Industrial Relations Act 1979

Western Australia

CONTENTS

Part I — Introductory

1. Short title 2

2. Commencement 2

3. Application off‑shore 2

4. Repeal 5

6. Objects 5

7. Interpretation 6

Part II — The Western Australian Industrial Relations Commission

Division 1 — Constitution of the Commission

8. Constitution of Commission 19

9. Qualifications for appointment of President and Chief Commissioner 20

10. Age limit for members of Commission 21

11. Oath of office and secrecy 21

12. Commission Court of Record 21

13. Protection of members of Commission and others 22

14. Exercise of powers and jurisdiction of President and Commission 22

14A. Dual Federal and State appointments 22

14B. Performance of duties by dual Federal and State appointees23

15. Constitution of Full Bench and Commission in Court Session24

16. Powers and duties of President and Chief Commissioner 24

16A. Delegation by Chief Commissioner 25

17. Appointment of acting members of Commission 26

18. Extension of appointment 26

19. Duty of members of Commission 27

20. Conditions of service of members of Commission 27

21. Resignation from office 30

22. Tenure subject to good behaviour 30

Division 2 — General jurisdiction and powers of the Commission

22A. Interpretation 31

22B. Commission to act with due speed 31

23. Jurisdiction of Commission under this Act 31

23A. Powers of Commission on claims of unfair dismissal 34

23B. Power to prevent external interference with employment issues 36

24. Jurisdiction to decide whether matter is industrial 37

25. Allocation of industrial matters 37

26. Commission to act according to equity and good conscience38

27. Powers of Commission 40

28. Exercise of powers prior to hearing and determination of matter 43

29. By whom matters may be referred 43

29AA. Certain claims not to be determined 44

29A. Service of claims and applications 45

29B. Parties to proceedings 48

30. Intervention of Crown 48

31. Representation of parties to proceedings 49

32. Reference of industrial matters for conciliation 50

32A. Conciliation and arbitration functions of Commission to be unlimited 52

33. Evidence before Commission 52

34. Decision to be in form of award, order, or declaration 54

35. Decision to be first drawn up as minutes 55

36. Decision to be sealed and deposited 56

Division 2A — Awards

36A. Application for award coverage for non‑award employees 56

37. Effect, area and scope of awards 57

38. Named parties to awards 57

39. Date of operation of award 59

40. Power to vary or cancel award 59

40A. Incorporation of industrial agreement provisions into awards by consent 60

40B. Power to vary awards to reflect statutory and other requirements, to promote efficiency and to facilitate implementation61

Division 2B — Industrial agreements

40C. Interpretation 62

41. Industrial agreements 63

41A. Registration of industrial agreement 65

42. Initiation of bargaining for industrial agreement 65

42A. Response to initiation of bargaining 67

42B. Good faith bargaining for industrial agreement 67

42C. Code of good faith 69

42D. Duty of good faith does not require concluded industrial agreement 70

42E. Conciliation and arbitration to assist bargaining 70

42F. Restriction on Commission’s power in relation to industrial agreements 70

42G. Parties may agree to Commission making orders as to terms of agreement 71

42H. Commission may declare that bargaining has ended 72

42I. Commission may make enterprise orders 72

42J. Effect of enterprise order 74

42K. Term of enterprise order 75

42L. When bargaining ends 76

42M. Regulations 76

43. Power to vary, renew or cancel industrial agreement 77

Division 2C — Holding of compulsory conferences

44. Compulsory conference 77

Division 2D — Miscellaneous provisions relating to awards, orders and agreements

46. Interpretation of awards and orders 82

47. Cancellation of defunct awards, and deletion of employers from awards in certain cases 83

48. Boards of Reference to be established 85

48A. Awards and agreements to make provision for resolution of disputes 87

48B. Superannuation 88

Division 2E — Appeals to the Full Bench

49. Appeals to Full Bench from decision of Commission under this Act 90

Division 2F — Keeping of and access to employment records

49D. Keeping of employment records 92

49E. Access to employment records 94

49F. Enforcement of this Division 95

Division 2G — Right of entry and inspection by authorised representatives

49G. Interpretation 95

49H. Right of entry for discussions with employees 96

49I. Right of entry to investigate breaches 96

49J. Provisions as to authorities issued to representatives 98

49K. No entry to premises used for habitation 100

49L. Authority must be shown on request 100

49M. Conduct giving rise to civil penalties 100

49N. Power of Commission restricted 101

49O. Enforcement of this Division 101

Division 3 — General Orders

50. Power of Commission to make General Orders 101

51. Powers and duties of Commission in respect of National Wage Decisions 103

51A. General Orders as to public sector discipline 104

51B. Commission’s power to make General Orders as to matters for which minimum conditions of employment are prescribed by MCE Act105

Division 3A —MCE Act functions

Subdivision 1 — Preliminary

51C. Interpretation 106

Subdivision 2 — Minimum weekly rates of pay

51D. Commission to review minimum weekly rates of pay for purposes of MCE Act 107

51E. When reviews can occur 107

51F. Setting of minimum weekly rates of pay by the Commission108

51G. Matters relevant to setting rates for apprentices and trainees108

51H. When orders under this Subdivision have, and cease to have, effect 110

Subdivision 3 — Casual employees’ loading

51I. Casual employees’ loading 111

Subdivision 4 — Orders under this Division generally

51J. Notification of hearings under this Division 111

51K. Right to be heard 112

51L. Restrictions on matters that orders under this Division can provide for 112

51M. Publication of orders 112

51N. Variation or rescission 112

Division 4 — Industrial organisations and associations

52. Interpretation 113

53. Qualifications for and basis of registration of organisations of employees 114

54. Qualifications for and basis of registration of organisations of employers 114

55. Requirements attaching to organisation seeking registration115

56. Rules to provide for secret ballots, etc. 117

56A. Rules may provide for casual vacancies to be filled in alternative manner 119

57. Elections to be by secret postal ballot 120

58. Registration of organisation 121

59. Registered name 121

60. Incorporation of organisation upon registration 122

61. Effect of registration 122

62. Alteration of registered rules 123

63. Records to be kept by organisation 124

64. Registrar may direct that form of membership register be altered 125

64A. Resignation from an organisation 125

64B. Membership to end if subscription not paid 126

64C. Effect of sections 64A and 64B in relation to rules 126

64D. Purging the register 127

65. Audit and filing of accounts of organisation 127

65A. Powers of auditor 128

66. Power of President to deal with complaints by members, certain other persons or Registrar against organisation128

67. Registration of industrial associations 131

68. Declaration by Full Bench as to certain functions 131

69. Conduct of election by Registrar or Electoral Commissioner132

70. Offences in relation to elections 134

71. Provisions relating to State branches of Federal organisations135

71A. Adoption of rules of Federal organisations 139

72. Amalgamation of organisations 140

72A. Coverage of employee organisations 141

72B. AMA may represent interests of medical practitioners 143

73. Summons for cancellation or suspension of registration of organisation 144

Division 5 — Duties of officers of organisations

74. Duties 149

75. Auditor to report on compliance with duties 151

76. Rules are not to conflict with section 74 or 75 151

77. Proceedings for breach of duty 151

78. Failure to comply with order 153

79. Effect on or of other proceedings 153

80. Disqualification for breach of duty 154

Part IIA — Constituent authorities

Division 2 — Public Service Arbitrator and appeal boards

80C. Interpretation, construction and application of this Division155

80D. Appointment of Public Service Arbitrators 157

80E. Jurisdiction of Arbitrator 158

80F. By whom matters may be referred to Arbitrator 160

80G. Provisions of Part II, Division 2, to apply 160

80H. Public Service Appeal Board 161

80I. Appeals 162

80J. Institution of appeals 163

80K. Proceedings of Boards 164

80L. Certain provisions of Part II, Division 2, to apply 164

Division 3 — Railways Classification Board

80M. Interpretation 165

80N. Railways Classification Board established 166

80O. Terms of office, etc. 168

80P. Continuation in office 169

80Q. Validity of acts of Board 170

80R. Jurisdiction of Board 170

80S. By whom matters may be referred to Board 172

80U. Reclassification of vacant offices by Public Transport Authority 173

80V. Proceedings of Board 174

80W. Provisions of Part II, Division 2 to 2G, to apply 174

Part IIB — Enquiries

80ZE. Enquiries 175

Part IIC — Arrangements with other industrial authorities

80ZF. References to “Australian Commission” 176

80ZG. Joint proceedings 176

80ZH. Reference of industrial matters to Australian Commission for determination under this Act 177

80ZI. Conferences with other industrial authorities 177

80ZJ. Exercise of powers conferred under Commonwealth Act 178

Part III — Enforcement of Act, awards, industrial agreements and orders

81. Establishment of industrial courts 179

81A. Jurisdiction under this Act 179

81AA. Jurisdiction under other Acts 179

81B. Constitution of industrial courts 180

81C. Sittings 181

81CA. Procedure, enforcement etc. 181

81D. Clerks of industrial courts 183

81E. Representation 184

81F. Industrial magistrate’s court records, access to records 184

82. Jurisdiction of Full Bench 185

82A. Time for application 185

83. Enforcement of certain instruments 186

83A. Underpayment of employee 187

83B. Enforcement of unfair dismissal order 188

83C. Costs of enforcement orders 191

83D. Proceedings for offences 191

83E. Contravention of a civil penalty provision 192

83F. Payment of costs and penalties 194

84. Appeal to Full Bench from industrial magistrate’s court 194

84A. Proceedings before Full Bench for enforcement of this Act195

Part IV — Western Australian Industrial Appeal Court

85. Constitution of Western Australian Industrial Appeal Court198

86. Jurisdiction of Court 199

87. Decision of Court 200

88. Judgments, enforcement of 200

90. Appeal to Court from Commission 201

91. Representation 202

92. Powers of Court in respect of contempt 202

Part V — The Registrar and other officers of the Commission

93. Appointment and duties of officers 204

94. Authority to do acts as directed 206

95. Duties of Deputy Registrar 206

96. Delegation of certain functions to Registrar 207

Part VIA — Freedom of association

96A. Interpretation 210

96B. Certain requirements relating to membership of organisations to have no effect 210

96C. Discrimination because of membership of organisation 211

96D. Refusal to employ and discriminatory and injurious acts against persons performing work for employers because of membership or non‑membership of employee organisation212

96E. Discriminatory and injurious acts against persons because of non‑membership of employee organisation213

96F. Further provision as to penalties under sections 96C, 96D and 96E 214

96G. Responsibility of employee organisations and officers and members 215

96H. Responsibility of corporations and their officers 216

96I. Onus of proof in certain cases 216

96J. Industrial magistrate’s court may order compliance 217

96K. Appeal against decision under section 96J 218

96L. Power of industrial magistrate’s court to make certain orders after conviction 219

Part VID — Employer‑employee agreements

Division 1 — Preliminary

97U. Interpretation 220

Division 2 — The making of an EEA

97UA. Employer and employee may make an EEA 222

97UB. EEA may deal with post‑employment matters 223

97UC. Other provisions about making an EEA 223

97UD. Making of EEA by person with a mental disability 223

97UE. Effect of EEA 224

97UF. EEA not to be made while industrial agreement in operation224

97UG. Documents and information to be given to employee before EEA signed 225

97UH. Application of section 97UG if draft EEA amended 226

97UI. EEA information statement 227

97UJ. Bargaining agents 227

97UK. Prohibited conduct relating to bargaining agents 228

Division 3 — Form and content of EEA

97UL. Formalities 229

97UM. Additional formalities for EEA made with employee under 18 230

97UN. EEA must provide for resolution of disputes 230

97UO. What must be included in EEA dispute provisions 231

97UP. Industrial authority may be specified as arbitrator 232

Division 4 — Commencement, duration and variation

97UQ. Commencement of EEA for new employee 232

97UR. Commencement of EEA for existing employee 233

97US. Expiry 233

97UT. Employment conditions on expiry of EEA 233

97UU. No power to vary an EEA 234

97UV. Cancellation of EEA 235

97UW. Termination of contract of employment 235

Division 5 — Registration of EEAs

Subdivision 1 — Preliminary

97UX. Delegation by Registrar 235

Subdivision 2 — Registration

97UY. Lodgment for registration 236

97UZ. Failure to lodge EEA made with new employee 237

97V. Recovery of money 237

97VA. Employment conditions of new employee if EEA not lodged for registration within allowed period238

97VB. Registrar to be satisfied that EEA in order for registration 238

97VC. Powers conferred on Registrar 238

97VD. Registrar to notify parties of certain deficiencies in EEA 239

97VE. Parties may correct deficiencies 240

97VF. Registration 240

97VG. Refusal of registration 241

97VH. When refusal has effect 241

97VI. Cessation of EEA for new employee where registration refused 241

97VJ. Recovery of money 242

97VK. Employment conditions of new employee if registration refused 242

97VL. Registrar to provide copy 243

Subdivision 3 — Appeal against refusal of registration

97VM. Appeal against refusal of registration 243

97VN. Relevant industrial authority to notify parties of certain deficiencies in EEA 244

97VO. Parties may make corrections 244

97VP. Determination of appeal 245

97VQ. Proceedings under this Subdivision 245

Division 6 — No‑disadvantage test

Subdivision 1 — Definition

97VR. Interpretation 246

97VS. No‑disadvantage test defined 246

97VT. Determination of award, comparable award or relevant order by Registrar 248

97VU. All entitlements to be considered 248

97VV. Particular provision for case where Supported Wage System applies 249

Subdivision 2 — Principles to be followed in application of no‑disadvantage test

97VW. Interpretation 249

97VX. Commission to establish principles and guidelines 249

97VY. Registrar and Commission to give effect to instrument 250

97VZ. Minister and certain bodies may seek amendment 250

97W. Requirement for public comment 251

97WA. Public comment on amendment or substitute instrument 251

Division 7 — Register

97WB. Interpretation 252

97WC. Register 252

97WD. Inspection of register 253

97WE. Commission may exempt an EEA from inspection 253

97WF. Protected information not to be disclosed 253

97WG. Certified copies 254

Division 8 — Disputes

97WH. Interpretation 255

97WI. Arbitration jurisdiction of relevant industrial authority 255

97WJ. Representation 255

97WK. Referral to relevant industrial authority where delay alleged in dispute resolution 256

97WL. Several disputes may be subject of one arbitration 257

97WM. Power of arbitrator to obtain information 257

97WN. Orders and determinations of arbitrators 257

97WO. Further provisions about orders and determinations 259

97WP. Enforcement of orders and determinations 259

97WQ. Industrial magistrate’s court not bound by interpretations of EEA 259

Division 9 — EEAs for persons with mental disabilities

Subdivision 1 — Preliminary

97WR. Interpretation 260

97WS. Relationship of this Division to Guardianship and Administration Act 1990 261

97WT. Registrar to notify Public Advocate of applications and orders for approval of representative261

97WU. Public Advocate to notify Registrar of relevant guardianship orders 262

Subdivision 2 — Approval of person to act on behalf of person with a mental disability

97WV. Application for approval 263

97WW. Requirements for application 264

97WX. Forms to be prescribed 264

97WY. Who may be approved as a representative 265

97WZ. Approval of representative 265

97X. Effect of order 266

97XA. Refusal of approval 266

97XB. Appeal against refusal of approval 267

97XC. Determination of appeal 267

Subdivision 3 — Functions of representative

97XD. Functions 268

97XE. Effect of acts of representative 269

97XF. Duties of representative 269

Subdivision 4 — Termination of representative’s authority to act

97XG. Duration of order approving representative 270

97XH. Resignation of representative 270

97XI. Application to State Administrative Tribunal for revocation order 270

97XJ. Opportunity to be heard 271

97XK. State Administrative Tribunal may make revocation order 271

97XL. Application of Guardianship and Administration Act 1990 for purposes of section 97XK272

Subdivision 5 — Approval of new representative

97XM. Application for new approval where representative dies or approval is revoked 273

97XN. Approval of representative 274

97XO. Effect of order 274

97XP. Refusal of approval 275

97XQ. Appeal against refusal of approval 275

Subdivision 6 — Miscellaneous

97XR. Powers of Registrar 275

97XS. EEA not affected by revocation of order or vacancy in position of representative 276

97XT. Register 276

97XU. Certified copies 276

97XV. Information not to be disclosed 277

97XW. Proceedings under this Division 277

Division 10 — Certain conduct prohibited

97XX. Purpose of this Division 278

97XY. Enforcement of prohibitions in this Division 278

97XZ. Making employment, transfer or promotion conditional on EEA being entered into 278

97Y. Certain advertising 279

97YA. Exception to sections 97XZ and 97YB 280

97YB. Employer offering EEA to give choice as to employment arrangements 280

97YC. Order for compliance with section 97YB 281

97YD. Threats and intimidation 281

97YE. Misinformation 282

97YF. Dismissal or detriment because of refusal to make or cancel EEA 283

97YG. Employee’s remedy for breach of section 97YF 283

97YH. Burden of proof 284

Division 11 — General

97YI. Review of Divisions 5, 6 and 7 285

97YJ. Regulations 285

Part VII — Miscellaneous

98. Industrial Inspectors 286

99. Wage rates in awards not affected by repeal of basic wage provisions 288

102. Obstruction 288

102A. Institution of proceedings by officers 289

103. Application may relate to more than one matter in certain circumstances 289

104. Prosecutions 290

105. Publication of awards, etc. 291

106. Judicial notice of signatures and appointments 291

107. No costs to be awarded against Registrar, Deputy Registrar or Industrial Inspector 292

108. Organisations and associations not affected by certain Imperial Acts 292

109. Dues payable to organisation or association may be sued for summarily 292

110. Disputes between organisation or association and its members 293

111. No premiums to be taken for employment 293

112. Invalidity of certain provisions in organisation rules 294

112A. Registration of industrial agents 295

113. Regulations 297

114. Prohibition of contracting out 299

115. Police officers 300

Schedule 1

Matters to be published in the “Western Australian Industrial Gazette”

Schedule 3 — Police officers

1. Interpretation 302

2. Application of Act to police officer 302

3. Western Australian Police Union of Workers 303

Schedule 4 — Registration requirements for EEAs

1. When EEA is in order for registration 304

Schedule 5 — Powers to obtain information, and related provisions

1. Powers to obtain information 306

2. Obstruction 306

3. False statements 306

4. Failure to comply with notice 307

5. Legal professional privilege 307

6. Incriminating answers or documents 307

Notes

Compilation table 308

Provisions that have not come into operation 313

Western Australia

Industrial Relations Act 1979

An Act to consolidate and amend the law relating to the prevention and resolution of conflict in respect of industrial matters, the mutual rights and duties of employers and employees, the rights and duties of organisations of employers and employees, and for related purposes.

Part I — Introductory

1. Short title

This Act may be cited as the Industrial Relations Act 1979 1.

[Section 1 amended by No. 94 of 1984 s. 4.]

2. Commencement

The provisions of this Act shall come into operation on such day or days as is or are, respectively, fixed by proclamation 1.

3. Application off‑shore

(1) Subject to subsections (5) and (6) where any industry is carried on —

(a) partly within the State and partly within an area to which this subsection applies; or

(b) wholly or partly in an area to which this subsection applies, and —

(i) facilities for servicing or supporting that industry are maintained in the State by or on behalf of the employer concerned;

(ii) the employer concerned is connected with the State;

(iii) that industry is carried on from, or on, or by means of, an aircraft, ship, or vessel certificated, registered, or licensed under a law of the State or by a public authority, or which is required to be so certificated, registered, or licensed;

(iv) that industry is carried on from, or on, or by means of, a rig or other structure, installation, or equipment, the use or function of which is regulated by the State or by the State and the Commonwealth, or is required to be so regulated;

(v) that industry is authorised or regulated by the State or by the State and the Commonwealth; or

(vi) that industry is carried on pursuant to a law of the State,

then this Act applies to and in relation to that industry in so far as any employment relates to the area to which this subsection applies and in any such case this Act also applies to and in relation to any industrial matter or industrial action related thereto, and any jurisdiction, function, duty, or power exercisable, imposed, or conferred by or under this Act extends thereto.

(2) An employer shall, for the purposes of subsection (1), be connected with the State if that employer —

(a) is domiciled in the State;

(b) is resident in the State, normally or temporarily;

(i) registered, incorporated, or established under a law of the State;

(ii) taken to be registered in the State; or

(iii) a related body corporate of such a body for the purposes of the Corporations Act 2001 of the Commonwealth;

(d) in connection with the industry concerned, has an office or a place of business in the State; or

(e) is the holder of a licence, lease, tenement, permit, or other authority, granted under a law of the State or by a public authority under or by virtue of which the industry is carried on.

(3) The areas to which subsection (1) applies are —

(a) that area situate west of 129° of east longitude reckoning from the meridian of Greenwich, that is part of the areas known as and comprised within —

(i) the Australian fishing zone as defined by the Commonwealth Fisheries Act 1952 2; or

(ii) the continental shelf, within the meaning of the Convention on the Continental Shelf a copy of which in the English language is set out in Schedule 1 to the Commonwealth Petroleum (Submerged Lands) Act 1967;

(b) any other area seaward of the State to which from time to time the laws of the State apply or, by a law of the Commonwealth, are applied.

(4) For the purposes of any proceedings under this Act an averment in the application or process —

(a) that an employer was, pursuant to subsection (2), at a specified time or during a specified period or at all material times connected with the State; or

(b) that any conduct, event, circumstance, or matter occurred, or that any place is situate, within an area referred to in subsection (3),

shall, in the absence of proof to the contrary, be deemed to be proved.

(5) Subsections (1), (2), and (3) shall not be construed as applying this Act to or in relation to any person, circumstance, thing, or place by reason only of the operation of paragraph (c) of the interpretation of the term “industry” set out in section 7(1) unless this Act would also apply by reason of the operation of subsection (1).

(6) Effect shall be given to subsections (1), (2), and (3) only where this Act or any provision of this Act would not otherwise apply as a law of the State, or be applied as a law of the Commonwealth, to or in relation to any person, circumstance, thing, or place.

[Section 3 amended by No. 10 of 1982 s. 28; No. 10 of 2001 s. 111.]

4. Repeal

The Industrial Arbitration Act 1912‑1979 is hereby repealed.

[5. Repealed by No. 79 of 1995 s. 66(2).]

6. Objects

The principal objects of this Act are —

(a) to promote goodwill in industry and in enterprises within industry;

(aa) to provide for rights and obligations in relation to good faith bargaining;

(ab) to promote the principles of freedom of association and the right to organise;

(ac) to promote equal remuneration for men and women for work of equal value;

(ad) to promote collective bargaining and to establish the primacy of collective agreements over individual agreements;

(ae) to ensure all agreements registered under this Act provide for fair terms and conditions of employment;

(af) to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises;

(ag) to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees in those enterprises;

(b) to encourage, and provide means for, conciliation with a view to amicable agreement, thereby preventing and settling industrial disputes;

(c) to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality;

(ca) to provide a system of fair wages and conditions of employment;

(d) to provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes;

(e) to encourage the formation of representative organisations of employers and employees and their registration under this Act and to discourage, so far as practicable, overlapping of eligibility for membership of such organisations;

(f) to encourage the democratic control of organisations so registered and the full participation by members of such an organisation in the affairs of the organisation; and

(g) to encourage persons, organisations and authorities involved in, or performing functions with respect to, the conduct of industrial relations under the laws of the State to communicate, consult and co‑operate with persons, organisations and authorities involved in, or performing functions with respect to, the conduct or regulation of industrial relations under the laws of the Commonwealth.

[Section 6 inserted by No. 94 of 1984 s. 5; amended by No. 20 of 2002 s. 114 and 127.]

7. Interpretation

(1) In this Act, unless the contrary intention appears —

“alteration”, in relation to rules of an organisation, includes amendment, addition to, variation, rescission or substitution;

“apprentice” means an apprentice under the Industrial Training Act 1975;

“association” means an association that is registered under Division 4 of Part II;

“Australian Commission” means the Australian Industrial Relations Commission established by the Commonwealth Act;

“award” means an award made by the Commission under this Act;

“calling” means any trade, craft, occupation, or classification of an employee;

“canvasser” means any person wholly and solely employed in the writing of industrial insurance business or in the collection of premiums at not longer intervals than one month in respect of such insurance, or in both, but does not include a person who directly or indirectly carries on or is concerned in the carrying on or conduct of any other business or occupation in conjunction with that of industrial insurance;

“Chamber” means the body known as the Chamber of Commerce and Industry of Western Australia (Inc);

“Chief Commissioner” includes an Acting Chief Commissioner;

“civil penalty provision” means a provision of this Act that is specified to be a civil penalty provision for the purposes of section 83E;

“Commission” means the body continued and constituted under this Act under the name of The Western Australian Industrial Relations Commission;

“Commission in Court Session” means the Commission constituted as provided by section 15(2);

“Commissioner” means a Commissioner appointed under this Act and includes the Chief Commissioner, the Senior Commissioner and an Acting Commissioner;

“Commonwealth Act” means the Workplace Relations Act 1996 of the Commonwealth;

“constituent authority” means the Public Service Arbitrator, a Public Service Appeal Board, or the Railways Classification Board, established or appointed under Part IIA;

“Council” means the body known as the Trades and Labor Council of Western Australia;

“Court” means the Western Australian Industrial Appeal Court continued and constituted under this Act;

“decision” includes award, order, declaration or finding;

“declaration” means a declaration made by the Commission under this Act;

“Deputy Registrar” means a Deputy Registrar appointed pursuant to this Act;

“employee” means —

(a) any person employed by an employer to do work for hire or reward including an apprentice or trainee;

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

(c) any person employed as a canvasser whose services are remunerated wholly or partly by commission or percentage reward; or

(d) any person who is the lessee of any tools or other implements of production or of any vehicle used in the delivery of goods or who is the owner, whether wholly or partly, of any vehicle used in the transport of goods or passengers if he is in all other respects an employee,

but does not include any person engaged in domestic service in a private home unless —

(e) more than 6 boarders or lodgers are therein received for pay or reward; or

(f) the person so engaged is employed by an employer, who is not the owner or occupier of the private home, but who provides that owner or occupier with the services of the person so engaged;

“employer” includes —

(a) persons, firms, companies and corporations; and

(b) the Crown and any Minister of the Crown, or any public authority,

employing one or more employees and also includes a labour hire agency or group training organisation that arranges for an employee (being a person who is a party to a contract of service with the agency or organisation) to do work for another person, even though the employee is working for the other person under an arrangement between the agency or organisation and the other person;

“employer‑employee agreement” or “EEA” means an employer‑employee agreement provided for by section 97UA;

“employment record” means a record kept under section 49D;

“enterprise order” has the meaning given by section 42I(1);

“final offer arbitration” means arbitration in which an issue is decided by the Commission by awarding, without qualification or amendment, that one of the final proposals made by the parties concerned which, viewed in its entirety is, in the opinion of the Commission, the more or the most reasonable, as the case may be;

“finding” means a decision, determination or ruling made in the course of proceedings that does not finally decide, determine or dispose of the matter to which the proceedings relate;

“Full Bench” means the Commission constituted as provided by section 15(1);

“group training organisation” means an organisation that manages the employment and training of apprentices and trainees under contracted work based arrangements for the purpose of hosting those apprentices and trainees out to other employers;

“industrial action” means any act, omission, or circumstance done, effected, or brought about by an organisation or employer or employee or by any other person for the purpose, or in the opinion of the Commission for the purpose, of compelling an employer or an employee or an organisation to accept any terms or conditions of employment or to enforce compliance with any demand relating to employment not including an application made under this Act;

“industrial agreement” means an agreement registered by the Commission under this Act as an industrial agreement;

“Industrial Gazette” means the Western Australian Industrial Gazette published pursuant to this Act;

“Industrial Inspector” means an Industrial Inspector appointed pursuant to this Act;

“industrial magistrate’s court” means industrial magistrate’s court established under section 81(1);

“industrial matter” means any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter affecting or relating or pertaining to —

(a) the wages, salaries, allowances, or other remuneration of employees or the prices to be paid in respect of their employment;

(b) the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms, and conditions of employment including conditions which are to take effect after the termination of employment;

(c) the employment of children or young persons, or of any person or class of persons, in any industry, or the dismissal of or refusal to employ any person or class of persons therein;

(ca) the relationship between employers and employees;

(d) any established custom or usage of any industry, either generally or in the particular locality affected;

(e) the privileges, rights, or duties of any organisation or association or any officer or member thereof in or in respect of any industry;

(f) in respect of apprentices or trainees —

(i) their wage rates; and

(ii) subject to the Industrial Training Act 1975 —

(I) their other conditions of employment; and

(II) the rights, duties, and liabilities of the parties to any agreement of apprenticeship or training agreement;

(g) any matter relating to the collection of subscriptions to an organisation of employees with the agreement of the employee from whom the subscriptions are collected including —

(i) the restoration of a practice of collecting subscriptions to an organisation of employees where that practice has been stopped by an employer; or

(ii) the implementation of an agreement between an organisation of employees and an employer under which the employer agrees to collect subscriptions to the organisation;

[(h) deleted]

(i) any matter, whether falling within the preceding part of this interpretation or not, where —

(i) an organisation of employees and an employer agree that it is desirable for the matter to be dealt with as if it were an industrial matter; and

(ii) the Commission is of the opinion that the objects of this Act would be furthered if the matter were dealt with as an industrial matter;

and also includes any matter of an industrial nature the subject of an industrial dispute or the subject of a situation that may give rise to an industrial dispute but does not include —

(j) compulsion to join an organisation of employees to obtain or hold employment;

(k) preference of employment at the time of, or during, employment by reason of being or not being a member of an organisation of employees;

(l) non‑employment by reason of being or not being a member of an organisation of employees; or

(m) any matter relating to the matters described in paragraph (j), (k) or (l);

“industry” includes each of the following —

(a) any business, trade, manufacture, undertaking, or calling of employers;

(b) the exercise and performance of the functions, powers, and duties of the Crown and any Minister of the Crown, or any public authority;

whether or not, apart from this Act, it is, or is considered to be, industry or of an industrial nature, and also includes —

(d) a branch of an industry or a group of industries;

“irregularity”, in relation to an election for an office, includes a breach of the rules of an organisation, and any act, omission, or other means by which the full and free recording of votes, by persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered;

“Judge” means a Judge of the Supreme Court;

“labour hire agency” means a person or entity that conducts a business of the kind commonly known as a labour hire agency;

“legal practitioner” means a certificated practitioner within the meaning of the Legal Practice Act 2003;

“MCE Act” means the Minimum Conditions of Employment Act 1993;

“member of the Commission” means the President or a Commissioner and includes the President or a Commissioner when he is performing the functions of a constituent authority, or of a member of a constituent authority, but does not include any other member or acting member of a constituent authority;

“Mines and Metals Association” means the body known as the Australian Mines and Metals Association (Incorporated);

“office” in relation to an organisation means —

(a) the office of a member of the committee of management of the organisation;

(b) the office of president, vice president, secretary, assistant secretary, or other executive office by whatever name called of the organisation;

(c) the office of a person holding, whether as trustee or otherwise, property of the organisation, or property in which the organisation has any beneficial interest;

(d) an office within the organisation for the filling of which an election is conducted within the organisation; and

(e) any other office, all or any of the functions of which are declared by the Full Bench pursuant to section 68 to be those of an office in the organisation,

but does not include the office of any person who is an employee of the organisation and who does not have a vote on the committee of management of the organisation;

“officer” means a person who carries out, or whose duty is or includes the carrying out of, the whole or part of the functions of an office in an organisation;

“organisation” means an organisation that is registered under Division 4 of Part II;

“post‑secondary education institution” means an institution or part of an institution established or continued by or under the University of Western Australia Act 1911, the Curtin University of Technology Act 1966, the Murdoch University Act 1973, the Edith Cowan University Act 1984 or the Vocational Education and Training Act 1996;

“premises” includes any land, building, structure, mine, mine working, aircraft, ship or other vessel, vehicle and place, and any part of it;

“President” means the President of the Commission and includes an Acting President;

“Presiding Judge” means the Presiding Judge of the Court;

“principal executive officer” in relation to an organisation or association means the president or chairman of that organisation or association;

“public authority” means the Governor in Executive Council, any Minister of the Crown in right of the State, the President of the Legislative Council or the Speaker of the Legislative Assembly or the President of the Legislative Council and the Speaker of the Legislative Assembly, acting jointly, as the case requires, under the Parliamentary and Electorate Staff (Employment) Act 1992, the Governor or his or her delegate under the Governor’s Establishment Act 1992, State Government department, State trading concern, State instrumentality, State agency, or any public statutory body, corporate or unincorporate, established under a written law but does not include a local government or regional local government;

“public hospital” means a public hospital as defined in the Hospitals and Health Services Act 1927;

“public service officer” means a public service officer within the meaning of the Public Sector Management Act 1994;

“published in the required manner” means published in the next available issue of the Industrial Gazette and —

(a) in a newspaper circulating throughout the State; or

(b) on an internet website maintained by the Commission;

“record” means any thing or process —

(a) upon or by which information is recorded or stored; or

(b) by means of which a meaning can be conveyed by any means in a visible or recoverable form,

whether or not the assistance of some electronic, electrical, mechanical, chemical or other machine or process is required to convey the information or meaning;

“Registrar” means the Registrar appointed pursuant to this Act;

“registration”, in relation to an organisation, means registration under Division 4 of Part II by authority of the Full Bench;

“repealed Act” means the Act repealed by section 4;

“representative” has the meaning given by section 97X or 97XO;

“represented person” has the meaning given by section 97X or 97XO;

“secondary office”, in relation to a person who holds an office of member of the Commission and is subsequently appointed to an office of the Australian Commission pursuant to section 14A, means the office of member of the Australian Commission;

“Senior Commissioner” includes an Acting Senior Commissioner;

“subscription” means any subscription, fee or dues payable by a member for or in respect of membership of an organisation;

“trainee” means a person who belongs to a class of persons prescribed by regulations made by the Governor as persons to be treated as trainees for the purposes of this Act;

“vary” in relation to an award or industrial agreement means to add a new provision or to add to, alter, amend or rescind an existing provision.

(1a) A matter relating to —

(a) the dismissal of an employee by an employer; or

(b) the refusal or failure of an employer to allow an employee a benefit under his contract of service,

is and remains an industrial matter for the purposes of this Act even though their relationship as employee and employer has ended.

[(2) repealed]

(3) A matter or claim that has been referred, or appeal that has been brought, to the Tribunal provided for by section 51G of the Occupational Safety and Health Act 1984 under a provision mentioned in —

(a) subsection (1) of that section; or

(b) section 102(1) of the Mines Safety and Inspection Act 1994,

is not an industrial matter.

(4) Subsections (3) and (4) of section 34 do not apply to a determination that is made contrary to subsection (3)(b) or to any proceeding based on that determination, and in the determination of any application for a prerogative writ or declaratory judgment no regard shall be had to the existence of any right of appeal under this Act.

(5) In this Act —

(a) a reference to an industrial matter includes a reference to a matter relating to bargaining in good faith for an industrial agreement; and

(b) a reference to jurisdiction to inquire into and deal with an industrial matter includes a reference to jurisdiction to assist parties to bargain for an industrial agreement.

(6) Subject to subsection (7), for the purposes of the definitions of “employee” and “employer” in subsection (1), if a person (“the principal”) engages a person, or a group of persons, under a contract to personally give a performance as, or as part of, musical, theatrical, dance or comic entertainment, the principal is to be regarded as employing the person, or each person in the group, to do work.

(7) Subsection (6) has effect only to the extent necessary to enable a claim of the kind referred to in section 29(1)(b)(ii) to be referred to and dealt with by the Commission in respect of a person who would not be an employee but for the operation of subsection (6).

(8) Notes in this Act are provided to assist understanding and do not form part of the Act.

[Section 7 inserted by No. 94 of 1984 s. 6; amended by No. 83 of 1987 s. 38; No. 119 of 1987 s. 5; No. 73 of 1990 s. 45; No. 99 of 1990 s. 4; No. 44 of 1991 s. 5; No. 40 of 1992 s. 8; No. 15 of 1993 s. 4; No. 32 of 1994 s. 14; No. 103 of 1994 s. 18; No. 1 of 1995 s. 4, 26 and 49; No. 30 of 1995 s. 77; No. 79 of 1995 s. 30; No. 14 of 1996 s. 4; No. 42 of 1996 s. 71; No. 3 of 1997 s. 29 3 and 35; No. 36 of 1999 s. 247; No. 20 of 2002 s. 6, 128, 142, 149, 178, 185, 190(1), 191(1) and (2) and 194(2); No. 65 of 2003 s. 41(2); No. 51 of 2004 s. 70(2); No. 59 of 2004 s. 112; No. 68 of 2004 s. 87(2); amended in Gazette 15 Aug 2003 p. 3686.]

[Part 1A (s. 7A‑7G) repealed by No. 20 of 2002 4 s. 111(4) and 113(1).]

Part II — The Western Australian Industrial Relations Commission

[Heading amended by No. 94 of 1984 s. 7.]

Division 1 — Constitution of the Commission

8. Constitution of Commission

(1) The Commission by the name The Western Australian Industrial Commission established under the repealed Act is hereby continued in existence subject to this Act under the name The Western Australian Industrial Relations Commission.

(2) The Commission shall consist of the following members —

(a) a President;

(b) a Chief Commissioner;

(d) such number of other Commissioners as may, from time to time, be necessary for the purposes of this Act,

who shall be respectively appointed to their offices by the Governor by Commission in Her Majesty’s name.

(2a) For the purposes of section 51H of the Occupational Safety and Health Act 1984, one Commissioner appointed under subsection (2)(d) is to be a person who, in addition to the other attributes required for appointment, has —

(a) knowledge of or experience in the field of occupational safety and health; and

(b) knowledge of that Act and the Mines Safety and Inspection Act 1994,

but the function given by section 51H(1) of that Act to the Commissioner so appointed does not preclude that Commissioner from otherwise performing the functions of a Commissioner under this Act.

(3) The order of seniority of Commissioners is —

(a) Chief Commissioner;

(b) Senior Commissioner;

(c) other Commissioners according to the dates of their appointments unless 2 or more of their appointments are made on the same day in which case their order of seniority is such as shall be assigned to them by the Governor when appointing them.

[Section 8 amended by No. 94 of 1984 s. 8 and 66; No. 51 of 2004 s. 70(3); No. 68 of 2004 s. 87(3).]

9. Qualifications for appointment of President and Chief Commissioner

(1) A person shall not be appointed as the President unless he is or has been a barrister or solicitor of the High Court of Australia or of the Supreme Court of a State or Territory of the Commonwealth of not less than 5 years’ standing.

(1a) The President during the term of his or her office —

(a) is entitled to the style and title of The Honourable (name), President of The Western Australian Industrial Relations Commission; and

(b) in appropriate circumstances —

(i) may be addressed as “Your Honour”; and

(ii) may be referred to as “His Honour” or “Her Honour”, as the case may be.

(2) A person shall not be appointed Chief Commissioner unless —

(a) he has had experience at a high level in industrial relations; or

(b) he has, not less than 5 years previously, obtained a degree of a university or an educational qualification of similar standard after studies considered by the Governor to have substantial relevance to the duties of the Chief Commissioner.

[Section 9 inserted by No. 94 of 1984 s. 9; amended by No. 99 of 1990 s. 5.]

10. Age limit for members of Commission

A person who has attained the age of 65 years is ineligible for appointment as a member of the Commission and each member of the Commission shall retire from his office upon attaining the age of 65 years.

[Section 10 inserted by No. 94 of 1984 s. 9.]

11. Oath of office and secrecy

(1) Subject to subsection (2), before entering upon his office each member of the Commission shall make oath before a Judge that he will faithfully and impartially perform the duties of his office and that he will not, except in the discharge of those duties, disclose to any person any evidence or other matter brought before the Commission.

(2) When a Commissioner is appointed the Chief Commissioner or the Senior Commissioner he is not required to make again the oath referred to in subsection (1).

[Section 11 amended by No. 94 of 1984 s. 66.]

12. Commission Court of Record

(1) The Commission is a Court of Record and shall have an official seal.

(2) All courts, judges, and persons acting judicially shall take judicial notice of the seal of the Commission affixed to a document and shall presume that it has been duly so affixed.

13. Protection of members of Commission and others

A person who is —

(a) a member of the Commission;

(ab) an industrial magistrate appointed under section 81B;

(b) a member of a Board of Reference referred to in section 48; or

has, in the performance of his functions and duties as such a member or industrial magistrate or as a constituent authority, as the case requires, the same protection and immunity as a Judge.

[Section 13 inserted by No. 119 of 1987 s. 6; amended by No. 59 of 2004 s. 112.]

14. Exercise of powers and jurisdiction of President and Commission

(1) The President has the jurisdiction expressly conferred on him by this Act and in the exercise of that jurisdiction he constitutes the Commission and he has and may exercise such powers of the Commission as may be necessary or appropriate thereto.

(2) A Commissioner sitting or acting alone constitutes the Commission and, except as otherwise provided in this Act, he has and may exercise while so sitting or acting, all the powers and jurisdiction of the Commission.

(3) Where more than one member of the Commission is sitting or acting at the same time in the exercise of the jurisdiction of the Commission, each such member of the Commission constitutes the Commission.

14A. Dual Federal and State appointments

A person who is a member of the Commission may be appointed as a member of the Australian Commission, and a person so appointed may, subject to section 22(2)(c), at the same time hold the offices of member of the Commission and member of the Australian Commission but not otherwise.

[Section 14A inserted by No. 99 of 1990 s. 6.]

14B. Performance of duties by dual Federal and State appointees

(1) As agreed from time to time by the Chief Commissioner and the President of the Australian Commission, a person who holds an office of member of the Commission and an office of member of the Australian Commission —

(a) may perform the duties of the secondary office; and

(b) may exercise, in relation to a particular matter —

(i) any powers that the person has as a member of the Commission; and

(ii) any powers that the person has as a member of the Australian Commission.

(2) The Minister may give directions in writing to the Chief Commissioner with respect to agreements under subsection (1) and the Chief Commissioner shall give effect to every such direction and shall not enter into any agreement under subsection (1) that is contrary to those directions.

(3) Directions under subsection (2) shall be limited to matters of administration and shall not deal with matters of conciliation or arbitration.

(4) The Minister shall cause a copy of any direction given under subsection (2) to be laid before each House of Parliament within 15 sitting days of that House after the date on which the direction was given.

[Section 14B inserted by No. 99 of 1990 s. 6.]

15. Constitution of Full Bench and Commission in Court Session

(1) The Full Bench shall be constituted by not less than 3 members of the Commission one of whom shall be the President.

(2) The Commission in Court Session shall be constituted by not less than 3 Commissioners sitting or acting together.

16. Powers and duties of President and Chief Commissioner

(1) In subsections (1aa) to (1ac) —

“Commission” includes the Full Bench, the Commission in Court Session and a constituent authority.

(1aa) The Chief Commissioner is responsible for matters of an administrative nature relating to the Commission and members of the Commission.

(1ab) Subject to this Act, the Chief Commissioner may allocate and reallocate the work of the Commission and may assign or appoint Commissioners for the purposes of constituting the Commission, or altering the constitution of the Commission, in relation to a matter.

(1ac) When it is continuing to deal with and deciding a matter that has been reallocated, or in relation to which its constitution has been altered, the Commission can have regard to —

(a) any record of the proceedings of the Commission in relation to the matter before the reallocation or alteration; or

(b) any evidence taken in the proceedings before the reallocation or alteration.

(1a) The Chief Commissioner may assign a Commissioner to sit or act alone as the Commission or to sit or act as a member of the Full Bench or the Commission in Court Session notwithstanding that that Commissioner is for the time being appointed as or to a constituent authority.

(2) The Chief Commissioner —

[(a) deleted]

(b) shall, before 1 October in each year, make a written report to the Minister relating to the operation of this Act up to the last preceding 30 June;

(d) may require the Commissioners to attend a conference of Commissioners for the purposes of paragraph (b) or for any other purpose.

(3) Where the Chief Commissioner is unable to attend to his duties under this Act, whether on account of illness or otherwise, or where there is a vacancy in the office of Chief Commissioner, the duties and powers of the Chief Commissioner devolve on the Commissioner who is next in order of seniority and not himself absent or unable to perform those duties, unless the Governor appoints some other person to be Acting Chief Commissioner.

[Section 16 amended by No. 121 of 1982 s. 4; No. 94 of 1984 s. 10 and 66; No. 1 of 1995 s. 53; No. 14 of 2005 s. 4.]

16A. Delegation by Chief Commissioner

(1) The Chief Commissioner may delegate to another member of the Commission any power or duty of the Chief Commissioner under another provision of this Act.

(2) The delegation must be in writing signed by the Chief Commissioner.

(3) A person to whom a power or duty is delegated in accordance with this section cannot delegate that power or duty.

(4) A person exercising or performing a power or duty that has been delegated to the person in accordance with this section is taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(5) Nothing in this section limits the ability of the Chief Commissioner to perform a function through an officer or agent.

[Section 16A inserted by No. 14 of 2005 s. 5.]

17. Appointment of acting members of Commission

(1) Where a member of the Commission is, or is expected to be, unable to attend to his duties under this Act, whether on account of illness or otherwise, the Governor may appoint a person to be Acting President, Acting Chief Commissioner, Acting Senior Commissioner or an Acting Commissioner, as the case may require, for such period as the Governor determines.

(1a) Where the office of President is vacant, or is expected to become vacant, the Governor may appoint a person to be Acting President.

(1b) An Acting President appointed under subsection (1a) holds office for such period, not longer than 2 years, as is specified in the instrument of appointment and, upon the expiration of the period, is eligible for reappointment.

(2) A person shall not be appointed Acting President or Acting Chief Commissioner unless he holds the relevant qualifications prescribed in section 9.

[(3) repealed]

(4) If, under this section, a person receives an appointment to act in an office, the rights and obligations of the person in relation to the office are, subject to the terms of that appointment, as prescribed for the office.

[Section 17 amended by No. 121 of 1982 s. 5; No. 94 of 1984 s. 11; No. 1 of 1995 s. 53; No. 14 of 2005 s. 6.]

18. Extension of appointment

(1) Notwithstanding the retirement of a member of the Commission or the expiry of the period for which an acting member of the Commission has been appointed under this Act, the Governor may extend his period of office for such further period as the Governor determines, in order to enable him to complete all matters, proceedings, or inquiries that he has entered upon and has not completed before the retirement or the expiry.

(2) The Governor may from time to time extend any further period determined by him under subsection (1) notwithstanding the expiry of that further period for such further period or periods as he thinks fit.

(3) The continuation in office of a retired member of the Commission under subsection (1) does not prevent —

(a) the appointment of a person to fill the office from which the member retired; or

(b) in the case of a retired President, the appointment of a person as Acting President under section 17(1a).

(4) The continuation in office of an acting member of the Commission under subsection (1) does not prevent —

(a) the appointment of another person to act in the office in which the acting member acted; or

(b) in the case of an Acting President, the appointment of a person as the President.

[Section 18 amended by No. 94 of 1984 s. 12; No. 14 of 2005 s. 7.]

19. Duty of members of Commission

Each member of the Commission shall keep himself acquainted with industrial affairs and conditions.

20. Conditions of service of members of Commission

(1) The President shall receive salary and allowances or reimbursements at the same rate as a Puisne Judge.

(2) The offices of the members of the Commission, other than the President are to be regarded, for the purposes of the Salaries and Allowances Act 1975 and any other written law, as having been prescribed for the purposes of section 6(1)(e) of that Act.

[(3)‑(7) repealed]

(8) A Commissioner shall, while he holds his office, be deemed to be an employee within the meaning of and for the purposes of the Superannuation and Family Benefits Act 1938 5, 6.

(8a) For the purposes of any calculation or determination under the Superannuation and Family Benefits Act 1938 5 the duration of —

(a) any service by a person as a Commissioner that occurs after the commencement day;

(b) any period for which a person is deemed to have continued in service under the State following his retirement as a Commissioner on or after the commencement day; and

(i) his death after the commencement day while serving as a Commissioner; or

(ii) his retirement as a Commissioner on or after the commencement day on the ground of invalidity or physical or mental incapacity to perform his duties,

shall be deemed to be increased by 100% 6.

(8b) In subsection (8a) “commencement day” means the day of the coming into operation of section 3 of the Industrial Arbitration Amendment Act (No. 2) 1984 1, 6.

(8c) If a person is a contributor within the meaning of the Superannuation and Family Benefits Act 1938 5 immediately before that person is appointed the President, that person may continue to be such a contributor notwithstanding that appointment 6.

(8d) While a person to whom subsection (8c) applies continues to be a contributor under the Superannuation and Family Benefits Act 1938 5, that Act applies to and in relation to that person, and if that person ceases to be a contributor —

(a) before attaining the age of 60 years that person shall be deemed to have resigned;

(b) on or after attaining the age of 60 years but before attaining the age of 65 years that person shall be deemed to have elected to retire; or

under that Act on the day that person so ceases to be a contributor and, in each case referred to in paragraphs (b) and (c), a pension is payable to that person, and that person’s widow or widower and children after the death of that person, but the pension otherwise payable under the last‑mentioned Act to him or her, and that person’s widow or widower and children after his or her death, shall be reduced in accordance with that Act by the amount of the State share of the first‑mentioned pension paid to him or her, and that person’s widow or widower and children after his or her death 6.

(9) Where a Commissioner was immediately before his appointment as a Commissioner, an officer of the Public Service of the State, he retains his existing and accruing rights and for the purpose of determining those rights, his service as a Commissioner shall be taken into account as if it were service within the Public Service of the State.

(10) The rights of a Commissioner to paid leave of absence and to lump sum payments on ceasing to hold office for the money equivalent of leave of absence shall be not less than those of a permanent officer under the Public Sector Management Act 1994.

(11) The President is entitled to the same conditions in respect of leave of absence as a Judge.

(12) The provisions of the Judges’ Salaries and Pensions Act 1950 that relate to pensions apply, with such modifications as are necessary, to and in relation to the President, and to and in relation to a surviving spouse, de facto partner or child of the President after the death of the President, in the same manner as they apply to and in relation to a Judge to whom that Act applies, and to and in relation to a surviving spouse, de facto partner or child of such a Judge, and for that purpose the term “Judge” in that Act includes the President.

(13) In subsections (11) and (12) “President” includes any person who acted or held office as President after the coming into operation of section 3 of the Industrial Arbitration Amendment Act (No. 2) 1984 1.

[Section 20 amended by No. 121 of 1982 s. 6; No. 92 of 1984 s. 3 and 4; No. 82 of 1987 s. 8; No. 99 of 1990 s. 7; No. 20 of 2002 s. 186(1) 4; No. 28 of 2003 s. 89.]

21. Resignation from office

A member of the Commission may resign his office by writing under his hand addressed to the Governor and the resignation takes effect on the day on which it is received by the Governor or such later day as is specified in the writing.

22. Tenure subject to good behaviour

(1) Subject to subsection (2)(c), the members of the Commission shall hold their offices during good behaviour, subject to a power of removal by the Governor upon the address of both Houses of Parliament.

(2) The office of a member of the Commission shall become vacant if —

(a) he is removed from the office pursuant to subsection (1);

(b) he retires pursuant to section 10 or resigns pursuant to section 21; or

[Section 22 amended by No. 94 of 1984 s. 13; No. 99 of 1990 s. 8; No. 1 of 1995 s. 53.]

Division 2 — General jurisdiction and powers of the Commission

22A. Interpretation

In this Division and Divisions 2A to 2G —

“Commission” means the Commission constituted otherwise than as a constituent authority;

“industrial matter” does not include a matter in respect of which, subject to Division 3, a constituent authority has exclusive jurisdiction under this Act.

[Section 22A inserted by No. 94 of 1984 s. 14; amended by No. 20 of 2002 s. 121(1).]

22B. Commission to act with due speed

In the performance of its functions the Commission is to act with as much speed as the requirements of this Act and a proper consideration of the matter before it permit.

[Section 22B inserted by No. 20 of 2002 s. 150.]

23. Jurisdiction of Commission under this Act

(1) Subject to this Act, the Commission has cognizance of and authority to enquire into and deal with any industrial matter.

(2) Where by or under any other Act power is conferred on a person or body to appoint officers or employees for the purposes of that Act or to fix or determine the salaries, wages, or other remuneration, or other conditions of employment, of officers or employees appointed for those purposes, or to do both of those things —

(a) the jurisdiction that the Commission would have but for that other Act to hear and determine any matter or dispute relating to the salaries, wages, or other remuneration, or other conditions of employment, of those officers or employees is not affected by that power conferred by or pursuant to that other Act; and

(b) where there is any inconsistency between a decision of the Commission relating to any such matter or dispute and any decision in the exercise or purported exercise of that power conferred by or under that other Act, to the extent of the inconsistency the former prevails and the latter is of no force or effect.

(2a) Notwithstanding subsections (1) and (2), the Commission does not have jurisdiction to enquire into or deal with any matter in respect of which a procedure referred to in section 97(1)(a) of the Public Sector Management Act 1994 is, or may be, prescribed under that Act.

(3) The Commission in the exercise of the jurisdiction conferred on it by this Part shall not —

(a) prohibit the employment of employees on any day of the week or restrict in any other way the number of days or hours in the week during which any operation may be carried on in any industry or by any employer but nothing in this paragraph —

(i) prevents the registration with the Commission of any industrial agreement that contains or provides for any such prohibition or restriction; or

(ii) prevents the Commission from fixing the rates for overtime, work on holidays, shift work, weekend work, and other special work, including allowances as compensation for overtime or any such work;

(b) regulate the rates of salary or wages, or the conditions of employment of any person who holds an office for which the remuneration payable is determined or recommended pursuant to the Salaries and Allowances Act 1975;

(i) the premises of an employer, the principal use of which premises is for habitation by the employer and his household; or

(ii) a private home in which a person engaged in domestic service is employed by an employer, who is not the owner or occupier of that private home, but who provides that owner or occupier with the services of the person so engaged;

(d) regulate the suspension from duty in, discipline in, dismissal from, termination of, or reinstatement in, employment of any employee or any one of a class of employees if there is provision, however expressed, by or under any other Act for or in relation to a matter of that kind and there is provision, however expressed, by or under that other Act for an appeal in a matter of that kind;

(e) provide for —

(i) compulsion to join an organisation to obtain or hold employment; or

(ii) non‑employment by reason of being or not being a member of an organisation;

(f) provide for preference of employment at the time of, or during, employment by reason of being or not being a member of an organisation;

(g) limit the working hours of employees engaged in the agricultural and pastoral industry but nothing in this paragraph prevents the registration with the Commission of any industrial agreement that contains or provides for any such limitation;

(h) on a claim of harsh, oppressive or unfair dismissal —

(i) in the case of an application under section 44, make any order except an order that is authorised by section 23A or 44; and

(ii) in any other case, make any order except an order that is authorised by section 23A.

[Section 23 amended by No. 82 of 1980 s. 2; No. 121 of 1982 s. 7; No. 94 of 1984 s. 15 and 66; No. 119 of 1987 s. 7; No. 15 of 1993 s. 6; No. 1 of 1995 s. 27 and 40; No. 3 of 1997 s. 30; No. 20 of 2002 s. 137 and 143.]

[23AA. Repealed by No. 3 of 1997 s. 22 3.]

23A. Powers of Commission on claims of unfair dismissal

(1) The Commission may make an order under this section if the Commission determines that the dismissal of an employee was harsh, oppressive or unfair.

(2) In determining whether the dismissal of an employee was harsh, oppressive or unfair the Commission shall have regard to whether the employee —

(a) at the time of the dismissal, was employed for a period of probation agreed between the employer and employee in writing or otherwise; and

(b) had been so employed for a period of less than 3 months.

(3) The Commission may order the employer to reinstate the employee to the employee’s former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.

(4) If the Commission considers that reinstatement would be impracticable, the Commission may order the employer to re‑employ the employee in another position that the Commission considers —

(a) the employer has available; and

(b) is suitable.

(5) The Commission may, in addition to making an order under subsection (3) or (4), make either or both of the following orders —

(a) an order it considers necessary to maintain the continuity of the employee’s employment;

(b) an order to the employer to pay to the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal.

(6) If, and only if, the Commission considers reinstatement or re‑employment would be impracticable, the Commission may, subject to subsections (7) and (8), order the employer to pay to the employee an amount of compensation for loss or injury caused by the dismissal.

(7) In deciding an amount of compensation for the purposes of making an order under subsection (6), the Commission is to have regard to —

(a) the efforts (if any) of the employer and employee to mitigate the loss suffered by the employee as a result of the dismissal;

(b) any redress the employee has obtained under another enactment where the evidence necessary to establish the claim for that redress is also the evidence necessary to establish the claim before the Commission; and

(8) The amount ordered to be paid under subsection (6) is not to exceed 6 months’ remuneration of the employee.

(9) For the purposes of subsection (8) the Commission may calculate the amount on the basis of an average rate received by the employee during any relevant period of employment.

(10) For the avoidance of doubt, an order under subsection (6) may permit the employer concerned to pay the compensation required in instalments specified in the order.

(11) An order under this section may require that it be complied with within a specified time.

(12) The Commission may make any ancillary or incidental order that the Commission thinks necessary for giving effect to any order made under this section.

[Section 23A inserted by No. 20 of 2002 s. 138(1) 4.]

23B. Power to prevent external interference with employment issues

(1) In this section —

“employment claim” means a claim made to the Commission in which any of the following is an issue —

(a) the refusal or failure of an employer to employ a person (“the affected person”);

(b) an employer’s employment or transfer of an employee to work at a particular place or site, or refusal or failure to employ or transfer an employee to work at a particular place or site;

“third party”, in relation to an employment claim, means any person, other than the employer on whom a copy of the claim has been served.

(2) The Commission may, if it considers it necessary to do so in the interests of equity, good conscience and the substantial merits of an employment claim, order a third party to refrain from preventing, hindering or interfering with, or doing anything that would have the effect of preventing, hindering or interfering with —

(a) the employment of the affected person;

(b) the employment or transfer of the employee to work at a particular place or site; or

(3) Subsection (2) is not to be taken as limiting the persons in respect of whom the Commission can make other orders under this Act.

[Section 23B inserted by No. 20 of 2002 s. 138(1) 4.]

24. Jurisdiction to decide whether matter is industrial

(1) The Commission has jurisdiction to determine in any proceedings before it whether any matter to which those proceedings relate is an industrial matter and a finding by the Commission on that question is, subject to sections 49 and 90, final and conclusive with respect to those proceedings.

(2) A determination under subsection (1) is not a decision for the purposes of section 49 or 90 unless and until —

(a) those proceedings have been concluded; or

(b) leave to appeal is granted by the Commission making that determination.

[Section 24 amended by No. 15 of 1993 s. 8; amended in Gazette 15 Aug 2003 p. 3686.]

25. Allocation of industrial matters

(1) For the purposes of section 16(1ab), in allocating the work of the Commission under this Division and Divisions 2A to 2G the Chief Commissioner may —

(a) allocate matters to a Commissioner;

(b) allocate matters directly to the Commission in Court Session; and

(c) notwithstanding that he has allocated a matter to a Commissioner, revoke that allocation and allocate the matter to another Commissioner or directly to the Commission in Court Session.

(2) Subsection (1) —

(a) has effect subject to any provision of this Division or Division 2A to 2G under which the Commission is to be constituted in a particular way; and

(b) does not affect the operation of Part IIC.

[Section 25 inserted by No. 94 of 1984 s. 16; amended by No. 20 of 2002 s. 121(2) and (3); No. 14 of 2005 s. 8.]

26. Commission to act according to equity and good conscience

(1) In the exercise of its jurisdiction under this Act the Commission —

(a) shall act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms;

(b) shall not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just;

(c) shall have regard for the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole; and

(d) shall take into consideration to the extent that it is relevant —

(i) the state of the national economy;

(ii) the state of the economy of Western Australia;

(iii) the capacity of employers as a whole or of an individual employer to pay wages, salaries, allowances or other remuneration and to bear the cost of improved or additional conditions of employment;

(iv) the likely effects of its decision on the economies referred to in subparagraphs (i) and (ii) and, in particular, on the level of employment and on inflation;

(v) any changes in productivity that have occurred or are likely to occur;

(vi) the need to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises;

(vii) the need to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises and the employees in those enterprises.

(2) In granting relief or redress under this Act the Commission is not restricted to the specific claim made or to the subject matter of the claim.

(3) Where the Commission, in deciding any matter before it proposes or intends to take into account any matter or information that was not raised before it on the hearing of the matter, the Commission shall, before deciding the matter, notify the parties concerned and afford them the opportunity of being heard in relation to that matter or information.

(4) Subsections (1) to (3) inclusive do not, in any particular case, prevent the use by the Commission, with the consent of the parties concerned, of final offer arbitration.

[Section 26 amended by No. 121 of 1982 s. 9; No. 94 of 1984 s. 17; No. 79 of 1995 s. 9; No. 20 of 2002 s. 129.]

[26A. Repealed by No. 20 of 2002 s. 111(6).]

27. Powers of Commission

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

(a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied —

(i) that the matter or part thereof is trivial;

(ii) that further proceedings are not necessary or desirable in the public interest;

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be;

(b) take evidence on oath or affirmation;

(c) order any party to the matter to pay to any other party such costs and expenses including expenses of witnesses as are specified in the order, but so that no costs shall be allowed for the services of any legal practitioner, or agent;

(d) proceed to hear and determine the matter or any part thereof in the absence of any party thereto who has been duly summoned to appear or duly served with notice of the proceedings;

(e) sit at any time and place;

(f) adjourn to any time and place;

[(g) deleted]

(h) direct any person, whether a witness or intending witness or not, to leave the place wherein the proceedings are being conducted;

(ha) determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to the proceedings and require that the cases be presented within the respective periods;

(hb) require evidence or argument to be presented in writing, and decide the matters on which it will hear oral evidence or argument;

(i) refer any matter to an expert and accept his report as evidence;

(j) direct parties to be struck out or persons to be joined;

(k) permit the intervention, on such terms as it thinks fit, of any person who, in the opinion of the Commission has a sufficient interest in the matter;

(l) allow the amendment of any proceedings on such terms as it thinks fit;

(m) correct, amend, or waive any error, defect, or irregularity whether in substance or in form;

(n) extend any prescribed time or any time fixed by an order of the Commission;

(o) make such orders as may be just with respect to any interlocutory proceedings to be taken before the hearing of any matter, the costs of those proceedings, the issues to be submitted to the Commission, the persons to be served with notice of proceedings, delivery of particulars of the claims of all parties, admissions, discovery, inspection, or production of documents, inspection or production of property, examination of witnesses, and the place and mode of hearing;

(p) enter upon any manufactory, building, workshop, factory, mine, mine‑working, ship or vessel, shed, place, or premises of any kind whatsoever, wherein or in respect of which any industry is or is reputed to be carried on, or any work is being or has been done or commenced, or any matter or thing is taking or has taken place, which is the subject of a matter before the Commission or is related thereto;

(q) inspect and view any work, material machinery, appliance, article, book, record, document, matter, or thing whatsoever being in any manufactory, building, workshop, factory, mine, mine‑working, ship or vessel, shed, place or premises of a kind referred to in paragraph (p);

(r) question any person who may be in or upon any such manufactory, building, workshop, factory, mine, mine‑working, ship or vessel, shed, place or premises in respect or in relation to any such matter or thing;

(s) consolidate or divide proceedings relating to the same industry and all or any matters before the Commission;

(t) with the consent of the Chief Commissioner refer the matter or any part thereof to the Commission in Court Session for hearing and determination by the Commission in Court Session;

(u) with the consent of the President refer to the Full Bench for hearing and determination by the Full Bench any question of law, including any question of interpretation of the rules of an organisation, arising in the matter; and

(v) generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter.

(1a) Except as otherwise provided in this Act, the Commission shall, in relation to any matter before it, conduct its proceedings in public unless the Commission, at any stage of the proceedings, is of the opinion that the objects of the Act will be better served by conducting the proceedings in private.

(2) The powers contained in subsection (1)(p), (q) and (r) may, if the Commission so directs in any case, be exercised by an officer of the Commission or by an expert to whom any matter has been referred by the Commission.

[Section 27 amended by No. 121 of 1982 s. 10; No. 94 of 1984 s. 18 and 66; No. 20 of 2002 s. 122.]

28. Exercise of powers prior to hearing and determination of matter

The powers conferred on the Commission by section 27 may be exercised in relation to a matter at any time after the matter has been lodged in the Commission notwithstanding that the procedures prescribed under this Act have not at that time been complied with to the extent necessary to enable the matter to be heard and determined by the Commission.

29. By whom matters may be referred

(1) An industrial matter may be referred to the Commission —

(a) in any case, by —

(i) an employer with a sufficient interest in the industrial matter;

(ii) an organisation in which persons to whom the industrial matter relates are eligible to be enrolled as members or an association that represents such an organisation; or

(iii) the Minister;

and

(b) in the case of a claim by an employee —

(i) that he has been harshly, oppressively or unfairly dismissed from his employment; or

(ii) that he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment,

by the employee.

(1a) A party to an employer‑employee agreement has the right to refer to the Commission constituted by a Commissioner where the Commission so constituted is the relevant industrial authority under Part VID —

(a) any question, dispute or difficulty that the Commission as so constituted has jurisdiction to determine under section 97WI; or

(b) an allegation referred to in section 97WK(2).

(2) Subject to subsection (3), a referral under subsection (1)(b)(i) is to be made not later than 28 days after the day on which the employee’s employment is terminated.

(3) The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so.

[Section 29 inserted by No. 94 of 1984 s. 19; amended by No. 15 of 1993 s. 10; No. 1 of 1995 s. 7 and 43; No. 3 of 1997 s. 24; No. 36 of 1999 s. 247; No. 20 of 2002 s. 7 and 139.]

29AA. Certain claims not to be determined

(1) Subject to subsection (2), the Commission must not determine a claim of harsh, oppressive or unfair dismissal from employment if the dismissed employee has lodged an application with the Australian Commission for relief in respect of the termination of that employment.

(2) Despite subsection (1) the Commission may determine the claim if the application to the Australian Commission is —

(a) withdrawn; or

(b) rejected or dismissed on the ground that it is not within the jurisdiction of the Australian Commission to determine the application.

(3) The Commission must not determine a claim of harsh, oppressive or unfair dismissal from employment if —

(a) an industrial instrument does not apply to the employment of the employee; and

(b) the employee’s contract of employment provides for a salary exceeding the prescribed amount.

(4) The Commission must not determine a claim that an employee has not been allowed by his or her employer a benefit to which the employee is entitled under a contract of employment if —

(a) an industrial instrument does not apply to the employment of the employee; and

(b) the employee’s contract of employment provides for a salary exceeding the prescribed amount.

(5) In this section —

“industrial instrument” means —

(a) an award;

(b) an order of the Commission under this Act that is not an order prescribed by regulations made by the Governor for the purposes of this section;

(d) an employer‑employee agreement;

“prescribed amount” means —

(a) $90 000 per annum; or

(b) the salary specified, or worked out in a manner specified, in regulations made by the Governor for the purposes of this section.

[Section 29AA inserted by No. 20 of 2002 s. 140(1) 4; amended in Gazette 15 Aug 2003 p. 3686.]

29A. Service of claims and applications

(1) Where an industrial matter has been referred to the Commission pursuant to section 29, the claimant or applicant shall specify the nature of the relief sought.

(1a) In this section —

“area and scope provisions” means the parts of an award or industrial agreement that relate to the area of operation and scope of the award or industrial agreement.

(1b) Subject to subsection (2a) —

(a) area and scope provisions of a proposed award or industrial agreement; and

(b) proposed variations to the area and scope provisions of an existing award or industrial agreement,

shall be published in the required manner.

(2) Subject to any direction given under subsection (2a), if the reference of an industrial matter to the Commission seeks the issuance of an award or the registration of an industrial agreement, or the variation of the area and scope provisions of an existing award or agreement, the Commission shall not hear the claim or application until the area and scope provisions of the proposed award or industrial agreement have, or the proposed variation has, been published in the required manner and a copy of the claim or application has been served —

(a) in the case of a proposed award or variation of an award, on —

(i) the Council, the Chamber, the Mines and Metals Association and the Minister; and

(ii) such organisations, associations and employers as the Commission may direct being, in the case of employers, such employers as constitute, in the opinion of the Commission, a sufficient number of employers who are reasonably representative of the employers who would be bound by the proposed award or the award as proposed to be varied, as the case may be;

(b) in the case of the proposed registration or variation of an industrial agreement, on the Council, the Chamber, the Mines and Metals Association and the Minister.

(2a) The Chief Commissioner may, if the reference of an industrial matter to the Commission seeks —

(a) the issuance of an award or the registration of an industrial agreement in substitution for an existing award or industrial agreement the area of operation and scope of which are the same as those of the award or industrial agreement sought to be issued or registered, as the case requires; or

(b) the registration of an industrial agreement —

(i) the area of operation and scope of which are the same as those of; and

(ii) the parties to which are the same as the named parties to,

an existing award,

direct that the area and scope provisions of the proposed award or industrial agreement —

(d) need not be published at all,

as he thinks fit.

(2b) Nothing in subsection (2a) affects or dispenses with any requirement of subsection (2) that a copy of a claim or application be served on any person, body or authority referred to in subsection (2)(a) or (b).

(2c) The area and scope provisions of an award may be amended under section 40A without the proposed variation having been published in the required manner.

(3) Unless otherwise directed by the Commission, where the reference of an industrial matter to the Commission seeks the variation of an award or industrial agreement, other than a variation of the kind mentioned in subsection (2), the Commission shall not hear the claim or application until the named parties to the award or the parties to the industrial agreement, as the case requires, have been served with a copy of the claim.

(4) Where the reference of an industrial matter to the Commission seeks the issuance or variation of an order or declaration, other than of a kind referred to in subsection (2) or (3) the Commission shall not hear the claim or application until the persons sought to be bound by the decision in the proceedings have been served with a copy of the claim or application.

[Section 29A inserted by No. 94 of 1984 s. 19; amended by No. 119 of 1987 s. 8; No. 15 of 1993 s. 31; No. 20 of 2002 s. 115.]

29B. Parties to proceedings

Subject to section 27(1)(j) the parties to proceedings before the Commission shall be —

(a) the claimant or applicant by whom or which the proceedings were initiated; and

(b) the other persons, bodies, organisations or associations upon whom or which a copy of the claim or application is served.

[Section 29B inserted by No. 94 of 1984 s. 19.]

30. Intervention of Crown

(1) The Minister may, by giving the Registrar notice in writing of his intention to do so, and by leave of the Commission, intervene on behalf of the State in any proceedings before the Commission in which the State has an interest.

(2) The Minister of the Commonwealth administering the Department of the Commonwealth that has the administration of the Commonwealth Act may by giving the Registrar notice in writing of his intention to do so, and by leave of the Commission, intervene on behalf of the Commonwealth in any proceedings before the Commission in which the Commonwealth has an interest.

[Section 30 inserted by No. 94 of 1984 s. 19.]

31. Representation of parties to proceedings

(1) Any party to proceedings before the Commission, and any other person or body permitted by or under this Act to intervene or be heard in proceedings before the Commission, may appear —

(a) in person;

(b) by an agent; or

(i) that party, person or body, or any of the other parties, persons or bodies permitted to intervene or be heard, is the Council, the Chamber, the Mines and Metals Association, the Minister or the Minister of the Commonwealth administering the Department of the Commonwealth that has the administration of the Commonwealth Act; or

(ii) the proceedings are in respect of a claim referred to the Commission under section 29(1)(b) or involve the hearing and determination of an application under section 44(7)(a)(iii); or

(iii) all parties to the proceedings expressly consent to legal practitioners appearing and being heard in the proceedings; or

(iv) the Commission, under subsection (4), allows legal practitioners to appear and be heard in the proceedings,

by a legal practitioner.

(2) An organisation or association shall be deemed to have appeared in person if it is represented by its secretary or by any officer of the organisation or association.

(3) A person or body appearing by a legal practitioner or agent is bound by the acts of that legal practitioner or agent.

(4) Where a question of law is raised or argued or is likely in the opinion of the Commission to be raised or argued in proceedings before the Commission, the Commission may allow legal practitioners to appear and be heard.

(5) The Commission may make regulations prescribing the manner in which authorisation of any agent is to be given, either generally or for a particular case.

(6) A person who is not a legal practitioner within the meaning of this Act but engages in the practice of the law in a place outside the State shall not appear as an agent in proceedings before the Commission.

[Section 31 amended by No. 121 of 1982 s. 12; No. 94 of 1984 s. 20 and 66; No. 15 of 1993 s. 31; No. 1 of 1995 s. 8; No. 36 of 1999 s. 247.]

32. Reference of industrial matters for conciliation

(1) Where an industrial matter has been referred to the Commission the Commission shall, unless it is satisfied that the resolution of the matter would not be assisted by so doing, endeavour to resolve the matter by conciliation.

(2) In endeavouring to resolve an industrial matter by conciliation the Commission shall do all such things as appear to it to be right and proper to assist the parties to reach an agreement on terms for the resolution of the matter.

(3) Without limiting the generality of subsection (2) the Commission may, for the purposes of that subsection —

(a) arrange conferences of the parties or their representatives presided over by the Commission;

(b) arrange for the parties or their representatives to confer among themselves at a conference at which the Commission is not present.

(4) The Commission shall —

(a) if it gives or makes a direction, order or declaration orally under subsection (3), reduce the direction, order or declaration to writing as soon as is practicable thereafter;

(b) preface each direction, order or declaration given or made by it under subsection (3) —

(i) if so given or made in writing, at the time of that giving or making; or

(ii) if so given or made orally, at the time of the reduction of that direction, order or declaration to writing,

with a preamble in writing setting out the circumstances which led to the giving or making of that direction, order or declaration; and

(c) make the text of each direction, order or declaration given or made by it under subsection (3) and of the preamble thereto available to the parties as soon as is practicable after that giving or making.

[(5) repealed]

(6) Where the Commission does not endeavour to resolve a matter by conciliation or, having endeavoured to do so —

(a) is satisfied that further resort to conciliation would be unavailing; or

(b) is requested by all the parties to the proceedings to decide the matter by arbitration,

the Commission may decide the matter by arbitration.

(7) Where a matter is decided by arbitration the Commission shall endeavour to ensure that the matter is resolved on terms that could reasonably have been agreed between the parties in the first instance or by conciliation.

(8) For the purposes of this section the Commission may —

(a) give such directions and make such orders as will in the opinion of the Commission —

(i) prevent the deterioration of industrial relations in respect of the matter until conciliation or arbitration has resolved the matter;

(ii) enable conciliation or arbitration to resolve the matter; or

(iii) encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter;

(b) give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under this Act.

[Section 32 inserted by No. 94 of 1984 s. 21; amended by No. 119 of 1987 s. 9; No. 3 of 1997 s. 36; No. 20 of 2002 s. 187 and 194(3) and (4).]

32A. Conciliation and arbitration functions of Commission to be unlimited

(1) The functions of the Commission under this Act as to the resolution of matters by conciliation (“conciliation functions”) and the determination of matters by arbitration (“arbitration functions”) —

(a) are to and may be performed at any time and from time to time as and when their performance is necessary or expedient; and

(b) are not limited by any other provision of this Act.

(2) Without limiting subsection (1), nothing in this Act prevents the performance of conciliation functions merely because arbitration functions are being or have been performed.

[Section 32A inserted by No. 20 of 2002 s. 123.]

33. Evidence before Commission

(1) With respect to evidence in proceedings before the Commission —

(a) the Registrar shall, on the application of any party, or by direction of the Commission, issue a summons in the prescribed form to any person to appear and give evidence before the Commission and the summons may require that person to produce before the Commission any books, papers, or other documents in his possession, or under his control, in any way relating to the proceedings;

(b) a person who attends the Commission in accordance with such summons shall be entitled to receive from the party at whose instance he was summoned an allowance for expenses as determined by the Commission;

(c) subject to subsection (2), a person duly served with such summons, shall not without good cause, proof of which is on him, fail to attend or to duly produce any book, paper, or document as required or refuse to be sworn as a witness or to answer any question which he is required by the Commission to answer;

(d) the Commission may, whenever it shall appear just or convenient so to do, make any order for the examination upon oath or otherwise before the Commission or any officer of the Commission, or any other person, and at any place of any witness or person, and may empower any party to give the deposition of such witness or person in evidence on such terms, if any, as the Commission may direct; and

(e) the Commission shall take evidence on oath or affirmation.

(2) Where a summons is issued to, and duly served on, a person to appear and give evidence before the Commission, the person may make application to the Commission for cause to be shown for him to so appear and, if on the hearing of the application such cause is not shown, he is not required to so appear.

(3) Evidence relating to any trade secret, or to the profits or financial position of any witness or party, shall not be disclosed except to the Commission, or published without the consent of the person entitled to the trade secret or non‑disclosure.

(4) The evidence referred to in subsection (3) shall, if the witness or party so requests, be taken in private.

(5) All books, papers, and other documents produced in evidence before the Commission may be inspected by the Commission and also by such of the parties as the Commission allows, but the information obtained therefrom shall not be made public without the permission of the Commission, and such parts of the documents as in the opinion of the Commission do not relate to the matter at issue may be sealed up, but such books, papers, and documents relating to any trade secret or to the profits or financial position of any witness or party shall not, without the consent of that witness or party, be inspected by any party.

(6) Subsection (1)(a), (b), and (c) do not apply to or in relation to a summons issued pursuant to section 44.

[Section 33 amended by No. 121 of 1982 s. 13; No. 94 of 1984 s. 22 and 65.]

34. Decision to be in form of award, order, or declaration

(1) The decision of the Commission shall be in the form of an award, order, or declaration and shall in every case be signed and delivered by the Commissioner constituting the Commission that heard the matter to which the decision relates or, in the case of a decision of the Commission in Court Session, shall be signed and delivered by the Senior Commissioner among the Commissioners constituting the Commission in Court Session.

(2) When the members of the Commission in Court Session are divided in opinion on a question, the question shall be decided according to the decision of the majority of the members.

(3) Proceedings before the President, the Full Bench, or the Commission shall not be impeached or held bad for want of form nor shall they be removable to any court by certiorari or otherwise —

(a) on any ground relating to jurisdiction; or

(b) on any other ground.

(4) Except as provided by this Act, no award, order, declaration, finding, or proceeding of the President, the Full Bench, or the Commission shall be liable to be challenged, appealed against, reviewed, quashed, or called in question by any court —

(a) on any ground relating to jurisdiction; or

(b) on any other ground.

[Section 34 amended by No. 94 of 1984 s. 23; No. 20 of 2002 s. 124.]

35. Decision to be first drawn up as minutes

(1) Subject to this section, the decision of the Commission, except a direction, order or declaration under section 32 or an order for dismissal shall, before it is delivered, be drawn up in the form of minutes which shall be handed down to the parties concerned and, unless in any particular case the Commission otherwise determines, its reasons for decision shall be published at the same time.

(2) At the discretion of the Commissioner giving the decision the minutes and reasons for decision may be handed down by the Registrar.

(3) The parties concerned shall, at a time fixed by the Commission, be entitled to speak to matters contained in the minutes of the decision and the Commission may, after hearing the parties, vary the terms of those minutes before they are delivered as the decision of the Commission.

(4) The Commission, with the consent of the parties, may waive the requirements of this section in any case in which it is of the opinion that the procedures therein prescribed are inappropriate or unnecessary.

[Section 35 amended by No. 121 of 1982 s. 14; No. 94 of 1984 s. 24 and 66.]

36. Decision to be sealed and deposited

Every decision of the Commission shall —

(a) be sealed with the seal of the Commission;

(b) be deposited in the office of the Registrar; and

Division 2A — Awards

[Heading inserted by No. 20 of 2002 s. 116.]

36A. Application for award coverage for non‑award employees

(1) In any proceedings in which the Commission is considering the making of an award (“the new award”) that extends to employees to whom no award currently extends (“the employees”), the onus is on any party opposing the making of the new award to show that it would not be in the public interest.

(2) The Commission may make an interim award that extends to the employees pending the making of the new award.

(3) An interim award may be made if the Commission considers —

(a) that it would provide a fair basis for the application of the no‑disadvantage test provided for by Part VID Division 6 Subdivision 1;

(b) that it would protect the existing wages and conditions of employment of the employees until the new award is made; or

[Section 36A inserted by No. 20 of 2002 s. 116.]

37. Effect, area and scope of awards

(1) An award has effect according to its terms, but unless and to the extent that those terms expressly provide otherwise it shall, subject to this section —

(a) extend to and bind —

(i) all employees employed in any calling mentioned therein in the industry or industries to which the award applies; and

(ii) all employers employing those employees;

and

(b) operate throughout the State, other than in the areas to which section 3(1) applies.

[(2) and (3) repealed]

(4) An award, and any provision of an award, whether or not it has been made for a specified term, shall, subject to any variation made under this Act, remain in force until cancelled, suspended, or replaced under this Act unless, in the case of an award or a provision made for a specified term, it is expressly provided that the award or the provision, as the case may be, shall cease to operate upon the expiration of that term.

(5) Subsection (4) does not prevent the cancellation, suspension, or replacement of an award in part.

[Section 37 amended by No. 94 of 1984 s. 66.]

[37A. Repealed by No. 20 of 2002 s. 188.]

38. Named parties to awards

(1) The parties to proceedings before the Commission in which an award is made, other than the Council, the Chamber, the Mines and Metals Association and the Minister, shall be listed in the award as the named parties to the award.

(1a) If after the commencement of section 12 of the Industrial Relations Amendment Act 1993 1 —

(a) any party to proceedings in which an award is made, other than the Council, the Chamber, the Mines and Metals Association and the Minister, is not listed in the award as a named party as required by subsection (1); and

(b) the Commission has not ordered that the party is not to be a party to the award,

the party is to be taken to be a named party to the award.

(1b) In subsections (1) and (1a) “party” does not include an intervener.

(2) At any time after an award has been made the Commission may, by order made on the application of —

(a) any employer who, in the opinion of the Commission, has a sufficient interest in the matter;

(b) any organisation which is registered in respect of any calling mentioned in the award or in respect of any industry to which the award applies; or

add as a named party to the award any employer, organisation or association.

(3) Where an employer who is added as a named party to an award under subsection (2) is, at the time of that addition, engaged in an industry to which the award did not previously apply and the scope of the award is varied by virtue of that addition, the variation shall for the purposes of section 37(1) be expressly limited to that industry.

(4) An employer is not to be added as a named party to an award under subsection (2) if that addition would have the effect of extending the award to employees to whom another award already extends.

[Section 38 inserted by No. 94 of 1984 s. 25; amended by No. 15 of 1993 s. 12 and 31; No. 20 of 2002 s. 117(1) 4.]

39. Date of operation of award

(1) An award comes into operation on the day on which it is delivered or on such later date as the Commission determines and declares when delivering the award.

(2) Subject to subsection (3), the provisions of an award have effect on such day or days as is or are, respectively, specified in the award.

(3) The Commission may, by its award, give retrospective effect to the whole or any part of the award —

(a) if and to the extent that the parties to the award so agree; or

(b) if, in the opinion of the Commission, there are special circumstances which make it fair and right so to do,

but in a case to which paragraph (b) applies, not beyond the date upon which the application leading to the making of the award was lodged in the Commission.

(4) For the purpose of subsection (3), an award or a provision of it has retrospective effect if and only if it has effect from a date earlier than the day on which the award is delivered.

40. Power to vary or cancel award

(1) Subject to subsections (2), (3) and (4) and to sections 29A and 38, the Commission may by order at any time vary an award.

(2) An application to the Commission to vary an award may be made by any organisation or association named as a party to the award or employer bound by the award.

(3) Where an award or any provision thereof is limited as to its duration the Commission —

(a) may, subject to such conditions as it considers fit, reserve to any party to the award liberty to apply to vary the award or that provision, as the case may be;

(b) shall not, within the specified term, vary the award or that provision, as the case may be, unless and to the extent that —

(i) it is satisfied that, by reason of circumstances which have arisen since the time at which the specified term was fixed, it would be inequitable and unjust not to do so;

(ii) on an application made under paragraph (a), it is satisfied that it is fair and right so to do; or

(iii) the parties to the award agree that the award or provision should be varied;

and

(4) Section 39 applies, with such modifications as are necessary, to and in relation to an order made under this section.

[Section 40 amended by No. 94 of 1984 s. 66.]

40A. Incorporation of industrial agreement provisions into awards by consent

(1) If —

(a) an award extends to employees to whom an industrial agreement extends;

(b) a named party to the award who is also a party to the agreement applies to the Commission for the incorporation of some or all of the provisions of the agreement into the award; and

the Commission shall by order vary the award by incorporating those provisions of the agreement into the award, but the variation shall be expressly limited to the employees and employers to whom the agreement extends.

(2) This section does not limit the operation of section 40 and that section applies to any application or order made under this section.

[Section 40A inserted by No. 20 of 2002 s. 118.]

40B. Power to vary awards to reflect statutory and other requirements, to promote efficiency and to facilitate implementation

(1) The Commission, of its own motion, may by order at any time vary an award for any one or more of the following purposes —

(a) to ensure that the award does not contain wages that are less than the minimum award wage as ordered by the Commission under section 51;

(b) to ensure that the award does not contain conditions of employment that are less favourable than those provided by the MCE Act;

(c) to ensure that the award does not contain provisions that discriminate against an employee on any ground on which discrimination in work is unlawful under the Equal Opportunity Act 1984;

(d) to ensure that the award does not contain provisions that are obsolete or need updating;

(e) to ensure that the award is consistent with the facilitation of the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises.

(2) The Commission shall not make an order under this section until it has given notice to the named parties to the award and the Council, the Chamber, the Mines and Metals Association and the Minister and afforded them an opportunity to be heard in relation to the proposed variations.

(3) The Commission shall cause a copy of an order made under this section to be —

(a) given to the named parties to the award and to the Council, the Chamber, the Mines and Metals Association and the Minister; and

(b) published in the required manner.

(4) Section 39 applies to and in relation to an order made under this section —

(a) as if the reference in section 39(3) to the date on which an application was lodged in the Commission were a reference to the date on which notice was first given under subsection (2); and

(b) with such other modifications as are necessary.

(5) This section does not prevent or affect the making of an application under section 40 to vary an award for a purpose mentioned in subsection (1).

[Section 40B inserted by No. 20 of 2002 s. 118.]

Division 2B — Industrial agreements

[Heading inserted by No. 20 of 2002 s. 130.]

40C. Interpretation

In this Division —

“initiating party”, in relation to a proposed industrial agreement, means the party that initiated the bargaining for the agreement under section 42(1);

“negotiating party”, in relation to a proposed industrial agreement, means —

(a) the initiating party; and

(b) a person who notifies the initiating party under section 42A(1) that that person will bargain for the industrial agreement;

“prescribed period” has the meaning given by section 42A(1) and includes any extension of that period ordered by the Commission.

[Section 40C inserted by No. 20 of 2002 s. 130.]

41. Industrial agreements

(1) An agreement with respect to any industrial matter or for the prevention or resolution under this Act of disputes, disagreements, or questions relating thereto may be made between an organisation or association of employees and any employer or organisation or association of employers.

(1a) An agreement may apply to a single enterprise or more than a single enterprise.

(1b) For the purposes of subsection (1a) an agreement applies to more than a single enterprise if it applies to —

(a) more than one business, project or undertaking; or

(b) the activities carried on by more than one public authority.

(2) Subject to subsection (3) and sections 41A and 49N, where the parties to an agreement referred to in subsection (1) apply to the Commission for registration of the agreement as an industrial agreement the Commission shall register the agreement as an industrial agreement.

(3) Before registering an industrial agreement the Commission may require the parties thereto to effect such variation as the Commission considers necessary or desirable for the purpose of giving clear expression to the true intention of the parties.

(4) An industrial agreement extends to and binds —

(a) all employees who are employed —

(i) in any calling mentioned in the industrial agreement in the industry or industries to which the industrial agreement applies; and

(ii) by an employer who is —

(I) a party to the industrial agreement; or

(II) a member of an organisation of employers that is a party to the industrial agreement or that is a member of an association of employers that is a party to the industrial agreement;

and

(b) all employers referred to in paragraph (a)(ii),

and no other employee or employer, and its scope shall be expressly so limited in the industrial agreement.

(5) An industrial agreement shall operate —

(a) in the area specified therein; and

(b) for the term specified therein.

(6) Notwithstanding the expiry of the term of an industrial agreement, it shall, subject to this Act, continue in force in respect of all parties thereto, except those who retire therefrom, until a new agreement or an award in substitution for the first‑mentioned agreement has been made.

(7) At any time after, or not more than 30 days before, the expiry of an industrial agreement any party thereto may file in the office of the Registrar a notice in the prescribed form signifying his intention to retire therefrom at the expiration of 30 days from the date of such filing, and such party shall on the expiration of that period cease to be a party to the agreement.

(8) When a new industrial agreement is made and registered, or an award or enterprise order is made, in substitution for an industrial agreement (“the first agreement”), the first agreement is taken to be cancelled, except to the extent that the new industrial agreement, award or order saves the provisions of the first agreement.

(9) To the extent that an industrial agreement is contrary to or inconsistent with an award, the industrial agreement prevails unless the agreement expressly provides otherwise.

[Section 41 inserted by No. 94 of 1984 s. 26; amended by No. 15 of 1993 s. 13; No. 20 of 2002 s. 131 and 144.]

41A. Registration of industrial agreement

(1) The Commission shall not under section 41 register an agreement as an industrial agreement unless the agreement —

(a) specifies a nominal expiry date that is no later than 3 years after the date on which the agreement will come into operation;

(b) includes any provision specified in relation to that agreement by an order referred to in section 42G; and

(2) The Commission shall not under section 41 register an agreement as an industrial agreement to which an organisation or association of employees is a party, unless the employees who will be bound by the agreement upon registration are members of, or eligible to be members of, that organisation or association.

[Section 41A inserted by No. 20 of 2002 s. 132.]

42. Initiation of bargaining for industrial agreement

(1) Bargaining for an industrial agreement may be initiated by an organisation or association of employees, an employer or an organisation or association of employers giving to an intended party to the agreement a written notice that complies with subsection (3).

(2) A notice under subsection (1) is not to be given to an organisation or association of employers unless that organisation or association has given written consent to being given such notice.

(3) A notice complies with this subsection if it is accompanied by particulars of —

(a) the types of employment to be covered by the agreement;

(b) the area in which the agreement is to operate;

(d) any other matter prescribed by regulations made by the Governor under section 42M.

(4) If there is no applicable industrial agreement or enterprise order in force, bargaining may be initiated under subsection (1) at any time.

(5) If there is an applicable industrial agreement or an applicable enterprise order in force, bargaining must not be initiated under subsection (1) earlier than 90 days before the nominal expiry date of the agreement or order.

(6) Where bargaining is initiated under subsection (1) with more than one intended party to the agreement, all the negotiating parties are to bargain together unless the Commission, on the application of a negotiating party, directs that that negotiating party may negotiate separately with the initiating party.

(7) Nothing in this section prevents or limits a person from bargaining for an industrial agreement when bargaining has not been initiated under subsection (1).

(8) In subsection (5) —

“nominal expiry date” means the date specified in the agreement or enterprise order as the date on which the agreement or enterprise order expires.

[Section 42 inserted by No. 20 of 2002 s. 133.]

42A. Response to initiation of bargaining

(1) A person to whom a notice is given under section 42(1) may notify the initiating party within 21 days of receiving the notice (the “prescribed period”) as to whether that person will, or will not, bargain for an industrial agreement.

(2) The Commission may by order, on application by a person to whom a notice is given under section 42(1), extend by no more than 7 days the period within which that person may respond under subsection (1).

(3) The Commission may make an order under subsection (2) although an application for the order was not made until after the expiration of the prescribed period.

(4) An order under subsection (2) may be made subject to such conditions as the Commission thinks fit.

(5) An application under subsection (2) operates —

(a) as a bar to an application for an enterprise order by a negotiating party; and

(b) as a stay of any application for an enterprise order that has been made by a negotiating party,

until the application under subsection (2) is determined or withdrawn.

(6) Bargaining between negotiating parties for an industrial agreement is initiated when the negotiating party to whom the notice is given notifies the initiating party under subsection (1) that that negotiating party will bargain.

[Section 42A inserted by No. 20 of 2002 s. 133.]

42B. Good faith bargaining for industrial agreement

(1) When bargaining for an industrial agreement, a negotiating party shall bargain in good faith.

(2) Without limiting the meaning of the expression, “bargaining in good faith” by negotiating parties includes doing the following things —

(a) stating their position on matters at issue, and explaining that position;

(b) meeting at reasonable times, intervals and places for the purpose of conducting face‑to‑face bargaining;

(d) acting honestly and openly, which includes not capriciously adding or withdrawing items for bargaining;

(e) recognising bargaining agents;

(f) providing reasonable facilities to representatives of organisations and associations of employees necessary for them to carry out their functions;

(g) bargaining genuinely and dedicating sufficient resources to ensure this occurs;

(h) adhering to agreed outcomes and commitments made by the parties.

(3) The Commission may, having regard to the circumstances in which the industrial action occurs, determine that engaging in industrial action is a breach of the duty to bargain in good faith.

(4) For the purposes of this section, a person is a bargaining agent if —

(a) that person has been appointed in writing by a negotiating party to an agreement as a bargaining agent of that party in relation to the agreement;

(b) a copy of the appointment has been provided to the other negotiating party to the agreement; and

(5) An appointment of a bargaining agent may be terminated at any time by notice of termination given by the negotiating party who appointed the agent in writing to the agent.

(6) A copy of a notice of termination must be given to each other negotiating party.

(7) For the purposes of section 123(3)(c) of the Legal Practice Act 2003 a bargaining agent is authorised to provide advice and other services in relation to bargaining for an industrial agreement.

(8) Nothing in this section affects the requirement of section 112A that only a person who is registered under that section may appear as an agent under section 31, 81E or 91.

[Section 42B inserted by No. 20 of 2002 s. 133; amended by No. 65 of 2003 s. 41(3).]

42C. Code of good faith

(1) The Commission may make a code of good faith to provide guidance about the application of the duty of good faith under section 42B in relation to bargaining for an industrial agreement —

(a) generally; or

(b) in relation to particular types of situations.

(2) The code shall not be inconsistent with this Division.

(3) Section 43(7), (8) and (9) of the Interpretation Act 1984 apply to the code as if it were subsidiary legislation.

(4) The Commission may amend or revoke the code or revoke it and substitute another code for it.

(5) The Commission shall cause the code, and any amendment or substituted code or any revocation of a code, to be published in the Industrial Gazette for public information.

(6) In this section —

“Commission” means the Commission in Court Session.

[Section 42C inserted by No. 20 of 2002 s. 133.]

42D. Duty of good faith does not require concluded industrial agreement

The duty of good faith in section 42B does not require a negotiating party —

(a) to agree on any matter for inclusion in, or exclusion from, an industrial agreement; or

(b) to enter into an industrial agreement.

[Section 42D inserted by No. 20 of 2002 s. 133.]

42E. Conciliation and arbitration to assist bargaining

(1) To assist parties to bargain for an industrial agreement, the Commission may exercise its powers as if it were endeavouring to resolve an industrial matter.

(2) Without limiting subsection (1) the Commission may make orders and give directions for the purpose of —

(a) ensuring that the negotiating parties bargain in good faith; and

(b) otherwise facilitating bargaining in good faith by negotiating parties.

(3) In particular, the Commission may order for the purposes of subsection (2) that a negotiating party do, or refrain from doing, any particular thing.

[Section 42E inserted by No. 20 of 2002 s. 133.]

42F. Restriction on Commission’s power in relation to industrial agreements

Except as provided in section 42G, the Commission must not give any direction or make any order or declaration requiring, or having the effect of requiring, a negotiating party to enter into an industrial agreement or to include any matter in, or exclude any matter from, an industrial agreement.

[Section 42F inserted by No. 20 of 2002 s. 133.]