Industrial Relations Act 1984 (Tas)

Industrial Relations Act 1984 An Act to provide for the establishment of a Tasmanian Industrial Commission having a jurisdiction to hear and determine matters and things arising from, or relating to, industrial matters, including the making of awards, the conduct of hearings and the settling of disputes, to provide for the registration of employer and employee organisations, to encourage workplace bargaining, to determine salaries, allowances and benefits for members of Parliament, and to provide for related and other matters [Royal Assent 16 May 1984] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART I - Preliminary 1. Short title This Act may be cited as the Industrial Relations Act 1984 . 2. Commencement (1) This section and section 1 shall commence on the day on which this Act receives the Royal Assent. (2) Except as provided in subsections (1) and (3) , this Act shall commence on such day as may be fixed by proclamation. (3) Sections 16 , 17 , and 20(2)(b) shall commence on such day as may be fixed by proclamation, being a day that is the same as, or that is subsequent to, the day fixed by proclamation under subsection (2) . 3. Interpretation (1) In this Act, unless the contrary intention appears – accumulation scheme, in relation to a Commissioner, means the default fund, within the meaning of the Public Sector Superannuation Reform Act 2016 , in relation to which the Commissioner is a relevant employee within the meaning of section 21 of that Act; adult means a person who has attained the age of 21 years; Agency means a Government department or State authority or other organization specified in Column 1 of Schedule 1 to the State Service Act 2000 ; Australian Commission means the Australian Industrial Relations Commission established by section 8 of the Commonwealth Act ; award means an award made under this Act by the Commission and includes a variation of such an award; casual employee, unless prescribed otherwise in an award or agreement, means a person who is engaged to work casual employment; casual employment, unless prescribed otherwise in an award or agreement, means work performed by an employee on an irregular, variable or unpredictable basis or on an as and when required basis; Commission means the Tasmanian Industrial Commission constituted under section 5 ; Commissioner means a member of the Commission appointed under section 5(2A) ; Commonwealth Act means the Workplace Relations Act 1996 of the Commonwealth; conditions of employment includes wages; controlling authority means, in the case of – (a) a State employee who is a State Service employee – the Minister administering the State Service Act 2000 ; (b) a person appointed under section 11(3), 12 or 15 of the Police Service Act 2003 – the Commissioner of Police; or (c) (d) any other State employee – the principal officer of the State authority by which that employee is employed; Deputy President means the Deputy President of the Commission appointed under section 5(2A)(b) , and includes a person acting in the office of Deputy President; employee means a private employee or a State employee, and includes – (a) a trainee as defined in the Training and Workforce Development Act 2013 ; and (b) an apprentice as defined in the Training and Workforce Development Act 2013 ; and (c) an outworker; and (d) a person appointed under section 11(3), 12 or 15 of the Police Service Act 2003 ; employee organization means an organization of employees; employer means a private employer or a controlling authority; employer organization means an organization of private employers; enterprise means – (a) any business, undertaking or project or part of any business, undertaking or project; or (b) any combination of businesses, undertakings or projects or parts of businesses, undertakings or projects; or (c) any service provided by an Agency or State authority that is not an Agency or by part of an Agency or such a State authority; or (d) any combination of services provided by Agencies or State authorities that are not Agencies or by parts of Agencies or such State authorities; enterprise agreement means an agreement referred to in section 61B ; Full Bench means a Full Bench of the Commission constituted in accordance with section 14 ; full-time employee, unless prescribed otherwise in an Act, award or agreement, means a person engaged to work full-time employment; full-time employment, unless prescribed otherwise in an Act, award or agreement, means the employment of an employee for 38 ordinary hours per week; functions includes duties; Government department means – (a) a department established under the State Service Act 2000 ; or (b) the Police Service; industrial agreement means an agreement referred to in section 55(1) ; industrial dispute means a dispute in relation to an industrial matter – (a) that has arisen; or (b) that is likely to arise or is threatened or impending; industrial matter means any matter pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes – (a) a matter relating to – (i) the mode, terms and conditions of employment; or (ii) the termination of employment of an employee or former employee; or (iii) the reinstatement or re-employment of an employee or a former employee who has been unfairly dismissed; or (iv) the payment of compensation to an employee or a former employee if the Commission determines that reinstatement or re-employment is impracticable; or (v) severance pay for an employee or a former employee whose employment is to be, or has been, terminated as a result of redundancy; or (vi) a dispute under the Long Service Leave Act 1976 or the Long Service Leave (State Employees) Act 1994 relating to an entitlement to long service leave, or payment instead of any such leave, or the rate of ordinary pay at which any such leave or payment is to be paid in respect of an employee or former employee; or (b) a breach of an award or a registered agreement – but does not include a matter relating to – (c) the opening or closing hours of an employer's business premises; (d) (e) compensation payable to employees in respect of injuries or diseases suffered in the course of their employment; (ea) (f) the preferential employment or non-employment of a particular person or class of persons who are or are not members of an organization; (g) a bonus payment made at the discretion of an employer; (h) the insurance of employees; or (i) appointments, or promotions, other than in respect of the qualifications required for advancement; (j) industry means any industry, trade, business, undertaking, profession, calling, function, process, or work performed, carried on, or engaged in by a private employer; inspector means an inspector appointed and holding office under section 74 (2) , and includes the Secretary; intervener means an intervener pursuant to section 27 ; joint proceedings means proceedings in which a Commissioner sits with a member of the Australian Commission pursuant to section 17 ; officer means a person appointed pursuant to section 18 ; ordinary hourly or weekly rate of pay means the wages paid to an employee in respect of his or her ordinary working hours; organization means an organization registered under Part V ; outworker means a person who performs for an employer work related to the manufacture of a garment outside the employer's premises; part-time employee, unless prescribed otherwise in an award or agreement, means a person who is engaged to work part-time employment; part-time employment, unless prescribed otherwise in an award or agreement, means employment – (a) that is performed by an employee on a regular basis for less hours per day or week than the ordinary hours of an equivalent full-time employee; and (b) the hours of which may vary from time to time but will generally remain constant from day to day or week to week; powers includes authorities; President means the President of the Commission appointed under section 5(2A)(a) ; principal officer means, in relation to a State authority that is not an Agency, the president, chairman, or other principal or presiding member of the authority or, if the authority comprises a single person, that person; private employee means an employee other than – (a) a State employee; or (b) an employee who is appointed under section 25 or 31 of the State Service Act 2000 ; or (c) an employee whose remuneration is specified in any Act, determined under the Statutory Salaries Act 1979 or determined by the Governor under any Act; (d) private employer means an employer of a private employee, and includes every managing director or manager of any body corporate, partnership, firm, or association and, in the case of an unincorporated association, includes its secretary and every member of its governing body by whatever name called; probationary employment, unless prescribed otherwise in an Act, award or agreement, means employment of an employee for a probationary or trial period; probationary or trial period means a period of employment, for the purpose of determining an employee's suitability for continuing employment, which – (a) unless prescribed otherwise in an Act, award or agreement, does not exceed 6 months from the date of commencement of employment; and (b) is stipulated in writing at the time of engagement; and (c) is relevant to the work to be performed; and (d) is reasonable and appropriate in the context of acquiring the skills and experience necessary to satisfactorily perform the duties of the job; proclaimed day means the day fixed by proclamation under section 2 (2) ; registered agreement means – (a) an industrial agreement registered under Part IV ; or (b) an enterprise agreement registered under Part IVA ; Registrar means the person appointed and holding office pursuant to section 18 (1) as Registrar of the Commission; regulations means regulations made and in force under this Act; RSA means a Retirement Savings Account within the meaning of the Retirement Savings Accounts Act 1997 of the Commonwealth; Secretary, in relation to a provision, means the Head of the Agency within the meaning of the State Service Act 2000 within which the provision is administered; State authority means a body or authority, whether incorporated or not, which is established or constituted by or under an Act or under the royal prerogative, being a body or authority which, or of which, the governing authority, wholly or partly, comprises a person or persons appointed by the Governor, a Minister, or another State authority, but does not include a Government department; State employee means a person who is employed in an Agency or by a State authority that is not an Agency other than a person – (a) who is appointed under section 25 or 31 of the State Service Act 2000 ; or (b) whose remuneration is specified in any Act, determined under the Statutory Salaries Act 1979 or determined by the Governor under any Act; (c) wages includes salary. (2) . . . . . . . . (3) For the purposes of this Act, unless the contrary intention appears, an organization has an interest in – (a) an award if, in its certificate of registration issued and in force under section 64 , that award is specified as one in which a Commissioner has determined, under section 63 (10) (c) or 65A (3) , that that organization has an interest; and (b) a matter referred to in section 35 (6) if – (i) the membership of that organization consists of or includes members who are employers or employees in an industry or occupation to which that matter relates or who are State employees to whom that matter relates; and (ii) that membership is consistent with the organization's rules or constitution lodged with the Registrar pursuant to section 63 (1) or consistent with those rules or that constitution as altered, in the case of an organization to which subsection (1) of section 67 applies, with the approval of the Registrar required under that subsection. (4) . . . . . . . . (5) If a question arises as to whether a body or an authority is or is not a State authority for the purposes of this Act, that question shall be determined by the Governor, and the Governor may accordingly, by order, declare that body or authority to be or not to be a State authority for the purposes of this Act. (6) An order under subsection (5) , on being published in the Gazette, is conclusive evidence of what is declared in it. 4. Crown bound by Act This Act binds the Crown not only in right of Tasmania but also, so far as the legislative power of Parliament permits, binds the Crown in all of its other capacities. PART II - Tasmanian Industrial Commission Division 1 - Constitution, &c., of the Commission 5. Constitution of the Commission (1) There is constituted by this Act a body to be known as the "Tasmanian Industrial Commission". (2) Subject to this section, the Commission consists of – (a) the President of the Commission appointed under subsection (2A)(a) ; and (b) the Deputy President of the Commission appointed under subsection (2A)(b) ; and (c) the other Commissioners appointed under subsection (2A)(c) . (2A) The Governor is to appoint – (a) a person to be a Commissioner and to be the President of the Commission; and (b) a person to be a Commissioner and to be the Deputy President of the Commission; and (c) one or more persons to be Commissioners. (2B) The Governor is to appoint under subsection (2A)(c) at least one person to be a Commissioner but may, under that subsection, appoint the number, of persons, that the Governor thinks fit. (3) The Minister shall, before a person is appointed or re-appointed as a Commissioner, consult officers of such associations or organizations as he considers appropriate with regard to the proposed appointment or re-appointment. (4) A person shall not be appointed or re-appointed as a Commissioner unless– (a) he is a person who, in the opinion of the Governor, has had extensive experience in industrial relations; (b) he is a person who– (i) is or has been an Australian legal practitioner, of not less than 5 years' standing; (ii) has served at a high level in a position or office in an industry or the trade union movement or in the service of a government or an authority of a government; or (iii) has obtained a degree of a university or an educational qualification of a similar standard, after studies in the field of law, economics, or industrial relations or some other field of study considered by the Governor to have substantial relevance to the functions of a Commissioner; or (iv) has demonstrated understanding of public sector administration; and (c) he is, in the opinion of the Governor, by reason of his qualifications, experience, and standing in the Australian community, a fit and proper person to discharge the functions of a Commissioner. (5) . . . . . . . . 6. Provisions relating to appointment of Commissioners (1) Subject to sections 11 and 12 , a person – (a) who is appointed under section 5(2A) – (i) as a Commissioner and as the President of the Commission holds office for the period, of not more than 7 years, specified in the person's instrument of appointment; or (ii) as a Commissioner and as the Deputy President of the Commission holds office for the period, of not more than 7 years, specified in the person's instrument of appointment; or (iii) as a Commissioner but not as the President, or the Deputy President, of the Commission holds office for the period, of not more than 3 years, specified in the person's instrument of appointment; and (b) is to be appointed on the terms and conditions that are specified in the person's instrument of appointment; and (c) may be re-appointed as a Commissioner, as the President, or as the Deputy President, of the Commission. (2) . . . . . . . . (2A) . . . . . . . . (3) A Commissioner is entitled to such remuneration and allowances, and such other terms and conditions of employment not inconsistent with subsection (1) , as the Governor may from time to time determine in respect of him. (4) A Commissioner shall not – (a) without the permission of the Governor, hold any other office of profit or engage in any paid employment outside the functions of his office; or (b) hold any other office or any position the holding of which, in the opinion of the Governor, is inconsistent with the functions of his office. (5) A Commissioner is an employee for the purposes of – (a) the Public Sector Superannuation Reform Act 2016 ; and (b) the Long Service Leave (State Employees) Act 1994 ; and (ba) the Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011 ; and (c) the Workers Rehabilitation and Compensation Act 1988 . (6) If a State employee is appointed to the office of a Commissioner, he is entitled to retain all his existing and accruing rights as if his service in that office were a continuation of his service as such an employee. (7) Where a person referred to in subsection (6) ceases to be a Commissioner and becomes a State employee, his service as a Commissioner shall be regarded as service as a State employee for the purposes of determining his rights as such an employee. (8) Despite subsection (4) , a person who holds – (a) office as a member, other than the President, of the Fair Work Commission established under the Fair Work Act 2009 of the Commonwealth may, with the prior agreement of the Minister for the time being administering that Act, be appointed under section 5(2A) as a Commissioner, the President, or the Deputy President, of the Commission; or (b) a similar office in a commission or similar body with jurisdiction in relation to industrial matters that is constituted under an enactment of another State or of a Territory of the Commonwealth may, with the prior agreement of the Minister for the time being administering that enactment, be appointed under section 5(2A) as a Commissioner, the President, or the Deputy President, of the Commission. 6A. . . . . . . . . 7. Oath or affirmation of office (1) A Commissioner shall, before proceeding to discharge the functions of his office, take before a judge an oath or affirmation in accordance with the form in Schedule 1 . (2) A person appointed under section 10 (2) to act in the office of a Commissioner shall, before proceeding to act in that office, take before a judge an oath or affirmation, being an oath or affirmation that, subject to any necessary modifications, is in accordance with the form in Schedule 1 . 8. Judicial notice of official signatures of Commissioners All courts, judges, and persons acting judicially shall take judicial notice of the official signature of a Commissioner on a document and shall, unless the contrary is established, presume that the document was duly signed by the Commissioner. 9. Protection of Commissioners A Commissioner has, in the performance of his functions as a Commissioner, the same protection and immunity as a judge. 10. Substitute to act during absence of certain Commissioners (1) Where the Deputy President is unable to act in his office, whether on account of illness or for any other cause, the Governor may appoint another Commissioner to act in that office for the period that the Deputy President is unable to so act. (2) Subject to subsections (3) and (6) , where a Commissioner, other than the President or the Deputy President, is unable to act in his office, whether on account of illness or for any other cause, the Governor may appoint a person who has the experience and qualifications prescribed by section 5 (4) to act in that office for the period that that Commissioner is unable to act. (3) The Minister shall, before a person is appointed under subsection (2) to act in the office of a Commissioner, consult officers of such associations or organizations as he considers appropriate with regard to the proposed appointment. (4) The Deputy President shall, for the purposes of subsection (1) , be deemed to be unable to act in his office if he is acting in the office of the President pursuant to section 15 (4) . (5) A Commissioner shall, for the purposes of subsection (2) , be deemed to be unable to act in his office if there is a vacancy in that office which has not been filled. (6) . . . . . . . . (7) Subject to subsection (8) , the provisions of sections 6 (3) and (4) , 9 , and 12 apply to a person appointed under subsection (2) as if he were a Commissioner. (8) Notwithstanding the provisions of section 6 (4) , as applied by subsection (7) , a person who holds – (a) office as a member, other than the President, of the Australian Commission may, with the prior agreement of the Minister for the time being administering the Commonwealth Act , be appointed under subsection (2) ; or (b) a similar office in a commission or similar body with jurisdiction in relation to industrial matters that is constituted under an enactment of another State or of a Territory of the Commonwealth may, with the prior agreement of the Minister for the time being administering that enactment, be appointed under that last-mentioned subsection. (9) A person, while acting in the office of the Deputy President or any other Commissioner pursuant to this section, has, and may exercise, all the powers of the Deputy President or that other Commissioner, as the case may be, under this Act and shall perform all the functions of the Deputy President or that other Commissioner under this Act. (10) Anything done or omitted to be done by a person while acting under this section in the office of Deputy President or any other Commissioner is as valid as if done or omitted to be done by the Deputy President or other Commissioner. (11) A person is not required to inquire whether or not any occasion has arisen requiring or authorising a person to act in the office of the Deputy President or any other Commissioner. 10A. . . . . . . . . 11. Removal and suspension of Commissioners (1) Except on resolutions presented to the Governor by both Houses of Parliament praying for his removal from office on the ground of incompetence or misbehaviour, the Governor shall not remove a Commissioner from office unless he – (a) holds another office of profit, or engages in paid employment outside the functions of his office, without the permission of the Governor; (b) holds another office or a position the holding of which, in the opinion of the Governor, is inconsistent with the functions of his office; (ba) . . . . . . . . (c) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors, or makes an assignment of his remuneration or estate for their benefit; (d) is convicted in Tasmania of a crime or an offence which is punishable by imprisonment for 6 months or upwards, or unless he is convicted elsewhere than in Tasmania of an offence which, if committed in Tasmania, would be a crime or an offence so punishable or unless he has been convicted, whether in Tasmania or elsewhere, of a crime or an offence for which he has been sentenced to imprisonment; (e) absents himself from the functions of his office, except on leave granted by the Governor; or (f) becomes, in the opinion of the Governor, permanently incapable of performing the functions of his office. (2) The Governor may suspend a Commissioner from office on the grounds of incompetence or misbehaviour. (3) . . . . . . . . (4) Where a Commissioner has been suspended by the Governor, the Commissioner shall be restored to his office unless – (a) a statement of the grounds of the suspension is laid before each House of Parliament during the first 7 sitting days of that House following the suspension; and (b) each House of Parliament, within 30 sitting days after the statement is so laid before it, passes a resolution requesting the Governor to remove him from office on the grounds of incompetence or misbehaviour. (5) Where a Commissioner is suspended from office under subsection (2) and each House of Parliament does not pass a resolution, within the period referred to in subsection (4) (b) , requesting the Governor to remove that person from office, the Commissioner shall be entitled to receive his full salary and allowances in respect of the period during which he was suspended. (6) . . . . . . . . 12. Resignation from office (1) Subject to subsection (2) , a Commissioner may resign his office by writing under his hand addressed to the Governor. (2) A resignation under subsection (1) takes effect on the day on which it is received by the Governor or on such later day as is specified in the writing containing the resignation. 13. Exercise of powers and jurisdiction of the President and the 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 for that purpose. (2) A Commissioner, other than the President, 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 Commissioner is sitting or acting at the same time in the exercise of the jurisdiction of the Commission, each such Commissioner constitutes the Commission. 14. Constitution of Full Bench of Commission (1) A Full Bench of the Commission is constituted by at least 3 members of the Commission one of whom, wherever practicable, must be the President or the Deputy President. (2) In a proceeding before a Full Bench, the decision of a majority of the members shall be the decision of the Full Bench. 15. General functions and powers of President (1) Subject to this section, the President shall – (a) allocate for hearing and determination by a Commissioner sitting alone applications for awards or for the variation of awards; (ab) refer to a Commissioner sitting alone – (i) applications under section 63 (1) for the purpose of his making a determination referred to in section 63 (10) (b) ; and (ii) applications under section 65A (1) for the purpose of his making a determination referred to in section 65A (2) ; (b) determine whether matters arising under this Act should be referred to a Full Bench; (c) appoint Commissioners to constitute Full Benches and refer to those Benches – (i) matters that he has determined, under paragraph (b) , to be matters that should be referred to those Benches; and (ii) applications made to him under section 67 (7) and under section 68 ; (d) allocate for hearing and determination by a Commissioner applications in respect of industrial disputes; (da) allocate for hearing by a Commissioner an agreement filed under section 55 or lodged under section 61H ; and (e) refer disputes with respect to long service leave as provided by or under the relevant Act to a Commissioner for determination by him under the provisions of the Long Service Leave Act 1976 or the Long Service Leave (State Employees) Act 1994 ; (f) appoint Commissioners to constitute Full Benches to hear – (i) applications for awards or for the variation of awards; (ii) appeals under sections 70(1) and 82 ; and (iii) as provided under the relevant Act, appeals against determinations of a Commissioner concerning disputes with respect to long service leave under the provisions of the Long Service Leave Act 1976 or the Long Service Leave (State Employees) Act 1994 ; (g) appoint Commissioners to conduct arbitrations under section 61 ; (h) make declarations pursuant to section 43 ; (i) appoint Commissioners to hear applications under sections 79 and 81 ; and (j) appoint a Commissioner to hear an application for an order under section 75(7A) ; and (k) appoint a Commissioner to hear an application for review under section 50 of the State Service Act 2000 ; and (l) appoint 2 Commissioners to constitute, together with the President, a Full Bench to perform the functions, and exercise the powers, conferred on the Commission under the Parliamentary Salaries, Superannuation and Allowances Act 2012 . (2) The President is not precluded from – (a) allocating to himself or herself for hearing and determination an application of a type referred to in subsection (1) ; or (b) subject to section 70(2) , appointing himself or herself to a Full Bench. (2A) . . . . . . . . (3) The President may – (a) give directions to the Registrar for the purposes of this Act; and (b) do all things necessary or convenient to be done, other than employ persons, for or in connection with, or as incidental to, the performance of his functions under subsection (1) . (4) Where the President is unable to act in his office, whether on account of illness or for any other cause, or where there is a vacancy in the office of President, the Deputy President shall act in the office of the President. (5) The Deputy President, while acting in the office of President pursuant to subsection (4) , has, and may exercise, all the powers of the President under this Act and shall perform the functions of the President under this Act. 16. Reference of industrial matters to Australian Commission for determination u