Part 2Part 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.