Part 1 Breach of industrial instruments
In this Part:industrial court means:
(a) the Commission in Court Session, or(b) the Local Court constituted specially for the purposes of this Part by an Industrial Magistrate sitting alone.
357 Civil penalty for breach of industrial instruments
(1) If an industrial court is satisfied that a person has contravened a provision of an industrial instrument, it may order the person to pay a pecuniary penalty not exceeding $10,000 (a civil penalty).Note. Section 21 of the Interpretation Act 1987 provides that the expression “contravene” in an Act includes a failure to comply.(2) Proceedings for a civil penalty may be instituted:(a) by an inspector or any other person authorised by this Act to institute proceedings for offences, or(b) by an employer bound by the industrial instrument concerned, or(c) by an industrial organisation concerned in the industry to which the proceedings relate.(3) Proceedings for a civil penalty may be instituted within 6 years after the contravention.(4) To avoid doubt, the rules of evidence apply to proceedings for a civil penalty.(5) Evidence given in proceedings for the recovery of money under Part 2 is not admissible in proceedings for a civil penalty.(6) In any proceedings for a civil penalty, the industrial court may award costs to either party and assess the amount of those costs. Costs cannot be awarded against the prosecutor except in the circumstances in which costs can be awarded against the prosecutor in criminal proceedings.(7) The following provisions apply to contraventions of industrial instruments and to proceedings for a civil penalty for such a contravention in the same way as they apply to criminal proceedings for an offence against this Act:(a) Sections 400–403.(b) The provisions of any Act relating to the recovery of penalties imposed for an offence.(c) Any provision of this or any other Act relating to criminal proceedings that is applied to this section by the regulations (whether with or without modification).
358 Related proceedings for recovery of remuneration and other money
(1) An industrial court dealing with proceedings for a civil penalty under this Part that relate to the failure of the defendant to pay any money that may be recovered under Part 2 may, in the same proceedings, also make under that Part any order for the payment of money that it is authorised to make in proceedings under that Part.(2) Any such order may be made without motion.
359 Injunction to restrain further contraventions of industrial instruments
(1) The Commission in Court Session may, on the imposition of a civil penalty under this Part by it or another industrial court, grant an injunction to restrain the person from committing further or other contraventions of the industrial instrument concerned.(2) Such an injunction may be granted on application or on the Commission’s own initiative.(3) A person who disobeys such an injunction is guilty of contempt of the Commission and may be dealt with accordingly.Note. Section 180 deals with proceedings for contempt.
360 Advertisements that contravene industrial instruments
(1) A person must not advertise, or cause to be advertised, that the person is offering or seeking employment on terms that would constitute a contravention of an industrial instrument.(2) The publisher of a newspaper or other publication in which such an advertisement has been published must, on demand by any person authorised to prosecute the offence against subsection (1), disclose to that authorised person the name and address (if known) of the person who placed the advertisement in the newspaper or other publication.(3) Proceedings for an offence against this section may be instituted by any person authorised to institute proceedings for a civil penalty under this Part.Maximum penalty: 20 penalty units.
361 Exhibition of industrial instruments in workplace
(1) An employer of employees whose conditions of employment at any premises are affected by an industrial instrument must cause a copy of the instrument (or the latest official reprint of the instrument) to be exhibited in a conspicuous place at those premises.(2) If any of the employees concerned cannot understand the language in which an enterprise agreement is written, the employer must cause accurate (but simply expressed) summaries of the agreement to be so exhibited for each of the employees to be able to read such a summary in a language he or she understands.Maximum penalty: 10 penalty units.
362 Power to amend proceedings
(1) If in any proceedings under this Part it appears that the industrial instrument referred to in the initiating proceedings is not the one appropriate to the proceedings and that some other industrial instrument is appropriate to the proceedings, the industrial court may amend the information and proceed to deal with the matter as though proceedings had been instituted under the application as so amended.(2) If the amendment appears to the industrial court to be of such a kind as to provide reasonable grounds to suspect that the defendant may have been deceived or misled with respect to the nature of the proceedings, the industrial court may adjourn the proceedings.
363 Secretary or agent of union receiving money for contravention of, or under, industrial instrument
(1) This section applies to money received or collected by the secretary of an industrial organisation or by any other person purporting to act on behalf of any industrial organisation, being:(a) money paid or purporting to be paid in respect of any contravention of an industrial instrument, or(b) an amount payable under an industrial instrument (within the meaning of Part 2).(2) A person who receives or collects any such money that is due to an employee must pay it in full to the employee as soon as practicable after it is received.(3) A person must not receive or collect any such money by, or for the purpose of, intimidating another person or for any other purpose that is not a lawful purpose of the organisation.(4) This section does not apply to money paid pursuant to an order of a court or the Industrial Registrar.Maximum penalty: 100 penalty units.
Part 2 Recovery of remuneration and other amounts
(1) In this Part:amount payable under an industrial instrument, includes:
(a) remuneration payable to an employee for work done where the industrial instrument fixes the rate or amount of the remuneration, or(b) commission or other amount payable to a person in the circumstances specified in the industrial instrument (other than remuneration for work done), or(c) an amount for which an employee is required under the industrial instrument to be re-imbursed or compensated for an expense incurred or loss sustained by the employee.industrial court means:
(a) the Commission in Court Session, or(b) in the case of proceedings under section 380 (Small claims during other Commission proceedings)—the Commission, whether or not in Court Session, or(c) the Local Court constituted specially for the purposes of this Part by an Industrial Magistrate sitting alone.(2) In this Part, a reference to an industrial instrument and to an amount payable under the industrial instrument includes a reference to:(a) a permit under section 125 and the amount that may be paid to the employee in accordance with the permit, and(b) section 13 of the Annual Holidays Act 1944, section 12 of the Long Service Leave Act 1955 and section 12 of the Long Service Leave (Metalliferous Mining Industry) Act 1963 and an amount payable to the employee under any such provision.
365 Order for recovery of remuneration and other amounts payable under industrial instrument
An industrial court may, on application, order an employer to pay any amount payable under an industrial instrument that remains unpaid to the person to whom it is payable.
366 Order for recovery of over-award payments under contract of employment
(1) An industrial court may, on application, order an employer to pay any amount payable to a person under a contract relating to the employment of the person that remains unpaid.(2) This section applies only if there is an industrial instrument that fixes the minimum rate or amount of remuneration for the work done under the contract.
367 Order for recovery of payments not fixed by industrial instruments
(1) An industrial court may, on application, order an employer to pay an amount to an employee as remuneration for work done by the employee if:(a) the rate or amount of that remuneration is not fixed by an industrial instrument, and(b) an industrial instrument fixes the rate or amount of that remuneration when done by some other person, being an industrial instrument that is applicable to other work done by the employee or to the same work done by that employee in different circumstances (in either case being work done under the contract of employment with the same employer).(2) The industrial court is not to make an order under this section unless it is satisfied that in the circumstances of the case it is just and equitable for the employer to remunerate the employee for the work concerned.(3) For the purposes of an order under this section, the industrial court is to determine an appropriate rate or amount of remuneration for the work done. Any such determination applies only for the purposes of the application for the order and does not affect any relevant industrial instrument.
368 Order for recovery of unpaid superannuation
(1) An industrial court may, on application, order an employer, who employs any person to do any work for which the employer is required under an industrial instrument to make a contribution to a superannuation fund on behalf of the person, to make a payment to or in respect of that person for the purpose of restoring the person, as far as practicable, to the position that the person would have been in had the employer not failed to make the contribution.(2) Without limiting the generality of subsection (1), an order under this section may direct the employer to pay to the relevant superannuation fund:(a) the amount of the contribution that is unpaid, and(b) the amount that, in the opinion of the industrial court, would have accrued in respect of the contribution in the fund had it been paid to the fund when due.(3) If, at the time an order is made, the employee no longer works for the employer, the industrial court may order the employer to pay the relevant amounts to a superannuation fund nominated by the former employee.(4) A certificate signed, or purporting to be signed, by a trustee of a superannuation fund, or by an agent of such a trustee, as to:(a) the amount of contribution that has been, or should have been, paid in respect of an employee for a particular period of time, or(b) the eligibility of an employee for membership of the fund, or(c) the amount that would have accrued in respect of a contribution or a series of contributions had it been in the fund over a particular period,is evidence of the matters stated in the certificate.
(1) An application for an order under this Part for the payment of money may be made:(a) by the person to whom the money is payable, or(b) with the written consent and on behalf of that person—by an inspector, by an officer of a Government Department or by an officer of an industrial organisation concerned in the industry to which the proceedings relate.(2) A single application may be made by a person for 2 or more orders against the employer. A single application may also be made by an officer of an industrial organisation for orders against an employer on behalf of 2 or more persons.(3) An application for an order may only be made if the money became due within the period of 6 years immediately before the application was made.
(1) An industrial court may, on an application for an order under this Part, make such order as it considers just in the circumstances.(2) An order may be made despite any smaller payment or any express or implied agreement to the contrary.Note. An order under this section may also be made in connection with proceedings for a contravention of an industrial instrument (see section 358) or, in the case of a small claim, in connection with other proceedings before the Commission (see section 380).
371 Conciliation to be attempted before order made
(1) The industrial court is not to make an order under this Part until it has brought, or has used its best endeavours to bring, the parties to the application for the order to a settlement acceptable to those parties.(2) If such a settlement is made, the industrial court is required to make an order that, to the extent authorised by this Act, gives effect to the terms of the settlement.
(1) An industrial court may order that there is to be included, in an amount ordered to be paid under this Part (except under section 368), interest at the prescribed rate on the whole or any part of that amount for the whole or any part of the period from when the amount became due to the date of the order.(2) If, in relation to proceedings for such an order, the whole of the amount of money due (or any part of it) is paid before or without the order being made, the industrial court may order that interest is to be paid at the prescribed rate on the amount so paid for the whole or any part of the period from when the amount became due to the date of the payment.(3) This section does not:(a) authorise the charging of interest on interest, or(b) authorise the charging of interest otherwise than by consent on any amount for the payment of which an order is made by consent.(4) In this section, prescribed rate means the rate of interest prescribed for the time being for the purposes of section 101 of the Civil Procedure Act 2005.
In any proceedings under this Part, the industrial court may award costs to either party and assess the amount of those costs.
374 Power to amend application
(1) Where in any proceedings under this Part it appears that the industrial instrument referred to in the application is not the one appropriate to the proceedings and that some other industrial instrument is appropriate to the proceedings, the industrial court may amend the application and proceed to deal with the matter as though proceedings had been instituted under the application as so amended.(2) If the amendment appears to the industrial court to be of such a kind as to provide reasonable grounds to suspect that the defendant may have been deceived or misled with respect to the nature of the proceedings, the industrial court may, on such terms as it thinks fit, adjourn the proceedings.
375 Recovery of amounts ordered to be paid
Any amount ordered to be paid by the Local Court constituted by an Industrial Magistrate under this Part may be recovered as if it were a judgment of the Local Court for the payment of a debt of the same amount (whether or not the Local Court has jurisdiction to give judgment for the payment of a debt of that amount).
376 Alternative proceedings for debt recovery in other courts
A person entitled to apply for an order for the payment of money under this Part may, instead of applying for such an order, recover the money as a debt in any court of competent jurisdiction.
A person may take proceedings for recovery of money under this Part even if the person was under 18 years of age at the time of doing the work or other act for which the money became due or at the time of taking the proceedings.
378 Payment where employee represented by industrial organisation
(1) This section applies to an order for the payment of money under this Part (except under section 368) where the proceedings were taken on behalf of the employee by an industrial organisation or one of its officers.(2) The amount ordered to be paid may be paid to the organisation or officer who took the proceedings and a receipt by the organisation or officer for the payment is a sufficient discharge to the employer for the amount specified in the receipt.(3) Any amount so paid (less any costs properly incurred in connection with the proceedings and not paid by the employer) must be held on trust for the person on whose behalf the proceedings were taken.
(1) A person who makes an application to an industrial court for an order under this Part may request that the application be dealt with under this section.(2) An application that the industrial court decides to deal with under this section is called a small claims application.(3) The maximum amount that the industrial court may order an employer to pay on a small claims application in respect of any one employee is:(a) except as provided by paragraph (b)—$10,000, or(b) if some other amount is prescribed by the regulations for the purposes of this section—that other amount.(4) The industrial court is not bound by the rules of evidence when dealing with a small claims application, but may inform itself of any matter in such manner as the court thinks fit.(5) A party to proceedings on a small claims application may be represented by an agent, but is not entitled to be represented by an agent who is an Australian legal practitioner unless the industrial court so approves. That approval is not to be given unless:(a) all parties to the proceedings agree, and(b) the industrial court is satisfied that the parties (other than the party who applies for approval) or any of them will not be disadvantaged.(6) The approval of the industrial court to be represented by an Australian legal practitioner is not required if the practitioner:(a) represents a corporation and is an officer of the corporation within the meaning of the Corporations Act 2001 of the Commonwealth, or(b) represents an owners corporation constituted under the Strata Schemes Management Act 1996 and is one of the proprietors or lessees constituting the owners corporation, or(c) represents a member of an industrial organisation and is an officer or employee of the organisation, or(d) represents a member of a State peak council and is an officer or employee of that council.(7) The approval of the industrial court to be represented by an Australian legal practitioner may be given subject to such conditions as the court considers reasonable to ensure that any other party to the proceedings is not disadvantaged by the practitioner appearing in the proceedings.(8) A contravention of subsections (5)–(7) does not invalidate the proceedings or any order made in those proceedings.
380 Small claims during other Commission hearings
(1) An industrial organisation may, during any proceedings before the Commission, make an application for an order under this Part and for the application to be dealt with under section 379 (Small claims procedure).(2) Such an application may be made only if the order is sought against another party to the proceedings.(3) The Commission must not deal with the matter until the party against whom the order is sought is given adequate prior notice of the application and an opportunity to be heard on the application.(4) The Commission may deal with the matter even though it is not constituted as the Commission in Court Session.(5) The Commission may, instead of dealing with the matter, remit it to an industrial court constituted by an Industrial Magistrate for determination.(6) An order made in accordance with this section is to be made separately from any other order in the proceedings.(7) This section is not to be construed as excluding an application for an order being made in respect of a former employee.
381 Appointment of Chief and other Industrial Magistrates
(1) The Governor may appoint a Magistrate to be an Industrial Magistrate, and may appoint any such Industrial Magistrate to be the Chief Industrial Magistrate.(2) The Governor may appoint a Magistrate to act as Chief Industrial Magistrate during the illness or absence of the Chief Industrial Magistrate and the Magistrate is, while so acting, taken to be the Chief Industrial Magistrate.(3) A person appointed to any office under this section ceases to hold that office if the person ceases to be a Magistrate or the person resigns that office by instrument in writing addressed to the Governor.(4) The Chief Industrial Magistrate is entitled to be paid remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975.(5) A person holding office as Industrial Magistrate is taken to hold the office on either a full-time or part-time basis, according to whether the person holds the office of Magistrate on a full-time or part-time basis under the Local Court Act 2007.
382 Jurisdiction of Chief and other Industrial Magistrates
(1) The Chief Industrial Magistrate or any other Industrial Magistrate may exercise throughout the State the jurisdiction conferred by the following Acts on the Local Court:Other industrial relations legislation
Building and Construction Industry Long Service Payments Act 1986
Workplace Injury Management and Workers Compensation Act 1998
Any other Act that expressly confers jurisdiction on an Industrial Magistrate
(2) The Chief Industrial Magistrate or other Industrial Magistrate constitutes the Local Court when exercising that jurisdiction.
(1) The Criminal Procedure Act 1986 and other Acts regulating the procedure before the Local Court (but not the Civil Procedure Act 2005) apply to the exercise of any jurisdiction by the Chief Industrial Magistrate or other Industrial Magistrate, except as provided by the regulations under this section.(2) The regulations may make provision for or with respect to procedure and other matters relating to the exercise of any such jurisdiction of the Chief Industrial Magistrate or other Industrial Magistrate that does not concern proceedings for an offence.
383A Recovery of amount ordered to be paid by Industrial Magistrate under other legislation
Any amount ordered to be paid by the Local Court constituted by an Industrial Magistrate under any of the following provisions may be recovered as if it were a judgment of the Local Court for the payment of a debt of the same amount (whether or not the Local Court has jurisdiction to give judgment for the payment of a debt of that amount under Part 3 of the Local Court Act 2007):(a) section 114 (Orders regarding costs and expenses of investigation) of the Occupational Health and Safety Act 2000,(b) section 156 (5) (Recovery of double premiums from employer not obtaining policy of insurance) of the Workers Compensation Act 1987,(c) section 175 (7) (Employers evading payment of correct premiums) of the Workers Compensation Act 1987.
Part 4 Inspectors and their powers
(1) The Minister may appoint eligible persons as inspectors for the purposes of this Act.(2) The following persons are eligible to be appointed as inspectors:(a) public servants,(b) officers of any public or local authority (including an authority of the Commonwealth or of another State or Territory),(c) any person of a class prescribed by the regulations.(3) A person appointed as an inspector ceases to hold that office if removed from that office by the Minister or if the person ceases to be eligible to be appointed as an inspector.(4) An inspector has such functions as are conferred or imposed by or under this or any other Act or law on inspectors appointed for the purposes of this Act.(5) The Minister is to provide each inspector with a certificate of authority as an inspector.(6) The functions of an inspector may be limited by the certificate of authority.(7) An inspector is required to produce the certificate of authority:(a) if requested to do so by the occupier of any premises that the inspector enters, or(b) if requested to do so by a person whom the inspector requires to produce anything or to answer any question.(8) The Minister may delegate any function under this section to the Departmental Head of any Department responsible to the Minister.
(1) An inspector may exercise powers under this section only for the purpose of investigating possible contraventions of the industrial relations legislation or of any industrial instrument, whether on complaint or by way of routine investigation.(2) An inspector may, at any reasonable time:(a) inspect any premises that the inspector has reasonable grounds to suspect are the premises of an employer, and inspect any work being done there, and(b) require an employer to produce for the inspector’s examination, at such time and place as the inspector may specify, any specified records required to be kept under the industrial relations legislation or an industrial instrument with respect to the employees of the employer (and retain any such record for such period as may be necessary in order to take copies of or extracts from it), and(c) require an employer to deliver to the inspector, within such time and to such place as the inspector may specify, any specified information concerning the conditions of employment of the employees of the employer, and(d) question any employee or employer as to any matter concerning the conditions of employment of the employee.(3) A requirement of an inspector under this section may be made personally or by notice in writing served by post.
386 No entry to residential premises without permission or search warrant
(1) An inspector does not have authority under this Act to enter any part of premises used for residential purposes, except:(a) with the permission of the occupier, or(b) under the authority conferred by a search warrant.(2) This section does not apply to any part of premises used both for residential purposes and for work in or in connection with the clothing trades.
387 Offences relating to obstruction etc of inspectors
(1) A person must not deliberately hinder or obstruct an inspector in the exercise of the functions conferred by this Part.(2) A person must not, without lawful excuse, fail to comply with a requirement of an inspector under this Part.(3) A person must not, on demand by an inspector to state his or her name and place of residence in connection with the exercise of those functions, refuse to do so or state a false name or place of residence.(4) A person must not purport to exercise the powers of an inspector under this Part if the person is not an inspector.Maximum penalty: 100 penalty units.
(1) An inspector may apply to an authorised officer for the issue of a search warrant if the inspector has reasonable grounds for believing that a provision of the industrial relations legislation or an industrial instrument has been or is being contravened in any premises.(2) The authorised officer to whom the application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising the inspector named in the warrant, when accompanied by a police officer:(a) to enter the premises, and(b) to search the premises for evidence of a contravention of the industrial relations legislation or industrial instrument.(3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.(4) In this section:authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.
(1) A person who is, or was at any time, an inspector or public servant engaged in the administration of the industrial relations legislation must not disclose any information relating to any manufacturing or commercial secrets or working processes obtained by him or her in connection with the administration of the industrial relations legislation.Maximum penalty: 100 penalty units.
(2) Subsection (1) does not operate to prevent the disclosure of information if that disclosure is:(a) made in connection with the administration of the industrial relations legislation, or(b) made with the prior permission of the Minister, or(c) ordered by a court, or by any other body or person authorised by law to examine witnesses, in the course of, and for the purpose of, the hearing and determination by that court, body or person of any matter or thing.(3) The Minister may grant permission for any such disclosure only if the Minister is satisfied that to do so would be in the public interest.(4) In this section, industrial relations legislation includes the Industrial Arbitration Act 1940 and the Industrial Relations Act 1991.
390 Evidence of an industrial instrument or order
(1) Evidence of an industrial instrument or order of the Commission may be given in any proceedings by the production of:(a) in relation to an instrument or order made before the commencement of Schedule 1 [10] to the Industrial Relations Further Amendment Act 2006—a copy of the Industrial Gazette in which the instrument or order appeared, or(b) a document purporting to be a copy of the instrument or order printed (or published on the NSW industrial relations website) under the authority of the Industrial Registrar, or(c) a document certified by the Industrial Registrar to be a true copy of the instrument or order.(2) A document certified by the Industrial Registrar as being a true copy of an industrial instrument or order of the Commission as in force at a specified date or during a specified period is evidence of the instrument or order as so in force.(3) A document purporting to have been certified by the Industrial Registrar is taken to have been so certified in the absence of proof to the contrary.
391 Evidence of registration of industrial organisation
A document purporting to be a certificate of registration of an industrial organisation issued by the Industrial Registrar under section 221 is evidence, in any proceedings, of the registration of the organisation specified in the certificate in the absence of proof to the contrary.
392 Evidence of rules of industrial organisation
A copy of the rules of an industrial organisation certified by the Industrial Registrar to be a true and correct copy is evidence, in any proceedings, of the rules of the organisation.
393 Evidence of membership of, or office in, industrial organisation
A certificate issued by the Industrial Registrar stating that a specified person was or was not at a specified time or during a specified period a member or officer of a specified industrial organisation is, in any proceedings, evidence that the facts are as stated.
394 List of officers to be evidence
A list of the officers of an industrial organisation lodged with the Industrial Registrar on behalf of the organisation under this Act, or a copy of any such list certified by the Industrial Registrar, is evidence, in any proceedings, that the persons named in the list were, on the day when the list was lodged, officers of the organisation.
395 Trade and other financial secrets tendered as evidence
(1) In a proceeding before the Commission:(a) the person entitled to a trade secret may object that information tendered as evidence relates to the trade secret, or(b) a witness or party may object that information tendered as evidence relates to the profits or financial position of the witness or party.(2) If an objection is made under subsection (1) to information tendered as evidence, the information may be given as evidence only under a direction of the Commission.(3) If information is given as evidence under subsection (2), it must not be published in any newspaper, or otherwise, unless the Commission, by order, permits the publication.(4) If the Commission directs that information relating to a trade secret or to the profits or financial position of a witness or party is to be given in evidence, the evidence must be taken in private if the person entitled to the trade secret, or the witness or party, so requests.(5) The Commission may direct that evidence given in a proceeding before it, or the contents of a document produced for inspection, not be published.(6) A person who contravenes this section or a direction under this section is guilty of an offence.Maximum penalty: 100 penalty units.
(7) In this section, Commission includes the Contract of Carriage Tribunal established by Part 7 of Chapter 6.
Part 6 Criminal and other legal proceedings
(1) An authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence against this Act or the regulations, being an offence prescribed by the regulations as a penalty notice offence.(2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person may pay, within the time and to the person specified in the notice, the amount of penalty prescribed by the regulations for the offence if dealt with under this section.(3) A penalty notice may be served personally or by post.(4) If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.(5) Payment under this section is not to be regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.(6) The regulations may:(a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and(b) prescribe the amount of penalty payable for the offence if dealt with under this section, and(c) prescribe different amounts of penalties for different offences or classes of offences.(7) The amount of a penalty prescribed under this section for an offence is not to exceed the maximum amount of penalty that could be imposed for the offence by a court.(8) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.(9) In this section, authorised officer means an inspector appointed under this Act or the Occupational Health and Safety Act 2000 or any other person of a class prescribed by the regulations.
397 Summary procedure for offences under this Act or regulations
(1) Proceedings for an offence against this Act or the regulations are to be dealt with summarily:(a) before the Local Court, or(b) before the Commission in Court Session.(2) The maximum penalty that may be imposed in those proceedings by the Local Court is a monetary penalty of 100 penalty units or the maximum monetary penalty provided in respect of the offence, whichever is the lesser.(3) The maximum penalty that may be imposed in those proceedings by the Commission in Court Session is the maximum penalty provided in respect of the offence.
398 Time for instituting proceedings
Proceedings for an offence against this Act or the regulations (other than an offence under section 180) may be commenced not later than 12 months after the offence was alleged to have been committed.Note. Proceedings for an offence under section 180 must be commenced not later than 6 months after the offence was alleged to have been committed (see section 179 of the Criminal Procedure Act 1986).
(1) Proceedings for an offence against this Act or the regulations may be instituted only:(a) by the Minister or by a person with the written consent of the Minister, or(b) by an inspector, or(c) by a person, or a person of a class, prescribed by the regulations.(2) In any such proceedings, a consent to institute the proceedings, purporting to have been signed by a person authorised to give a consent under this section is evidence of that consent without proof of the signature or authority of the person.(3) Any such proceedings instituted by an officer of a Government Department may be prosecuted on his or her behalf by any officer of that Department.(4) This section does not limit any function that may be exercised by the Commission under section 164 (2) with respect to any contempt of the Commission.
(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention.(1A) Subsection (1) does not apply in respect of a contravention of section 361.(2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.(4) In this section, corporation does not include an industrial organisation.
401 Proceedings by and against unincorporated associations
(1) For the purposes of this Act, the secretary of an unincorporated association is taken to be the employer of a person employed for the purposes or on behalf of the association. Any proceeding that may be taken under this Act by or against the association may be taken by or against the secretary on behalf of the association.(2) The secretary is authorised to retain out of the funds of the association sufficient money to meet payments made by the secretary on behalf of the association under this section (including the payment of any penalty imposed on the association).(3) In this section, secretary includes a person having possession or control of any funds of an unincorporated association.
402 Recovery of penalty by appointment of receiver
(1) If:(a) an industrial organisation fails to pay a penalty for an offence imposed under this Act on the organisation, or(b) a person who is a member of the committee or other executive body of an industrial organisation fails to pay a penalty for an offence imposed under this Act on the person,the amount of the penalty becomes a charge on the assets of the organisation in favour of the State, unless subsection (2) applies.(2) The amount of such a penalty does not become a charge on the assets of an industrial organisation if the person who incurred the penalty did so because of an act done in contravention of the express resolutions or directions of the organisation or its committee or other executive body.(3) Despite any other Act, a person referred to in subsection (1) (b) is not liable to imprisonment for default in payment of a penalty so referred to but the amount of the penalty is recoverable as a debt due by the person to the State at the time of failure to pay the penalty.(4) The Commission in Court Session may, on the application of the Minister and on terms determined by the Commission, appoint a receiver for the purpose of entering into possession, or assuming control, of the property of the organisation in order to enforce the charge.(5) A receiver appointed under this section:(a) has the functions conferred on the receiver by order of the Commission in Court Session, and(b) is entitled to recover the costs and expenses of the receivership from the assets of the organisation to which the appointment relates.(6) In this section:penalty includes any costs and expenses imposed in relation to the penalty.
committee or other executive body, in relation to a State organisation, means a collective body of the organisation that has powers of the kind mentioned in the definition of office in the Dictionary.
(1) If any penalty for an offence has been imposed under this Act in proceedings instituted by an officer of an industrial organisation, the court concerned may order that the penalty, or part of the penalty, be paid to the Industrial Registrar for payment to the industrial organisation.(2) In any other case, any penalty recovered is to be paid into the Consolidated Fund or as otherwise provided by law.