405 THE INDUSTRIAL CONCILIATION AND ARBITRATION ACTS, 1961 to 1964 Industrial Conciliation and Arbitration Act of 1961, 10 Eliz. 2 No. 25 Amended by Industrial Conciliation and Arbitration Act Amendment Act of 1963, No. 43 Industrial Conciliation and Arbitration Acts Amendment Act of 1964, No. 67 An Act to Re-enact with Amendments "The Industrial Conciliation and Arbitration Acts, 1932 to 1959" [Assented to 11 April 1961] PART I-PRELIMINARY 1. (1) Short title. This Act may be cited as "The Industrial Conciliation and Arbitration Act of 1961." (2) Commencement of Act. This Act shall come into operation on a date to be fixed by the Governor in Council by Proclamation published in the Gazette. Commenced 2 May 1961; Proclamation, Qld. Gov. Ind. Gaz., 29 April 1961, p.42. Collective title conferred by Act of 1964, No. 67, s. 1 (3). 2. Parts of Act. This Act is divided into Parts as follows: PART I-PRELIMINARY (ss. 1-6); PART II-INDUSTRIAL COURT (ss. 7-8); PART III-INDUSTRIAL CONCILIATION AND ARBITRATION COM MISSION (ss. 9-43); PART IV-INDUSTRIAL UNIONS (ss. 44-74); PART V-DISPUTED ELECTIONS IN INDUSTRIAL UNIONS (ss.75-88); PART VI-INDUSTRIAL AGREEMENTS (ss. 89-94); PART VII-GOVERNMENT EMPLOYEES (ss. 95-96); PART VIlA-TRADING HOURS IN SHOPS AND EXHIBITIONS OF NON-EXEMPTED GOODS (ss. 96A-96E); PART VIII-BREACHES OF AWARDS AND OTHER OFFENCES (ss.97-117); PART IX-MISCELLANEOUS (ss. 118-141). 406 LABOUR Vol. 8 Abbreviations. The following abbreviations are used in the marginal notes to this Act:-Qd.-"The Industrial Conciliation and Arbitration Acts, 1932 to 1959"; T.U.-"The Trade Union Act of 1915"; C'wlth. The Conciliation and Arbitration Act 1904-1960 of the Commonwealth; N.S.W.-the Industrial Arbitration Act, 1940-1959, of New South Wales; N.S.W. (H).-the Annual Holidays Act, 1944-1958, of New South Wales. As amended by Act of 1964, No. 67, s. 2. Acts referred to: Industrial Conciliation and Arbitration Acts, 1932 to 1959, repealed. Trade Union Act of 1915, repealed. Conciliation and Arbitration Act 1904-1961 (Commonwealth). Industrial Arbitration Act, 1940-1959 (N.S.W.). Annual Holidays Act, 1944-1958 (N.S.W.). 3. Construction of Act, etc. This Act and every Proclamation, Order in Council, regulation or rule of court made under this Act, or decision of the Court or Commission shall be read and construed so as not to exceed the legislative power of the State to the intent that where any enactment of this Act, or any provision of any such Proclamation, Order in Council, regulation, rule of court or decision would but for this section have been construed as being in excess of that power it shall nevertheless be a valid enactment or Proclamation, Order in Council, regulation, rule of court or decision, as the case may be, to the extent to which it is not in excess of that power. 4. Repeals. (23 Geo. 5 No. 36 and amending Acts). (1) "The Industrial Conciliation and Arbitration Acts, 1932 to 1959," are hereby repealed. Such Acts are in this Act referred to as the repealed Acts. (2) 6 Geo. 5 No. 31 and 13 Geo. 5 No.1. "The Trade Union Act of 1915" and "The Trade Unions (Property) Act of 1922" are hereby repealed. (3) Repeal of s. 30 (1) of 9 Geo. 5 No. 19. Subsection one of section thirty of "The Wages Act of 1918" is hereby repealed. ( 4) Sections 534 and 543A of "The Criminal Code." The repeal of the repealed Acts shall not affect the operation or continuance in force of section five hundred and thirty-four of "The Criminal Code," as amended by section eighty-five of the repealed Acts or of section 543A of "The Criminal Code" as inserted by the said section eighty-five. (5) The repeal of "The Trade Unions (Property) Act of 1922" shall not affect the operation or continuance in force of section twenty-two of "The Real Property Act of 1877," as amended by that Act. (6) The repeal of "The Trade Union Act of 1915" shall not affect the continuity of the identity of any such trade union, or any rights or obligations of any such trade union, or render defective any legal pro ceedings by or against any such trade union. (7) The repeal of the repealed Acts shall not affect the continuity of the identity of any industrial union registered as such thereunder, or any rights or obligations of any such industrial union, or render defective any legal proceedings by or against any such industrial union. INDUSTRIAL CONCILIATION AND ARBITRATION ACTS ss.2-5 407 (8) Every decision, ruling, judgment or other act of authority or industrial agreement made, given, done or approved by the Industrial Court under the repealed Acts and in force immediately prior to the commencement of this Act shall continue in force as if it were a decision, ruling, judgment or other act of authority or industrial agreement made, given, done or approved by the Court or Commission, according to their respective functions and jurisdictions, under the corresponding provisions of this Act and accordingly may be revoked, altered, amended or other wise modified by the Court or the Commission, as the case may be. (9) All penalties and forfeitures imposed under any provision of the repealed Acts and incurred at the date of the repeal of such pro vision shall and may be enforced as if such provision had not been repealed. (10) Every action or proceeding of whatever nature under any provision of the repealed Acts commenced or pending at the date of the repeal of such provision, may be carried on and prosecuted as if such action or proceeding had been instituted under the appropriate provision of this Act, and all of the provisions of this Act shall apply thereto, and no such action or proceeding shall abate or be discontinued by the repeal of the repealed Acts: Provided that every such action or proceeding which under this Act is prescribed to be within the jurisdiction of the Commission shall be carried on and prosecuted before the Commission as if it had been instituted before the Commission in the first instance. ( 11) All registrars, assistant registrars, deputy registrars and othel officers appointed under the repealed Acts and in office immediately before the commencement of this Act shall, without further or other appointment, be deemed to have been appointed to their respective offices for the purposes of this Act and, subject to this Act, shall continue to hold those offices respectively in terms of their appointments. (12) Every Proclamation, Order in Council, rule, regulation or registration made under the repealed Acts and in force at the time of the repeal thereof shall, subject to this subsection, continue in force until it expires by effiuxion of time or is sooner repealed, amended, suspended or cancelled under this Act: Provided that every such Proclamation, Order in Council, rule or regulation shall, while it so continues in force, be read and construed subject to this Act. Acts referred to: Wages Acts, 1918 to 1954, p. 713, post. Criminal Code, title CRIMINAL LAW, Vol. 3. Real Property Act of 1877, title REAL PROPERTY. A provision for continuance of an award made under a repealed Act and not applying to railway employees was held not to make such award applicable to those employees, Fielding v. Commissioner for Railways, [1918] Q.W.N. 12; 12 Q.J.P.R. 26. A provision similar to subsection (8) was applied in R. v. Berge (1931), 25 Q.J.P.R. 39. 5. Interpretation. In this Act, unless the context otherwise indicates or requires, the following terms have the meaning respectively set against them, that is to say:- "Apprentice"-Any person bound by agreement for the purpose of being instructed in the knowledge and practice of any calling; 408 LABOUR Vol. 8 "Award"-Award of the Commission made under this Act and any award made under the repealed Acts and continued in force by this Act: The term where necessary includes any variation of an award, any industrial agreement, or any variation of an industrial agreement; "Bonus payment"-A payment by way of the division of the profits of any industry or undertaking, being a payment in excess of a just wage including all proper allowances such as are ordinarily and usually prescribed by an award or industrial agreement; "Branch"-Any section, division, chapter or other group within an industrial union, howsoever described, having an executive or governing body or office bearers; "Calling"-Any calling, vocation, craft, business or other occupa tion or any section of any calling; "Chief Industrial Inspector"-The Chief Industrial Inspector appointed under this Act, and includes any person for the time being acting in or discharging the duties of that office; "Commissioner"-A Commissioner appointed under this Act; "Decision" includes any award, order, determination, direction, or declaration; "Employee"-Any employee, whether on wages or piecework rates, or a member of a buttygang: The term includes any person whose usual occupation is that of employee in a calling; the fact that a person is working under a contract for labour only or substantially for labour only, or as lessee of any tools or other implements of production or any vehicle used in the delivery of goods, or as the owner, whether wholly or partly, of any vehicle used in the transport of goods or passengers, shall not in itself prevent such person being held to be an employee. In every case where four or more persons being or alleging themselves to be partners, are working in association in any calling or industry, each of such persons shall be classed as and be deemed to be an employee; and the partnership firm constituted by them or alleged so to be shall be deemed to be the employer of each such person; "Employer"-Any person employing or usually employing one or more employees, whether on behalf of himself or any other person: The term includes every managing director or manager of any corporation, partnership, firm or associa tion and, in the case of an unincorporated association, its secretary and every member of its governing body, by what ever name called: This definition applies so as not to prejudice the entitlement to long service leave under sections seventeen, eighteen, nineteen or twenty of this Act of any person who is a manager or secretary as hereinbefore men tioned in this definition. A person carrying on a calling in which employees are usually employed is an employer, notwithstanding that for the time being he does not employ any employee therein; INDUSTRIAL CONCILIATION AND ARBITRATION ACTS s.5 409 "Improver"-An employee who, by direction of the Commission given in his case, is serving at a special wage a period of training with an employer for the purpose of becoming a qualified worker in a calling; "Industrial agreement"-An industrial agreement made or deemed to be made under this Act; "Industrial cause" includes an industrial matter and an industrial dispute; "Industrial Commission" or "Commission"-The Industrial Conciliation and Arbitration Commission constituted under this Act: The term includes the Commission sitting as a Full Bench and any Commissioner; "Industrial Court" or "Court"-The Industrial Court constituted under this Act; "Industrial demarcation"-The determination of the claim of any one class of employees to do any work to the exclusion of other employees; "Industrial dispute"- (a) a dispute including a threatened, pending or probable dispute as to an industrial matter; and (b) a situation which is likely to give rise to a dispute as to an industrial matter; "Industrial inspector"-The Chief Industrial Inspector and any other industrial inspector appointed or deemed to be appointed under this Act: The term includes an acting industrial inspector and any other officer appointed from time to time to act as industrial inspector; "Industrial magistrate"-Any person appointed by or under this Act to be, or to act temporarily in the office of, an industrial magistrate; "Industrial matter"-Any matter or thing affecting or relating to work done or to be done, or the privileges, rights, or duties of employers or employees, or of persons who have been or intend or propose to be or may become employers or employees not involving questions which are the subject of proceedings for an indictable offence, Without limiting the generality of the foregoing pro visions of this definition, the term includes any and every matter relating to- (a) the wages, allowances, or remuneration of any persons employed or to be employed, including for work during ordinary working hours and for overtime, and (subject to this Act) on holidays and for other special work; and including the questions whether piecework shall be allowed, and whether employees shall be granted an annual leave or holidays upon full pay, and whether and under what conditions employees may board and lodge with their employers, and whether monetary allowances shall be made by employers to employees in respect of standing back or waiting time imposed by the conditions of the employer's enterprise or because of intermittency of 410 LABOUR Vol. 8 industrial operations or other causes; and what length of notice, if any, shall be given by an employer or employee to the other before discontinuing or quitting service or employment, and what amount of wages, if any, shall be paid or may be deducted, as the case may be, in lieu of such notice; (b) subject to this Act, the hours of employment, the lengths of time to be worked to entitle employees to any given wages, allowances, remuneration, or prices, and what times shall be regarded as overtime and including claims to restrict work before or after certain hours, and the sex, age, qualification, or status of employees, and the mode, terms, and conditions of employment or non employment, including the question whether any persons shall be disqualified for employment, and including claims to have protective appliances, clothing, hot or cold water, and sanitary and bathing accommodation provided for the use of employees, and the fixing of standards of normal temperatures and atmospheric purity in working places below or above ground, and the prescribing of shorter hours, higher wages, or other conditions in respect of persons employed under abnormal conditions or in abnormal working places, and the determination of what are abnormal conditions or abnormal working places; (c) the employment of children, young workers, or improvers, or of any person or persons or class of persons, including the disqualification of any persons for employment by reason of sex or age or disease, or a claim to dismiss or to refuse to employ any particular person or persons or class of persons, or any question whether any particular person or persons or class of persons ought (having regard to public interests, and notwithstanding the common law rights of employers or employees) to be continued or reinstated in the employment of any particular employer; the number or proportionate number of aged or infirm workers, apprentices, and improvers that may be employed by an employer, and the lowest prices or rates payable to them; (d) the right to dismiss or to refuse to employ or reinstate in employment any particular person or class of persons in any calling; (e) any custom or usage as to conditions of employment, either general or in any particular calling, industry, enterprise, or locality; (f) the interpretation and enforcement of an industrial agree ment or award except as otherwise provided by this Act; (g) any matter which is included in an industrial agreement; (h) the subject matter of any industrial dispute including any matter which has caused or, in the opinion of the Court or of the Commission, is likely to cause disagree ment or friction between employers and employees; INDUSTRIAL CONCILIATION AND ARBITRATION ACTS s.5 411 (i) generally all questions as to what is fair and right (having regard to the interests of the persons immediately con cerned and of the community as a whole), according to the standard of the average good employer and the average competent and honest employee in all matters pertaining to the relations of employers and employees, whether or not the relationship of employer and employee exists or existed at or before the time of any application to the Court or the Commission or at the time of the making or enforcement of any decision by the Court or the Commission; (j) the regulation of the relations between employers and employees, or between employees and employees, and for this purpose the imposing of conditions on the conduct of any trade, business, industry, or enterprise, and the provision of benefits to persons engaged therein; (k) any question of industrial demarcation; (1) [Repealed.] (m) any matter, whether industrial or not, which in the opinion of the Court or of the Commission has been, is, or may be a cause or contributory cause of a strike or lock-out or industrial dispute; "Industrial union"-A body or association of persons registered as an industrial union under this Act; "Lock-out"-The act of an employer in closing his place of business or suspending or discontinuing his business or any branch thereof, or a refusal or failure by an employer to continue to employ any number of his employees, with intent- (a) to compel or induce any employees to agree to terms of employment or comply with any demands made upon them by the said or any other employer contrary to the provisions of this Act; or (b) to cause loss or inconvenience to his employees or any of them; or (c) to incite, instigate, aid, abet, or procure any other lock out; or (d) to assist any other employer to compel or induce any employees to agree to terms of employment or comply with any demands made by him; "Minister"-The Minister for Labour and Industry or other Minister of the Crown for the time being charged with the administration of this Act; "Occupier"-The term shall have the meaning assigned to it by "The Factories and Shops Act of 1960"; "Office"-In relation to an industrial union or branch of an industrial union- (a) the office of a member of the committee of management of the industrial union or branch; (b) the office of president, vice-president, secretary, assistant secretary or other executive officer, by whatever name called, of the industrial union or branch; 412 LABOUR Vol. 8 (c) the office of a person holding, whether as trustee or otherwise, property of the industrial union or branch, or property in which the industrial union or branch has any beneficial interest; and (d) every office within the industrial union or branch for the filling of which an election is conducted within the industrial union or branch; "Officer"-The holder of an office; "Part"-Part of this Act; "Party"-In relation to an award or industrial agreement, includes any person bound by such award or industrial agreement; "Person"-Shall include a body corporate (including any local authority, harbour board or other statutory corporation) and an industrial union; "Political objects"-The expenditure of money- (a) on the payment of any expenses incurred either directly or indirectly by a candidate or prospective candidate for election to the Parliament of the Commonwealth or any State or to any public office before, during or after the election in connection with his candidature or election; or (b) on the holding of any meeting or the distribution of any literature or documents in support of any such candidate or prospective candidate; or (c) in connection with the registration of electors or the selection of a candidate for any such Parliament or any public office; or (d) on the holding of political meetings of any kind, or on the distribution of political literature or political documents of any kind; "President"-The President of the Court: The term also includes any person acting as President; "Public office"-The office of member of any Local Authority or of any local public body which has power to raise money, either directly or indirectly, by means of a rate; "Registered"-Registered under this Act; "Registrar"-The industrial registrar appointed or deemed to have been appointed under this Act: The term includes any deputy or assistant industrial registrar so appointed: "Registry"-The office of the Registrar; "Repealed Acts"-"The Industrial Conciliation and Arbitration Acts, 1932 to 1959," including any Order in Council made or purporting to be made under such Acts, whether in addition to or amendment of or in modification of such Acts; "Rules of Court"-Rules of Court made under this Act; "Statutory objects"-The regulation of the relations between employees and employers, or between employees and employees, or between employers and employers; the imposing of restrictive conditions on the conduct of any INDUSTRIAL CONCILIATION AND ARBITRATION ACTS s.5 413 trade, calling, business or industry; the promotion of the general and material welfare of members of trade unions, and the enforcement and defence of their rights and privileges; the assistance by federation or otherwise of kindred organisations having the like objects; also the establishment and maintenance of newspapers or political objects as herein defined if combined with all or any of the aforesaid objects; and also the provision of benefits to members of trade unions. "Strike"-The act of two or more employees, who are or have been in the employment either of the same employer or different employers, in discontinuing their employment, whether wholly or partially, or in ceasing to work, or in refusing or failing to continue to work therein, or in breaking their contracts of service, or in refusing or failing after any such discontinuance or cessation of work to resume work or return to their employment, or wilfully delaying or obstructing the progress of work by what is known as the "go-slow" method of strike, and the said discontinuance, cessation, breach, refusal, or failure being due to or in pursuance of any combination, agreement, or understanding, whether expressed or implied, entered into by the said employees or any of them, with intent- (a) to compel or induce any such employer to agree to terms of employment, or to employ or cease to employ any person or class of persons, or to comply with any demands made by the employees or any of them or by any other employees; or (b) to cause loss or inconvenience to any such employer in the conduct of his business; or (c) to incite, instigate, aid, abet, or procure any other strike; or (d) to assist employees in the employment of any other employer to compel or induce that employer to agree to terms of employment, or to employ or cease to employ any person or class of persons, or to comply with any demands made by any employees; "Trade union" or "Union"-Any industrial union and any com bination, whether temporary or permanent, the principal objects of which are under its constitution statutory objects; "Young worker"-Any person, male or female (other than an apprentice or an improver) under twenty-one years of age, who receives a lower wages price or rate than that fixed by any award for ordinary adult employees. As amended by Act No. 67 of 1964, s. 3. Act referred to: Factories and Shops Acts, 1960 to 1964, p. 335, ante. Adoption of the language of New Zealand and English Acts respectively, which had been authoritatively construed in those countries, was held to show a legislative intention to adopt such constructions, Re Mount Morgan Gold Mining Co. and Australian Workers Union, [1917] Q.W.N. 21; Hall v. Carr, [1921] Q.W.N. 6; 15 Q.J.P.R. 85. "Employee"-As to Government employees, see also ss. 95, 96. 414 LABOUR Vol. 8 With respect to partners, see also s. 119. It was held under the Industrial Peace Act of 1912 (repealed) that the court only had jurisdiction in respect of callings in which the relationship of employer and employee existed and the test of whether such relation existed was whether that of master and servant existed, which depended upon the degree of control as to the manner of doing the work exercised by the person for whom it was done, Re Life Assurance Canvassers, [1916] Q.W.N. 25; Thiel v. Mutual Life and Citizens Assurance Co. Ltd. (1919), 14 Q.J.P.R. 5; Stewart v. Brown and Broad Ltd., [1920] Qd. Indus. Gaz. 924. The written agreement of employment cannot be allowed to obscure the real relationship, Thiel v. Mutual Life and Citizens Assurance Co. Ltd., supra; Davis v. Henry (1938), 32 Q.J.P. 87. A person may be employed even though there is no contract of service or agreement for payment but there must be something in the nature of recognition of the service by the alleged employer, Ballantine v. Hinchcliffe, [1915] V.L.R. 69. The definition does not appear to be limited to manual workers. See Re Water Supply and Sewerage Employees Board, [1919] N.S.W.A.R. 167. As to a person working for several others at the same time, see Maudsley v. Miles (1938), 32 Q.J.P. 62. As to whether professional men receiving salaries can be employees, see Re Professional Officers' Assoc., [1916] N.S.W.A.R. 401, 464. As to whether assurance canvassers are employees, see Re Life Assurance Canvassers, [1916] Q.W.N. 25; Thiel v. Mutual Life and Citizens Assurance Co. Ltd. (1919), 14 Q.J.P.R. 5. With respect to the nature of employment as member of a buttygang, see Wright v. North Sydney Brick and Tile Co., [1909] N.S.W.A.R. 371. As to a lessee of a taxi-cab, see Yellow Cabs of Australia Ltd. v. Colgan, [1930] N.S.W.A.R. 137. As to a lessee of a delivery van, see Gartrell White Ltd. v. Butt, [1930] N.S.W.A.R. 174. As to the effect of termination of the relationship of employee and employer by a strike, see R. v. Commonwealth Court of Conciliation and Arbitration, Ex parte Broken Hill Pty. Co. Ltd. (1909), 8 C.L.R. 419, and s. 51, post. "Employer"-As to the position of the Govermnent as employer, see ss. 95, 96. Local authorities are empowered to pay their employees wages fixed by award under this Act; see Local Government Acts, 1936 to 1965, s. 17 (1), title LOCAL AUTHORITIES. "Improver"-Provision for licensing of improvers over 21 years of age is made by First Schedule, clause 13, post. See also Apprenticeship Act of 1964, s. 62, p. 322, ante. As to when an employee is to be considered an improver, see Garratt v. Wormald, [1913] N.S.W.A.R. 129. "Industrial dispute"-As to what constitutes an industrial dispute, see Re Public Service (General Officers) Assoc., [1918] Q.W.N. 25; R. v. Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild of Australasia (1912), 15 C.L.R. 586; Merchant Service Guild of Australasia v. Newcastle & Hunter River Steamship Co. (1913), 16 C.L.R. 705; R. v. Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow & Co. (1910), 11 C.L.R. 1; Colliery Employees' Federation v. Brown (1905), 3 C.L.R. 255; Federated Felt Hatting Employees Union v. Denton Hat Mills Ltd. (1914), 18 C.L.R. 88; Metropolitan Coal Co. v. Australian Coal and Shale Employees' Federation (1917), 24 C.L.R. 85; Federated Clothing Trades v. Archer (1919), 27 C.L.R. 207; Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (1930), 42 C.L.R. 527; Cromwell and Bannockburn Colliery Co. v. Board of Conciliation (1906), 25 N.Z.L.R. 986; Taylor v. Edwards (1900), 18 N.Z.L.R. 876; New Zealand Waterside Workers' Federation v. Frazer, [1924] N.Z.L.R. 689; Re Canterbury Agricultural and Pastoral Labourers' Industrial Dispute (1907), 9 N.Z.G.L.R. 653; Australian Tramway Employees Assoc. v. Prahran & Malvern Tramways Trust (1912), 6 C.A.R. 130. A number of the above-mentioned decisions are on the meaning of "industrial dispute", s. 51 (xxxv) of the Commonwealth Constitution (title COMMONWEALTH AND STATES, Vol. 4, p. 206) and the Commonwealth Conciliation and Arbitration Acts. Semble such cases do not fully apply to the term as used under this Act, Re Public Service (General Officers) Assoc., [1918] Q.W.N. 25.