement applies to, if the organisation has at least 1 member who is an independent courier.
(2)The person who intends to apply to terminate the negotiated agreement must give all of the other persons the agreement applies to notice of the intention at least 3 months before making the application.
(3)The commission must approve the termination if, and must refuse to approve the termination unless, satisfied subsection (2) has been complied with and either—
(a)for an agreement that provides that it may be terminated if particular conditions are met—the conditions have been met; or
(b)for another agreement—
(i)the other parties to the agreement agree to it being terminated; or
(ii)termination of the agreement is not contrary to the public interest.
(4)The termination takes effect when the commission’s approval takes effect.

Part 5 Individual courier service contracts

Division 1 Amending or voiding courier service contracts

406ZU What is an unfair contract

(1)A courier service contract is an unfair contract if the contract—
(a)is harsh, unconscionable or unfair; or
(b)is against the public interest; or
(c)provides, or has provided, a total remuneration for performing the work stated in the contract less than that which—
(i)a person performing the work an independent courier would receive under a contract instrument; or
(ii)an employee performing the work would receive under an industrial instrument or this Act; or
(d)is designed to, or does, avoid the provisions of a contract instrument.
(2)However, a courier service contract is not an unfair contract under subsection (1)(c) if the commissioner considers that, in the context of the remuneration and working conditions provided for by the contract as a whole, the reduction in remuneration is not against the public interest.

406ZV Power to amend or declare void unfair courier service contracts

(1)On application by an entity under section 406ZW, the commission may amend or declare void (wholly or partly) a courier service contract to the extent the commission considers—
(a)the contract is inconsistent with a contract instrument; or
(b)the contract is an unfair contract.
(2)In deciding whether to amend or declare void the courier service contract, or part of the courier service contract, the commission may consider—
(a)the relative bargaining power of—
(i)the parties to the contract; and
(ii)if applicable, a person 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)a contract instrument; or
(d)an industrial instrument, a federal industrial instrument or this Act; or
(e)anything else the commission considers relevant.
(3)The commission may consider the courier service 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 an amendment of the contract, or for another reason the commission considers sufficient.
(4)The commission may make an order it considers appropriate about payment of an amount for a courier service contract amended or declared void.

406ZW Who may apply for amendment or declaration

An application to amend or declare void a courier service contract under section 406ZV may be made by—
(a)a party to the contract; or
(b)for the independent courier—an inspector; or
(c)for a party to the contract who is, or has applied to become, a member of an organisation or federal organisation—the organisation or federal organisation acting with the party’s written consent.

Division 2 Unfair termination of courier service contracts

406ZX When is courier service contract unfairly terminated

A courier service contract is unfairly terminated if termination of the contract is harsh, unjust or unreasonable.

406ZY Unfair termination of courier service contract

(1)This section applies if it is claimed that an independent courier’s courier service contract with a principal contractor was unfairly terminated by the principal contractor.
(2)An application (an unfair termination application) for reinstatement or compensation may be made to the commission by—
(a)the independent courier; or
(b)with the independent courier’s consent, an organisation or federal organisation that is entitled to represent the industrial interests of the independent courier.
(3)The application must be made within—
(a)21 days after the day the termination takes effect; or
(b)if the commission allows a further period on an application made at any time—the further period.
(4)The commission must deal with the application as quickly as possible.

406ZZ Conciliation before application heard

(1)The commission must hold a conference to attempt to settle an unfair termination application by conciliation before it hears the application.
(2)Section 318 is an applied provision for this section.

Note—

See section 406ZZF about interpreting an applied provision.

406ZZA Arbitration when conciliation unsuccessful

(1)If the commission considers all reasonable steps 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 406ZZB or 406ZZC; or
(b)dismissing the application.
(2)In deciding whether termination of the courier service contract was harsh, unjust or unreasonable, the commission must consider the following matters—
(a)how long the independent courier provided services transporting goods for the principal contractor under the contract or otherwise;
(b)whether the independent courier was notified of the reasons for termination;
(c)whether the termination related to—
(i)the operational requirements of the principal contractor’s business or service; or
(ii)the independent courier’s conduct, capacity or performance;
(d)if the termination relates to the independent courier’s conduct, capacity or performance—
(i)whether the independent courier had been warned about the conduct, capacity or performance; or
(ii)whether the independent courier was given an opportunity to respond to the claim about the conduct, capacity or performance;
(e)any other matters the commission considers relevant.

406ZZB Remedies—reinstatement of courier service contract

(1)This section applies if the commission considers an independent courier’s courier service contract was unfairly terminated by the principal contractor.
(2)The commission may order the principal contractor to reinstate the courier service contract for the independent courier on conditions at least as favourable as the conditions of the terminated courier service contract, immediately before it was terminated.
(3)Reinstatement of the courier service contract includes re-engagement under a new courier service contract.
(4)The commission may also make an order it considers appropriate about—
(a)payment of an amount for—
(i)the termination; and
(ii)the period between the termination and reinstatement under subsection (2); or
(b)a period after the termination of the courier service contract to be treated as a period of engagement under relevant courier service contracts.
(5)This section does not limit the commission’s power to make an interim or interlocutory order.

406ZZC Remedies—compensation

(1)If, and only if, the commission considers reinstatement under section 406ZZB would be impracticable, the commission may order the principal contractor to pay the independent courier an amount of compensation decided by the commission.
(2)The commission must not award an amount of compensation that is more than the amount of remuneration paid to the independent courier during the 6 months immediately before the termination of the contract.
(3)The commission must take into account any amount paid to the independent courier by the principal contractor on termination of the courier service contract.
(4)This section does not limit the commission’s power to make an interim or interlocutory order.

406ZZD Further orders if principal contractor fails to reinstate

(1)If a principal contractor wilfully contravenes an order to reinstate a courier service contract for an independent courier, the commission may—
(a)further order the principal contractor to pay the independent courier—
(i)an amount of not more than the monetary value of 50 penalty units; and
(ii)an amount for lost remuneration; and
(b)make further orders until the principal contractor complies with an order under section 406ZZB or this section.
(2)This section does not affect another provision of this Act allowing proceedings to be taken against the principal contractor.

Part 6 General provisions

406ZZE Dispute resolution

(1)This section applies in relation to a dispute that—
(a)exists between—
(i)a principal contractor, employer organisation or federal organisation of employers; and
(ii)an independent courier, employee organisation or federal organisation of employees; and
(b)is about—
(i)the interpretation or enforcement of a contract instrument, unless this Act otherwise provides; or
(ii)another matter that would be an industrial dispute if the principal contractor were an employer and the independent courier were an employee.
(2)Chapter 6
(a)is an applied provision for the dispute; and

Note—

See section 406ZZF about interpreting an applied provision.
(b)without limiting section 406ZZF, applies for the dispute as if a reference to an industrial dispute were a reference to the dispute.

406ZZF Interpretation of applied provisions

(1)An applied provision applies for a provision of this chapter, or a stated purpose, as if a reference in the applied provision to a term stated in column 1 of the table below were a reference to the term stated opposite in column 2—

Column 1

Column 2

an employer

a principal contractor

an employee

an independent courier

a modern award

a contract determination

a certified agreement or bargaining instrument

a negotiated agreement

a proposed certified agreement or proposed bargaining instrument

a proposed negotiated agreement

an industrial instrument

a contract instrument

a negotiating party for a proposed certified agreement or proposed bargaining instrument

a negotiating party under section 406A for a proposed negotiated agreement

an employer organisation that is, or is to be, a party to an industrial instrument

an employer organisation or federal organisation of employers that is, or is to be, a party to a contract instrument

an employee organisation that is, or is to be, a party to an industrial instrument

an employee organisation or federal organisation of employees that is, or is to be, a party to a contract instrument

(2)For a provision of this chapter that relates to a negotiated agreement or a proposed negotiated agreement, the applied provision applies as if—
(a)there were a peace obligation period for the negotiations and the period had ended; and
(b)a reference to the requirement under section 173 to negotiate in good faith were a reference to the requirement to negotiate in good faith under section 406Z; and
(c)a reference to the proposed bargaining instrument being certified or made by the commission under chapter 4, part 5 were a reference to the proposed negotiated agreement being certified under part 4, division 3.
(3)For a provision of this chapter that relates to work of equal or comparable value, the applied provision applies as if a reference to remuneration included the fees, allowances and other amounts payable, or other benefits made available, to an independent courier under a courier service contract.
(4)Without limiting subsection (1), (2) or (3)—
(a)a reference in an applied provision to another provision that applies for this chapter is a reference to the other provision as it applies for this chapter; and
(b)an applied provision also applies with other necessary changes.

Chapter 11 Industrial tribunals and registry

Part 1 Industrial court of Queensland

Division 1 Preliminary

407Continuance

The Industrial Court of Queensland (the court) is established as a superior court of record in Queensland.

408Official seal

The court has an official seal that must be judicially noticed.

409Membership

The members of the court are—

(a)the president; and
(b)the vice-president; and
(c)the deputy president (court).

410Constitution

The court is constituted by the president, the vice-president or a deputy president (court) sitting alone.

411Finances of court

The court is part of the department for the purposes of the Financial Accountability Act 2009.

Division 2 Members

Subdivision 1 President

412Functions of the president

(1)The president has the functions given to the president under this Act or another Act.
(2)The functions of the president include—
(a)managing and administering the court, including deciding who constitutes the court for a proceeding; and
(b)preparing and giving the annual report to the Minister under section 594.
(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).

413Appointment 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 states the appointment is on a part-time basis.

414Effect 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 the office of 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 the office of 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.

415When president holds office

(1)The president holds office until the earlier of the following—
(a)the president turns 70;
(b)the president resigns by signed notice given to the Governor;
(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.

416Acting 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 to give a decision in, or otherwise complete, proceedings 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)Section 414 applies to the person while the person acts as president as if the person were appointed as president.

Subdivision 2 Vice-president

417Functions of the vice-president

(1)The vice-president of the court has the functions given to 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).

418Appointment of vice-president

(1)The Governor in Council may, by gazette notice, 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, qualifications 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 the following—
(a)an organisation, a State peak council or another entity that represents the interests of employers or has members who are employers;
(a)an organisation or employer association or a State peak council;
(b)a department;
(c)an entity established—
(i)under an Act for a public or State purposes; or
(ii)under State authorisation for a public or State purpose.

419When vice-president holds office

(1)The vice-president of the court holds office until the earlier of the following—
(a)the vice-president turns 70;
(b)the vice-president resigns by signed notice given to the Governor;
(c)the vice-president becomes a member of the Executive Council or Legislative Assembly;
(d)the vice-president 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; or
(ii)acts as an 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 the management of a business.
(e)the vice-president is removed from office under section 423.
(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.

420Acting 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 may be appointed as vice-president under section 418.
(4)A person who has acted as vice-president may attend sittings of the court to give a decision in, or otherwise complete, proceedings that were heard by the person while acting as vice-president.
(5)The person’s decision in the proceedings is taken to be the decision of the vice-president.

Subdivision 3 Deputy presidents

421Deputy presidents (court)

(1)The Governor in Council may 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, qualifications 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 418(4).

422When deputy president (court) holds office

(1)A deputy president (court) holds office until the earlier of the following—
(a)the deputy president turns 70; or
(b)the deputy president resigns by signed notice given to the Governor; or
(c)the deputy president becomes a member of the Executive Council or Legislative Assembly; or
(d)the deputy president 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 an 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 the management of a business; or
(e)the deputy president is removed from office under section 423.
(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.

Subdivision 4 Miscellaneous

423Removal 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.

Division 3 Jurisdiction and powers of court

424Jurisdiction and powers

(1)The court may—
(a)perform all functions and exercise all powers given to the court under this Act or another Act; and
(b)hear and decide, and give its opinion on, a matter referred to it by the commission; and
(c)hear and decide an offence against this Act, unless this Act provides otherwise; 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 Act or another Act.
(4)The jurisdiction conferred on the court by this Act or another Act is exclusive of the jurisdiction of another court or tribunal, unless this or the other Act provides otherwise.

425Limitations on jurisdiction

The court does not have jurisdiction to hear and decide a matter about which another Act excludes—
(a)the jurisdiction of the court about the matter; or
(b)the application of a decision under this Act about the matter.

426Court’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.

427Court may refuse to proceed

(1)This section applies if—
(a)proceedings before the court relate to an industrial instrument; or
(b)an industrial instrument is sought in proceedings before the court.
(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 to refuse to hear and decide the proceedings.

428Contempt 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 1999 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 in addition to any penalty that may be imposed for the act or omission.

Part 2 Industrial relations commission

Division 1 Preliminary

429Continuance

The Queensland Industrial Relations Commission (the commission), is established as a court of record in Queensland.

430Official seal

The commission has an official seal that must be judicially noticed.

431Finances of commission

The commission is part of the department for the Financial Accountability Act 2009.

432Composition

(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—a presidential member and 2 or more other members; or
(b)otherwise—3 or more members.
(3)The commission other than the full bench of 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 an office of the commission.

433Decisions of full bench

A decision of the full bench is the decision of the majority of its members.

Division 2 Members

Subdivision 1 President

434President 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 a salary or allowance in addition to the salary or allowance received as the holder of the office of the president of the court.

435President’s administrative functions for the commission

(1)The president is responsible for the administration of the commission and the exercise of the commission’s jurisdiction and powers.
(2)Without limiting subsection (1), the president is responsible for deciding 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)The president may delegate a function mentioned in subsection (1) or (2)—
(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 commissioners.
(5)A commissioner must comply with a direction of the president, vice president, a deputy president or a commissioner given for the performance of a function under subsection (1) or (2).
(6)The president may—
(a)establish panels of members; and
(b)assign an industry or group of industries to each panel.
(7)The powers of the commission in relation to an industry, other than the powers of the full bench, may only be exercised by—
(a)a member of the panel to which the industry is assigned; or
(b)if the president has assigned a particular matter to a member—the member.
(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.

436Other functions of the president

The functions of the president in relation to the commission include—
(a)developing performance measures that apply to members of the commission in carrying out its functions; and
(b)developing a code of conduct for—
(i)members of the commission; and
(ii)persons appearing before the commission.

437President to consider efficiencies that may be achieved by using dual commissioners

In administering the commission, the president must consider whether the following would be achieved if a dual commissioner were to be given functions and powers in relation to a particular matter—
(a)an improvement in the efficiency of the commission; and
(b)an improvement in the cooperation between the commission and the Australian commission.

438Reallocation of commission’s work

(1)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.
(2)The commission to which the matter is reallocated may continue to hear and decide the matter, without re-hearing evidence given before the reallocation.

Subdivision 2 Vice-president

439Vice-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 a salary or allowance in addition to the salary or allowance received as the holder of the office of the vice-president of the court.

Subdivision 3 Deputy presidents and commissioners

440Deputy 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 a salary or allowance in addition to the salary or allowance received as the holder of the office of a deputy president (court).

441Appointment of other deputy presidents of the commission

(1)The Governor in Council may, by gazette notice, appoint a person as a deputy president of the commission.
(2)The person must be a person who has the experience, qualifications and standing to be appointed as an industrial commissioner under section 442(2).

442Industrial commissioners

(1)The Governor in Council may, by gazette notice, appoint a person as an industrial commissioner.
(2)The person must have—
(a)a high level of experience in business or industry or a relevant entity; or
(b)suitable experience, qualifications and standing in the community to be appointed as an industrial commissioner.
(3)In this section—
relevant entity means the following—
(a)an organisation, a State peak council or another entity that represents the interests of employers or has members who are employers;
(a)an organisation or employer association or a State peak council;
(b)a department;
(c)an entity established—
(i)under an Act for a public or State purposes; or
(ii)under State authorisation for a public or State purpose.

443When deputy president or industrial commissioner holds office

(1)A relevant commissioner holds office until the earlier of the following—
(a)the relevant commissioner turns 70;
(b)the relevant commissioner resigns by signed notice given to the Governor;
(c)the relevant commissioner becomes a member of the Executive Council or the Legislative Assembly;
(d)the relevant commissioner becomes a person mentioned in section 445(b), other than with the Minister’s written approval;
(e)the relevant commissioner is removed from office under section 446.
(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.

444Acting deputy president or industrial commissioner

(1)This section applies if a relevant 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 relevant commissioner.

445Restrictions on appointment

The following persons can not be appointed as a relevant commissioner—
(a)a member of the Executive Council or Legislative Assembly;
(b)a person who—
(i)acts as a director of a corporation engaged in a calling; or
(ii)acts as an 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 the management of a business.

446Removal of deputy president or industrial commissioner from office

The Governor may remove a deputy president appointed under section 441 or an industrial commissioner from office, on an address of the Legislative Assembly, for—
(a)mental or physical incapacity; or
(b)misbehaviour.

Division 3 The commission

Subdivision 1 Functions

447Commission’s functions

(1)The commission’s functions include the following—
(a)establishing and maintaining a system of non-discriminatory modern awards that, together with the Queensland Employment Standards, provide for fair and just conditions of employment for employees;
(b)supervising the bargaining of agreements;
(c)certifying agreements;
(d)making bargaining awards;
(e)making modern awards;
(f)promoting cooperative and productive workplace relations;
(g)taking measures to prevent disputes;
(h)assisting parties to an industrial cause in negotiating or resolving a matter relevant to the cause, whether or not the matter is within the jurisdiction of the commission;
(i)resolving disputes by conciliation of industrial matters and, if necessary, by arbitration or making an order;
(j)resolving disputes in the negotiation of agreements—
(i)by conciliation; or
(ii)by arbitration, including by the making of determinations;
(k)resolving disputes over union coverage by making representation orders;
(l)resolving disputes by performing the functions conferred on the commission under a referral agreement;
(m)resolving other disputes that threaten to harm the community or the economy by conciliation and, if necessary, by arbitration;
(n)dealing with—
(i)applications brought under this Act or another Act, including for public service appeals; or
(ii)claims relating to dismissals;
(o)making declarations about industrial matters;
(p)any other function conferred on the commission under this Act or another Act.
(2)The commission must perform its functions in a way that—
(a)is consistent with the objects of this Act; and
(b)avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act.

Subdivision 2 Jurisdiction

448Commission’s jurisdiction

(1)The commission may hear and decide the following matters—
(a)a question 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 under this Act or another Act by a member who has held a conference at which no agreement has been reached;
(d)all appeals properly made to it under this Act or another Act;
(e)all matters referred to the commission under this Act 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)on 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, by notice, 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 that apply to or affect 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)if the Minister, by notice, directs.
(6)When exercising power under subsection (5), the commission may make the amendments it considers necessary or convenient to give effect to the consolidated award.
(7)No provision of this Act or another Act limits, by implication, the commission’s jurisdiction.
(8)In this section—
class includes a section of a class.

449Limitations on jurisdiction

The commission does not have jurisdiction to hear and decide a matter about which another Act excludes—
(a)the jurisdiction of the commission about the matter; or
(b)the application of a decision under this Act about the matter.

450Commission’s jurisdiction is exclusive

The original and appellate jurisdiction conferred on the commission by this Act or another an Act is exclusive of the jurisdiction of the Supreme Court or another court or tribunal, unless otherwise prescribed under this Act or the other Act.

Subdivision 3 Powers

451General powers

(1)The commission has the power to do all things necessary or convenient to be done for 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 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 to implement the decision; 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 resolution of proceedings—
(a)refer the whole or part of a question or matter before it to the commission—
(i)for investigation by the commission and the preparation of a report on the investigation; or
(ii)for another action it decides; or
(b)direct 1 or more of its members to carry out an investigation or inspection and prepare a report on the investigation or inspection.
(5)The commission or member must comply with the reference or direction.

452Exercise of commission’s powers

(1)The commission may, unless this Act provides otherwise, exercise its powers—
(a)on 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, on its own initiative—
(a)join 2 or more matters to be heard and decided by the commission, whether any of the matters arise under this Act or another Act; and
(b)hear and decide the matters in 1 proceeding.

453Powers not limited

This part does not limit, by implication, another power given to, or possessed by, the commission under this Act or another Act or law.

454Commission to prevent discrimination in employment

In exercising a power, the commission must not allow discrimination in employment.

455Commission may refuse to proceed

(1)This section applies if—
(a)proceedings before the commission relate to an industrial instrument; or
(b)an industrial instrument is sought in proceedings before the commission.
(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 to refuse to hear and decide the proceedings.

456Commission may stay or dismiss applications in certain circumstances

(1)The commission may stay or dismiss an application or complaint if the act or omission the subject of the application or complaint is being, or has been, dealt with by the commission in another proceeding.
(2)This section applies despite a provision of this Act or another Act that requires the commission to deal with the application or complaint.
(3)A time limit for doing anything under this Act or another Act in relation to the application or complaint does not run while the application or complaint is stayed.

Subdivision 4 Miscellaneous

457Associates

(1)The Chief Justice may, on the recommendation of the president or a member authorised by the president, appoint an associate to the president.
(1A)The president may appoint associates to the vice-president, a deputy president or a 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.

Division 4 Particular powers of commission

Subdivision 1 General rulings

458Power to make general rulings

(1)The full bench may make general rulings about—
(a)an industrial matter for employees bound by an industrial instrument if multiple inquiries into the same matter are likely; or
(b)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 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.

459Requirements for general rulings

(1)A ruling—
(a)must state a date (the stated date) on and from which it has effect; and
(b)has effect as a decision of the full bench on and from the stated date.
(2)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 industrial instrument.
(3)As soon as practicable after making a ruling, the registrar must publish a notice of the ruling and the stated date on the QIRC website.
(4)The notice, on and from the stated date, replaces a notice of a ruling on the same subject matter previously published.
(5)The ruling continues in force until the end of the day immediately before the stated date for a subsequent ruling on the same subject matter.

459A Provision about general ruling for State wage case

(1)This section applies if—
(a)the commission makes a general ruling under section 458(1)(a) that increases the wages payable to employees under 1 or more awards; and
(b)applying the increase to the wages payable to employees, or a class of employees, under a particular award would result in the wages payable to the employees under the award equalling or exceeding the wages payable to employees in relation to the same employment under—
(i)a certified agreement or arbitration determination; or
(ii)a ruling under the Public Service Act 2008.
(2)Without limiting section 459(2), the ruling may provide that the increase does not apply to the wages payable to the employees, or the class of employees, under the award.

460Relationship with industrial instruments

(1)If a ruling takes effect while an industrial instrument, other than an industrial instrument or part of an industrial instrument excluded under section 459(2), is in force—
(a)the industrial instrument is taken to be amended so it is consistent with the ruling on and from the stated date; and
(b)the amendment has effect as an industrial instrument on and from the stated date.
(2)The registrar may amend an industrial instrument taken to be amended under subsection (1) as the registrar considers appropriate—
(a)on an application made under the rules; or
(b)on the registrar’s own initiative.
(3)This section applies despite chapter 3.

Subdivision 2 Statements of policy

461Power to make statement of policy

The full bench may make a statement of policy about an industrial matter, whether or not the matter is before the commission.

462Effect of statement of policy

(1)On application by a party to an award, a stated policy may be given effect by being inserted in the award.
(2)The registrar may give effect to a stated policy by making directions about procedural matters to the extent allowed by the commission.
(3)A direction by the registrar under subsection (2) binds all persons to which the direction relates.

Subdivision 3 Declarations about industrial matters

463Power to make declarations about industrial matters

(1)The commission may, on application by an entity mentioned in section 464, 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)Subject to chapter 11, part 6, a declaration made by the commission under this section is binding in a proceeding under this Act.

464Who may apply for declaration

The following may make an application mentioned in section 463
(a)a person who may be directly affected by the declaration;
(b)an inspector;
(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;
(d)an organisation of employees or employers who may be directly affected by the declaration.

Subdivision 4 Declaring persons to be employees or employers

465Power to declare persons to be employees or employers

(1)The full bench may, on application by an entity mentioned in section 466, 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 classes of persons; 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 particular classes of persons 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.

466Who may apply for declaration

The following may apply for a declaration under section 465
(a)an organisation;
(b)a State peak council;
(c)the Minister.

Subdivision 5 Interpretation of industrial instruments

467Power to interpret industrial instruments

(1)The commission may give an interpretation of an industrial instrument, on application by an entity mentioned in section 468.
(2)If an application under this section by an inspector relates to an alleged ambiguity, the commission must hear and decide the application in the absence of a statement of agreed facts.

468Who may apply for an interpretation of an industrial instrument

(1)The following may, under section 467, apply for an interpretation of an industrial instrument, other than a certified agreement or bargaining award—
(a)the Minister;
(b)an organisation;
(c)an employer;
(d)a person who satisfies the commission that the person is not acting for an entity (other than an industrial organisation) that purports to represent the industrial interests of employees covered by the instrument;
(d)a person who satisfies the commission that the person is not an officer of, or acting for, an eligible association;
(e)an inspector.
(2)The following may, under section 467, apply for an interpretation of a certified agreement or bargaining award—
(a)the Minister; or
(b)an organisation, or other person, bound by the agreement or award; or
(c)an employee whose employment is subject to the agreement or award, if the employee satisfies the commission that the employee is not an officer of, or acting for, an entity (other than an industrial organisation) that purports to represent the industrial interests of employees covered by the agreement or award; or
(d)an inspector.

Subdivision 6 Assistance by commission

469Commission may provide assistance

(1)If the parties to an industrial cause agree in writing, the parties may ask the commission to assist the parties in negotiating or resolving a matter relevant to the industrial cause (a facilitation request), whether or not the matter is within the jurisdiction of the commission.
(2)The facilitation request must be agreed between the parties, and may—
(a)be in the form agreed between the parties; and
(b)include a request about how the matter may be resolved, including, for example, by—
(i)facilitating negotiations or discussions between the parties; or
(ii)deciding an issue or question relating to the matter; or
(iii)conciliation; or
(iv)arbitration; and
(c)be amended by agreement between the parties at any time.
(3)On receiving a facilitation request, the commission may provide the assistance requested by the parties.
(4)A decision made by the commission in providing the assistance binds the parties to the industrial cause only if the parties agree, in writing, for the decision to bind the parties.
(5)This section does not limit a function or power of the commission under another provision of this Act to conciliate, arbitrate or otherwise decide a matter.

470Commission 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 (the dispute resolution functions) for resolving the dispute under the referral agreement.
(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 8, part 2, division 2 or this part;
(d)deciding another issue or question arising in the dispute.
(5)A decision made by the commission in performing the dispute resolution functions binds the parties to the dispute only if 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 another provision of this Act to conciliate, arbitrate or otherwise decide a matter.

Subdivision 7 Amending or voiding contracts

471Power to amend or declare void contracts

(1)On application by an entity under section 472, the commission may amend or declare void (wholly or partly) a contract if it considers—
(a)the contract is—
(i)a contract of serviceemployment that is not covered by an industrial instrument or federal industrial instrument; or
(ii)a contract for services; and
(b)the contract is an unfair contract.
(2)The commission must not—
(a)amend a contract to include an accident pay provision; or
(b)declare a contract wholly or partly void, because it does not contain an accident pay provision.
(3)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, a person 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, a federal industrial instrument or this Act; or
(d)the Queensland minimum wage; or
(e)anything else the commission considers relevant.
(4)The commission may consider a contract to be an unfair contract—
(a)even if the contract was made before the commencement; and
(b)if it considers the contract—
(i)was an unfair contract when it was entered into; or
(ii)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)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.
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.

472Who may apply for an amendment or declaration

(1)An application for an amendment or declaration for a contract under section 471 may be made by—
(a)a party to the contract; or
(b)for the party required under the contract to provide services—an inspector; 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.
(2)However, a person can not make the application if—
(a)an application has been made under section 317 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 equal to or more than the amount of the high income threshold under the Commonwealth Fair Work Act, section 333.

Subdivision 8 Injunctions

473Power to grant injunctions

(1)On application by a person under section 474, the commission may grant an injunction—
(a)to compel compliance with an industrial instrument, a permit or this Act; or
(b)