Part 1Part 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.