Part 1 Conciliation and arbitration of industrial disputes
130 Notification of industrial dispute to Commission
(1) Any of the following may notify the Commission of an industrial dispute for the purpose of resolving the dispute:(a) an industrial organisation of employees or employers,(b) an employer who is or is likely to be affected by the dispute,(c) a person who is or is likely to be the subject of a secondary boycott in connection with the dispute,(d) a State peak council.(2) The Commission may act on its own initiative to resolve an industrial dispute.
131 Mandatory dispute resolution procedures to be followed first
The Commission may refuse to deal with an industrial dispute until it is satisfied that any relevant dispute resolution procedures in an industrial instrument have been followed as far as is reasonably practicable in the circumstances.Note. Sections 14 and 39 require the inclusion of dispute resolution procedures in awards and enterprise agreements.
(1) For the purpose of resolving an industrial dispute, the Commission may convene a compulsory conference and require the attendance of any person whose presence the Commission considers would help in the resolution of the dispute.(2) A compulsory conference is to be presided over by a member of the Commission.(3) The Commission may confer with any person on any matter that may affect the resolution of an industrial dispute, without requiring the person to attend a compulsory conference.Note. Section 165 provides that the Industrial Registrar may issue a summons for the purpose of any compulsory conference. Section 380 enables the Commission in the course of a compulsory conference to make an order for a small claim under Part 2 of Chapter 7 (Recovery of remuneration and other amounts) arising out of the industrial dispute.
133 Conciliation before arbitration
The Commission must first attempt to resolve an industrial dispute by conciliation.
(1) Commission to assist parties
The Commission, when attempting the conciliation of an industrial dispute, is to do everything that seems to be proper to assist the parties to agree on terms for the resolution of the dispute.(2) Recommendations or directions
During conciliation proceedings, the Commission may make a recommendation or give a direction to the parties to the industrial dispute. Failure to comply with any such recommendation or direction may not be penalised but may be taken into account by the Commission in exercising its functions under this Act.(3) Conferences
The action that may be taken by the Commission to assist the parties includes making arrangements or giving directions for the convening and conduct of conferences of the parties or their representatives (whether or not compulsory conferences and whether or not presided over by a member of the Commission).(4) Good faith bargaining
The Commission, when dealing with an industrial dispute, must consider whether the parties have bargained in good faith and, in particular, whether the parties have:(a) attended meetings they have agreed to attend, and(b) complied with agreed or reasonable negotiating procedures, and(c) disclosed relevant information for the purposes of negotiation.The Commission may make recommendations or give directions to the parties to bargain in good faith.
135 Arbitration after attempted conciliation
(1) The Commission is to deal with an industrial dispute by arbitration only if it is not resolved by conciliation.(2) Arbitration by the Commission is not to proceed until the Commission has issued a certificate that reasonable attempts have been made to resolve the industrial dispute by conciliation (certificate of attempted conciliation).(3) A certificate of attempted conciliation is to be provided to the President of the Commission unless the Commission is constituted by the President.(4) When determining whether to issue a certificate of attempted conciliation, the Commission must consider the effect that any industrial action in connection with the industrial dispute is having on the parties and the public generally. In particular, the Commission must give urgent consideration to the effect of industrial action in connection with a demarcation dispute.(5) A certificate of attempted conciliation may be issued on the Commission’s own initiative or on application by any person authorised to notify the Commission of the industrial dispute.(6) The Commission must, without delay, issue a certificate of attempted conciliation on the application of any such person if the person satisfies the Commission that there is no reasonable likelihood that the dispute will be resolved by conciliation.(7) The Commission must, without delay, issue a certificate of attempted conciliation if the Commission decides that industrial action or duress necessitates the exercise of its arbitral powers.(8) The parties to the proceedings are to be provided with a copy of any certificate of attempted conciliation.(9) Nothing in this Act prevents the exercise of conciliation powers merely because arbitration powers have been exercised under this Act.
(1) The Commission may, in arbitration proceedings, do any one or more of the following:(a) make a recommendation or give a direction to the parties to the industrial dispute,(b) make or vary an award under Part 1 of Chapter 2,(c) make a dispute order under Part 2,(d) make any other kind of order it is authorised to make (including an order made on an interim basis).(2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute.Note. Examples of other kinds of orders the Commission may make are orders for secret ballots (section 172), a demarcation order under Part 6 of Chapter 5 and stand-down orders (section 126).
(1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings:(a) The Commission may order a person to cease or refrain from taking industrial action.(b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute.(c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so.(d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute.(2) If employees are taking industrial action in connection with the industrial dispute, the Commission may order the employees to cease taking that industrial action before it makes any other kind of dispute order against the employer.(3) A dispute order may not provide for the payment of compensation, lost remuneration or any other amount.Note. See also claim for remedy under Part 6 of Chapter 2 (Unfair dismissals).
(1) A dispute order may be made only against:(a) a party or likely party to the industrial dispute, or(b) a member, officer or employee of an industrial organisation that is such a party or likely party, or(c) a person engaged, or likely to be engaged, in a secondary boycott in connection with the industrial dispute.(2) A dispute order:(a) must clearly identify the persons against whom the order is made and who are bound by the order, and(b) must state a time within which the order is to be complied with or state a period during which it remains in force, and(c) may be varied or revoked by the Commission at any time.(3) If an employee is reinstated or re-employed 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.
139 Contravention of dispute order
(1) The Commission, on application, must deal expeditiously with an alleged contravention of a dispute order. The application may be made by the person who applied for the order or any other person who was authorised to apply for the order.(2) Before dealing with an alleged contravention of the order, the Commission is required to summon the person alleged to have contravened the order to show cause why the Commission should not take action for the contravention.(3) The Commission may, after hearing any person who answered the summons to show cause and considering any other relevant matter, do any one or more of the following:(a) dismiss the matter if it finds that the dispute order was not contravened or if it finds that the circumstances were such that the Commission should take no action on the contravention,(b) cancel the approval of an enterprise agreement,(c) suspend or modify for any period all or any of the entitlements under an industrial instrument,(d) cancel the registration of an industrial organisation or take any other action authorised by Division 2 of Part 3 of Chapter 5,(e) impose a penalty on an industrial organisation or an employer as provided by subsection (4),(f) make any other determination that the Commission considers would help in resolving the industrial dispute.(4) The maximum penalty that may be imposed on an industrial organisation or employer is:(a) except as provided by paragraph (b)—a penalty not exceeding in total $10,000 for the first day the contravention occurs and an additional $5,000 for each subsequent day on which the contravention continues, or(b) if a penalty has previously been imposed on the industrial organisation or employer for a contravention of an earlier dispute order—a penalty not exceeding in total $20,000 for the first day the contravention occurs and an additional $10,000 for each subsequent day on which the contravention continues.(5) Any such penalty may be recovered in the same way as a penalty imposed by the Commission for an offence against this Act.Note. The jurisdiction of the Commission under this section is exercisable only by the Commission in Court Session.
Part 3 Common law actions during conciliation of industrial disputes
140 Actions in tort to which Part applies
(1) This Part applies to an action in tort for an act done or omitted to be done:(a) by an industrial organisation of employees, or(b) by an official or member of any such organisation,in contemplation or furtherance of an industrial dispute in which the Commission has jurisdiction.(2) However, this Part does not apply to:(a) an action for the recovery of damages for death or personal injury, or(b) an action for the recovery of damages in connection with the destruction of or damage to property, or(c) an action for conversion or detinue, or(d) an action for defamation, or(e) an action in respect of the acts or omissions of an official or member of an industrial organisation when the person is not acting in the capacity of such an official or member, or(f) any action prescribed by the regulations.
141 Actions in tort while Commission attempting to conciliate dispute not actionable
(1) A person may not bring or continue an action in tort to which this Part applies while the industrial dispute to which the action relates is subject to conciliation by the Commission.(2) For the purposes of this section, an industrial dispute is subject to conciliation if:(a) the Commission has been notified under this Chapter of the dispute or has decided on its own initiative to resolve the dispute, and(b) a certificate of attempted conciliation has not been issued by the Commission under this Chapter in respect of the dispute.(3) For the purposes of this section, an industrial dispute is not subject to conciliation if the Commission has decided to dismiss or otherwise discontinue the proceedings concerned.(4) A certificate issued by a member of the Commission as to whether a specified industrial dispute is subject to conciliation by the Commission is admissible in evidence in any proceedings in which this Part is in issue and is evidence of the matters stated in the certificate.
142 Injunction not to be granted while industrial tort not actionable
An injunction cannot be granted by any court to restrain a threatened or apprehended tort, or to restrain the continuation or repetition of a tort, if at that time the tort is not actionable under this Part.
Part 4 Miscellaneous provisions relating to industrial disputes
(1) An employer who pays any remuneration or provides any other financial benefit to an employee in respect of time spent by the employee in engaging in industrial action is guilty of an offence.Maximum penalty: 100 penalty units.
(2) The employer is not guilty of an offence if the payment of the remuneration or provision of the financial benefit was authorised or ordered by the Commission.(3) The Commission may, on the application of an industrial organisation of employees, authorise the payment of remuneration or the provision of financial benefits that would otherwise constitute an offence under this section. The Commission may, instead, order the employer to pay any such remuneration or provide any such benefit if it considers it appropriate in the circumstances.(4) The Commission may authorise or order an employer to do so:(a) only if the applicant satisfies the Commission that the relevant industrial action was based on a reasonable concern for health or safety, and(b) only to the particular employees whose health or safety caused that concern.(5) For the purposes of this section, industrial action is not based on a reasonable concern for health or safety if the employees whose health or safety is alleged to be involved have engaged in industrial action instead of complying with a direction by the employer:(a) to move to a specified safe place in the work place or to another suitable workplace, and(b) to do other appropriate and available work there if required.(6) In this section, employer includes a person acting on behalf of the employer.
144 Determination of demarcation questions concerning occupations
(1) The Commission may, for the purpose of resolving an industrial dispute during arbitration proceedings, determine any question as to the right of employees in particular occupations to do particular work in an industry to the exclusion of employees in other occupations.(2) Any such determination is to be made by an award of the Commission.(3) This section does not limit the power of the Commission to make an award relating to the occupations of employees who may do specified work in an industry to the exclusion of other employees.