industrial relations legislation amendment and …

WESTERN AUSTRALIA

INDUSTRIAL RELATIONSLEGISLATION AMENDMENT AND

REPEAL ACT 1995

(No. 79 of 1995)

ARRANGEMENT

Page

PART 1 — PRELIMINARY

1. Short title 22. Principal Act 23. Commencement 2

PART 2 — POLITICAL DONATIONSBY ORGANIZATIONS

4. Part VIC inserted 3

PART 3 — OFFICIALS OF ORGANIZATIONS

5. Section 63 amended 116. Section 65 amended 117. Section 65A inserted 128. Part II, Division 5 inserted and consequential amendments 12

Industrial Relations LegislationAmendment and Repeal Act 1995

PART 4 — MISCELLANEOUS PROVISIONS RELATINGTO AWARDS ETC.

9. Section 26 amended 1810. Section 41A amended 1811. Part II, Division 2A inserted 1912. Certain provisions of no effect or to be reviewed 2213. Section 49C inserted and transitional provisions 2314. Section 80W amended 27

PART 5 — BARGAINING AND INDUSTRIAL AGENTS

15. Section 81E inserted 2816. Section 112A inserted 2817. Legal Practitioners Act 1893 amended 3018. Workplace Agreements Act 1993 amended 31

PART 6 — INDUSTRIAL MAGISTRATE’S COURTS

19. Section 81A repealed and a section substituted 3520. Section 81AA amended 3521. Section 81CA inserted 3522. Section 81D amended 3823. Section 82A amended 3824. Section 83 amended 3825. Section 83A inserted 3926. Section 96J amended 3927. Section 111 amended 3928. Section 112 amended 3929. Workplace Agreements Act 1993 amended 40

PART 7 — MISCELLANEOUS AMENDMENTS

Division 1 — Industrial Relations Act 1979

30. Section 7 amended 4131. Section 55 amended 4132. Section 64D inserted 4133. Section 66 amended 4234. Section 72 amended 42

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35. Section 72A amended 4336. Section 72B inserted and consequential amendments 4337. Section 96M repealed 4538. Section 98 amended 4539. Section 102A amended 4640. Section 104 inserted 4641. Section 109 amended 4742. Schedule 1 amended 47

Division 2 — Workplace Agreements Act 1993

43. Section 47 amended 48

PART 8 — AMENDMENTS RELATING TOLONG SERVICE LEAVE

Division 1 — Long Service Leave Act 1958

44. Long Service Leave Act 4945. Long title amended 4946. Section 4 amended 4947. Section 5 repealed and a section substituted 5348. Section 6 amended 5349. Section 8 amended 5450. Section 8A amended 5451. Section 9 amended 5452. Parts IV, V and VI repealed and a Part substituted 5553. Division 1 of Part VII repealed 5654. Section 26 repealed and sections 26 and 26A substituted 5755. Division 4 of Part VII repealed 5956. Sections 32, 33 and 34 repealed 5957. Section 36 repealed and a section substituted 5958. Section 37 amended 6059. Section 38 amended 6060. Section 39 amended 60

Division 2 — Transitional and Saving

61. General transitional provisions 6162. Pending proceedings continued 6263. Jurisdiction over existing matters 63

iii


Division 3 — Consequential Amendments

64. Consequential amendments to the Minimum Conditionsof Employment Act 1993 64

PART 9 — REPEAL OF SPENT OR OUTDATED LEGISLATION

65. The Masters and Servants Act 1892 repealed 6566. Truck Act 1899 repealed and consequential amendments 6567. Trade Unions Act 1902 repealed and

consequential amendments 6968. Factories and Shops Act 1963 repealed and

consequential amendments 7069. Salaries and Wages Freeze Act 1982 repealed

and consequential amendments 7570. Temporary Reduction of Remuneration (Senior

Public Officers) Act 1983 repealed 7571. Saving 76

iv

WESTERN AUSTRALIA

INDUSTRIAL RELATIONSLEGISLATION AMENDMENT AND

REPEAL ACT 1995

No. 79 of 1995

AN ACT:

to amend the following Acts —Industrial Relations Act 1979;Legal Practitioners Act 1893;Workplace Agreements Act 1993;Minimum Conditions of Employment Act 1993;andLong Service Leave Act 1958,

to repeal the following Acts —The Masters and Servants Act 1892;Truck Act 1899;Trade Unions Act 1902;Factories and Shops Act 1963;Salaries and Wages Freeze Act 1982; andTemporary Reduction of Remuneration (SeniorPublic Officers) Act 1983,

and consequentially amend other Acts,

and for related purposes.

[Assented to 16 January 1996.]

The Parliament of Western Australia enacts as follows:

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No. 79]s. 1

PART 1 — PRELIMINARY

Short title

1. This Act may be cited as the Industrial Relations LegislationAmendment and Repeal Act 1995.

Principal Act

2. In this Act the Industrial Relations Act 1979* is referred toas the principal Act.

[* Reprinted as at 11 May 1994.For subsequent amendments see 1994 Index toLegislation of Western Australia, Table 1, p. 102 andActs Nos. 1 and 11 of 1995.]

Commencement

3. (1) Subject to subsection (2), this Act comes into operationon the day on which it receives the Royal Assent.

(2) The provisions of Part 2 and Part 5 and sections 12 (1),13, 35, 36, 66 and 68 come into operation on such day as is, ordays as are respectively, fixed by proclamation.

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[No. 79s. 4

PART 2 — POLITICAL DONATIONSBY ORGANIZATIONS

Part VIC inserted

4. Before Part VII of the principal Act the following Part isinserted —

‘‘PART VIC — POLITICAL DONATIONS

BY ORGANIZATIONS

Interpretation

97N. (1) In this Part —

‘‘election candidate’’ means a candidate in aparliamentary election;

‘‘ordinary moneys’’, in relation to anorganization, means any moneys of theorganization other than —

(a) amounts referred to in section 97P(2); or

(b) interest or other amounts referred toin section 97P (3);

‘‘parliamentary election’’ means the electionof a member or members of the parliamentof the State, the Commonwealth, anotherState or a Territory;

‘‘political donation’’ has the meaning given bysubsection (2);

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No. 79]s. 4

‘‘political fund’’, in relation to an organization,means a fund maintained by theorganization under section 97P (1);

‘‘political levy’’ means a levy imposed by anorganization on its members (otherwisethan as a portion of each member’ssubscriptions) for the purpose of raisingmoneys to be applied by way of politicaldonation;

‘‘political party’’ means a body corporate orother body or organization having as one ofits objects or activities the promotion of theelection of election candidates endorsed byit.

(2) A reference in this Part to a political donationis a reference to expenditure incurred —

(a) in making a payment to a political party(whether by way of a membershipsubscription or affiliation fee or in anyother manner);

(b) in making a payment to an electioncandidate or a group of election candidates;

(c) in the payment of expenses directly orindirectly incurred by a political party;

(d) in the payment of expenses directly orindirectly incurred in connection with aparliamentary election by an electioncandidate or a group of election candidates;or

(e) in connection with, or by way of, themaking of a payment to a person on theunderstanding that that person or another

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[No. 79s. 4

person will directly or indirectly apply thewhole or a part of the payment asmentioned in paragraph (a), (b), (c) or (d).

Payments

97O. For the purposes of this Part any paymentmade from a fund or account jointly owned, managedor controlled by an organization and another bodyshall be regarded as having been made by theorganization.

Political donations by organizations

97P. (1) An organization shall, if necessary for thepurposes of this section, maintain a separate fund as apolitical fund.

(2) If an organization receives an amount fromany of its members to be applied by way of politicaldonation (whether the amount is received as a portionof a member’s subscription, or in payment of apolitical levy or in any other circumstances), theorganization shall credit the amount to a politicalfund.

(3) If an organization receives any interest orother amount earned or derived from the investmentof moneys standing to the credit of a political fund,the organization shall credit the interest or otheramount to that political fund.

(4) Subject to subsection (6), an organization maycredit any amount from its ordinary moneys to apolitical fund.

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No. 79]s. 4

(5) The rules of an organization must containprovisions that enable a member to elect not tohave —

(a) any portion of the member’s subscription;or

(b) a proportion of the member’s subscriptiongreater than the proportion specified by themember in accordance with the rules,

applied by way of political donation.

(6) An organization shall not credit any amountto a political fund contrary to an election made by amember under the rules referred to in subsection (5).

(7) If an organization seeks payment, as a specificportion of each member’s subscription, of an amountthat is to be applied by way of political donation, anelection made by a member under the rules referred toin subsection (5) does not reduce the total subscriptionpayable by that member.

(8) An organization shall not make any paymentby way of political donation except from moneysalready standing to the credit of a political fund.

(9) Subsection (8) does not prevent the making ofa decision which authorizes both the crediting of anamount to a political fund and the payment of thatamount, or some of it, from the political fund by wayof political donation.

(10) An organization shall not make any paymentby way of political donation unless the payment ismade in accordance with rules of the organizationproviding for such a payment to be made only with thespecific approval of the state council of theorganization.

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[No. 79s. 4

(11) If an organization does not have a statecouncil, the reference in subsection (10) to the statecouncil is a reference to the body that, on applicationmade by the organization under this subsection, isdesignated by the President as having functions in thenature of those of a state council in relation to theorganization.

(12) Subsection (10) does not apply to moneysthat have been received by an organization inpayment of a political levy.

(13) If —

(a) an organization imposes a political levy;and

(b) an amount received from a member inpayment of that levy is received subject toa direction from the member as to thepolitical party or parties, or electioncandidate or election candidates, to or inrespect of which or whom the organizationmay pay or apply the amount,

the organization shall make payments in accordancewith that direction from moneys in a political fundderived from that amount and shall not make anypayment from those moneys that would be contrary tothat direction.

(14) A direction referred to in subsection (13) (b)may be altered by the member concerned by writtennotice given to the organization and, if that occurs, thealtered direction has effect for the purposes ofsubsection (13).

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No. 79]s. 4

(15) An organization shall not impose a politicallevy unless the rules of the organization provide forthe imposition of political levies and containprovisions that enable a member to elect not to pay apolicital levy.

Rules are not to conflict with section 97P

97Q. Within 12 months of the coming into operationof section 4 of the Industrial Relations LegislationAmendment and Repeal Act 1995 the Registrar shallreview the rules of each organization and shall, byapplication pursuant to this section, bring before thePresident the rules of any organization if, in theopinion of the Registrar, any of those rules is contraryto or inconsistent with section 97P.

Monitoring compliance with political donationrequirements

97R. (1) An organization shall make its recordsrelating to political donations and political fundsavailable for inspection if requested to do so by theRegistrar or a Deputy Registrar.

(2) If in the course of auditing the accountingrecords of an organization the auditor forms theopinion that there has been any contravention of orfailure to comply with section 97P, the auditor is toexpress that opinion in reporting on those records.

(3) If the auditor finds that the accountingrecords are not in a form that is conducive toidentifying a contravention of or failure to comply withsection 97P, the auditor is to report that finding.

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[No. 79s. 4

Duties of officers relating to political donations

97S. If an organization contravenes or fails tocomply with section 97P, any officer of theorganization who is in any way, by act or omissionand directly or indirectly, concerned in or a party tothe transaction in question, knowing the transactionto have been a contravention of or failure to complywith that section also contravenes or fails to complywith that section.

Organizations to notify details of politicalexpenditure

97T. (1) An organization shall file with theRegistrar, at such time after the end of each financialyear of the organization as is prescribed, a statementshowing the relevant particulars in relation to eachpolitical donation made by the organization during thefinancial year.

(2) The relevant particulars in relation to apolitical donation are —

(a) the amount of the donation;

(b) the manner in which the donation wasmade;

(c) the name and address of the person towhom the donation was made; and

(d) the political fund from which the donationwas made.

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No. 79]s. 4

(3) The statement does not have to show therelevant particulars in relation to a political donationunless —

(a) the donation exceeds $1 500; or

(b) the sum of that political donation and allother political donations made by theorganization during the financial year to orfor the benefit of the same political party,electoral candidate or group of electoralcandidates exceeds $1 500.

(4) The statement shall be certified by statutorydeclaration by the Secretary or other prescribed officerof the organization to be a correct statement of theinformation contained in it.

(5) All statements filed with the Registrar underthis section shall be made available for inspection atthe office of the Registrar as prescribed.

’’.

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[No. 79s. 5

PART 3 — OFFICIALS OF ORGANIZATIONS

Section 63 amended

5. Section 63 (1) (c) of the principal Act is deleted and thefollowing paragraph is substituted —

‘‘(c) accounting records that are in accordance with

generally accepted accounting principles andtruly record and explain the financialtransactions and financial position of theorganization;

’’.

Section 65 amended

6. (1) Section 65 (a) of the principal Act is amended bydeleting ‘‘accounts’’ and substituting the following —

‘‘ accounting records ’’.

(2) Section 65 (b) of the principal Act is amended —

(a) by deleting ‘‘and’’ after subparagraph (i); and

(b) by deleting ‘‘auditor.’’ at the end of subparagraph (ii)and substituting the following —

‘‘auditor; and

(iii) a sources and application of fundsstatement of the organization for thefinancial year concerned audited bythe auditor.

’’.

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No. 79]s. 7

Section 65A inserted

7. After section 65 of the principal Act the following section isinserted —

‘‘Powers of auditor

65A. For the purposes of auditing the accountingrecords of an organization or of performing anyfunction conferred on the auditor under this Act, theauditor of an organization is entitled —

(a) to have full and free access at allreasonable times to all records ordocuments relating to the receipt orexpenditure of moneys by the organization,or the acquisition, use or disposal of assetsof the organization, or the incurring ofliabilities by the organization; and

(b) to require any officer or employee of theorganization to provide the auditor withany information or explanation that theauditor wants.

’’.

Part II, Division 5 inserted and consequentialamendments

8. (1) After section 73 of the principal Act the followingDivision is inserted in Part II —

‘‘Division 5 — Duties of officers

of organizations

Duties

74. (1) In this section and in section 77 —‘‘finance official’’ means an officer of an

organization who is entitled to participatedirectly in the financial management of theorganization.

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[No. 79s. 8

(2) A finance official is to act honestly at all timesin the performance of the functions of the financeofficial’s office or employment.

(3) A finance official is to exercise a reasonabledegree of care and diligence at all times in theperformance of the functions of the finance official’soffice or employment.

(4) The degree of care and diligence required bysubsection (3) is the degree of care and diligence thata reasonable person in the finance official’s positionwould reasonably be expected to exercise.

(5) Each finance official of an organization is toensure that the organization keeps and maintainsaccounting records as required by section 63 (1) (c).

(6) A person who is or has been a finance officialof an organization is not to make use of informationacquired by virtue of the person’s position as a financeofficial to obtain or seek to obtain directly orindirectly, a pecuniary advantage for the person or forany other person or to cause or seek to causedetriment, loss or damage to the organization.

(7) Subsection (6) does not apply to acts done —

(a) in and for the purposes of the performanceof the functions of a finance official’s officeor employment; or

(b) with the consent of the committee ofmanagement of the organization.

(8) Details of any matter about which consent isgiven under subsection (7) (b) are to be disclosed bythe committee of management to the members of theorganization in accordance with the rules of theorganization.

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No. 79]s. 8

(9) A finance official of an organization is not tomake use of the finance official’s position as a financeofficial to obtain or seek to obtain, directly orindirectly, a pecuniary advantage for the official or forany other person or to cause or seek to causedetriment, loss or damage to the organization.

(10) Subsection (9) does not apply to acts done inand for the purposes of the performance of thefunctions of a finance official’s office or employment.

(11) A finance official of an organization is toprovide the committee of management of theorganization with returns of the finance official’specuniary interests at such times and in such form asare prescribed by the rules of the organization.

(12) A finance official of an organization who hasa material personal interest in a matter involving theorganization is to disclose the nature of the interest tothe committee of management of the organization assoon as is practicable after the relevant facts come tothe finance official’s knowledge.

(13) This section is in addition to, and not inderogation of, any rule of law relating to the duties orliabilities of a finance official and does not prevent theinstitution of civil proceedings in respect of a breach ofsuch a duty or in respect of such a liability.

Auditor to report on compliance with duties

75. (1) In reporting on the accounting records ofan organization under section 65 the auditor is toexpress an opinion as to whether any person hascontravened or failed to comply with section 74.

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[No. 79s. 8

(2) If the auditor finds that the accountingrecords are not in a form that enables an informedopinion to be expressed as required by subsection (1),the auditor is to report that finding.

Rules are not to conflict with section 74 or 75

76. Within 6 months of the coming into operation ofsection 8 of the Industrial Relations LegislationAmendment and Repeal Act 1995 the Registrar shallreview the rules of each organization of employees andshall, by application pursuant to section 66, bringbefore the President the rules of any organization ofemployees if, in the opinion of the Registrar, any ofthose rules is contrary to or inconsistent withsection 74 or 75.

Proceedings for breach of duty

77. (1) If a person who is or has been a financeofficial of an organization (‘‘the respondent’’)contravenes or fails to comply with section 74 —

(a) the organization;

(b) an officer of the organization;

(c) a member of the organization;

(d) the Registrar or a Deputy Registrar; or

(e) an Industrial Inspector,

may apply in the prescribed manner to an industrialmagistrate’s court for the enforcement of section 74.

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No. 79]s. 8

(2) On the hearing of an application undersubsection (1) the industrial magistrate’s court may, ifthe contravention or failure to comply is proved, doany one or more of the following —

(a) by order, issue a caution to the respondent;

(b) subject to subsection (3), by order impose apenalty on the respondent of such amountas the industrial magistrate’s courtconsiders just, but not exceeding $5 000;

(c) order the respondent to pay compensationto the organization in respect of any loss ordamage suffered by the organization as aresult of the contravention or failure tocomply;

(d) order the restitution or forfeiture of anypecuniary advantage obtained by anyperson as a result of the contravention orfailure to comply;

(e) order the respondent to do any specifiedthing or to cease any specified activity.

(3) Only one penalty can be imposed on therespondent under subsection (2) (b) in respect ofcontraventions or failures to comply arising out of onecourse of conduct.

(4) The industrial magistrate’s court may, byorder, dismiss an application under subsection (1).

(5) Subject to subsection (6) an order undersubsection (2) or (4) may be made with or withoutcosts.

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[No. 79s. 8

(6) Costs shall not be given against the Registrar,a Deputy Registrar or an Industrial Inspector inrelation to proceedings under this section.

(7) Where the industrial magistrate’s court ordersmoney to be paid under this section by way of apenalty, compensation, restitution, forfeiture or coststhe industrial magistrate’s court shall state in theorder the name of the person liable to pay the moneyand the name of the person to whom the money is tobe paid.

(2) The principal Act is amended as set out in the followingTable —

Table

Provision amended Amendment

s. 84A (1) (a) After ‘‘44 (3)’’ insert —

‘‘ or 74 ’’.

s. 93 (9) Before ‘‘83’’ insert —

‘‘ 77 or ’’.

s. 102A (1) and (2) Before ‘‘83’’ insert —

‘‘ 77 or ’’.

s. 103 (3) Before ‘‘83’’ insert —

‘‘ 77 or ’’.

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No. 79]s. 9

PART 4 — MISCELLANEOUS PROVISIONS RELATINGTO AWARDS ETC.

Section 26 amended

9. Section 26 (1) (d) of the principal Act is amended —

(a) by deleting ‘‘in having regard for the interests of thecommunity as a whole under paragraph (c)’’;

(b) in subparagraph (iv) by deleting ‘‘inflation.’’ andsubstituting the following —

‘‘ inflation; ’’; and

(c) by inserting after subparagraph (iv) the followingsubparagraph —

‘‘(v) any changes in productivity that have

occurred or are likely to occur.’’.

Section 41A amended

10. After section 41A (1) of the principal Act the followingsubsection is inserted —

‘‘(1a) The Commission shall not under section 41

register an agreement as an industrial agreementunless the agreement includes an estimate of thenumber of employees who will be bound by theagreement upon registration.

’’.

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[No. 79s. 11

Part II, Division 2A inserted

11. After section 49 of the principal Act the following Divisionis inserted —

‘‘Division 2A — Miscellaneous provisions

relating to awards etc.

Awards and agreements to make provision forresolution of disputes

49A. (1) In exercising its jurisdiction under thisPart the Commission shall not make an award orapplicable order, or register an industrial agreement,unless the award, order or industrial agreementmakes provision for procedures to be followed inconnection with questions, disputes or difficultiesarising under the award, order or industrialagreement.

(2) The Commission may order persons involvedin a question, dispute or difficulty arising under anaward, order or industrial agreement that is beforethe Commission to comply with the dispute settlingprocedures provided for in that award, order orindustrial agreement.

(3) In subsection (1) ‘‘applicable order’’ meansan order with respect to which, in the opinion of theCommission, a question, dispute or difficulty capableof resolution by dispute settling procedures may arise.

Inspection of records

49B. (1) In exercising its jurisdiction under thisPart the Commission shall not make an award ororder, or register an industrial agreement,empowering a representative of an organization of

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No. 79]s. 11

employees to inspect the time and wages records of anemployee or former employee unless the award, orderor industrial agreement provides that —

(a) the power of inspection may not beexercised for the purpose of inspecting thetime and wages records of an employee orformer employee who —

(i) is not a member of the organization;and

(ii) has notified the employer in writingthat the employee or former employeedoes not consent to a representative ofan organization of employees havingaccess to those records;

(b) the power of inspection may only beexercised by a representative of anorganization of employees authorized forthe purpose in accordance with the rules ofthe organization;

(c) the representative is empowered to inspectany notification that an employee or formeremployee does not consent to arepresentative having access to time andwages records;

(d) a person who has given a notificationreferred to in paragraph (a) (ii) may, bynotice in writing to the employer, withdrawthe notification and, upon that withdrawal,the notification ceases to be of effect;

(e) before exercising a power of inspection, therepresentative shall give reasonable noticeof not less than 24 hours to an employer;and

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[No. 79s. 11

(f) an employer shall endeavour to —

(i) maintain the time and wages recordsof employees in such a manner thataccess by a representative of anorganization to the records ofemployees does not give access torecords of employees who are notmembers of the organization and havenotified the employer that they do notconsent to a representative of anorganization of employees havingaccess to the records;

(ii) ensure that a representative of anorganization does not obtain access tothe records of employees who are notmembers of the organization and havenotified the employer that they do notconsent to a representative of anorganization of employees havingaccess to the records; and

(iii) ascertain whether an employee orprospective employee does not consentto a representative of an organizationof employees having access to thetime and wages records of theemployee or prospective employee.

(2) A person shall not by threats or intimidationpersuade or attempt to persuade an employee orprospective employee to give, or refuse to give, writtennotification that the employee or prospective employeedoes not consent to a representative of an organizationof employees having access to the time and wagesrecords of that employee or prospective employee.

’’.

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No. 79]s. 12

Certain provisions of no effect or to be reviewed

12. (1) On and from the coming into operation of thissubsection a provision of an award, order or industrial agreementmade before the coming into operation of section 11 that iscontrary to, or inconsistent with, section 49B as inserted into theprincipal Act by this Act is, to the extent of the conflict orinconsistency, of no effect.

(2) As soon as practicable and not later than 6 months afterthe coming into operation of this subsection the Commission or,in the case of an award or order made by the RailwaysClassification Board, that Board shall, for the purposes ofsubsection (3) —

(a) review each award, order and industrial agreement inforce on the coming into operation of this section;

(b) publish in the Industrial Gazette and in a newspapercirculating throughout the State —

(i) notice of any proposal to vary an award, order orindustrial agreement under this section; and

(ii) notice that any employer or organization who isa party to, or is bound by, the award, order orindustrial agreement, after giving notice withinthe time and in the manner specified in thenotice, may appear and be heard on the proposal;

and

(c) after affording employers and organizations who makeapplication under paragraph (b) an opportunity to beheard, vary the award, order or industrial agreementas provided under subsection (3).

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(3) The Commission or Railways Classification Board, as thecase requires, shall vary each award, order and industrialagreement by —

(a) varying its provisions, or inserting further provisions,to make adequate provision for the proceduresrequired under section 49A of the principal Act asinserted into the principal Act by this Act; and

(b) varying or omitting any provision that is contrary to,or in conflict with, section 49B of the principal Act asinserted into the principal Act by this Act, or insertingfurther provisions, to ensure that the award, order orindustrial agreement is consistent with that provision,

as the case requires.

Section 49C inserted and transitional provisions

13. (1) Before the heading to Division 3 of Part II of theprincipal Act the following section is inserted —

‘‘Superannuation

49C. (1) In this section —

‘‘complying superannuation fund orscheme’’ means a superannuation fund orscheme —

(a) that is a complying superannuationfund or scheme within the meaning ofthe Superannuation Guarantee(Administration) Act 1992 of theCommonwealth; and

(b) to which, under the governing rules ofthe fund or scheme, contributions may

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No. 79]s. 13

be made by or in respect of theemployee permitted to nominate afund or scheme.

(2) In exercising its jurisdiction under this Partthe Commission shall not make an award or order, orregister an industrial agreement, which requirescontribution to a superannuation fund or scheme byan employee or by an employer in respect of anemployee unless the award, order or industrialagreement —

(a) permits the employee to nominate acomplying superannuation fund or scheme;

(b) requires the employer to notify theemployee of the entitlement to nominate acomplying superannuation fund or scheme;

(c) requires the employer —

(i) if the award, order or industrialagreement specifies one or morecomplying superannuation funds orschemes to which contributions maybe made, to make contributions tothat fund or scheme, or one of thosefunds or schemes nominated by theemployer, until the employeen o m i n a t e s a c o m p l y i n gsuperannuation fund or scheme; or

(ii) if the award, order or industrialagreement does not specify acomplying superannuation fund orscheme to which contributions may bemade, to make contributions to acomplying fund or scheme nominatedby the employer until the employeenominates such a fund or scheme;

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[No. 79s. 13

(d) requires the employee and employer to bebound by the nomination of the employeeunless the employee and employer agree tochange the complying superannuation fundor scheme to which contributions are to bemade; and

(e) provides that an employer shall notunreasonably refuse to agree to a change ofcomplying superannuation fund or schemerequested by an employee.

(3) The Governor may make regulations —

(a) prescribing procedures to be followed by anemployer in notifying an employee ofentitlement to nominate a complyingsuperannuation fund or scheme; and

(b) prescribing procedures to be followed by anemployee in nominating a complyingsuperannuation fund or scheme.

(4) A person shall not by threats or intimidationpersuade or attempt to persuade —

(a) an employee or prospective employee tonominate a particular superannuation fundor scheme; or

(b) an employer to make contributions to aparticular superannuation fund or scheme.

Penalty:(a) in the case of an individual, $1 000;(b) in any other case, $5 000.

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No. 79]s. 13

(5) In subsection (4) —

‘‘threats’’ includes any conduct by an employerthat clearly indicates to an employee orprospective employee that employment orpromotion is conditional upon the employeenominating, or changing to, a complyingsuperannuation fund or scheme suggestedby the employer.

’’.

(2) On the coming into operation of this section anyemployer bound by an award, order or industrial agreementwhich requires contributions in respect of an employee to bemade to a superannuation fund or scheme specified in the award,order or industrial agreement may, in lieu of those contributionsand notwithstanding any provision of the award, order orindustrial agreement, make contributions to a complyingsuperannuation fund or scheme, as defined in section 49C (1) ofthe principal Act, nominated by the employee.

(3) Regulations made under section 49C (3) of the principalAct as amended by this Act apply to and in respect ofnotifications and nominations under subsection (2) of this section.

(4) An employee and an employer are bound by thenomination of an employee under subsection (2) of this sectionunless the employee and employer agree to change the complyingsuperannuation fund or scheme to which the contributions are tobe made.

(5) An employer shall not unreasonably refuse to agree to achange of complying superannuation fund or scheme requestedby an employee entitled to nominate such a fund or schemeunder this section.

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(6) As soon as practicable and not later than 6 months afterthe coming into operation of this section the Commission or, inthe case of an award or order made by the RailwaysClassification Board, that Board shall —

(a) review each award, order and industrial agreement inforce on the coming into operation of this section;

(b) publish in the Industrial Gazette and in a newspapercirculating throughout the State —

(i) notice of any proposal to vary an award, order orindustrial agreement under this section; and

(ii) notice that any employer or organization who isa party to, or is bound by, the award, order orindustrial agreement, after giving notice withinthe time and in the manner specified in thenotice, may appear and be heard on the proposal;

and

(c) after affording employers and organizations who makeapplication under paragraph (b) an opportunity to beheard, vary the award, order or industrial agreementby varying or omitting any provision that is contraryto, or in conflict with, section 49C of the principal Actas inserted into the principal Act by subsection (1) ofthis section to ensure that the award, order orindustrial agreement is consistent with that provision.

Section 80W amended

14. Section 80W (1) of the principal Act is amended byinserting after ‘‘Division 2’’ the following —

‘‘ and Division 2A ’’.

27


No. 79]s. 15

PART 5 — BARGAINING AND INDUSTRIAL AGENTS

Section 81E inserted

15. After section 81D of the principal Act the following sectionis inserted —

‘‘Representation

81E. In proceedings before an industrialmagistrate’s court a party may —

(a) appear in person;

(b) be represented by an agent; or

(c) be represented by a legal practitioner.’’.


16. After section 112 of the principal Act the following sectionis inserted —

‘‘Registration of industrial agents

112A. (1) In this section a reference to carrying onbusiness as an industrial agent is a reference tocarrying on business as a person who does either orboth of the following —

(a) appears as an agent under section 31, 81Eor 91;

28


[No. 79s. 16

(b) provides advice or other services in relationto industrial matters,

but does not include carrying on business by anorganization, the Council, the Chamber or the Minesand Metals Association.

(2) Except as provided under this section a personwho, not being an industrial agent registered underthis section or a legal practitioner, in any way carrieson business as an industrial agent, or holds himselfout as carrying on business as an industrial agent,commits an offence.

Penalty: $2 000.

(3) For the purposes of section 77A of the LegalPractitioners Act 1893 a person who is —

(a) registered under this section;

(b) acting under a contract of employment for aperson who is registered under this section;or

(c) an employee or officer of any organization,the Council, the Chamber, the Mines andMetals Association, or a prescribed body orclass of body, acting on behalf of that body,

is authorized to —

(d) appear for a party, person or body undersection 31, 81E or 91; and

(e) provide advice and other services inrelation to industrial matters.

(4) A person shall not be registered under thissection unless that person can demonstrate that that

29


No. 79]s. 17

person has professional indemnity insurance, or hassufficient material resources, of a prescribed kind toprovide professional indemnity.

(5) Regulations made by the Governor are to —

(a) provide for a scheme of registration ofpersons for the purposes of this section andthe procedure for obtaining registration;

(b) prescribe a code of conduct for personsregistered under this section;

(c) prescribe the circumstances in which, andthe procedures by which, a person may bedisqualified from obtaining registration, orregistration may be cancelled;

(d) provide for appeals to the Full Bench fromdisqualification or cancellation ofregistration; and

(e) prescribe any matter or thing which isauthorized or required to be prescribed forthe purposes of this section.

’’.

Legal Practitioners Act 1893 amended

17. After section 77 of the Legal Practitioners Act 1893* thefollowing section is inserted —

‘‘Sections 76 and 77 not to apply to certainpersons

77A. Nothing in sections 76 and 77 shall beconstrued as preventing a person from appearing for a

30


[No. 79s. 18

person before a court, or as preventing a person fromproviding advice or other services, if that appearanceor the provision of that advice or service, is authorizedby a written law.

’’.

[* Reprinted as at 25 March 1993.For subsequent amendments see 1994 Index toLegislation of Western Australia, Table 1, pp. 118-9.]

Workplace Agreements Act 1993 amended

18. (1) Section 3 of the Workplace Agreements Act 1993* isamended by inserting after the definition of ‘‘individualworkplace agreement’’ the following definition —‘‘

‘‘legal practitioner’’ means a ‘‘certificatedpractitioner’’ as defined in the LegalPractitioners Act 1893;

’’.

(2) Section 37 of the Workplace Agreements Act 1993* isrepealed and the following section is substituted —

‘‘Representation on appeal

37. A party to an appeal under section 35 may —




31


No. 79]s. 18

(3) Section 53 of the Workplace Agreements Act 1993* isrepealed and the following section is substituted —

‘‘Representation

53. In any proceedings under this Division anemployer or employee may —




(4) After section 101 of the Workplace Agreements Act 1993*the following section is inserted —

‘‘Registration of industrial agents

101A. (1) In this section a reference to carrying onbusiness as an industrial agent is a reference tocarrying on business as a person who does all or anyof the following —

(a) acts as a bargaining agent;

(b) acts as an agent under section 37 or 53;

(c) provides advice or other services in relationto workplace agreements,

but does not include carrying on business by anorganization, the Council, the Chamber or the Minesand Metals Association.

(2) Except as provided under this section a personwho, not being an industrial agent registered under

32


[No. 79s. 18

this section or a legal practitioner, in any way carrieson business as an industrial agent, or holds himselfout as carrying on business as an industrial agent,commits an offence.

Penalty: $2 000.

(3) For the purposes of section 77A of the LegalPractitioners Act 1893 a person who is —

(a) registered under this section;

(b) acting under a contract of employment for aperson who is registered under this section;or

(c) an employee or officer of any organization,the Council, the Chamber, the Mines andMetals Association, or a prescribed body orclass of body, acting on behalf of that body,

is authorized to —

(d) act as a bargaining agent;

(e) act as an agent under section 37 or 53; and

(f) provide advice and other services inrelation to workplace agreements.

(4) A person shall not be registered under thissection unless that person can demonstrate that thatperson has professional indemnity insurance, or hassufficient material resources, of a prescribed kind toprovide professional indemnity.

33


No. 79]s. 18

(5) Regulations made by the Governor are to —

(a) provide for a scheme of registration ofpersons for the purposes of this section andthe procedure for obtaining registration;

(b) prescribe a code of conduct for personsregistered under this section;

(c) prescribe the circumstances in which, andthe procedures by which, a person may bedisqualified from obtaining registration, orregistration may be cancelled;

(d) provide for appeals to the Full Benchwithin the meaning of the IndustrialRelations Act 1979 from disqualification orcancellation of registration; and

(e) prescribe any matter or thing which isauthorized or required to be prescribed forthe purposes of this section.

’’.[* Act No. 13 of 1993.

Amended by Act No. 1 of 1995.]

34


[No. 79s. 19

PART 6 — INDUSTRIAL MAGISTRATE’S COURTS

Section 81A repealed and a section substituted

19. Section 81A of the principal Act is repealed and thefollowing section is substituted —

‘‘Jurisdiction under this Act

81A. An industrial magistrate’s court has thejurisdiction conferred on it by sections 77, 83, 83A,96J, 110, 111 and 112.

’’.

Section 81AA amended

20. After section 81AA (b) of the principal Act the followingparagraphs are inserted —

‘‘(ba) Part IV of the Long Service Leave Act 1958;

(bb) section 36 of that Act;

(bc) section 107C (2) of the Child Welfare Act 1947;’’.

Section 81CA inserted

21. After section 81C of the principal Act the following sectionis inserted —

‘‘Procedure, enforcement etc.

81CA. (1) In this section —

‘‘general jurisdiction’’ means the jurisdictionof an industrial magistrate’s courtunder —

(a) section 77, 83, 96J, 110, 111 or 112;

35


No. 79]s. 21

(b) Part IV of the Long Service LeaveAct 1958; or

(c) Division 1 of Part 5 of the WorkplaceAgreements Act 1993;

‘‘prosecution jurisdiction’’ means thejurisdiction of an industrial magistrate’scourt under —

(a) section 83A;

(b) section 100 of the WorkplaceAgreements Act 1993;

(c) section 36 of the Long Service LeaveAct 1958;

(d) section 107C (2) of the Child WelfareAct 1947; or

(e) section 46 of the Minimum Conditionsof Employment Act 1993.

(2) Except as otherwise prescribed by or underthis Act or another law —

(a) the powers of an industrial magistrate’scourt; and

(b) the practice and procedure to be observedby an industrial magistrate’s court,

when exercising general jurisdiction are thoseprovided for by the Local Courts Act 1904 as if theproceedings were an action within the meaning of thatAct.

(3) Without limiting subsection (2), regulationsmay extend the circumstances in which an industrial

36


[No. 79s. 21

magistrate’s court exercising general jurisdiction mayhear and determine an action under Part VIA of theLocal Courts Act 1904.

(4) Section 88 applies to and in relation to anindustrial magistrate’s court exercising generaljurisdiction as if —

(a) each reference to the Court in that sectionwere a reference to the industrialmagistrate’s court; and

(b) ‘‘or the Presiding Judge’’ in section 88 (4)were deleted.

(5) When exercising prosecution jurisdiction anindustrial magistrate’s court constitutes a court ofsummary jurisdiction.

(6) An order or other decision of an industrialmagistrate’s court made in exercise of prosecutionjurisdiction shall be enforced in accordance with theJustices Act 1902.

(7) Subject to subsection (6), a judgment, order,direction or other decision of an industrialmagistrate’s court may be enforced in accordance withregulations made under section 113 (3).

(8) In the absence of evidence to the contrary,anything done by an industrial magistrate’s courtshall be taken to have been done within itsjurisdiction.

’’.

37


No. 79]s. 22

Section 81D amended

22. (1) Section 81D (3) of the principal Act is amended bydeleting ‘‘Except where subsection (4) applies’’ and substitutingthe following —

‘‘ For the purposes of prosecution jurisdiction ’’.

(2) Section 81D (4) of the principal Act is amended bydeleting ‘‘the jurisdiction referred to in section 81AA (a)’’ andsubstituting the following —

‘‘ general jurisdiction ’’.

Section 82A amended

23. Section 82A of the principal Act is amended by insertingbefore ‘‘83 ’’ the following —

‘‘ 77, ’’.

Section 83 amended

24. (1) After section 83 (1) of the principal Act the followingsubsection is inserted —

‘‘(1a) An application for the enforcement of an

award, industrial agreement or order (other than anorder made under section 32, 44 (6) or 66) shall not bemade otherwise than to an industrial magistrate’scourt.

’’.

(2) In section 83 of the principal Act subsections (7) and (8)are repealed.

38


[No. 79s. 25


25. After section 83 of the principal Act the following section isinserted —

‘‘Proceedings for offences

83A. (1) An industrial magistrate’s court hasjurisdiction to hear and determine, under the JusticesAct 1902, complaints for any contravention or failureto comply with this Act that constitutes an offence.

(2) In subsection (1) the reference to the JusticesAct 1902 does not include Part VIII of that Act.

(3) Without limiting section 84, the jurisdictionreferred to in subsection (1) shall not be exercised byany other court.

’’.

Section 96J amended

26. Section 96J (3) of the principal Act is repealed.

Section 111 amended

27. Section 111 (3) of the principal Act is amended by deleting‘‘any court of competent jurisdiction’’ and substituting thefollowing —

‘‘ an industrial magistrate’s court ’’.

Section 112 amended

28. Section 112 (3) of the principal Act is amended by deleting‘‘any court of competent jurisdiction’’ and substituting thefollowing —

‘‘ an industrial magistrate’s court ’’.

39


No. 79]s. 29

Workplace Agreements Act 1993 amended

29. Section 62 of the Workplace Agreements Act 1993* isrepealed.

[* Act No. 13 of 1993.Amended by Act No. 1 of 1995.]

40


[No. 79s. 30

PART 7 — MISCELLANEOUS AMENDMENTS

Division 1 — Industrial Relations Act 1979

Section 7 amended

30. (1) Section 7 (1) of the principal Act is amended byinserting in the appropriate alphabetical position the followingdefinition —

‘‘‘‘subscription’’ means any subscription, fee or dues

payable by a member for or in respect ofmembership of an organization;

’’.

(2) Section 7 (2) of the principal Act is amended by deleting‘‘, dues, fees,’’.

Section 55 amended

31. Section 55 (4) of the principal Act is amended —

(a) after paragraph (d) by inserting the following —

‘‘ and ’’;

(b) after paragraph (e) by deleting ‘‘; and’’ andsubstituting a full stop; and

(c) by deleting paragraph (f).

Section 64D inserted

32. After section 64C of the principal Act the following sectionis inserted —

‘‘Purging the register

64D. The rules of an organization shall provide forthe register referred to in section 63 to be purged on

41


No. 79]s. 33

not less than 4 occasions in each year by striking offthe names of members whose membership has endedunder section 64A or 64B or under the rules.

’’.

Section 66 amended

33. Section 66 (1) (c) of the principal Act is amended bydeleting ‘‘by reason of any matter arising from the discharge ofhis duties under this Act’’ and substituting the following —

‘‘ of his own motion ’’.

Section 72 amended

34. Section 72 (5) of the principal Act is amended —

(a) after paragraph (a) by deleting ‘‘and’’; and

(b) after paragraph (b) by substituting a semicolon for thefull stop and inserting the following —

‘‘(c) actions and other proceedings already

commenced by or against any of thoseorganizations may be continued by oragainst the new organization and thenew organization is substituted foreach of those organizations as a party;and

(d) actions and other proceedings thatcould have been brought by or againstany of those organizations may bebrought by or against the neworganization.

’’.

42


[No. 79s. 35

Section 72A amended

35. Section 72A (1) of the principal Act is amended in thedefinition of ‘‘organization’’ by inserting after ‘‘employees’’ thefollowing —

‘‘and includes the Western Australian Branch of theAustralian Medical Association Incorporated

’’.

Section 72B inserted and consequential amendments

36. (1) After section 72A of the principal Act the followingsection is inserted —

‘‘AMA may represent interests of medicalpractitioners

72B. (1) In this section —

‘‘medical practitioner’’ means a medicalpractitioner as defined in the MedicalAct 1894;

‘‘WA Branch of the AMA’’ means the WesternAustralian Branch of the AustralianMedical Association Incorporated.

(2) The WA Branch of the AMA may representunder this Act the industrial interests of medicalpractitioners as if it were an organization ofemployees and for that purpose —

(a) the references to ‘‘organization’’ inparagraphs (e), (i), (j), (k) and (l) ofthe definition of ‘‘industrial matter’’ in

43


No. 79]s. 36

section 7 (1) include the WA Branch of theAMA; and

(b) Divisions 2 and 3 of Part II, sections 80C(4) and 80F and Parts III and VIA apply tothe WA Branch of the AMA as if it were anorganization of employees.

(3) The WA Branch of the AMA does not have theright, to the exclusion of an organization ororganizations, to represent under this Act theindustrial interests of medical practitioners, unless anorder to that effect is made under section 72A.

(4) Within 30 days of the coming into operation ofsection 36 of the Industrial Relations LegislationAmendment and Repeal Act 1995 the WA Branch ofthe AMA shall lodge with the Registrar a copy of itsrules as then in force.

(5) The WA Branch of the AMA shall lodge withthe Registrar, within 30 days of the making of thealteration, any alteration made to the rules lodgedunder subsection (4) as altered from time to time.

(6) The WA Branch of the AMA shall file with theRegistrar once in each year, at such time as isprescribed —

(a) a list of the names, residential addresses,and occupations of the persons holdingoffices in the Branch; and

(b) a record of the number of members of theBranch,

certified by statutory declaration by the ExecutiveDirector of the Branch to be a correct statement of theinformation contained in the list and the record.

’’.

44


[No. 79s. 37

(2) Section 80C of the principal Act is amended by repealingsubsections (5) and (6).

(3) Section 80X (1) of the principal Act is amended in thedefinition of ‘‘organization’’ by deleting ‘‘employed in a publichospital’’.

(4) The Hospitals Amendment Act 1994 is amended byrepealing the following passage in item 11 of the Table tosection 18 —

‘‘In section 80C (5), insert after ‘‘Incorporated’’ thefollowing —

‘‘or any other association, whetherregistered under this Act or not, approvedby the Commission in relation to theapplication or claim in question

’’.’’.

Section 96M repealed

37. Section 96M of the principal Act is repealed.

Section 98 amended

38. (1) Section 98 (1) of the principal Act is amended byinserting after ‘‘awards’’ the following —

‘‘ , industrial agreements ’’.

(2) Section 98 (2) of the principal Act is amended byinserting after ‘‘award’’ the following —

‘‘ , industrial agreement ’’.

45


No. 79]s. 39

(3) Section 98 (3) of the principal Act is amended —

(a) in paragraph (d) by inserting after ‘‘location’’ thefollowing —

‘‘and, if he thinks fit, require writtenanswers to be given

’’;

(b) in paragraph (e) by deleting ‘‘or exhibit’’ andsubstituting the following —

‘‘ , exhibit, send or deliver ’’; and

(c) in paragraph (f) —

(i) by inserting after ‘‘seize’’ the following —

‘‘ or retain ’’; and

(ii) by deleting ‘‘or exhibited’’ and substituting thefollowing —

‘‘ , exhibited, sent or delivered ’’.

Section 102A amended

39. Section 102A of the principal Act is amended insubsections (1) and (2) by deleting ‘‘or institute proceedings for anoffence against this Act’’.

Section 104 inserted

40. After section 103 of the principal Act the following sectionis inserted —

‘‘Prosecutions

104. (1) A person authorized by the Minister toprosecute offences under this Act of a particular kind

46


[No. 79s. 41

may make and prosecute a complaint of an offence ofthat kind.

(2) If a complaint shows that the person makingthe complaint is authorized as referred to insubsection (1), that fact is to be taken to be proved inthe absence of evidence to the contrary.

(3) An Industrial Inspector may, of his ownmotion, make and prosecute a complaint of an offenceunder this Act.

(4) The Registrar or a Deputy Registrar may, ofhis own motion, and shall, if he is directed under thisAct to do so, make and prosecute a complaint of anoffence under this Act.

(5) A person not referred to in subsection (1), (3)or (4) may make a complaint of an offence under thisAct but the complaint cannot be prosecuted unless thecourt is satisfied that the complainant has beenaffected by the conduct complained of.

’’.

Section 109 amended

41. Section 109 of the principal Act is amended by deleting‘‘fees, levies, and dues’’ in both places where it occurs andsubstituting, in each case the following —

‘‘ subscriptions and levies ’’.

Schedule 1 amended

42. Schedule 1 to the principal Act is amended by deletingitem 1 and substituting the following item —

‘‘1. The complete text of industrial agreements, and

retirements from industrial agreements.’’.

47


No. 79]s. 43

Division 2 — Workplace Agreements Act 1993

Section 47 amended

43. Section 47 (3) (b) of the Workplace Agreements Act 1993* isdeleted and following paragraph is substituted —

‘‘(b) each entry in relation to long service leave is

retained during the employment of the employeeand for not less than 7 years thereafter, and anyother entry is retained for not less than 7 yearsafter it is made.

’’.

[* Act No. 13 of 1993.Amended by Act No. 1 of 1995.]

48


[No. 79s. 44

PART 8 — AMENDMENTS RELATING TOLONG SERVICE LEAVE

Division 1 — Long Service Leave Act 1958

Long Service Leave Act

44. In this Part the Long Service Leave Act 1958* is referred toas the Long Service Leave Act.

[* Approved for Reprint 11 July 1974.For subsequent amendments see 1994 Index toLegislation of Western Australia, Table 1, p. 126.]

Long title amended

45. The long title to the Long Service Leave Act is amended bydeleting ‘‘Industrial Arbitration Act, 1912,’’ and substitutingthe following —

‘‘ Industrial Relations Act 1979 ’’.

Section 4 amended

46. (1) Section 4 (1) of the Long Service Leave Act isamended —

(a) by deleting the definition of ‘‘award’’ and substitutingthe following definition —

‘‘‘‘award’’ means an award in force under

the Industrial Relations Act 1979;’’;

(b) by deleting the definition of ‘‘Board of Reference’’;

(c) by deleting the definition of ‘‘Commission’’;

49


No. 79]s. 46

(d) in the definition of ‘‘Commission in Court Session’’ bydeleting ‘‘Industrial Arbitration Act, 1912,’’ andsubstituting the following —

‘‘ Industrial Relations Act 1979 ’’;

(e) by deleting the definition of ‘‘employee’’ andsubstituting the following definition —

‘‘‘ ‘ e m p l o y e e ’ ’ means , sub je c t t o

subsection (3) —

(a) any person employed by anemployer to do work for hire orreward including an apprenticeor industrial trainee;

(b) any person whose usual statusis that of an employee;

(c) any person employed as acanvasser whose services areremunerated wholly or partly bycommission or percentagereward; or

(d) any person who is the lessee ofany tools or other implements ofproduction or of any vehicle usedin the delivery of goods or whois the owner, whether wholly orpartly, of any vehicle used in thetransport of goods or passengersif the person is in all otherrespects an employee;

’’;

50


[No. 79s. 46

(f) by deleting the definition of ‘‘employer’’ andsubstituting the following definition —

‘‘‘‘employer’’ includes —

(a) persons, firms, companies andcorporations; and

(b) the Crown and any Minister ofthe Crown, or any publicauthority,

employing one or more employees;’’;

(g) by deleting the definition of ‘‘industrial agreement’’and substituting the following definition —

‘‘‘‘industrial agreement’’ means an

industrial agreement in force underthe Industrial Relations Act 1979;

’’;and

(h) by inserting in the appropriate alphabetical positionsthe following definitions —

‘‘‘‘apprentice’’ means an apprentice under

the Industrial Training Act 1975;

‘‘industrial trainee’’ means an industrialtrainee under the Industrial TrainingAct 1975;

51


No. 79]s. 46

‘‘workplace agreement’’ means aworkplace agreement that is in forceunder the Workplace AgreementsAct 1993.

’’.

(2) Section 4 (2) of the Long Service Leave Act isamended —

(a) by deleting paragraph (c) and substituting thefollowing —

‘‘(c) where the normal weekly number of

hours have varied over the period ofemployment of an employee thenormal weekly number of hours ofwork shall, subject to paragraph (a),be deemed to be the average weeklynumber of hours worked by theemployee during that period ofemployment (calculated by referenceto such hours as are ascertainable ifthe hours actually worked over thatperiod are not known); and

’’;and

(b) in paragraph (d) by deleting ‘‘rate of three dollars aweek for board, and one dollar a week for lodging’’ andsubstituting the following —

‘‘ prescribed rate ’’.

(3) After section 4 (2) of the Long Service Leave Act thefollowing subsection is inserted —

‘‘(3) Where a person is, by virtue of —

(a) an award or industrial agreement;

52


[No. 79s. 47

(b) a workplace agreement or other agreementbetween the person and his employer; or

(c) an enactment of the State, theCommonwealth or of another State orTerritory,

entitled to, or eligible to become entitled to, longservice leave at least equivalent to the entitlement tolong service leave under this Act, that person is notwithin the definition of ‘‘employee’’ in subsection (1).

’’.

Section 5 repealed and a section substituted

47. Section 5 of the Long Service Leave Act is repealed and thefollowing section is substituted —

‘‘Limited contracting-out of long service leave

5. An employer and an employee may agree that theemployee may forgo his entitlement to long serviceleave under this Act if —

(a) the employee is given an adequate benefitin lieu of the entitlement; and

(b) the agreement is in writing.’’.

Section 6 amended

48. Section 6 (2) (d) (i) of the Long Service Leave Act isamended by deleting ‘‘Industrial Arbitration Act, 1912,’’ andsubstituting the following —


53


No. 79]s. 49

Section 8 amended

49. Section 8 (3) of the Long Service Leave Act is amended —

(a) by inserting after paragraph (a) the following —

‘‘ or ’’; and

(b) by deleting paragraphs (b) and (c) and substituting thefollowing paragraph —

‘‘(b) for any reason other than serious

misconduct,’’.

Section 8A amended

50. Section 8A of the Long Service Leave Act is amended bydeleting ‘‘an agreement between the Western AustralianEmployers’ Federation (Incorporated) and the Trades and LaborCouncil of Western Australia or’’.

Section 9 amended

51. (1) Section 9 (1) of the Long Service Leave Act is repealedand the following subsections are substituted —

‘‘(1) Where an employee becomes entitled to a

period of long service leave under this Act the leave isto be granted and taken —

(a) subject to any agreement between theemployer and the employee, as soonas reasonably practicable after itbecomes due; and

54


[No. 79s. 52

(b) in one continuous period, or if theemployer and the employee so agree,in separate periods of not less thanone week.

(1a) Where an employer and employee have notagreed when the employee is to take the employee’slong service leave, subject to subsection (1b), theemployer is not to refuse the employee taking, at anytime suitable to the employee, any period of longservice leave to which the employee became entitledmore than 12 months before that time.

(1b) The employee is to give to the employer atleast 2 weeks’ notice of the period during which theemployee intends to take the long service leave.

’’.

(2) Section 9 (3) of the Long Service Leave Act is repealedand the following subsection is substituted —

‘‘(3) An employee is to be paid for a period of long

service leave at the time payment is made in thenormal course of the employment, unless the employeerequests in writing to be paid before the period ofleave commences, in which case the employee is to beso paid.

’’.

Parts IV, V and VI repealed and a Part substituted

52. Parts IV, V and VI of the Long Service Leave Act arerepealed and the following Part is substituted —

‘‘PART IV. — ENFORCEMENT OF THE

PROVISIONS OF THE ACT

Industrial magistrate’s courts

11. (1) An industrial magistrate’s court hasjurisdiction to hear and determine all questions and

55


No. 79]s. 53

disputes in relation to rights and liabilities under thisAct, including without limiting the generality of theforegoing, questions and disputes —

(a) as to whether a person is or is not anemployee, or an employer, to whom this Actapplies;

(b) whether and when and to what extent anemployee is or has become entitled to longservice leave, or payment in lieu of longservice leave;

(c) as to the ordinary rate of pay of anemployee;

(d) as to whether the employment of theemployee was or was not ended by anemployer in order to avoid or to attempt toavoid liability for long service leave; and

(e) with respect to a benefit in lieu of longservice leave under an agreement madeunder section 5.

(2) Jurisdiction granted under subsection (1) isexclusive of any other court except where an appeallies to that other court.

’’.

Division 1 of Part VII repealed

53. Part VII of the Long Service Leave Act is amended byrepealing Division 1.

56


[No. 79s. 54

Section 26 repealed and sections 26 and 26A substituted

54. Section 26 of the Long Service Leave Act is repealed andthe following sections are substituted —

‘‘Keeping of employment records

26. (1) An employer must ensure that details arerecorded of —

(a) each employee’s name and, if the employeeis under 21 years of age, the employee’sdate of birth;

(b) the date on which the employee commencedemployment with the employer;

(c) the gross and net amounts paid to theemployee under the contract ofemployment, and all deductions and thereasons for them;

(d) all leave taken by the employee, whetherpaid, partly paid or unpaid;

(e) details of any agreement made undersection 5 between the employer and theemployee;

(f) such other details as are necessary for thecalculation of the entitlement to, andpayment for, long service leave under thisAct; and

(g) other matters prescribed by theregulations.

57


No. 79]s. 54

(2) The employer must ensure that —

(a) the records are kept in accordance with theregulations; and

(b) each entry is retained during theemployment of the employee and for notless than 7 years thereafter.

Penalty: $5 000.

Access to records kept by employer

26A. (1) An employer, on request in writing by arelevant person, must —

(a) produce to the person the records undersection 26 relating to an employee to whomthat section applies; and

(b) let the person inspect the records.

Penalty: $5 000.

(2) Relevant persons are —

(a) the employee or a person authorized inwriting by the employee; and

(b) an industrial inspector under the IndustrialRelations Act 1979.

(3) The duty placed on an employer bysubsection (1) —

(a) continues so long as the record is requiredto be kept under section 26 (2) (b);

58


[No. 79s. 55

(b) is not affected by the fact that theemployee is no longer employed by theemployer;

(c) includes the further duties —

(i) to let the relevant person enterpremises of the employer for thepurposes of inspection of the records;and

(ii) to let the relevant person take copiesof, or extracts from, the records;

and

(d) must be complied with not later than theend of the next pay period after the requestfor inspection is received.

’’.

Division 4 of Part VII repealed

55. Part VII of the Long Service Leave Act is amended byrepealing Division 4.

Sections 32, 33 and 34 repealed

56. Sections 32, 33 and 34 of the Long Service Leave Act arerepealed.

Section 36 repealed and a section substituted

57. Section 36 of the Long Service Leave Act is repealed andthe following section is substituted —

‘‘Exclusive jurisdiction for offences

36. An industrial magistrate’s court has jurisdictionto hear and determine complaints for any

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No. 79]s. 58

contravention or failure to comply with this Act thatconstitutes an offence and that jurisdiction is exclusiveof any other court except where an appeal lies to thatother court.

’’.

Section 37 amended

58. Section 37 of the Long Service Leave Act is amended bydeleting from ‘‘his solicitor’’ to the end of the section andsubstituting the following —

‘‘a legal practitioner who is a certificated practitionerunder and for the purposes of the Legal PractitionersAct 1893 or by the person’s agent duly appointed forthat purpose.

’’.

Section 38 amended

59. Section 38 (2) of the Long Service Leave Act is amended bydeleting ‘‘fifty dollars.’’ and substituting the following —

‘‘ $1 000. ’’

Section 39 amended

60. Section 39 of the Long Service Leave Act is amended bydeleting ‘‘Industrial Arbitration Act, 1912,’’ and substituting thefollowing —


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[No. 79s. 61

Division 2 — Transitional and Saving

General transitional provisions

61. (1) In this Division —

‘‘amended provisions’’ means the Long Service Leave Actas amended by this Part;

‘‘commencement day’’ means the day on which this Partcomes into operation;

‘‘former provisions’’ means the Long Service Leave Act asin force before the commencement day.

(2) On the commencement day —

(a) notwithstanding the definition of ‘‘employee’’ in theamended provisions, where a person is an employee asdefined by section 4 of the former provisions thatperson is, while in continuous employment (within themeaning of that term in section 6 of the Long ServiceLeave Act) with his or her employer, to be regarded asan employee for the purposes of the amendedprovisions; and

(b) where an exemption has been granted under section 5of the former provisions to an employer in respect ofthe employees of that employer, that exemptioncontinues until —

(i) an agreement is entered into under section 5 ofthe amended provisions by that employer witheach of the employees of that employer; or

(ii) the expiry of the period of 6 months, or suchextended period as is determined in relation tothat employer pursuant to subsection (3), afterthe commencement day,

whichever is the earlier.

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No. 79]s. 62

(3) The Minister may, on the application of an employer whohas been granted an exemption under section 5 of the formerprovisions, extend the period of 6 months referred to insubsection (2) (b) (ii) for such further period as the Ministerdetermines.

(4) Regulations may be made for any matter if —

(a) this section does not make provision or sufficientprovision in respect of the matter; or

(b) it is necessary or convenient to do so to facilitate thetransition to the amended provisions.

Pending proceedings continued

62. (1) In this section —

‘‘former Board’’ means the Board of Reference constitutedunder Part IV of the former provisions;

‘‘Full Bench’’ means the Full Bench of the WesternAustralian Industrial Relations Commission asdefined in and for the purposes of the IndustrialRelations Act 1979;

‘‘pending proceedings’’ means —

(a) the reference of any question or dispute to theformer Board; or

(b) an appeal to the Commission in Court Session,

under the former provisions that was commencedbefore the commencement day.

(2) Pending proceedings may be continued and dealt withunder the former provisions.

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[No. 79s. 63

(3) Notwithstanding section 52 or the amended provisions,for the purposes of continuing and dealing with pendingproceedings the former Board shall continue as constituted by theformer provisions.

(4) Notwithstanding section 52, the former provisions remainin force to the extent necessary for the purposes of subsections (2)and (3).

(5) A determination made in pending proceedings shall, forall the purposes of the amended provisions and of any otherwritten law, be deemed to be a determination made by —

(a) in the case of proceedings referred to in paragraph (a)of the definition of ‘‘pending proceedings’’, anindustrial magistrate; or

(b) in the case of proceedings referred to in paragraph (b)of the definition of ‘‘pending proceedings’’, the FullBench,

under the amended provisions.

Jurisdiction over existing matters

63. Subject to section 62 and the amended provisions anindustrial magistrate’s court or the Full Bench, as the caserequires, may exercise jurisdiction in relation to a matterwhether that matter arose before or after the commencementday.

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No. 79]s. 64

Division 3 — Consequential Amendments

Consequential amendments to the Minimum Conditions ofEmployment Act 1993

64. (1) Section 44 (2) of the Minimum Conditions ofEmployment Act 1993* is amended —

(a) by inserting after paragraph (a) the followingparagraph —

‘‘(aa) the date on which the employee

commenced employment with theemployer;

’’;

(b) by deleting ‘‘and’’ after paragraph (c); and

(c) by inserting after paragraph (c) the following —

‘‘(ca) such details as are necessary for the

calculation of the entitlement to, andpayment for, long service leave underthe Long Service Leave Act 1958; and

’’.

(2) Section 44 (3) (b) of the Minimum Conditions ofEmployment Act 1993* is deleted and the following paragraph issubstituted —

‘‘(b) each entry in relation to long service leave is

retained during the employment of the employeeand for not less than 7 years thereafter, and anyother entry is retained for not less than 7 yearsafter it is made;

’’.

[* Act No. 14 of 1993.]

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[No. 79s. 65

PART 9 — REPEAL OF SPENT OR OUTDATEDLEGISLATION

The Masters and Servants Act 1892 repealed

65. The Masters and Servants Act 1892 is repealed.

Truck Act 1899 repealed and consequential amendments

66. (1) The Truck Act 1899 is repealed.

(2) Section 5 of the principal Act is repealed.

(3) Section 113 of the Prisons Act 1981* is repealed.

[* Reprinted as at 9 July 1992.For subsequent amendments see 1994 Index toLegislation of Western Australia, Table 1, pp. 171-2.]

(4) Section 31 of the Coal Industry Tribunal of WesternAustralia Act 1992* is repealed.

[* Act No. 37 of 1992.For subsequent amendments see 1994 Index toLegislation of Western Australia, Table 1, p. 34.]

(5) Section 3 of the Minimum Conditions of EmploymentAct 1993* is amended in the definition of ‘‘minimum condition ofemployment’’ by inserting after ‘‘pay’’ in paragraph (a) thefollowing —

‘‘ , or other requirement as to pay, ’’.

[* Act No. 14 of 1993.]

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No. 79]s. 66

(6) After section 17 of the Minimum Conditions ofEmployment Act 1993* the following Part is inserted —

‘‘PART 3A — OTHER REQUIREMENTS

AS TO PAY

References to terms in this Part

17A. (1) A reference in this Part to an employeeincludes a reference to any person in any manneremployed for wages in work of any kind or in manuallabour.

(2) In subsection (1), ‘‘wages’’ includes anymoney or thing had or contracted to be paid, delivered,or given as a recompense, reward, or remuneration.

(3) A reference in this Part to the contract ofemployment only applies if the contract is in writing.

Entitlements as to form and use of pay

17B. (1) An employee is not to be directly orindirectly compelled by an employer to accept —

(a) goods of any kind; or

(b) accommodation or other services of anykind,

instead of money as any part of his or her pay unlessthis is authorized or required under the workplaceagreement, award or contract of employment or undera written law.

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[No. 79s. 66

(2) An employee is not to be directly or indirectlycompelled by an employer to spend any part of his orher pay in a particular way.

(3) In proceedings by an employee for recovery ofany amount due as his or her pay —

(a) anything given or provided by the employercontrary to subsection (1) is to be treatedas if it had never been given or provided;

(b) any amount that the employee has beencompelled to spend contrary tosubsection (2) is to be treated as if ithad never been paid to the employee.

Entitlement as to payment of money

17C. (1) To the extent that an employee receiveshis or her pay in money the employee is entitled to bepaid in full and payment is to be made —

(a) in cash;

(b) by cheque, postal order or money orderpayable to the employee;

(c) by payment into an account, specified bythe employee, with a bank or financialinstitution; or

(d) in any other manner authorized or requiredunder the workplace agreement, award orcontract of employment.

(2) In the case of any employee who is notemployed by the Crown, payment can be made undersubsection (1) (b) or (c) if, and only if, the employee soauthorizes.

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No. 79]s. 66

Authorized deductions from pay

17D. (1) Despite section 17C, an employer maydeduct from an employee’s pay —

(a) an amount the employer is authorized, inwriting, by the employee to deduct and payon behalf of the employee;

(b) an amount the employer is authorized todeduct and pay on behalf of the employeeunder the workplace agreement, award orcontract of employment; and

(c) an amount the employer is authorized orrequired to deduct by order of a court orunder a law of the State or theCommonwealth.

(2) The employee is entitled to have any amountso deducted paid by the employer in accordance withthe employee’s instructions or in accordance with therequirements of the workplace agreement, award,contract of employment, court order or law of theState or the Commonwealth (as the case may be).

(3) Nothing in this section requires an employerto make deductions requested by an employee.

(4) An employee may, by giving written notice tothe employer, withdraw an authorization undersubsection (1) (a).

’’.

[* Act No. 14 of 1993.]

68


[No. 79s. 67

Trade Unions Act 1902 repealed and consequentialamendments

67. (1) The Trade Unions Act 1902 is repealed.

(2) Section 80H (6) of the principal Act is amended bydeleting —

‘‘a Trade Union within the meaning of the TradeUnions Act 1902,

’’.

(3) Section 4 (3) of the Associations Incorporations Act 1987*is repealed.


(4) Section 4 (1) of the Mines Safety and InspectionAct 1994* is amended in paragraph (a) of the definition of ‘‘tradeunion’’ by deleting ‘‘or under the Trade Unions Act 1902’’.

[* Act No. 62 of 1994.]

(5) Section 3 (1) of the Occupational Health, Safety andWelfare Act 1984* is amended in paragraph (a) of the definitionof ‘‘trade union’’ by deleting ‘‘or under the Trade UnionsAct 1902’’.

[* Reprinted as at 23 January 1989.For subsequent amendments see 1994 Index toLegislation of Western Australia, Table 1, p. 150.]

69


No. 79]s. 68

(6) Section 5 (c) of the Timber Industry Regulation Act 1926*is amended —

(a) by deleting subparagraph (ii) and substituting thefollowing subparagraph —

‘‘(ii) a nominee of the organizations of

timber workers that are registeredunder section 53 of the IndustrialRelations Act 1979;

’’;and

(b) by deleting ‘‘a timber workers’ trade union registeredunder the Trade Unions Act, 1902’’ and substitutingthe following —

‘‘an organization of timber workers that isregistered under section 53 of theIndustrial Relations Act 1979

’’.

[* Reprinted as approved 17 July 1970.For subsequent amendments see 1994 Index toLegislation of Western Australia, Table 1, p. 214.]

Factories and Shops Act 1963 repealed and consequentialamendments

68. (1) The Factories and Shops Act 1963 is repealed.

(2) The Child Welfare Act 1947* is amended —

(a) in section 107 (1) by inserting after ‘‘107A (1)’’ thefollowing —

‘‘ , 107B (2) ’’.

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[No. 79s. 68

(b) by inserting after section 107A the followingsections —

‘‘Employment other than street trading

1 0 7 B . ( 1 ) I n t h i s s e c t i o n‘‘employment’’ does not include streettrading.

(2) A child who is under 15 years ofage shall not engage in employment —

(a) during the hours when the childis required to attend school; or

(b) outside the time between 6 a.m.and 9.30 p.m.

(3) Subsection (2) (a) does not apply toan exempt child.

(4) Where the Director-General is ofthe opinion that the welfare of a child islikely to be jeopardized by the fact of or themanner or extent of the engagement by thechild in employment, the Director-Generalmay, by written notice given to thechild —

(a) prohibit the child from engagingin employment; or

(b) impose limitations on theengagement by the child inemployment,

and a child who receives such a notice shallcomply with it.

71


No. 79]s. 68

(5) The Director-General shall serve acopy of a notice issued under subsection (4)on —

(a) the employer of the child; and

(b) each person who has custody orguardianship of the child.

(6) A person who knowingly causes,procures or employs a child to engagein employment in contravention ofsubsection (2) or of a notice undersubsection (4) or who knowingly allows achild in the custody or guardianship of thatperson to so engage, commits an offence.

Penalty: $2 000 for a first offence and$5 000 for a later offence.

(7) It shall be a requirement for —

(a) the custodian or guardian of achild seeking employment toprovide a declaration of detailsrelating to any notice ofprohibition from engaging inemployment; and

(b) the employer to sight and hold acopy of any declaration providedunder paragraph (a).

(8) Where a person is prosecuted foran alleged offence of causing, procuring oremploying a child to engage in employmentin contravention of a notice undersubsection (4), or of allowing a child in thecustody or guardianship of that person to

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[No. 79s. 68

so engage, it is a defence for the person toshow —

(a) that the Director-General hadnot served a copy of the noticeon that person or otherwiseinformed that person of thecontents of the notice; and

(b) that the person was otherwiseunaware of the contents of thenotice.

Proceedings against employers may betaken by industrial inspectors

107C. (1) The powers of an industrialinspector appointed under the IndustrialRelations Act 1979 extend to theprosecution of a complaint against a personfor —

(a) an offence under section 107A(6) of causing procuring oremploying a child to engage instreet trading contrary tosection 107A (1) or (2) or anotice under section 107A (4); or

(b) an offence under section 107B(6) of causing, procuring oremploying a child to engage inemployment contrary tosection 107B (2) or a noticeunder section 107B (4).

(2) An industrial magistrate’s courtestablished under Part III of the

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No. 79]s. 68

Industrial Relations Act 1979 hasjurisdiction to hear and determinecomplaints prosecuted by industrialinspectors under subsection (1).

’’;and

(c) in section 142 (1), by inserting after ‘‘or (4)’’ thefollowing —

‘‘ or section 107B (2) or (4) ’’.

[* Reprinted as at 23 May 1990.For subsequent amendments see 1994 Index toLegislation of Western Australia, Table 1, pp. 30-1.]

(3) Section 61 of the Dental Act 1939* is repealed.

[* Reprinted as approved 11 January 1979.For subsequent amendments see 1994 Index toLegislation of Western Australia, Table 1, pp. 58-9.]

(4) The Motor Vehicle Dealers Act 1973* is amended —

(a) in section 21 by repealing subsections (4) to (7); and

(b) in section 31 (a) by deleting ‘‘or to which a specialcertificate under section 21 issued in his namerelates’’.

[* Reprinted as at 1 February 1985.For subsequent amendments see 1994 Index toLegislation of Western Australia, Table 1, p. 143.]

(5) Section 29 of the Timber Industry Regulation Act 1926*is amended —

(a) in subsection (1) by deleting ‘‘and of the Factoriesand Shops Act, 1920, and any amendment thereof,

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[No. 79s. 69

and the regulations under those Acts’’ andsubstituting —

‘‘ and the regulations under that Act ’’; and

(b) by repealing subsection (2).

[* Reprinted as approved 17 July 1970.For subsequent amendments see 1994 Index toLegislation of Western Australia, Table 1, p. 214.]

Salaries and Wages Freeze Act 1982 repealed andconsequential amendments

69. (1) The Salaries and Wages Freeze Act 1982 is repealed.

(2) Section 33 (2) of the Petroleum Products PricingAct 1983* is amended —

(a) after paragraph (c) by inserting the following —

‘‘ or ’’;

(b) by deleting ‘‘; or’’ at the end of paragraph (d) andsubstituting a full stop; and

(c) by deleting paragraph (e).


Temporary Reduction of Remuneration (Senior PublicOfficers) Act 1983 repealed

70. The Temporary Reduction of Remuneration (Senior PublicOfficers) Act 1983 is repealed.

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No. 79]s. 71

Saving

71. A repeal effected by section 69 (1) or 70 does not create orrevive any entitlement to, or eligibility for the payment of anyamount of money that was not payable before the repealoccurred.

By Authority: JOHN A. STRIJK, Acting Government Printer

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