The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees.
(1) An award may be made:(a) on application to the Commission or on the Commission’s own initiative, or(b) in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute.(2) An application for an award may be made only by:(a) an employer, or(b) an industrial organisation of employers or employees, or(c) a State peak council.(3) Anyone who can apply for an award may become a party to any proceedings for making an award.(4) An applicant for an award, or to become a party to the making of an award, is required to satisfy the Commission that it or any one or more of its members has a sufficient interest in the proposed award.
(1) An award is binding on all employees and employers to which it relates, whether or not they were a party to the making of the award.(2) An award that applies to a particular industry is, subject to its terms, taken to bind all employees and employers engaged in the industry.(3) An award is, subject to its terms, binding on all industrial organisations that were a party to the making of the award.
13 Formal matters relating to making of award
(1) An award is required to be in writing, expressed to be an award and signed by at least one member of the Commission.(2) An award is to be published by the Industrial Registrar in the Industrial Gazette.(3) An award is to comply with such other requirements as to form and procedure for its making as may be made by the regulations or (subject to any such regulations) by the rules of the Commission.(4) The Commission may give directions as to the standard format for awards.
14 Mandatory dispute resolution procedures in awards
(1) An award is not to be made unless it contains procedures for the resolution of industrial disputes under the award (dispute resolution procedures).(2) However, an award need not contain dispute resolution procedures if the Commission is satisfied that another specified award already does so.(3) Dispute resolution procedures are to include procedures for:(a) consultation at the workplace, and(b) the involvement of relevant industrial organisations.(4) Dispute resolution procedures in awards do not apply to employers who employ fewer than 20 employees, unless the award specifically applies those procedures to such an employer.
(1) An award comes into force on the date specified by the Commission.(2) However, legal proceedings relating to the enforcement of the award cannot be commenced until the expiration of 7 days after the day on which it is published in the Industrial Gazette.(3) An award may be expressed to apply retrospectively, but not earlier than the date on which:(a) application for the award was lodged with the Industrial Registrar, or(b) the Commission itself initiated proceedings for the award, or(c) the industrial dispute giving rise to the award was notified to the Commission.(4) Despite subsection (3), the following awards may, with the consent of the parties to the making of the award, apply retrospectively from a date, specified in the award, that is earlier than any date referred to in that subsection:(a) an award that sets conditions of employment in connection with a project,(b) an award that sets conditions of employment for employees of a single employer or for employees of two or more associated employers.Note. Section 190 enables the Full Bench or a Presidential Member to stay the operation of the whole or any part of an award for the purposes of appeal pending determination of the appeal or further order of the Commission.
(1) An award applies for the period specified in it as its nominal term and, after that period, until rescinded by the Commission.(2) The nominal term of an award must not be less than 12 months nor more than 3 years.(3) However, an award that sets conditions of employment in connection with a project may have a specified nominal term that does not exceed the expected duration of the project.(4) An award may in special circumstances be made on an interim basis. Any such award is to be expressed to be an interim award and applies only for the period (not exceeding 12 months) specified in it.
17 Variation or rescission of award
(1) The Commission may vary or rescind an award.(2) Sections 11, 13 and 15 apply to any such variation or rescission. The other provisions of this Division continue to apply to the award as varied.(3) An award may be varied or rescinded in any of the following circumstances only:(a) at any time with the mutual consent of all the parties to the making of the original award,(b) at any time to give effect to a decision of the Full Bench of the Commission under section 50 or 51 (National and State decisions),(c) during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so,(d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so.(4) This section extends to a variation or rescission of an award in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute.Note. Section 169 also enables an award to be varied at any time to remove unlawful discrimination.
(1) The Commission may, on application, grant an exemption from the whole or any part of an award if it is satisfied that it is not contrary to the public interest and that:(a) it is in the best interests of the employees and employers concerned, or(b) the operation of the award (or part of the award) would result in significant unemployment or other serious consequences for the employees and employers concerned.(2) An exemption may be granted for a period not exceeding 3 years at any one time.(3) The Commission may, on application or on its own initiative, review any exemption, and may confirm, vary or revoke the exemption.
(1) The Commission is required to review each award before September 2001 and subsequently at least once in every 3 years.(2) The purpose of a review is to modernise awards, to consolidate awards relating to the same industry and to rescind obsolete awards.(3) The Commission must take account of the following matters in the review of awards:(a) any decision of the Commission under Part 3 or any other test case decision of the Commission,(b) rates of remuneration and other minimum conditions of employment,(c) part-time work, casual work and job-sharing arrangements,(d) dispute resolution procedures,(e) any issue of discrimination under the awards, including pay equity,(f) any obsolete provisions or unnecessary technicalities in the awards and the ease of understanding of the awards,(g) any other matter relating to the objects of the Act that the Commission determines.(4) The Commission must also take account of the effect of the awards on productivity and efficiency in the industry concerned.(5) During a review of awards, relevant industrial organisations and any other parties to the awards may make submissions on any of the matters being reviewed.(6) The Commission is to make such changes to awards as it considers necessary as a result of a review.Note. In addition to submissions of relevant industrial organisations, the Minister, the President of the Anti-Discrimination Board and State peak councils may make submissions in pursuance of their general right of intervention in Commission proceedings under section 167.
(1) The Commission may make an award consolidating, with or without amendments, related awards.(2) The Commission may rescind an obsolete award or an obsolete part of an award, whether or not in connection with the consolidation of awards.(3) The Industrial Registrar may, in accordance with the rules of the Commission, exercise the functions of the Commission under this section.
Division 2 Particular conditions of employment in awards
21 Conditions to be provided in awards on application
(1) The Commission must, on application, make an award setting any of the following conditions of employment:(a) ordinary hours of employment,(b) equal remuneration and other conditions for men and women doing work of equal or comparable value,(c) employment protection provisions,(d) provisions relevant to technological change,(e) sick leave,(f) part-time work,(g) casual work.(2) Those conditions are to be set:(a) in accordance with any relevant requirement of this Division and any other provision of this Act, and(b) with due regard to any established principles of the Commission or other matters considered relevant.(3) Those conditions may be set in a new award or by the variation of an existing award.(4) This section applies even though there is an existing award dealing with the matter.
22 Maximum ordinary hours of employment
(1) The number of ordinary working hours of an employee when set by an award must not exceed 40 hours per week, averaged over a 12 week period.(2) However, those ordinary hours may be averaged over a period not exceeding 52 weeks in the case of seasonal employment.(3) The ordinary working hours of an employee cannot be reduced by an award unless the reduction is made by a Full Bench of the Commission.
23 Equal remuneration and other conditions
Whenever the Commission makes an award, it must ensure that the award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value.
24 Employment protection provisions
Employment protection provisions in an award are to be provisions relating to the obligations and rights of an employer and an employee on the termination or proposed termination of employment of the employee.
25 Provisions relevant to technological change
Provisions relevant to technological change may include provisions as to:(a) the obligations of an employer on the introduction of technological change in the industry concerned, and(b) the giving of notice of termination of services to employees and relevant organisations on account of the introduction of technological change (including the minimum period of notice).
26 Minimum sick leave entitlements
(1) Sick leave when set by an award must include provisions under which:(a) each employee is entitled to not less than one week of sick leave on full pay for each year of service with an employer, and(b) sick leave accumulates from year to year for at least 3 years, that is, sick leave not taken in each year of service will be available to the employee for a period of at least 3 years from the end of each such year.(2) Nothing in this Division prevents the Commission from making or varying awards relating to the conditions under which sick leave may be taken or imposing limitations on the amount of sick leave that may be accumulated by an employee.
27 Prohibition on cashing-in of accumulated sick leave
(1) An award must not allow or require an employee to cash-in the employee’s accumulated sick leave.(2) Accumulated sick leave is cashed-in if the leave is not taken and a payment is made by the employer to or on behalf of the employee of the amount of remuneration for the period of accumulated leave or of any other amount calculated by reference to that period.(3) It is immaterial when the accumulated sick leave is to be cashed-in, including on termination of employment (whether by resignation, retirement, death or otherwise) or during the period of employment.(4) A provision of an award, whether made before or after the commencement of this section, does not have any effect to the extent that the provision contravenes this section.(5) In this section, award includes:(a) a former industrial agreement, and(b) a public sector industrial agreement.Note. The above section does not apply to the cashing-in of sick leave under an enterprise agreement. Clause 14 of Schedule 4 preserves the cashing-in under an existing award of accumulated sick leave accrued before 15 February 1993, the date of commencement of section 99A of the Industrial Relations Act 1991 which was the predecessor of the above section.
28 Other provisions not affected
Nothing in this Division affects:(a) the requirements of this Part for the making or varying of awards, or(b) the powers of the Commission and the Industrial Registrar under sections 18 and 125 (provisions relating to Commission granting exemptions from awards and Industrial Registrar issuing special wage permits).
In this Part:Federal award means an award within the meaning of the Workplace Relations Act 1996 of the Commonwealth.
State award means:
(a) an award made, or taken to be made, by the Commission under this Act, and(b) any order of the Commission under this Act that sets conditions of employment (but not including a dispute order, an order under Part 6 or a stand-down order under section 126), and(c) a determination under section 63 of the Public Sector Management Act 1988, or any similar determination relating to employment in the public sector (including employment with an area health service), and(d) a public sector industrial agreement, and(e) a former industrial agreement, and(f) any other instrument made under this Act, or made under any other Act, relating to conditions of employment that is declared by the regulations to be a State award for the purposes of this Part.
29 Making of enterprise agreements
An enterprise agreement may be made in accordance with this Act setting conditions of employment for employees.
30 Coverage of enterprise agreement
(1) An enterprise agreement may (subject to this Part) be made for any relevant group of employees, including the following:(a) employees of a single employer (whether all employees or a group or category of employees),(b) employees of 2 or more associated employers (whether associated because they are related corporations, because they are engaged in a joint or common venture or because they undertake similar work),(c) employees engaged in a project (including a proposed project),(d) public sector employees (whether employees of all or of one or more authorities or whether all or some of the employees of an authority).(2) An enterprise agreement cannot be made for a group of employees if that group is limited by the agreement only to members of an industrial organisation.
31 Parties to an enterprise agreement
(1) An enterprise agreement may be made between:(a) the employer or employers of the employees for whom it is made, and(b) one or more industrial organisations representing any of those employees.An industrial organisation may represent only employees who are, or are eligible to be, members of the organisation.
(2) An enterprise agreement may also be made between:(a) the employer or employers of the employees for whom it is made, and(b) the employees at the time the agreement is made.Note. Section 36 (4) provides that the agreement must be approved by at least 65% of the employees at a secret ballot. Section 36 (5A) provides that an industrial organisation can become a party to the agreement.(3) A State peak council or an industrial organisation of employers may sign an enterprise agreement on behalf of industrial organisations or of employers and may apply for approval for the agreement. In that case, the industrial organisations or employers on whose behalf the agreement is signed are taken to be parties to the agreement and not the State peak council or the industrial organisation of employers.(4) An industrial organisation of employers may so sign an enterprise agreement on behalf of any employers (whether or not named in the agreement) who may in future employ persons in the project, venture or other industry for which the agreement is made.(5) In the case of an enterprise agreement made under subsection (2), the group of employees from time to time covered by the agreement is taken to be one of the parties to the agreement for the purposes of this Part.
Division 2 Approval of enterprise agreements
32 Enterprise agreement required to be approved
(1) An enterprise agreement does not have any effect unless it is approved by the Commission under this Part.(2) This section extends to an enterprise agreement that varies an earlier agreement.
33 Principles for approval of enterprise agreements
(1) A Full Bench of the Commission is required to set principles to be followed by the Commission in determining whether to approve enterprise agreements.(2) In determining those principles, the Full Bench is to have regard, in particular, to the following:(a) the objects of this Act and the public interest,(b) the relevant criteria for approval imposed by this Part,(c) the need for an appropriate process for approving agreements to be followed by the Commission,(d) the need for an appropriate process for ensuring sufficient information about the effect of the agreement is provided to employees who are to be covered by the agreement,(e) the need for an appropriate negotiating process for the agreement.(3) A Full Bench of the Commission is to review the principles for approval at least once every 3 years.(4) Principles for approval may be set or reviewed on the application of any party that can apply for approval of an enterprise agreement or on the Commission’s own initiative.(5) Industrial organisations are entitled to be notified of any proceedings of a Full Bench under this section and to make submissions on the setting or review of the principles for approval.(6) The Industrial Registrar is to publish the principles for approval in the Industrial Gazette.(7) Principles for approval are to be set and published under this section within 6 months after the commencement of this Act.
34 Application for approval of enterprise agreement
(1) Application for approval of an enterprise agreement may be made by lodging the agreement with the Industrial Registrar in accordance with this Part and the rules of the Commission.(2) At proceedings of the Commission relating to any such application for approval, the following may appear or be represented:(a) any party to the agreement,(b) an industrial organisation, if its members or persons eligible to become members are affected by the agreement,(c) a State peak council (but only with leave of the Commission),(d) the President of the Anti-Discrimination Board (but only with leave of the Commission).(3) The Commission is to deal with any such application for approval within 28 days, unless it requires additional time to do so because of the special circumstances of the case.
35 Approval of enterprise agreement by Commission
(1) The Commission is to approve each enterprise agreement lodged for approval, but only if the Commission is satisfied that:(a) the agreement complies with all relevant statutory requirements (including the requirements of this Part and of the Anti-Discrimination Act 1977), and(b) in the case of an agreement that covers employees to whom State awards would otherwise apply—the agreement does not, on balance, provide a net detriment to the employees when compared with the aggregate package of conditions of employment under the State awards, and(b1) in the case of an agreement that covers employees to whom Federal awards would otherwise apply—the employees are not disadvantaged in comparison to their entitlements under the Federal awards, and(b2) in the case of an agreement that covers employees to whom no State or Federal award would otherwise apply—the agreement does not, on balance, provide a net detriment to the employees when compared with the aggregate package of conditions of employment under a State or Federal award that covers employees performing similar work to that performed by the employees covered by the agreement, and(c) the parties understand the effect of the agreement, and(d) the parties did not enter the agreement under duress.(2) This subsection applies to an enterprise agreement that applies to some but not all the employees of an employer, unless the employees to whom it applies comprise a distinct geographic, operational or organisational unit. The Commission is not to approve such an enterprise agreement if it is satisfied that:(a) the agreement fails to cover employees who would reasonably be expected to be covered, given the nature of the work performed under the agreement and the organisational and operational relationships between the employees covered by the agreement and the remainder of the employees, and(b) it is unfair not to cover the employees excluded from the agreement.(3) The Commission is to follow the principles for approval set under section 33 when deciding whether to approve an enterprise agreement, unless satisfied that any departure from those principles would not prejudice the interests of any of the parties to the agreement.(4) (Repealed)
36 Special requirements relating to enterprise agreements to which employees are parties
(1) An enterprise agreement under which employees are a party is not to be approved unless the requirements of this section have been complied with.(2) Before or at the time the employer first undertakes formal negotiations with the employees for the purposes of an agreement, the employer is to advise the Industrial Registrar in writing of the following:(a) that an enterprise agreement is proposed or under negotiation,(b) the State or Federal awards or enterprise agreements that then apply to the employees.(3) The Industrial Registrar is to advise such persons or bodies as are prescribed by the regulations of the proposed enterprise agreement.(4) The enterprise agreement must be approved in a secret ballot by not less than 65% of the employees who are to be covered by the agreement at the time the ballot is conducted.(5) The Industrial Registrar must, after the enterprise agreement is lodged for approval, prepare a report for the Commission comparing the conditions of employment under the agreement and the conditions of employment that would otherwise apply to the employees under relevant State or Federal awards. If there are no relevant State or Federal awards, the report is to outline any relevant employment conditions of the employees.(5A) The Commission must, by its order, make an industrial organisation a party to the enterprise agreement if it is satisfied that:(a) the industrial organisation represents any of the employees covered by the enterprise agreement, and(b) the industrial organisation has notified the Commission of its intention to become a party to the agreement by lodging a notice to that effect with the Industrial Registrar at any time before the Commission approves of the agreement under this Part, and(c) an employee covered by the agreement is a member of the industrial organisation and has requested the industrial organisation to become a party to the agreement.The Commission may direct that the name of an employee who made that request is not to be disclosed to the employer or other person.
(6) (Repealed)
36A Determination of comparable award for purposes of approval of agreement for employees without award coverage
(1) This section applies to an enterprise agreement that is in the process of being negotiated and that will cover employees to whom no State or Federal award would otherwise apply.(2) A party to any such enterprise agreement may, before making an application for approval of the enterprise agreement under this Part, make a written application to the Industrial Registrar for a determination of the relevant State or Federal award against which the enterprise agreement will be compared for the purposes of the application of the “no net detriment” test in section 35 (1) (b2).(3) The Industrial Registrar must:(a) advise any person or body entitled to be advised of the proposed enterprise agreement under section 36 (3) of the application made under this section, and(b) advise the applicant, any such person or body and the Commission of the relevant State or Federal award determined by the Industrial Registrar.(4) If a determination is made by the Industrial Registrar under this section, the determination applies for the purposes of the application of the “no net detriment” test in section 35 (1) (b2), subject to the result of any appeal under this Act to the Commission against the determination of the Industrial Registrar.(5) If a determination is not made by the Industrial Registrar under this section, the determination of the matter is to be made by the Commission at the time of the application of the “no net detriment” test under section 35 (1) (b2).
37 Secret ballots under this Part
(1) Except as provided by subsection (2), a secret ballot under this Part must be conducted by a person (other than the employer or a person selected by that employer) on behalf of the employees entitled to vote in the ballot, being a person who meets any other requirement that may be imposed by the regulations or the principles established by the Commission.(2) If, within 14 days next following the holding of such a ballot, the Industrial Registrar receives a written complaint from at least 20% of the persons entitled to vote in the ballot alleging specified irregularities in the conduct of the ballot and requesting that a further secret ballot be conducted by an independent person, the Industrial Registrar may (if of the opinion that such action is justified) arrange with the persons concerned:(a) for the conduct of such a further secret ballot, and(b) for evidence of the result of the further ballot to be supplied to the Industrial Registrar.(3) The Commission may adjourn proceedings for the approval of an enterprise agreement if a request is made for a further ballot.(4) The Industrial Registrar may, in any special case, extend the time for receiving a request for a further ballot.(5) The result of a further ballot is to be disregarded if the Industrial Registrar is not satisfied that it has been conducted in accordance with the Industrial Registrar’s directions.
38 Form and content of enterprise agreement
(1) An enterprise agreement is required to be in writing and signed by or on behalf of the parties to it.(2) An enterprise agreement must:(a) identify the parties to the agreement and describe the employees for whom it is made, and(b) set all or some conditions of employment for those employees.(3) If an enterprise agreement does not specify the place or places of employment to which it applies, the agreement applies:(a) to any place of employment at which those employees were employed at the time the agreement was made, and(b) to any other place at which those employees could reasonably be expected to be employed during the currency of the agreement.
39 Mandatory dispute resolution procedures in enterprise agreements
(1) An enterprise agreement is not to be approved unless it contains procedures for the resolution of industrial disputes under the enterprise agreement (dispute resolution procedures).(2) However, an enterprise agreement need not contain dispute resolution procedures if the Commission is satisfied that another relevant agreement or award already does so.(3) Dispute resolution procedures may (but need not) be included in an enterprise agreement if the employer employs fewer than 20 employees.
40 Persons bound by enterprise agreement
An enterprise agreement is binding on:(a) the parties to the agreement, and(b) each employee for whom the agreement is made (whether or not such an employee at the time the agreement was made).
41 Enterprise agreements prevail over State awards
(1) The provisions of an enterprise agreement prevail over the provisions of any State award of the Commission that deal with the same matters in so far as the provisions of the State award apply to a person bound by the enterprise agreement. This subsection is subject to the terms of the enterprise agreement.(2) Nothing in this Part limits the application to an employee bound by an enterprise agreement of any conditions of employment that apply to employees generally under this Act or any other Act.(3) (Repealed)Note. Section 152 of the Workplace Relations Act 1996 of the Commonwealth sets out the circumstances in which the provisions of an enterprise agreement made under this Act will prevail over the provisions of a Federal award that deal with the same matters.
42 Term of enterprise agreement
(1) An enterprise agreement applies for the period specified in it as its nominal term and, after that period, until terminated in accordance with this Part.(2) The nominal term of an enterprise agreement must not be more than 3 years.(3) However, an enterprise agreement made for a project may have a specified nominal term not exceeding the expected duration of the project.(4) An enterprise agreement varying an earlier agreement applies for the residue of the term of the agreement it varies.
43 Variation of an enterprise agreement
(1) An enterprise agreement may be varied at any time by a further enterprise agreement made and approved in accordance with this Part.(2) The parties to the further agreement need not be the same as the parties to the earlier agreement.Note. Section 169 also enables an enterprise agreement to be varied at any time to remove unlawful discrimination.
44 Termination of enterprise agreement
(1) An enterprise agreement can be terminated only in accordance with this section.(2) An enterprise agreement can be terminated at any time with the approval of all the parties to it, whether during or after its nominal term.(3) An enterprise agreement can also be terminated at or after the end of its nominal term by any one of the parties giving at least 3 months’ written notice of intention to terminate to each other party. The notice may be served before the end of the nominal term.(4) In the case of an enterprise agreement in which the employees are a party, the proposed termination of the agreement by the employees must be approved in a secret ballot by not less than 65% of the employees covered by the agreement at the time the ballot is conducted.(5) Termination of the enterprise agreement is not effective until the Industrial Registrar has been given written notice of the approval to terminate or of service of the notice of intention to terminate.
45 Register and publication of enterprise agreements
(1) The Industrial Registrar is to keep a register of all enterprise agreements that have been approved by the Commission, approvals or notices to terminate enterprise agreements, and such other particulars as the Industrial Registrar considers appropriate.(2) The Industrial Registrar is to publish the following details in the Industrial Gazette of each enterprise agreement as soon as practicable after the agreement is approved:(a) the identity of the parties to the agreement and the description of the employees covered by the agreement,(b) the commencement and the nominal term of the agreement,(c) a statement of whether the agreement is a new agreement or the variation of an earlier agreement.(3) The register of enterprise agreements is to be open for public inspection during ordinary office hours.(4) A person may make copies of any document kept in the register of enterprise agreements on payment of such fee, if any, as is prescribed by the regulations.
46 Notification of enterprise agreements to new employees
Before an employer bound by an enterprise agreement employs a person who will be bound by conditions of employment set by the agreement, the employer must give the person notice of the existence of the agreement and access to a copy or to a summary of the agreement, for perusal by the person, in a language the person understands.Maximum penalty: 10 penalty units.
47 Enterprise agreement conditions—flow-on
When making awards or exercising its other arbitral functions under this Act, the Commission is not to regard conditions of employment set by enterprise agreements as standard conditions of employment for other employees.
Part 3 National and State decisions
48 What is a National decision?
A National decision is a decision of a Full Bench of the Australian Industrial Relations Commission that generally affects, or is likely to generally affect, the conditions of employment of employees in New South Wales who are subject to its jurisdiction.
A State decision is a decision of a Full Bench of the Commission that generally affects, or is likely to generally affect, the conditions of employment of employees in New South Wales who are subject to its jurisdiction.
50 Adoption of National decisions
(1) As soon as practicable after the making of a National decision, a Full Bench of the Commission must give consideration to the decision and, unless satisfied that it is not consistent with the objects of this Act or that there are other good reasons for not doing so, must adopt the principles or provisions of the National decision for the purposes of awards and other matters under this Act.(2) A Full Bench of the Commission is to give consideration to the National decision either on application or on its own initiative.(3) The principles or provisions of a National decision may be adopted:(a) wholly or partly and with or without modification, and(b) generally for all awards or other matters under this Act or only for particular awards or other matters under this Act.(4) The principles or provisions of a National decision so adopted may be varied by a Full Bench of the Commission, whether or not another National decision is made.
(1) A Full Bench of the Commission may, if satisfied that it is consistent with the objects of this Act and that there are good reasons for doing so, make a State decision setting principles or provisions for the purposes of awards and other matters under this Act.(2) A Full Bench of the Commission may make a State decision only on the application of a State peak council or on its own initiative.(3) A State decision may apply generally to all awards or other matters under this Act or only to particular awards or other matters under this Act.(4) The principles or provisions of a State decision may be varied by a Full Bench of the Commission.
52 Variation of awards and other orders on adoption of National decisions or making of State decisions
A Full Bench of the Commission may, when adopting the principles or provisions of a National decision or making a State decision, make or vary awards, or make other orders, to the extent necessary to give effect to its decision.Note. The adoption of a National decision or the making of a State decision enables the variation of an award to give effect to the decision without the concurrence of the parties to the award (see section 17).
Division 1 Parental leave generally
53 Employees to whom Part applies
(1) This Part applies to all employees, including part-time employees or regular casual employees, but does not apply to other casual or seasonal employees.(2) For the purposes of this Part, a regular casual employee is a casual employee who works for an employer on a regular and systematic basis and who has a reasonable expectation of on-going employment on that basis.
54 Entitlement to unpaid parental leave
(1) An employee is entitled to a total of 52 weeks unpaid parental leave in connection with the birth or adoption of a child, as provided by this Part.(2) Parental leave is not to extend beyond 1 year after the child was born or adopted.Note. See also Part 5 relating to entitlements to part-time work agreements.
(1) For the purposes of this Part, parental leave is maternity leave, paternity leave or adoption leave.(2) Maternity leave is leave taken by a female employee in connection with the pregnancy or the birth of a child of the employee. Maternity leave consists of an unbroken period of leave.(3) Paternity leave is leave taken by a male employee in connection with the birth of a child of the employee or of the employee’s spouse. Paternity leave consists of:(a) an unbroken period of up to one week at the time of the birth of the child or other termination of the pregnancy (short paternity leave), and(b) a further unbroken period in order to be the primary care-giver of the child (extended paternity leave).(4) Adoption leave is leave taken by a female or male employee in connection with the adoption by the employee of a child under the age of 5 years (other than a child who has previously lived continuously with the employee for a period of at least 6 months or who is a child or step-child of the employee or of the employee’s spouse). Adoption leave consists of:(a) an unbroken period of up to 3 weeks at the time of the placement of the child with the employee (short adoption leave), and(b) a further unbroken period in order to be the primary care-giver of the child (extended adoption leave).(5) For the purposes of this Part, spouse includes a de facto spouse.Note. Employees are also entitled to special maternity leave for recovery from a termination of pregnancy or illness related to pregnancy (section 71) and to special adoption leave up to 2 days to attend interviews or examinations for the purposes of adoption (section 72). The requirement of unbroken periods of leave is subject to section 63 (Employee and employer may agree to interruption of parental leave by return to work).
56 This Part provides minimum entitlements
(1) This Part sets out the minimum entitlements of employees to parental leave.(2) The provisions of an industrial instrument, contract of employment or other agreement (whether made or entered into before or after the commencement of this Part) do not have effect to the extent that they provide an employee with a benefit that is less favourable to the employee than the benefit to which the employee is entitled under this Part.
57 Length of service for eligibility
(1) An employee is entitled to parental leave only if the employee has had at least 12 months of continuous service with the employer.(2) Continuous service is service under one or more unbroken contracts of employment, including:(a) any period of authorised leave or absence, and(b) any period of part-time work.(3) However, in the case of a casual employee:(a) the employee is entitled to parental leave only if the employee has had at least 12 months of continuous service with the employer as a regular casual employee (or partly as a regular casual employee and partly as a full-time or part-time employee), and(b) continuous service is work for an employer on an unbroken regular and systematic basis (including any period of authorised leave or absence).Note. Under Part 8 of this Chapter a period of service in the business of a former employer counts as service with a new employer to whom the business concerned has been transferred.
58 Notices and documents required to be given to employer
(1) Maternity leave
The notices and documents to be given to the employer for the purposes of taking maternity leave are as follows:(a) The employee should give at least 10 weeks’ written notice of the intention to take the leave.(b) The employee must, at least 4 weeks’ before proceeding on leave, give written notice of the dates on which she proposes to start and end the period of leave.(c) The employee must, before the start of leave, provide a certificate from a medical practitioner confirming that she is pregnant and the expected date of birth.(d) The employee must, before the start of leave, provide a statutory declaration by the employee stating, if applicable, the period of any paternity leave sought or taken by her spouse.(2) Paternity leave
The notices and documents to be given to the employer for the purposes of taking paternity leave are as follows:(a) In the case of extended paternity leave, the employee should give at least 10 weeks’ written notice of the intention to take the leave.(b) The employee must, at least 4 weeks before proceeding on leave, give written notice of the dates on which he proposes to start and end the period of leave.(c) The employee must, before the start of leave, provide a certificate from a medical practitioner confirming that his spouse is pregnant and the expected date of birth.(d) In the case of extended paternity leave, the employee must, before the start of leave, provide a statutory declaration by the employee stating:(i) if applicable, the period of any maternity leave sought or taken by his spouse, and(ii) that he is seeking that period of extended paternity leave to become the primary care-giver of a child.(3) Adoption leave
The notices and documents to be given to the employer for the purposes of taking adoption leave are as follows:(a) In the case of extended adoption leave, the employee should give written notice of any approval or other decision to adopt a child at least 10 weeks’ before the expected date of placement.(b) The employee must give written notice of the dates on which the employee proposes to start and end the period of leave, as soon as practicable after the employee is notified of the expected date of placement of the child but at least 14 days before proceeding on leave.(c) The employee must, before the start of leave, provide a statement from an adoption agency or another appropriate body of the expected date of placement of the child with the employee for adoption purposes.(d) In the case of extended adoption leave, the employee must, before the start of leave, provide a statutory declaration by the employee stating:(i) if applicable, the period of any adoption leave sought or taken by his or her spouse, and(ii) that the employee is seeking that period of extended adoption leave to become the primary care-giver of a child.(4) An employee does not fail to comply with this section if the failure was caused by:(a) the child being born (or the pregnancy otherwise terminating) before the expected date of birth, or(b) the child being placed for adoption before the expected date of placement,or if it was not otherwise reasonably practicable to comply in the circumstances.In the case of the birth of a living child, notice of the period of leave is to be given within 2 weeks after the birth and the certificate of the medical practitioner is to state that the child was born and the date of birth. In the case of the adoption of a child, notice of the period of leave is to be given within 2 weeks after the placement of the child.
(5) An employee must notify the employer of any change in the information provided under this section within 2 weeks after the change.(6) If required by the employer, an employee who applies for parental leave is to give the employer a statutory declaration, or enter into an agreement with the employer, that for the period of the leave the employee will not engage in any conduct inconsistent with the employee’s contract of employment.
(1) Parental leave does not break an employee’s continuity of service, but is not to be taken into account in calculating an employee’s period of service for any purpose.(2) However, parental leave counts as service for any purpose authorised by law or by any industrial instrument or contract of employment.
60 Parents not to take parental leave at the same time
(1) An employee is not entitled to parental leave at the same time as his or her spouse is on parental leave under this Part.(2) If this section is contravened the period of parental leave to which the employee is entitled under this Part is reduced by the period of leave taken by his or her spouse.(3) This section does not apply to short paternity leave or short adoption leave.
61 Cancellation of parental leave
(1) Before starting leave
Parental leave applied for but not commenced is automatically cancelled if:(a) the employee withdraws the application for leave by written notice to the employer, or(b) the pregnancy concerned terminates other than by the birth of a living child or the placement of the child concerned does not proceed.(2) After starting leave
If:(a) the pregnancy of an employee or an employee’s spouse terminates other than by the birth of a living child while the employee or spouse is on parental leave, or(b) the child in respect of whom an employee is then on parental leave dies, or(c) the placement of a child for adoption purposes with an employee then on adoption leave does not proceed or continue,the employee is entitled to resume work at a time nominated by his or her employer within 2 weeks after the date on which the employee gives his or her employer a notice in writing stating that the employee intends to resume work and the reason for the intended resumption.(3) Special leave not affected
This section does not affect an employee’s entitlement to special maternity leave under section 71.
62 Parental leave and other leave
(1) An employee may take any annual leave or long service leave (or any part of it) to which the employee is entitled instead of or in conjunction with parental leave.(2) However, the total period of leave cannot be so extended beyond the maximum period of parental leave authorised by this Part.(3) Any paid sick leave or other paid absence authorised by law or by an industrial instrument or contract of employment is not available to an employee on parental leave, except if the paid absence is annual leave or long service leave or with the agreement of the employer.
63 Employee and employer may agree to interruption of parental leave by return to work
(1) An employee on parental leave may, with the agreement of the employer, break the period of leave by returning to work for the employer, whether on a full-time, part-time or casual basis.(2) The period of leave cannot be extended by such a return to work beyond the maximum period of leave authorised by this Part.(3) Nothing in this section affects any other work undertaken by the employee during parental leave.Note. Section 58 (6) requires the employee when taking parental leave to provide the employer with a statutory declaration, or enter into an agreement with the employer, that the employee will not engage during leave in any conduct inconsistent with the employee’s contract.
64 Extension of period of parental leave
(1) An employee may extend the period of parental leave once only by giving the employer notice in writing of the extended period at least 14 days before the start of the extended period. The period of leave cannot be extended by such a notice beyond the maximum period of leave authorised by this Part.(2) An employee may extend the period of parental leave at any time with the agreement of the employer. The period of leave can be extended by such an agreement beyond the maximum period of leave authorised by this Part.(3) This section applies to an extension of leave while the employee is on leave or before the employee commences leave.
65 Shortening of period of parental leave
An employee may shorten the period of parental leave with the agreement of the employer and by giving the employer notice in writing of the shortened period at least 14 days before the leave is to come to an end.
66 Return to work after parental leave
(1) An employee returning to work after a period of parental leave is entitled to be employed in:(a) the position held by the employee immediately before proceeding on that leave, or(b) if the employee worked part-time or on a less regular casual basis because of the pregnancy before proceeding on maternity leave—the position held immediately before commencing that part-time work or less regular casual work, or(c) if the employee was transferred to a safe job under section 70 before proceeding on maternity leave—the position held immediately before the transfer.(2) If the position no longer exists but there are other positions available that the employee is qualified for and is capable of performing, the employee is entitled to be employed in a position as nearly as possible comparable in status and pay to that of the employee’s former position.(3) This section extends to a female employee returning to work after a period of leave under section 71 (Special maternity leave and sick leave).(4) An employer who does not make available to an employee a position to which the employee is entitled under this section is guilty of an offence.Maximum penalty: 100 penalty units.
(5) In this section, a reference to employment in a position includes, in the case of a casual employee, a reference to work for an employer on a regular and systematic basis.Note. An employee returning to work after parental leave may also have an entitlement to work part-time under an industrial instrument or a part-time work agreement under Part 5.
Division 2 Miscellaneous provisions
(1) Information to employees
On becoming aware that an employee (or an employee’s spouse) is pregnant, or that an employee is adopting a child, an employer must inform the employee of:(a) the employee’s entitlements to parental leave under this Part, and(b) the employee’s obligations to notify the employer of any matter under this Part.An employer cannot rely on an employee’s failure to give a notice or other document required by this Part unless the employer establishes that this subsection has been complied with in relation to the employee.
(2) Records
An employer must keep, for at least 6 years, a record of parental leave granted under this Part to employees and all notices and documents given under this Part by employees or the employer.Maximum penalty: 20 penalty units.
68 Termination of employment because of pregnancy or parental leave
(1) An employer must not terminate the employment of an employee because:(a) the employee or employee’s spouse is pregnant or has applied to adopt a child, or(b) the employee or employee’s spouse has given birth to a child or has adopted a child, or(c) the employee has applied for, or is absent on, parental leave,but otherwise the rights of an employer in relation to termination of employment are not affected by this Part.Maximum penalty: 100 penalty units.
(2) For the purposes of establishing such a termination of employment, it is sufficient if it is established that the alleged reason for termination was one of two or more reasons for termination.(3) This section does not affect any other rights of a dismissed employee under this or any other Act or under any industrial instrument or contract of employment, or the rights of an industrial organisation representing such an employee.Note. A dismissed employee may also make a claim under Part 6 (Unfair dismissals).
(1) A replacement employee is a person who is specifically employed as a result of an employee proceeding on parental leave (including as a replacement for an employee who has been temporarily promoted or transferred in order to replace the employee proceeding on parental leave).(2) Before a replacement employee is employed, the employer must inform the person of the temporary nature of the employment and of the rights of the employee on parental leave to return to work.Maximum penalty: 50 penalty units.
(3) A reference in this section to an employee proceeding on parental leave includes a reference to a pregnant employee exercising a right under section 70 to be transferred to a safe job.
(1) This section applies whenever the present work of a female employee is, because of her pregnancy or breastfeeding, a risk to the health or safety of the employee or of her unborn or new born child. The assessment of such a risk is to be made on the basis of a medical certificate supplied by the employee and of the obligations of the employer under the Occupational Health and Safety Act 2000.(2) The employer is to temporarily adjust the employee’s working conditions or hours of work to avoid exposure to that risk.(3) If such an adjustment is not feasible or cannot reasonably be required to be made, the employer is to transfer the employee to other appropriate work that:(a) will not expose her to that risk, and(b) is as nearly as possible comparable in status and pay to that of her present work.(4) If such a transfer is not feasible or cannot reasonably be required to be made, the employer is to grant the employee maternity leave under this Part (or any available paid sick leave) for as long as is necessary to avoid exposure to that risk, as certified by a medical practitioner.(5) An employer who does not comply with any obligation imposed on the employer by this section is guilty of an offence.Maximum penalty (subsection (5)): 50 penalty units.
71 Special maternity leave and sick leave
If the pregnancy of an employee terminates before the expected date of birth (other than by the birth of a living child), or she suffers illness related to her pregnancy, and she is not then on maternity leave:(a) the employee is entitled to such period of unpaid leave (to be known as special maternity leave) as a medical practitioner certifies to be necessary before her return to work, or(b) the employee is entitled to such paid sick leave (either instead of or in addition to special maternity leave) as she is then entitled to and as a medical practitioner certifies to be necessary for her return to work.
An employee who is seeking to adopt a child is entitled to up to 2 days unpaid leave if the employee requires that leave to attend compulsory interviews or examinations as part of the adoption procedure.
Part 4B Leave for victims of crime
72AA Employees to whom Part applies
This Part applies to all employees, including part-time employees and casual employees.
(1) In this Part:court proceedings means proceedings before a court against a person charged with a violent crime, including:
(a) committal proceedings, and(b) sentencing proceedings, and(c) proceedings on appeal, and(d) proceedings on a back up offence or related offence (as defined in section 35 of the Criminal Procedure Act 1986) in relation to the alleged violent crime, and(e) any other proceedings prescribed by the regulations.harm means actual physical bodily harm, mental illness or nervous shock.
victim of crime means a person:
(a) who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of an alleged violent crime, or(b) who is the parent, grandparent or guardian of a child who suffers such harm (but only if the child is under the age of 18 years at the time victims leave is taken), or(c) who is a member of the immediate family of a person who dies as a direct result of an act committed, or apparently committed, by another person in the course of an alleged violent crime.victims leave means leave under this Part.
violent crime means a serious indictable offence involving violence (including sexual or indecent assault).
Note. The Interpretation Act 1987 defines a serious indictable offence as an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.(2) A member of the immediate family of a person is:(a) the person’s spouse, or(b) a person who is in a de facto relationship (within the meaning of the Property (Relationships) Act 1984) with the person, or(c) a parent or guardian, or step-parent, of the person, or(d) a grandparent or step-grandparent of the person (a step-grandparent being a step-parent of a parent of the person), or(e) a child or step-child of the person or some other child of whom the person is the guardian, or(f) a grandchild or step-grandchild of the person (a step-grandchild being a step-child of a child of the person), or(g) a brother, sister, step-brother or step-sister of the person.
72AC Entitlement to unpaid victims leave
(1) An employee who is a victim of crime is entitled to unpaid victims leave in connection with court proceedings relating to the violent crime, as provided by this Part.(2) This Part does not affect any other entitlement to paid or unpaid leave of the employee.
72AD Purposes for which victims leave may be taken
(1) Victims leave may be taken:(a) for the purpose of attending court proceedings scheduled in relation to the violent crime (whether or not as a witness), and(b) for the purpose of travelling to attend those court proceedings if the victim usually resides more than 100 kilometres from the place where the proceedings are scheduled to be held.(2) Victims leave may be taken for a full working day for the purpose of attending court proceedings even if the proceedings are only scheduled for a part of the day or, without prior notice to the employee, the proceedings do not proceed on the day on which they were scheduled.(3) Victims leave for the purpose of travel to attend court proceedings is not to exceed one working day for the duration of any stage of the court proceedings.
72AE Notices and documents required to be given to employer
(1) The notices and documents to be given to the employer for the purpose of taking victims leave are as follows:(a) the employee is to give at least one week’s notice of the intention to take the leave,(b) if requested by the employer, the employee is to provide to the employer a certificate from a police officer, prosecutor or other relevant official confirming that the employee is a victim of crime (within the meaning of this Part) and the date or dates on which the court proceedings will be held.(2) An employee is not required to comply with this section if the employee is not notified of the court proceedings in sufficient time to give the required period of notice or if it was not otherwise reasonably practicable to comply in the circumstances.
72AF Return to work after victims leave
(1) An employee returning to work after a period of victims leave is entitled to be employed in the position held by the employee immediately before proceeding on leave.(2) If the position no longer exists but there are other positions available that the employee is qualified for and is capable of performing, the employee is entitled to be employed in a position as nearly as possible comparable in status and pay to that of the employee’s former position.Note. See Part 6 of this Chapter and Part 1 of Chapter 5 for remedies available to an employee who is dismissed or otherwise victimised for claiming the benefit of victims leave.
72AG Miscellaneous provisions relating to victims leave
(1) Victims leave does not break an employee’s continuity of service, but any period of leave that exceeds 3 months is not to be taken into account in calculating the employee’s period of service for any purpose.(2) An employee may take any annual, long service or other leave to which the employee is entitled instead of or in conjunction with victims leave.(3) This Part sets out the minimum entitlements of employees to victims leave. The provisions of an industrial instrument, contract of employment or other agreement (whether made or entered into before or after the commencement of this Part) do not have effect to the extent that they provide an employee with a benefit that is less favourable to the employee than the benefit to which the employee is entitled under this Part.(4) This Part extends to persons employed on or after the commencement of this Part and to violent crimes committed before or after that commencement.
73 Employees to whom Part applies
This Part applies to employees for whom any conditions of employment are set by an industrial instrument.
For the purposes of this Part, part-time work is work of a lesser number of hours than constitutes full-time work under the relevant industrial instrument, other than casual work.
75 This Part not to affect other entitlements to work part-time
Nothing in this Part affects any entitlement that an employee has to part-time work under any industrial instrument.
76 Entitlement to work part-time with agreement of employer
(1) An employee may work part-time in accordance with this Part with the agreement of the employer (a part-time work agreement).(2) A part-time work agreement must be in writing and signed by the employer and employee.(3) A part-time work agreement must provide for agreement on the following:(a) the entitlement of the employee to work part-time,(b) the number of hours to be worked by the employee, the days on which they will be worked and commencing and finishing times for the work,(c) the classification applying to the work to be performed,(d) the entitlement (if any) of the employee to return to full-time employment.(4) The agreement may be limited to a specified period or periods of part-time employment, but need not be so limited.(5) The agreement may be made prior to the employee commencing employment with the employer.
77 Variation of part-time work agreements
A part-time work agreement may be varied by a further agreement in writing between the employee and employer.
78 Obligations of employer under part-time work agreements
(1) A part-time work agreement must be retained by the employer during the period of part-time work.(2) The employer must give a copy of the agreement to the employee immediately after it is made.(3) The employer must send a copy of the agreement to the Industrial Registrar not later than 1 month after it is made.(4) The copy of the agreement is to be made available by the Industrial Registrar for public inspection during ordinary office hours. A person may make copies of it on payment of such fee, if any, as is prescribed by the regulations.(5) This section extends to any variation of the agreement.Maximum penalty: 20 penalty units.
79 Application of industrial instruments
(1) Application generally
Part-time work under this Part is to be in accordance with the provisions of the industrial instrument applicable to the work concerned, except where the provisions do not have effect or are modified because of this section.(2) Application pro rata
To the extent that any such provision of the industrial instrument is based on an employee engaged on a full-time basis, the provision is to apply pro rata to part-time work under this Part.(3) Commission to make State decision on part-time work
A Full Bench of the Commission is required to make a State decision under Part 3 relating to part-time work by employees covered by industrial instruments and to set, by that decision, minimum conditions of employment to which part-time work agreements under this Part are to be subject. The minimum conditions must include minimum and maximum hours of work and other relevant conditions of employment.(4) Inconsistent provisions
Any of the following provisions of an industrial instrument has, except to the extent that it is identified as a minimum condition by any such State decision, no effect if it would prevent an employee working part-time under this Part:(a) a provision limiting the number of employees who may work part-time,(b) a provision establishing quotas as to the ratio of part-time to full-time employees,(c) a provision prescribing a minimum or maximum number of hours a part-time employee may work.
An employer may request, but not require, an employee working part-time under this Part to work for longer than the hours agreed to under the part-time work agreement.
(1) The leave entitlements of an employee working part-time under this Part (including entitlements previously accrued) are to be converted into hours. The conversion is to be based on a day’s leave being equivalent to the number of ordinary hours of work for a day of full-time employment.(2) Leave entitlements based on full-time work are to accrue pro rata during the part-time work.(3) Leave taken during part-time work is to be taken on an hourly basis for each ordinary hour of part-time work during which the employee is absent from work.(4) Any accrued leave entitlements on return to full-time employment are to be re-converted into days.(5) By agreement between the employer and the employee, the period over which leave is taken during part-time work may be shortened to the extent necessary for the employee to receive pay at the employee’s current full-time rate.(6) This section is subject to any provision of a relevant industrial instrument that provides for leave during part-time work.
(1) A replacement employee is a person who is specifically employed as a result of an employee working part-time under this Part and whose employment may be terminated on the return of that employee to full-time employment.(2) Before a replacement employee is employed, the employer must inform the person of the temporary nature of the employment and of the rights of the employee working part-time to return to full-time employment.Maximum penalty: 50 penalty units.
(1) This Part applies to the dismissal of:(a) any public sector employee, or(b) any other employee, except an employee for whom conditions of employment are not set by an industrial instrument and whose annual remuneration is greater than $62,200 (or such greater amount as is prescribed by the regulations).(1A) This Part applies to the dismissal of an employee even if the person was employed in this State under a Federal award. However, this Part does not apply to the dismissal of any such employee if:(a) the person is entitled to make an application to the Australian Industrial Relations Commission with respect to the dismissal on the ground that it was harsh, unjust or unreasonable, or(b) the person would have been entitled to make such an application but for the exclusion of the person from the relevant provisions of the Workplace Relations Act 1996 of the Commonwealth (being an exclusion of a kind referred to in subsection (2)).(2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes:(a) employees engaged under a contract of employment for a specified period of time or a specific task,(b) employees serving a period of probation or qualifying period,(c) employees engaged on a casual basis for a short period,(d) employees whose terms and conditions of employment are governed by special arrangements providing particular protection in respect of termination of employment either generally or in particular circumstances,(e) employees in relation to whom the operation of the provisions of this Part causes or would cause substantial problems because of:(i) their particular conditions of employment, or(ii) the size or nature of the undertakings in which they are employed.(3) This Part does not apply to the dismissal of any such employee who is an apprentice or trainee (other than an existing worker trainee) within the meaning of the Apprenticeship and Traineeship Act 2001 or any such employee who is an executive officer to whom Part 2A of the Public Sector Management Act 1988 or Part 5 of the Police Service Act 1990 applies.(4) This Part applies to the dismissal of an employee even though it occurred in the course of an industrial dispute and the Commission is otherwise authorised under this Act to order the reinstatement of the employee.(5) In this Part:dismissal includes:
(a) the threat of dismissal, and(b) in the case of a public sector employee—dispensing with the services of the employee, dismissing the employee as a consequence of disciplinary proceedings against, or the commission of an offence by, the employee or annulling the appointment of the employee.Federal award means an award within the meaning of the Workplace Relations Act 1996 of the Commonwealth.
industrial instrument includes a Federal award or other Federal industrial instrument.
84 Application for remedy by dismissed employee
(1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part.(2) An application may be made on behalf of the employee by an industrial organisation of employees.(3) An industrial organisation may make one application on behalf of a number of employees who were dismissed at the same time or for related reasons. However, this subsection does not prevent the Commission from hearing a number of applications under this Part together or individually.(4) An application may be made under this Part even though the applicant does not specify the nature of the remedy sought or requests compensation only. However, this subsection does not affect the requirement under this Part that compensation is available only if the Commission considers that reinstatement or re-employment would be impracticable.
85 Time for making applications
(1) An application under this Part must be made not later than 21 days after the dismissal of the employee.(2) The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal and:(a) the similar application was made within the time required by that Commonwealth law, and(b) the similar application has not been settled or determined, and(c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part.(3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to:(a) the reason for, and the length of, the delay in making the application, and(b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and(c) the conduct of the employer relating to the dismissal.
86 Conciliation of applications
The Commission must endeavour, by all means it considers proper and necessary, to settle the applicant’s claim by conciliation.
87 Arbitration where conciliation unsuccessful
(1) When, in the opinion of the Commission, all reasonable attempts to settle the applicant’s claim by conciliation have been made but have been unsuccessful, the Commission is to determine the claim by making an order under section 89, dismissing the application or making any other order it is authorised to make under this Act.(2) Nothing in this section prevents further conciliation from being attempted at any time before the Commission makes such an order.
88 Matters to be considered in determining a claim
In determining the applicant’s claim, the Commission may, if appropriate, take into account:(a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and(b) if any such reason was given—its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and(c) whether a warning of unsatisfactory performance was given before the dismissal, and(d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and(e) whether or not the applicant requested reinstatement or re-employment with the employer, and(f) such other matters as the Commission considers relevant.
89 Orders for reinstatement, re-employment, remuneration, compensation
(1) Reinstatement
The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed.(2) Re-employment
If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission’s opinion, is suitable.(3) Remuneration
If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order.(4) Continuity
If the Commission orders reinstatement or re-employment, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal.(5) Compensation
If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave.(6) When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment.(7) Threat of dismissal
In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat.(8) An order under this section may be made on such terms and conditions as the Commission determines.
90 Effect of availability of other remedies
The Commission must not determine an applicant’s claim by making an order under section 89 if:(a) another Act or a statutory instrument provides for redress to the person in relation to the dismissal, and(b) the person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument.
90A Industrial agent must not represent an applicant or employer in proceedings unless there are reasonable prospects of success
(1) In this section:compensation order means an order for compensation under section 89 (5).
compensation proceedings means proceedings under this Part in which a compensation order is sought (whether or not any other order is sought in addition to or as an alternative to the compensation order).
(2) An industrial agent must not represent an applicant in compensation proceedings unless the industrial agent has filed a certificate with the Industrial Registrar certifying that the industrial agent has reasonable grounds for believing, on the basis of provable facts, that the applicant’s claim in the proceedings has reasonable prospects of success.(3) An industrial agent must not represent an employer in compensation proceedings unless the industrial agent has filed a certificate with the Industrial Registrar certifying that the industrial agent has reasonable grounds for believing, on the basis of provable facts, that the employer’s response to the claim in the proceedings has reasonable prospects of success.(4) A fact is provable only if the industrial agent reasonably believes that the material then available to him or her provides a proper basis for alleging that fact.(5) A claim has reasonable prospects of success if there are reasonable prospects of the Commission making the compensation order or, if the compensation order is sought in addition to or as an alternative to another order, any of the other orders sought.(6) A response has reasonable prospects of success if there are reasonable prospects of the Commission refusing to make the compensation order or, if the compensation order is sought in addition to or as an alternative to another order, any of the other orders sought.(7) This section does not apply to any service provided as a preliminary matter for the purpose of a proper and reasonable consideration of whether a claim or response has reasonable prospects of success.(8) If the Commission hearing proceedings under this Part finds that the facts established by the evidence before the Commission do not form a basis for a reasonable belief that the claim or the response had reasonable prospects of success, there is a presumption for the purposes of this section that industrial agent services provided on the claim or the response (as appropriate) were provided without reasonable prospects of success.(9) A presumption arising under this section is rebuttable and an industrial agent who seeks to rebut it bears the onus of establishing that at the time industrial agent services were provided there were provable facts (as provided by subsection (2) and (3)) that provided a basis for a reasonable belief that the claim or the response on which they were provided had reasonable prospects of success.(10) An industrial agent may, for the purpose of establishing that at the time industrial agent services were provided there were provable facts (as provided by subsection (2) and (3)) that provided a basis for a reasonable belief that the claim or the response on which they were provided had reasonable prospects of success, produce information or a document despite any duty of confidentiality in respect of a communication between the industrial agent and a client, but only if:(a) the client is the client to whom the industrial agent services were provided or consents to its disclosure, or(b) the Commission is satisfied that it is necessary for the industrial agent to do so in order to rebut a presumption arising under this section.
90B Extinguishment of rights and liabilities
A payment made after the commencement of this section in compliance with an order under this Part or any other agreement between the applicant and employer in relation to proceedings under this Part does not extinguish any right given, or liability imposed, on an applicant or employer by the order or agreement unless the payment is made:(a) directly to the applicant or employer, or(b) to an industrial organisation on behalf of the applicant or employer, or(c) to a practising legal practitioner on behalf of the applicant or employer, or(d) to another person in accordance with the directions of the Commission.
Note. Section 181 provides that the Commission may order costs to be paid in proceedings under this Part in the circumstances set out in that section. Section 380 enables the Commission in the course of proceedings under this Part to make an order for a small claim under Part 2 of Chapter 7 (Recovery of remuneration and other amounts) connected with the unfair dismissal.
Part 7 Protection of injured employees
(1) For the purposes of this Part, an injured employee is an employee who receives an injury for which the employee is entitled to receive compensation under the Workplace Injury Management and Workers Compensation Act 1998, the Workers Compensation Act 1987 or the Workers’ Compensation (Dust Diseases) Act 1942.(2) For the purposes of this Part, a person is the employer of an injured employee only if the injury arose (either wholly or partly) out of or in the course of employment with that person.(3) In this Part, reinstatement includes re-employment.
92 Application to employer for reinstatement of dismissed injured employee
(1) If an injured employee is dismissed because he or she is not fit for employment as a result of the injury received, the employee may apply to the employer for reinstatement to employment of a kind specified in the application.(2) The kind of employment for which the employee applies for reinstatement cannot be more advantageous to the employee than that in which the employee was engaged when he or she first became unfit for employment because of the injury.(3) The employee must produce to the employer a certificate given by a medical practitioner to the effect that the employee is fit for employment of the kind for which the employee applies for reinstatement.
93 Application to Commission for reinstatement order if employer does not reinstate
(1) If an employer does not reinstate the employee immediately to employment of the kind for which the employee has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the employee), the employee may apply to the Commission for a reinstatement order.(2) An industrial organisation of employees may make the application on behalf of the employee.(3) The Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured employee was dismissed.
94 Order by Commission for reinstatement
(1) The Commission may, on such an application, order the employer to reinstate the employee in accordance with the terms of the order.(2) The Commission may order the employee to be reinstated to employment of the kind for which the employee has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the employee), but only if the Commission is satisfied that the employee is fit for that kind of employment.(3) If the employer does not have employment of that kind available, the Commission may order the employee to be reinstated to employment of any other kind for which the employee is fit, being:(a) employment of a kind that is available but that is less advantageous to the employee, or(b) employment of a kind that the Commission considers that the employer can reasonably make available for the employee (including part-time employment or employment in which the employee may undergo rehabilitation).(4) If the Commission orders the employee to be reinstated, it may order the employer to pay to the employee an amount stated in the order that does not exceed the remuneration the employee would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission.
95 Presumption as to reason for dismissal
(1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured employee was dismissed because he or she was not fit for employment as a result of the injury received.(2) That presumption is rebutted if the employer satisfies the Commission that the injury was not a substantial and operative cause of the dismissal of the employee.
96 Disputes as to fitness—medical assessment
(1) The Commission may refer to an approved medical specialist (appointed under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998) any dispute as to the employee’s condition and fitness for employment. For the purposes of that reference, the approved medical specialist has and may exercise all the functions of an approved medical specialist under that Act.(2) The approved medical specialist is to submit a report to the Commission in accordance with the terms of the reference.
97 Continuity of service of reinstated employee
(1) If an employee is reinstated under this Part, the Commission may order that the period of employment of the employee with the employer is taken not to have been broken by the dismissal.(2) However if the Commission does so, the period between dismissal and the date of the application by the employee to the employer for reinstatement is not to be taken into account in calculating for any purpose the period of service of the employee with the employer.
98 Duty to inform replacement employee
An employer who, within 2 years after dismissing an injured employee, employs a person to replace the dismissed employee is guilty of an offence unless the employer first informs the person that the dismissed employee may be entitled under this Part to be reinstated to carry out the work for which the person is to be employed.Maximum penalty: 50 penalty units.
99 Dismissal within 6 months of injury an offence
(1) An employer of an injured employee who dismisses the employee is guilty of an offence if:(a) the employee is dismissed because the employee is not fit for employment as a result of the injury, and(b) the employee is dismissed during the relevant period after the employee first became unfit for employment.Maximum penalty: 100 penalty units.
(1A) For the purposes of subsection (1), the relevant period is:(a) the period of 6 months after the employee first became unfit for employment, except as provided by paragraph (b), or(b) if the employee is entitled under a Commonwealth or State industrial instrument to accident pay as a result of the injury for a period exceeding that period of 6 months—the period during which the employee is entitled to accident pay.Accident pay is an entitlement of the employee to payment by the employer, while the employee is unfit for employment, that is described as accident pay in the relevant industrial instrument.
(2) It is a defence to a prosecution for an offence under this section if the employer satisfies the court that:(a) at the time of dismissal, the employee would not undergo a medical examination reasonably required to determine fitness for employment, or(b) at the time of dismissal, the employer believed on reasonable grounds that the employee was not an injured employee within the meaning of this Part.(3) The prosecution may establish that an injured employee was dismissed because the employee was not fit for employment as a result of the injury if the prosecution establishes that the injury was a substantial and operative cause of the dismissal.(4) This section applies even if the employee became unfit for employment before the commencement of this section.
This Part does not affect any other rights of a dismissed employee under this or any other Act or under any industrial instrument or contract of employment.
Part 8 Protection of entitlements on transfer of business
(1) In this Part:transfer of business means the transfer, transmission, conveyance, assignment or succession, whether by agreement or by operation of law, of the whole or any part of a business, undertaking or establishment.
transferred employee means a person who becomes an employee of an employer (the new employer) as a result of the transfer of business to that employer from another employer (the former employer).
(2) A person is to be regarded as a transferred employee even if the person’s employment with the former employer is terminated before the transfer of business, so long as:(a) the person is employed by the new employer after the transfer of business, and(b) the circumstances of that termination and employment indicate an intention to avoid the operation of this Part.In that case, the termination of employment of such a transferred employee is to be disregarded for the purposes of this Part.
102 Continuity of service for determining entitlements
(1) This section applies for the purpose of determining a transferred employee’s entitlements as an employee of the new employer under an industrial instrument or the industrial relations legislation.(2) For the purpose of determining those entitlements:(a) the continuity of the employee’s contract of employment is taken not to have been broken by the transfer of business, and(b) a period of service with the former employer (including service before the commencement of this section) is taken to be a period of service with the new employer.(3) Service with the former employer includes service that because of this section or a former Act is taken to be service with that employer as a result of a previous transfer of the business.
103 Entitlements when industrial instrument or legislation contravened
(1) This section applies only to an entitlement (the avoided entitlement) that a former employer has failed to provide to a transferred employee in contravention of an industrial instrument or the industrial relations legislation.(2) If the avoided entitlement relates to the payment of remuneration, this Part does not operate:(a) to create an entitlement to payment by the new employer, or(b) to relieve the former employer from liability for the payment.(3) If the avoided entitlement relates to anything else and the new employer is required because of this Part to provide the entitlement, the new employer is entitled to be indemnified by the former employer for the reasonable cost of providing it.
104 Prevention of double entitlement
This Part does not entitle a transferred employee to claim a benefit from more than one employer in respect of the same period of service.
In this Part:contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument.
unfair contract means a contract:
(a) that is unfair, harsh or unconscionable, or(b) that is against the public interest, or(c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or(d) that is designed to, or does, avoid the provisions of an industrial instrument.Note. The jurisdiction of the Commission under this Part is exercisable only by the Commission in Court Session.
Division 2 Unfair contracts may be declared void or varied
106 Power of the Commission to declare contracts void or varied
(1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract.(2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason.(3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time.(4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force.(5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case.(6) In making an order under this section, the Commission must take into account whether or not the applicant (or person on behalf of whom the application is made) took any action to mitigate loss.
107 Orders to prevent further unfair contracts
(1) The Commission, when making an order under section 106 or at a later time, may make such further order as the Commission considers appropriate for the purpose of prohibiting (either absolutely or otherwise than in accordance with specified conditions):(a) any party to the contract, or(b) any other person who is (in any way considered relevant by the Commission) associated with any such party,from:(c) entering into any specified kind of contract whereby a person performs work in an industry, or(d) doing any act (whether by way of advertising or otherwise) which may reasonably be construed as being intended to induce other persons to enter into any such contract.(2) An order under this section must identify the person or persons bound by the order and takes effect in respect of each such person:(a) on service on the person of a copy of the order, or(b) on publication of the order in a daily newspaper circulating generally throughout New South Wales,whichever first occurs.
An order may be made under this Division on the application of:(a) any party to the contract, or(b) any person who, but for the making of such an order, would be a party to the contract, or(c) an industrial organisation of employers whose members employ persons working in the industry to which the contract relates, or(d) an industrial organisation of employees whose members are employed in the industry to which the contract relates, or(e) an association registered under Chapter 6 of which a party to the contract is a member,and not otherwise.
108A Employment contracts in respect of which applications cannot be made
(1) An application cannot be made for an order under this Division if the application relates to a contract of employment under which:(a) a remuneration package that exceeds the remuneration cap is paid or received (or is payable or receivable) during the period of 12 months immediately before the application is made (or, if the application concerned relates to a contract that has been terminated, immediately before the termination), or(b) a remuneration package is paid or received (or is payable or receivable) during a period of less than 12 months immediately before the application is made (or, if the application concerned relates to a contract that has been terminated, immediately before the termination) that would, if the remuneration package had been paid or received (or been payable or receivable) for a period of 12 months, have exceeded the remuneration cap.(2) An application cannot be made for an order under this Division by a person who is a partner carrying on a business if:(a) the application relates to a contract between that partner and the other persons carrying on that business in partnership, and(b) the share of the net profits, or payments contingent on the net profits, of the business that are paid to or received by (or payable to or receivable by) the applicant during the period of 12 months immediately before the application is made (or, if the application relates to a contract that has been terminated, immediately before the termination) exceed:(i) $200,000, or(ii) if an amount is prescribed for the purposes of paragraph (b) of the definition of “remuneration cap” in subsection (3)—that amount.(3) In this section:contract of employment means any contract or arrangement under which work is done by a person in the capacity of an employee, and includes a related condition or collateral arrangement with respect to such a contract.
employment benefit means a benefit provided to an employee at the cost of his or her employer (being a benefit of a private nature) and, without limitation, includes:
(a) contributions payable to a superannuation scheme by an employer in respect of the employee, including any liability of that employer to make any such contributions or to pay costs associated with that scheme, or(b) the provision by an employer of a motor vehicle for private use by the employee, or(c) any other benefit prescribed by the regulations for the purposes of this definition.monetary remuneration includes any performance-related bonus or incentive payment.
remuneration cap means:
(a) $200,000, except as provided by paragraph (b), or(b) any greater amount prescribed by the regulations (being a regulation that increases the amount by reference to increases in the amount referred to in section 83 (1) (b)).remuneration package means the total value of monetary remuneration and employment benefits payable or receivable under a contract of employment.
108B Time for making application
(1) An application for an order under this Division in relation to a contract that has been terminated must be made not later than 12 months after the termination of the contract.(2) The Commission does not have jurisdiction to extend the time for making any such application or to accept an application made after the time prescribed by subsection (1).
109 Conciliation of applications to be attempted first
(1) The Commission must endeavour, by all means it considers proper and necessary, to settle a matter under this Division by conciliation.(2) When, in the opinion of the Commission, all reasonable attempts to settle the matter by conciliation have been made but have been unsuccessful, the Commission is to determine the matter in accordance with this Act.(3) Nothing in this section prevents further conciliation from being attempted at any time before the Commission makes such an order.(4) Any member of the Commission (whether or not a judicial member) may undertake the conciliation of a matter under this Division.
109A Exclusion of certain contracts in connection with unfair dismissals
(1) This Division does not apply to a contract of employment that is alleged to be an unfair contract for any reason for which:(a) an application has been or could have been made by the employee under Part 6 (Unfair dismissals), or(b) such an application could have been made but for the provisions of section 83 that exclude the employee from making an application under that Part.(2) In this section:contract of employment means any contract or arrangement under which work is done by a person in the capacity of an employee, and includes a related condition or collateral arrangement with respect to such a contract.
dismissal has the same meaning that it has in Part 6.
Division 3 Determination of remuneration of contractors under unfair building and certain other contracts
(1) This Division applies to a contract for the carrying out of:(a) building work, or(b) door-to-door handbill delivery work, or(c) door-to-door sales work,except as provided by this Division.(2) This Division does not apply to any such contract:(a) to the extent that it is a contract under which the work is done by a person in the capacity of an employee, or(b) unless at least one of the parties to the contract (other than a person who actually does the work) is a person who carries on a business of doing, or arranging for the doing, of that kind of work.(3) The regulations may declare any specified work to be, or not to be, building work, door-to-door handbill delivery work or door-to-door sales work for the purposes of this Division.
111 Division applies only if Commission declares contract unfair
(1) This Division does not apply to a contract unless the Commission has found (under Division 2 or on application under this section) that the contract is an unfair contract.(2) An application for such a finding for the purposes of this Division may be made only by an industrial organisation of employees whose members are employed in the industry in connection with which work is done of the same kind as that done under the contract to which the application relates.
112 Commission may determine remuneration under unfair contract
The Commission may, by its order, prescribe the minimum rate at which a person is (otherwise than as an employee) to be remunerated under a contract to which this Division applies.
(1) Before making an order under this Division, the Commission is to require the person in whose favour the order would be made to serve notice on such persons as the Commission considers have an interest in the matter that such an order might be made.(2) A person served with such a notice is entitled to appear and be heard in relation to the matter.
114 Time at which order takes effect
An order under this Division takes effect:(a) 28 days after its publication in the Industrial Gazette, or(b) if the order so provides—on any later day specified in the order.
115 Incorporation of order in contract and other contracts
(1) If an order is in force under this Division in relation to the doing of work under a contract:(a) that contract, and(b) any other contract that is a contract for the doing of the same kind of work and is a contract of a kind in respect of which the Commission may make a finding that it is an unfair contract,are taken to incorporate the order in so far as it relates to that kind of work.(2) If there is an inconsistency between a provision of an order in force under this Division and a contract in which it is incorporated by this section, the provision of the order prevails to the extent of the inconsistency.
116 Variation or revocation of order
The Commission may vary or revoke an order in force under this Division on its own initiative or on application by the industrial organisation of employees whose members are employed in the industry concerned or by any other person affected by the order.
Part 10 Payment of remuneration
117 Employees to be paid in money
(1) Remuneration payable to an employee must be paid in money and, if demanded, at least once each fortnight.(2) Payment is made in money only if it is made:(a) in cash, or(b) with appropriate authority, by cheque payable to the employee, or(c) with appropriate authority, into an account in the name of the employee (whether or not jointly with another person) at a financial institution by electronic transfer of funds or other means.Appropriate authority is authority conferred in writing by the employee or authority conferred by an industrial instrument.
(3) Payment of remuneration is to be made in advance if the employee is entitled to payments in advance by agreement, custom or otherwise.(4) An employer must not pay remuneration to an employee contrary to this section.Maximum penalty: 100 penalty units.
118 Employees to be paid in full
(1) Payment of remuneration to an employee is to be made in full without any deduction for goods, board or lodging or any other services supplied by the employer in payment (or part payment) of remuneration.(2) However, an employer can deduct and pay on behalf of an employee from any remuneration payable to the employee:(a) any payments principally for the benefit of the employee that are authorised in writing by the employee to be deducted and paid, or(b) any payments that are authorised by an industrial instrument to be deducted and paid.(3) An employer must not pay remuneration to an employee contrary to this section.Maximum penalty: 100 penalty units.
119 Employer not to stipulate how remuneration to be spent
An employer must not, directly or indirectly, impose as a condition of the employment of an employee any terms as to the place where or the manner in which or the person with whom any remuneration paid to the employee is to be spent.Maximum penalty: 100 penalty units.
120 Recovery of remuneration—no set-off or action for goods or services supplied by employer
(1) In any proceedings by an employee against the employer to recover any amount due as remuneration, the employer is not entitled to any set-off or reduction of the claim in respect of:(a) any goods or services supplied to the employee as, or as part of, remuneration, or(b) any goods sold or supplied at any shop or other premises of the employer or in the profits of which the employer has any share or interest, or(c) any goods supplied to the employee by any person under the direction of the employer or the employer’s agent.(2) An employer is not entitled to maintain any action in any court or tribunal against an employee for or in respect of any goods sold or supplied to the employee by the employer while in the employer’s employment as or as part of the employee’s remuneration.
121 Unauthorised payments—civil effect
(1) Payment of remuneration to an employee contrary to this Part is not to be considered to be payment or part payment of that remuneration, except to the extent (if any) permitted by the Commission.(2) A provision of a contract that provides for payment of remuneration to an employee in a manner that is contrary to this Part is void.
122 Payment of unclaimed remuneration
(1) If:(a) an employee has left the employment of an employer without being paid the full amount due to the employee in respect of the employment, and(b) the employer has been unable, during a period of 30 days after the termination of the employment, to make the payment because the location of the employee is unknown to the employer, and cannot with reasonable diligence be found,the employer must, immediately after the expiration of that period, pay the full amount to the Treasury.Maximum penalty: 50 penalty units.
(2) A receipt issued on behalf of the Treasury for money so paid is a sufficient discharge to an employer for the amount specified in the receipt.(3) The amount so paid is to be paid into the Consolidated Fund.(4) If the Treasurer is satisfied that a person is entitled to money that has been so paid into the Consolidated Fund, the Treasurer is to pay that amount of money to that person.
123 Particulars of remuneration to be supplied to employees
(1) An employer must, when paying remuneration to an employee, supply the employee with such written particulars regarding the payment as are prescribed by the regulations.Maximum penalty: 20 penalty units.
(2) The employer may, instead of supplying those written particulars, make other arrangements approved by the Industrial Registrar for supplying information about remuneration to all or any of the employees of the employer. Any such approval:(a) must be granted to the employer in writing, and(b) must not be granted unless the Industrial Registrar is satisfied that the arrangements are in the interests of the employees concerned and meet their reasonable requirements for information about remuneration, and(c) may be revoked or varied by the Industrial Registrar by notice in writing to the employer.
124 Superannuation fund contributions
(1) If an industrial instrument requires an employer to pay contributions to a specified superannuation fund for the purpose of providing superannuation benefits to or in respect of an employee of the employer, the required contributions may, despite the industrial instrument, be paid to a complying superannuation fund nominated for the time being by the employee and approved by the employer.(2) However, subsection (1) applies only if:(a) the nomination of the complying superannuation fund by the employee is in writing and signed by the employee, and(b) the employer has given the employee a copy of the nomination and written notice of the employer’s approval of the nomination, and(c) the employer retains a copy of the nomination.(2A) An employee may, by notice in writing, revoke a nomination under this section.(3) In this section:complying superannuation fund means a superannuation fund that, for the relevant year of income, is a complying superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth.
superannuation fund has the same meaning as it has in the Superannuation Industry (Supervision) Act 1993 of the Commonwealth.
125 Permits—special wage payments
(1) Any employee may apply to the Industrial Registrar for a written permit authorising the employee to work for less than the rate of pay set for the employee by an industrial instrument if the employee considers himself or herself unable to earn the minimum rate of pay set by the industrial instrument because of any impairment of the employee.(2) An application may be made by post and may, with the approval of the Industrial Registrar, be made by a person on behalf of the employee.(3) The Industrial Registrar may grant a permit under this section (with or without conditions) or refuse to grant the permit. Any such permit has effect according to its tenor.(4) The Industrial Registrar may at any time cancel any such permit.(5) If the Industrial Registrar grants a permit, the Industrial Registrar must notify the industrial organisation of employees for the industry in which the applicant is employed or intends to be employed of the grant of the permit and its conditions.(6) The organisation may at any time after being given such notice apply to the Industrial Registrar for cancellation of the permit.Note. Under section 194 a person may appeal to the Commission against the granting of or the refusal or failure to grant or the cancellation of a permit.
126 Stand-down orders—suspension of payment of remuneration
(1) The Commission may, on the application of an employer or an industrial organisation of employers, order the stand down of employees of that employer or of members of that organisation if there is no useful work for the employees because of:(a) industrial action, or(b) breakdown of machinery, or(c) any other act or omission,for which the employer or employers concerned are not responsible.(2) The Commission is to give high priority to the hearing and determination of any such application.(3) An employee who is stood down by the Commission is not entitled to any remuneration (including allowances) while stood down. However, this subsection does not apply to any allowance that the Commission considers should be paid despite the stand-down order.(4) The period during which an employee is stood down is to be regarded as a period of employment with the employer for all other purposes, including the accrual of leave and the calculation of superannuation and other entitlements.(5) A stand-down order does not apply to an employee who is an apprentice or trainee (other than an existing worker trainee) within the meaning of the Apprenticeship and Traineeship Act 2001.
127 Liability of principal contractor for remuneration payable to employees of subcontractor
(1) Application
This section applies where:(a) a person (the principal contractor) has entered into a contract for the carrying out of work by another person (the subcontractor), and(b) employees of that subcontractor are engaged in carrying out the work (the relevant employees), and(c) the work is carried out in connection with a business undertaking of the principal contractor.(2) Liability of principal contractor
The principal contractor is liable for the payment of any remuneration of the relevant employees that has not been paid for work done in connection with the contract during any period of the contract unless the principal contractor has a written statement given by the subcontractor under this section for that period of the contract.(3) Content and form of statement
The written statement is a statement by the subcontractor that all remuneration payable to relevant employees for work under the contract done during that period has been paid. The regulations may make provision for or with respect to the form of the written statement.(4) Retention of copies of statements
The subcontractor must keep a copy of any written statement under this section for at least 6 years after it was given.(5) Payments under contract
The principal contractor may withhold any payment due to the subcontractor under the contract until the subcontractor gives a written statement under this section for any period up to the date of the statement. Any penalty for late payment under the contract does not apply to any payment withheld under this subsection.(6) Remuneration
For the purposes of this section, remuneration means remuneration or other amounts payable to relevant employees by legislation, or under an industrial instrument, in connection with work done by the employees.(7) False statement not effective
The written statement is not effective to relieve the principal contractor of liability under this section if the principal contractor had, when given the statement, reason to believe it was false.(8) False statement is offence
A subcontractor who gives the principal contractor a written statement knowing it to be false is guilty of an offence.Maximum penalty: 100 penalty units.
(9) Recovery
The provisions of this Act relating to the recovery of amounts payable under industrial instruments apply to the recovery of remuneration payable by a principal contractor under this section.(10) Exclusion
This section does not apply in relation to a contract if the subcontractor is in receivership or in the course of being wound up or, in the case of an individual, is bankrupt and if payments made under the contract are made to the receiver, liquidator or trustee in bankruptcy.(11) Application
To avoid doubt, this section extends to a principal contractor who is the owner or occupier of a building for the carrying out of work in connection with the building so long as the building is owned or occupied by the principal contractor in connection with a business undertaking of the principal contractor.(12) Nothing in this section limits or excludes any liability with respect to payment of remuneration by a person who is a principal contractor arising under this Act or any other law or any industrial instrument.
127A Definitions—sections 127B–127G
In sections 127B–127G:employer means a person described in clause 1 (f) of Schedule 1 as an employer, being a person other than a person whose sole business in connection with the clothing industry is sale of clothing by retail.
Note. A person described in clause 1 (f) of Schedule 1 as an employer is taken to be an employer for the purposes of this Act by section 5 (3).outworker in the clothing trades means a person described in clause 1 (f) of Schedule 1 as an employee.
Note. A person described in clause 1 (f) of Schedule 1 as an employee is taken to be an employee for the purposes of this Act by section 5 (3).remuneration means an amount payable, within the meaning of the definition of amount payable in section 364 (1), in connection with work done by an outworker and includes an amount payable to the outworker under the Annual Holidays Act 1944 or the Long Service Leave Act 1955.
unpaid remuneration claim means a claim for unpaid remuneration under section 127B.
127B Claims by outworkers in clothing trades for unpaid remuneration
(1) When may an outworker make an unpaid remuneration claim under this section?
An outworker in the clothing trades may make a claim under this section for any unpaid remuneration against the person the outworker believes is his or her employer (the apparent employer) if the employer has not paid the outworker all or any of the remuneration for work done by the outworker for the employer (the unpaid remuneration).(2) The claim must be made within 6 months after the work is completed.(3) How is an unpaid remuneration claim made?
The claim is to be made by serving a written notice on the apparent employer that:(a) claims payment of the unpaid remuneration, and(b) sets out 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 unpaid remuneration claimed in respect of the work.(4) The particulars set out in the unpaid remuneration claim must be verified by statutory declaration.(5) This section applies only in respect of remuneration for work carried out after the commencement of the section.(6) Clause 3 of Schedule 1 does not apply to an employer served with an unpaid remuneration claim under this section.
127C Liability of apparent employer for unpaid remuneration for which an unpaid remuneration claim has been made
(1) Except as provided by subsection (4), an apparent employer served with an unpaid remuneration claim under section 127B is liable (subject to any proceedings as referred to in section 127E) for the amount of unpaid remuneration claimed.(2) An apparent employer may, within 14 days after being served with an unpaid remuneration claim, refer the claim in accordance with this section to another person the apparent employer knows or has reasonable grounds to believe is the person for whom the work was done (the actual employer).(3) An apparent employer refers an unpaid remuneration claim in accordance with this section by:(a) advising the outworker concerned in writing of the name and address of the actual employer, and(b) serving a copy of the claim (a referred claim) on the actual employer.(4) The apparent employer is not liable for the whole or any part of an amount of unpaid remuneration claimed for which the actual employer served with a referred claim accepts liability in accordance with section 127D.
127D Liability of actual employer for unpaid remuneration for which an unpaid remuneration claim has been made
(1) An actual employer served with a referred claim under section 127C may, within 14 days after the service, accept liability for the whole or any part of the amount of unpaid remuneration claimed by paying it to the outworker concerned.(2) An actual employer who accepts liability must serve notice in writing on the apparent employer of that acceptance and of the amount paid.(3) The apparent employer may, after the apparent employer has paid to the outworker concerned any part of the amount of unpaid remuneration claimed for which the actual employer served with the referred claim has not accepted liability, deduct or set-off the amount the apparent employer has paid to the outworker from any amount that the apparent employer owes to the actual employer (whether or not in respect of work the subject of the referred claim).
127E Recovery of amount of unpaid remuneration
(1) Part 2 of Chapter 7 (Recovery of remuneration and other amounts) applies to recovery of an amount payable to an outworker in the clothing trades from an apparent employer who fails to make a payment in respect of an amount of unpaid remuneration for which the employer is liable under section 127C. For the purposes of this section, a reference in Part 2 of Chapter 7 to an industrial instrument is to be construed as a reference to the provisions of this section.(2) In proceedings referred to in subsection (1), an order for the apparent employer to pay the amount concerned must be made unless the apparent employer proves that the work was not done or that the amount claimed for the work in the unpaid remuneration claim is not the correct amount in respect of the work.
127F Offences relating to unpaid remuneration claims and referred claims
A person must not:(a) by intimidation or by any other act or omission, intentionally hinder, prevent or discourage a person from making an unpaid remuneration claim, or(b) make any statement that the person knows is false or misleading in a material particular in any notice given for the purposes of section 127C or 127D, or(c) serve a referred claim on a person under section 127C that the person does not know, or have reasonable grounds to believe, is an actual employer.Maximum penalty: 100 penalty units.
127G Effect of sections 127A–127F
(1) Sections 127A–127F do not (except as provided by section 127B (6)), limit or exclude any other rights of recovery of remuneration of an outworker in the clothing trades, or any liability of any person with respect to the remuneration of such an outworker, whether or not arising under this Act or any other law or an industrial instrument.Note. An outworker may, for example, seek an order from an industrial court under section 365 instead of making an unpaid remuneration claim under section 127B.(2) Nothing in section 127D (3) limits or excludes any right of recovery arising under any other law with respect to any amount of money owed by the apparent employer to the actual employer.
128 Minimum remuneration for musicians
(1) In any contract for the performance of any work involving the supply for reward of any musical entertainment, the consideration for the contract is not to be less than a sum sufficient to pay, to each person engaged in the performance of the work, the remuneration set by any award for a person performing the work as an employee.(2) Any person who offers, enters into or is in any way concerned with a contract that does not comply with this section or who knowingly performs work in pursuance of a contract that does not comply with this section is guilty of an offence.Maximum penalty: 100 penalty units.
129 Records to be kept by employers concerning employees
(1) An employer must ensure that the following daily records are kept in relation to employees of the employer:(a) records of remuneration paid and hours worked by the employees, and(b) any other prescribed records relating to conditions of employment set by the industrial relations legislation or industrial instruments.(2) (Repealed)(3) The records are to be kept in the manner and form prescribed by the regulations or in accordance with different requirements approved in writing by the Industrial Registrar.(4) The employer must ensure that the records are kept for a period of at least 6 years.(5) The regulations may make provision for or with respect to the transfer of any such records, or copies of any such records, to the successor of an employer.(6) A person who contravenes this section or the regulations under this section is guilty of an offence.Maximum penalty: 20 penalty units.