Federal Awards (Uniform System) Act 2003

i Federal Awards (Uniform System) Act 2003 Act No. 18/2003 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 3. Definitions 2 4. What is an industry? 5 5. Act binds the Crown 5 PART 2—COMMON RULE ORDERS 6 6. What is a common rule order? 6 7. Effect of common rule order 6 8. Application for common rule order 7 9. Procedure on application for common rule order 8 10. Restrictions on discretion of Tribunal 8 11. Requirement on Tribunal to specify scope of order 10 12. Variation of common rule orders 10 13. Revocation of common rule orders 12 PART 3—COMPLIANCE 13 Division 1—Information Services Officers 13 14. What are the functions of information services officers? 13 15. Appointment of information services officers 13 16. Identity cards 14 17. Police to assist information services officers 14 18. When may powers be exercised? 14 19. Power of entry 15 20. Powers on entry 17 21. Power to require production of documents 17 22. Retention of documents 18 23. Search warrant 18 24. Announcement before entry 19 25. Copy of warrant to be given to occupier 20 26. Confidentiality 20 -- 1 of 44 -- Section Page ii Division 2—Entry and Inspection of Premises etc. by Registered Organisations 21 27. Definitions and purpose of Division 21 28. Investigating suspected contraventions of Act 22 29. Discussions with employees 24 30. Conduct not authorised under sections 28 and 29 24 31. Issue of permits 25 32. Revocation of permits 26 33. Conduct attracting civil penalties 27 34. Civil penalties 27 35. Application and enforcement of civil penalties 28 Division 3—Victimisation 28 36. Prohibition of victimisation 28 Division 4—Other Offences 29 37. Failing to produce documents, hindering information services officers and giving them false information 29 38. Protection against self-incrimination 29 39. Impersonation of information services officer 30 Division 5—Prosecutions, Evidence and Recovery of Money 30 40. Proceedings for offences to be brought in Industrial Division of the Magistrates' Court 30 41. Who can prosecute under this Act? 30 42. Judicial notice of signatures 31 43. Conduct of agents imputed to corporations 32 44. Reverse onus of proof in certain cases 32 45. Recovery of money owed 32 46. Court may order payment of arrears on finding of guilt 33 47. Representation in Magistrates' Court proceedings 34 48. Proceedings by and against unincorporated clubs 35 PART 4—GENERAL 36 49. Regulations 36 PART 5—AMENDMENT OF COMMONWEALTH POWERS (INDUSTRIAL RELATIONS) ACT 1996 37 50. Definition 37 51. Common rules 37 52. New section 4A inserted 37 4A. Further reference—common rules 37 53. Matters excluded from a reference 38 -- 2 of 44 -- Section Page iii PART 6—AMENDMENT OF VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998 39 54. Amendment of Schedule 1 39 ═══════════════ ENDNOTES 41 -- 3 of 44 -- 1 Federal Awards (Uniform System) Act 2003 † [Assented to 13 May 2003] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The purposes of this Act are— (a) to refer to the Parliament of the Commonwealth a further matter relating to industrial relations; and Victoria No. 18 of 2003 -- 4 of 44 -- Part 1—Preliminary Federal Awards (Uniform System) Act 2003 Act No. 18/2003 2 (b) to empower the Victorian Civil and Administrative Tribunal to make orders applying federal award conditions as common rules in Victoria. 2. Commencement (1) This Act comes into operation on a day or days to be proclaimed. (2) A proclamation must not be made under sub- section (1) bringing section 52 into operation unless the proclamation includes a statement that the Governor in Council is satisfied that a Bill has been introduced into the Senate or the House of Representatives of the Parliament of the Commonwealth containing provisions about the matter to be referred to that Parliament by proposed section 4A(1) of the Commonwealth Powers (Industrial Relations) Act 1996. (3) A proclamation must not be made under sub- section (1) bringing Part 2, 3, 4 or 6 into operation if section 52 has been proclaimed to come into operation. 3. Definitions In this Act— "allowable award matters" has the same meaning as in the Commonwealth Act, as affected by item 50 of Schedule 5 to the Workplace Relations and Other Legislation Amendment Act 1996 of the Commonwealth; "award" means award made under the Commonwealth Act; "common rule order" means an order made under Part 2; "Commonwealth Act" means the Workplace Relations Act 1996 of the Commonwealth; s. 2 -- 5 of 44 -- Part 1—Preliminary Federal Awards (Uniform System) Act 2003 Act No. 18/2003 3 "contract" includes— (a) an arrangement or understanding; and (b) a collateral contract relating to a contract; "Department" means Department of Innovation, Industry and Regional Development; "employee" includes any person whose usual occupation is that of employee, but does not include a person who is undertaking a vocational placement; "employer" includes— (a) a person who is usually an employer; and (b) an unincorporated club; "Federal Commission" means the Australian Industrial Relations Commission; "industry" has the meaning given by section 4; "industrial instrument" includes an award or agreement made under the Commonwealth Act; "information services officer" means a person appointed under section 15; "interested organisation" means an organisation that is not a registered organisation but that is representative of a significant number of employers in an industry or a range of industries; "peak body" means a body that is representative of a significant number of organisations representing employers or employees in an industry or a range of industries; "registered organisation" means an organisation registered under the Commonwealth Act; s. 3 -- 6 of 44 -- Part 1—Preliminary Federal Awards (Uniform System) Act 2003 Act No. 18/2003 4 "relevant industrial legislation" means— (a) this Act; (b) the Long Service Leave Act 1992; (c) the Public Holidays Act 1993; (d) regulations and other subordinate instruments (including common rule orders) made under an Act referred to in paragraph (a), (b) or (c); "rules" means rules made by the Rules Committee under section 157 of the Victorian Civil and Administrative Tribunal Act 1998; "Secretary" means Secretary to the Department; "subordinate instrument" has the meaning given by section 3 of the Interpretation of Legislation Act 1984; "Tribunal" means Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998; "vocational placement" means a placement that is— (a) undertaken with an employer for which a person is not entitled to be paid any remuneration; and (b) undertaken as a requirement of an education or training course; and (c) authorised under a law or an administrative arrangement of Victoria, the Commonwealth, another State or a Territory. s. 3 -- 7 of 44 -- Part 1—Preliminary Federal Awards (Uniform System) Act 2003 Act No. 18/2003 5 4. What is an industry? In this Act, "industry" includes— (a) any trade, manufacture, business, project or occupation in which persons work; and (b) a part of an industry or a number of industries; and (c) a class of employment within an industry or a number of industries. 5. Act binds the Crown (1) This Act binds the Crown, not only in right of Victoria, but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities. (2) Nothing in this Act makes the Crown in any of its capacities liable to be prosecuted for an offence. __________________ s. 4 -- 8 of 44 -- Part 2—Common Rule Orders Federal Awards (Uniform System) Act 2003 Act No. 18/2003 6 PART 2—COMMON RULE ORDERS 6. What is a common rule order? (1) A common rule order is an order made by the Tribunal declaring that a specified term or part of a term of a specified award is, subject to any conditions, exceptions and limitations that are specified in the order, a common rule for a specified industry. (2) A common rule has the effect of binding all employers and employees in the industry concerned so that their employment relationship is governed by the provisions of the common rule. (3) A common rule order is of no effect to the extent that it relates to a term or part of a term of an award that provides for matters other than allowable award matters. Note: As a result of section 109 of the Commonwealth Constitution, a common rule order is also of no effect to the extent that it is inconsistent with the Workplace Relations Act 1996 of the Commonwealth or with any award or agreement made under that Act. (4) A condition, exception or limitation specified in a common rule order may apply to all employers bound by the order or to a specified employer or class of employer. 7. Effect of common rule order (1) A provision of a contract of employment is of no effect to the extent that it provides a condition of employment that is less favourable to an employee than that applicable under a relevant common rule order. s. 6 -- 9 of 44 -- Part 2—Common Rule Orders Federal Awards (Uniform System) Act 2003 Act No. 18/2003 7 (2) An employer must not— (a) enter into, or purport to enter into, a contract of employment that provides a condition of employment that is less favourable to the employee than that applicable under a relevant common rule order; or (b) provide a condition of employment to an employee that is less favourable to the employee than that applicable under a relevant common rule order; or (c) otherwise contravene a term of a relevant common rule order that applies to the employer. Penalty: 120 penalty units. (3) An employer who becomes bound by a common rule order is entitled to set off an amount that is payable to an employee under the order against any amount payable to the employee under his or her contract of employment (as that contract existed before the coming into force of the order) that is at least equivalent to the amount that is required to be paid to the employee under the order. (4) Sub-sections (1) and (2) have effect subject to sub-section (3). 8. Application for common rule order The Tribunal may make a common rule order on an application made by— (a) the Minister; or (b) a registered organisation that is representative of employees or employers in the relevant industry; or s. 8 -- 10 of 44 -- Part 2—Common Rule Orders Federal Awards (Uniform System) Act 2003 Act No. 18/2003 8 (c) a peak body that is representative of employers or employees in the relevant industry. 9. Procedure on application for common rule order (1) An applicant for a common rule order must publish, as required by the rules, a notice— (a) specifying the industry in relation to which the common rule order is sought; and (b) specifying the relevant term or part of the term of the award; and (c) inviting any registered organisation, interested organisation or person interested and wanting to be heard or make a written submission to appear before the Tribunal or make a written submission to the Tribunal as specified in the notice. (2) Before making a common rule order, the Tribunal must hear all organisations and persons appearing. 10. Restrictions on discretion of Tribunal (1) The Tribunal must make a common rule order in relation to an industry on an application under section 8 if satisfied that— (a) work is being performed in Victoria in that industry; and (b) there is an award in force that is binding on employers in that industry; and (c) an employer would be required to observe the terms of the award in respect of an employee performing work referred to in paragraph (a) if the employer were bound by the award. (2) If more than one award covers a particular kind of work, the Tribunal, on making a common rule order applying to that work, must ensure that the s. 9 -- 11 of 44 -- Part 2—Common Rule Orders Federal Awards (Uniform System) Act 2003 Act No. 18/2003 9 award a term, or part of a term, of which is to be declared a common rule— (a) is the most relevant to the work; and (b) most comprehensively and appropriately deals with employment conditions; and (c) is otherwise the most appropriate award for the purpose. (3) The Tribunal must not make a common rule order applying to a particular kind of work if a common rule order already applies to that work and deals with the term, or the part of the term, which it is sought to have declared a common rule. (4) The Tribunal may impose a condition, exception or limitation on a term, or a part of a term, of an award specified in a common rule order only if satisfied that it is necessary to do so on one or more of the following grounds— (a) the term, or part, is not relevant to the relationship between employers and employees who are to be bound by the order; (b) the term, or part, confers a power or imposes a duty on the Federal Commission; (c) the term, or part, imposes a financial obligation on an employer who is to be bound by the order and the employer does not have the capacity to meet that obligation; (d) the condition, exception or limitation is necessary to enable the practical operation of the order. (5) In determining whether the ground referred to in sub-section (4)(c) is made out, the Tribunal must have regard to any statement of principles by, and any relevant decision of, the Federal Commission with respect to economic incapacity. s. 10 -- 12 of 44 -- Part 2—Common Rule Orders Federal Awards (Uniform System) Act 2003 Act No. 18/2003 10 11. Requirement on Tribunal to specify scope of order (1) The Tribunal must ensure that the scope and application of a common rule order is specified in the order, for example, the class of employee to which it applies. Employees may be classified, for this purpose, according to their category of employment or the nature of the work performed by them. (2) Despite anything to the contrary in section 118(1) of the Victorian Civil and Administrative Tribunal Act 1998, if the Tribunal is satisfied that there are exceptional circumstances, it may provide that a common rule order comes into effect on a day earlier than the day on which the order is made. (3) Despite a common rule order coming into effect on a day earlier than it is made, a person cannot be charged with an offence against section 7(2), or any other offence in relation to contravention of the common rule order, in respect of conduct occurring before the day on which the order is made. 12. Variation of common rule orders (1) Subject to this section, if— (a) a term, or part of a term, of an award is declared to be a common rule by a common rule order; and (b) subsequent to the making of the common rule order, that term, or that part of the term, is varied by the Federal Commission— the variation has effect, by force of this sub- section, as a common rule and the common rule order is varied accordingly with effect from the end of 28 days after the date of effect of the variation of the award. s. 11 -- 13 of 44 -- Part 2—Common Rule Orders Federal Awards (Uniform System) Act 2003 Act No. 18/2003 11 (2) The Secretary must cause a notice to be published in the Government Gazette and a newspaper generally circulating in Victoria— (a) giving details of the variation or proposed variation by the Federal Commission of a term, or part of a term, referred to in sub- section (1); and (b) informing employers bound by the common rule order concerned of their right to apply to the Tribunal under sub-section (3). (3) An employer bound by the common rule order may apply to the Tribunal, within the period specified in the rules, for an order under sub- section (4) on the ground that— (a) the variation imposes a financial obligation on the employer and the employer does not have the capacity to meet that obligation; or (b) the variation alters the effect of a condition, exception or limitation specified in the common rule order that is applicable to the employer. (4) If an application is made in accordance with sub- section (3)— (a) the Tribunal may order that— (i) the variation is not binding on the applicant; or (ii) the condition, exception or limitation is amended as set out in the order as it has effect in relation to the applicant; and (b) the variation is not enforceable against the applicant before the application is finally determined by the Tribunal. s. 12 -- 14 of 44 -- Part 2—Common Rule Orders Federal Awards (Uniform System) Act 2003 Act No. 18/2003 12 (5) In determining whether the ground referred to in sub-section (3)(a) is made out, the Tribunal must have regard to any statement of principles by, and any relevant decision of, the Federal Commission with respect to economic incapacity. 13. Revocation of common rule orders (1) If— (a) the terms of an award are declared to be a common rule by a common rule order; and (b) subsequent to the making of the common rule order the Federal Commission sets aside the award— the Tribunal, on application by a person or body referred to in section 8, may, by order, revoke the common rule order. (2) If— (a) one or more terms of an award are declared to be a common rule by a common rule order; and (b) subsequent to the making of the common rule order the Federal Commission sets aside those terms— the Tribunal, on application by a person or body referred to in section 8, may, by order, omit those terms from the common rule order. __________________ s. 13 -- 15 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 13 PART 3—COMPLIANCE Division 1—Information Services Officers 14. What are the functions of information services officers? (1) The primary function of information services officers is to provide information about the operation of relevant industrial legislation to employers, employees, registered organisations, interested organisations, peak bodies and other interested members of the community. (2) Information services officers also have the function of ensuring compliance with relevant industrial legislation, and any other functions conferred by or under this or any other Act. 15. Appointment of information services officers The Secretary may, by instrument, appoint as an information services officer for the purposes of this Act a person employed under Part 3 of the Public Sector Management and Employment Act 1998 who, in the Secretary's opinion— (a) is competent to perform the functions and exercise the powers of an information services officer; and (b) is of good repute, having regard to character, honesty and integrity; and (c) agrees in writing to perform the functions of an information services officer in accordance with the criteria established from time to time by the Secretary. s. 14 -- 16 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 14 16. Identity cards (1) Each information services officer must be issued with an identity card in the form approved by the Secretary. (2) The identity card must bear a photograph and the signature of the information services officer. (3) An information services officer must produce his or her identity card for inspection— (a) before exercising a power under this Part other than a requirement made by post, fax, e-mail or other electronic communication; and (b) at any time during the exercise of a power under this Part, if asked to do so. Penalty: 10 penalty units. 17. Police to assist information services officers (1) An information services officer may request the assistance of a member of the police force. (2) A member of the police force may assist an information services officer to take any action authorised by this Part. 18. When may powers be exercised? (1) An information services officer may exercise powers under this Part only to the extent that it is reasonably necessary to do so for the purpose of determining compliance with relevant industrial legislation. (2) In exercising powers under this Part, an information services officer must— (a) cause as little inconvenience as possible; and (b) not remain on premises any longer than is reasonably necessary. s. 16 -- 17 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 15 19. Power of entry (1) At any time during ordinary working hours, an information services officer may without force enter— (a) any premises at which the officer has reasonable grounds for believing that work to which a common rule order applies is being or has been performed; or (b) any premises, being a place of business at which the officer has reasonable grounds for believing that there are documents relevant to the purpose of determining compliance with relevant industrial legislation. (2) If an owner or occupier of premises is present when an information services officer exercises a power of entry under this section, the officer must— (a) produce his or her identity card for inspection; and (b) inform the owner or occupier of the purpose of the entry. (3) If an information services officer exercises a power of entry under this section without the owner or occupier being present, the officer must— (a) on leaving the premises, leave a notice setting out— (i) the time of entry; and (ii) the purpose of entry; and (iii) a description of all things done while on the premises; and (iv) the time of departure; and s. 19 -- 18 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 16 (v) the procedure for contacting the officer for further details of the entry; and (b) post a copy of the notice— (i) to the owner of the premises, if the identity and address of the owner are known to the officer; and (ii) to the occupier of the premises, if the identity and address of the occupier are known to the officer. (4) An information services officer does not have authority to enter any part of premises used for residential purposes, unless— (a) the officer has, before the entry and in addition to complying with sub-section (2), informed the occupier that he or she may refuse to consent to the entry; and (b) the occupier has consented to the entry. (5) If an occupier consents to an entry under sub- section (4), the information services officer who requested consent must before entering the premises ask the occupier to sign an acknowledgment in the prescribed form stating— (a) that the occupier has been informed of the purpose of the entry; and (b) that the occupier has been informed that he or she may refuse to consent to the entry; and (c) that the occupier has consented to the entry; and (d) the date and time that the occupier consented. (6) An occupier who signs an acknowledgment must be given a copy of the signed acknowledgment before the information services officer leaves the premises. s. 19 -- 19 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 17 (7) If, in any proceeding, an acknowledgment is not produced to the court or a tribunal, it must be presumed, until the contrary is proved, that the occupier did not consent to the entry. (8) Sub-section (4) does not apply to any part of premises used both for residential purposes and for work to which a common rule order applies. However, an information services officer may only enter such premises under this section if an owner or occupier is present. 20. Powers on entry On exercising a power of entry under section 19, an information services officer may— (a) inspect any work, material, machinery, appliance, article, facility or other thing; (b) take samples of any goods or substances in accordance with the regulations; (c) interview any employee; (d) require a person having the custody of, or access to, a document relevant to the purpose of determining compliance with relevant industrial legislation to produce the document to the information services officer within a reasonable period specified by the information services officer; (e) inspect, and make copies of or take extracts from, a document produced to him or her. 21. Power to require production of documents (1) An information services officer, by written notice, may require a person to produce to him or her, within a reasonable period specified in the notice, a document relevant to the purpose of determining compliance with relevant industrial legislation. s. 20 -- 20 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 18 (2) An information services officer may inspect, and make copies of or take extracts from, a document produced to him or her under sub-section (1). 22. Retention of documents (1) An information services officer may retain a document produced to him or her for the period necessary for the purpose of performing functions and exercising powers as an information services officer. (2) During the period that the information services officer retains a document, he or she must permit the person otherwise entitled to its possession to inspect it and make copies of or take extracts from it. 23. Search warrant (1) An information services officer may apply to a magistrate for the issue of a search warrant in relation to particular premises if the information services officer believes on reasonable grounds that there is, or may be within the next 72 hours, on the premises a particular thing that may be evidence of the commission of an offence against this Act or the regulations. (2) A magistrate may issue a search warrant under this section if the magistrate is satisfied by evidence on oath, whether oral or by affidavit, that there are reasonable grounds for suspecting that there is, or may be within 72 hours, on premises a particular thing that may be evidence of the commission of an offence against this Act or the regulations. (3) The search warrant may authorise an information services officer named in the warrant and any assistants the information services officer considers necessary— s. 22 -- 21 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 19 (a) to enter the premises, or part of the premises, named or described in the warrant; and (b) to search for the thing named or described in the warrant. (4) In addition to any other requirement, a search warrant issued under this section must state— (a) the offence suspected; and (b) the premises to be searched; and (c) a description of the thing for which the search is to be made; and (d) any conditions to which the warrant is subject; and (e) whether entry is authorised to be made at any time or during stated hours; and (f) a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect. (5) A search warrant must be issued in accordance with the Magistrates' Court Act 1989 and in the form prescribed under that Act. (6) The rules to be observed with respect to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to warrants under this section. 24. Announcement before entry (1) Before executing a search warrant, the information services officer named in the warrant or a person assisting him or her must— (a) announce that he or she is authorised by the warrant to enter the premises; and (b) give any person at the premises an opportunity to allow entry to the premises. s. 24 -- 22 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 20 (2) The information services officer or a person assisting him or her need not comply with sub- section (1) if the officer or person believes on reasonable grounds that immediate entry to the premises is required to ensure— (a) the safety of any person; or (b) that the effective execution of the warrant is not frustrated. 25. Copy of warrant to be given to occupier If the occupier or another person who apparently represents the occupier is present at the premises when a search warrant is being executed, the information services officer must— (a) identify himself or herself to that person by producing his or her identity card for inspection by that person; and (b) give to that person a copy of the execution copy of the warrant. 26. Confidentiality (1) An information services officer must not, except to the extent necessary to carry out his or her functions, give to any other person, whether directly or indirectly, any information acquired by the officer in carrying out those functions. Penalty: 60 penalty units. (2) Sub-section (1) does not apply to the giving of information— (a) to a court or tribunal in the course of legal proceedings; or (b) pursuant to an order of a court or tribunal; or s. 25 -- 23 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 21 (c) to the extent reasonably required to enable the investigation or the enforcement of a law of Victoria or of any other State or Territory or of the Commonwealth; or (d) with the written authority of the Secretary; or (e) with the written authority of the person to whom the information relates. Division 2—Entry and Inspection of Premises etc. by Registered Organisations 27. Definitions and purpose of Division (1) In this Division— "ancillary document" has the meaning given in section 285B(5) of the Commonwealth Act; "AWA" has the same meaning as in the Commonwealth Act; "Court" means Magistrates' Court sitting as the Industrial Division; "officer" of a registered organisation includes any person who is concerned in, or takes part in, the management of the organisation; "permit" means permit issued under section 31; "relevant organisation" in respect of a person who holds a permit, means the registered organisation of which he or she is an officer or employee; "specified award" means an award, a specified term or part of a term of which has been declared to be a common rule order. s. 27 -- 24 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 22 (2) The purpose of this Division is to provide for workplace entry, inspection and discussions by authorised representatives of registered industrial organisations, similar to the provisions of Division 11A of Part IX of the Commonwealth Act (as in force on 27 February 2003). 28. Investigating suspected contraventions of Act (1) This section applies if a person who holds a permit suspects that a contravention of this Act has occurred, or is occurring. (2) For the purpose of investigating the suspected contravention, the person may enter, during working hours, any premises— (a) occupied by an employer who is bound by a common rule order that is based on a specified award that binds the relevant organisation; and (b) where employees work who are members of the relevant organisation. (3) After entering the premises, the person may, for the purpose of investigating the suspected contravention— (a) require the employer of the employees to allow the person, during working hours, to inspect and, if the person wishes, to make copies of any of the following that are kept by the employer on the premises and are relevant to the suspected contravention— (i) any time sheets; or (ii) any pay sheets; or (iii) any other documents, other than an AWA, an ancillary document or a document that shows some or all of the content of an AWA or of an ancillary document; and s. 28 -- 25 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 23 (b) during working hours, inspect or view any work, material, machinery, or appliance, that is relevant to the suspected contravention; and (c) during working hours, interview any employees who are— (i) members of the relevant organisation; or (ii) eligible to become members of the relevant organisation— about the suspected contravention. (4) For the purpose of investigating the suspected contravention, the person may (regardless of whether the person exercises powers under sub- section (2) or (3)) require the employer of the employees mentioned in sub-section (2)— (a) to produce documents of the kind mentioned in any of sub-paragraphs (i), (ii) or (iii) of sub-section (3)(a) at the premises at which the employees work or at some other agreed place; and (b) if the documents are to be produced at the premises at which the employees work—to allow the person, during working hours, to enter the premises and— (i) inspect the documents; and (ii) if the person wishes to do so—make copies of the documents; and (c) if the documents are to be produced at some other place—to allow the person, at an agreed time, to inspect the documents at that place and, if the person wishes to do so, to make copies of them. s. 28 -- 26 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 24 29. Discussions with employees (1) Subject to sub-sections (2) and (3), a person who holds a permit may enter premises in which— (a) work is being carried on to which a specified award applies that is binding on the relevant organisation; and (b) employees who are, or are eligible to become, members of the relevant organisation work— for the purpose of holding discussions with any of those employees who wish to participate in those discussions. (2) The person may only enter the premises during working hours and may only hold the discussions during the employees' meal-time or other breaks. (3) The person may not enter premises if all of the following conditions are satisfied— (a) no more than 20 employees are employed to work at the premises; and (b) all the employees at the premises are employed by an employer who is the holder of a conscientious objection certificate under section 267 of the Commonwealth Act that has been endorsed as provided for in section 285C(4) of that Act; and (c) none of the employees employed at the premises is a member of a registered organisation. 30. Conduct not authorised under sections 28 and 29 (1) If— (a) a person proposes to enter, or is on, premises in accordance with section 28 or 29; and s. 29 -- 27 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 25 (b) the occupier of the premises requires the person to show his or her permit— the person is not entitled under that section to enter or remain on the premises unless he or she shows the occupier the permit. (2) A person is only entitled to enter premises, and exercise powers, under section 28 or 29, if the person has given the occupier of the premises at least 24 hours notice of the person's intention to do so. (3) A person is not, in exercising any powers under section 28 or 29, entitled to enter any part of premises used for residential purposes, except with the permission of the occupier. 31. Issue of permits (1) The Court may, on application by a registered organisation, issue a permit for the purposes of this Division to an officer or employee of the organisation. (2) The regulations may prescribe the form and content of the permit. (3) Unless revoked earlier, a permit remains in force until the earlier of— (a) 3 years after the day on which it was issued; (b) the time at which the person to whom it was issued ceases to be an officer or employee of the relevant organisation. (4) If one or more permits issued to a person under this section have been revoked, the Court must take that fact into account when deciding whether to issue a further permit under this section to the person. s. 31 -- 28 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 26 32. Revocation of permits (1) An application for revocation of a permit may be made to the Court by— (a) an employer claiming that— (i) the employer, or an employee of the employer, has been hindered or obstructed by the holder of the permit; or (ii) the holder of the permit has otherwise acted in an improper manner; or (b) a registered organisation of employers, claiming that— (i) one of its members, or an employee of one of its members, has been hindered or obstructed by the holder of the permit; or (ii) the holder of the permit has otherwise acted in an improper manner; or (c) an information services officer claiming that— (i) an employer, or an employee of an employer, has been hindered or obstructed by the holder of the permit; or (ii) the holder of the permit has otherwise acted in an improper manner. (2) An application for the revocation of a permit must set out the grounds on which the application is made. (3) The Court may, on an application under sub- section (1), revoke the permit if satisfied that the grounds for the application have been made out. s. 32 -- 29 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 27 33. Conduct attracting civil penalties (1) A person exercising powers under section 28 or 29 must not deliberately hinder or obstruct an employer or employees. (2) The occupier of premises must not refuse or unduly delay entry to the premises by a person entitled to enter the premises under section 28 or 29. (3) An employer must not refuse or fail to comply with a requirement under section 28(3)(a) or (4). (4) A person must not otherwise intentionally hinder or obstruct a person exercising powers under section 28 or 29. (5) For the avoidance of doubt, a failure to agree on a place or a time as mentioned in section 28(4)(a) or (c) does not constitute hindering or obstructing a person exercising powers under section 28(4). (6) A person to whom a permit has been issued must, within 14 days after the expiry or revocation of the permit, return the permit to the Court. 34. Civil penalties (1) If a person contravenes a penalty provision, the contravention is not an offence. However, a court may make an order imposing a penalty on a person who contravenes a penalty provision. (2) The penalty cannot be more than $10 000 for a body corporate or $2000 in other cases. (3) An application for an order under sub-section (1) may be made by any person. (4) A court may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision. s. 33 -- 30 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 28 (5) In this section— "court" means Supreme Court, County Court or Magistrates' Court; "penalty provision" means section 33(1), (2), (3), (4) or (6). 35. Application and enforcement of civil penalties (1) A court that imposes a penalty under section 34(1) may order that the penalty, or a part of the penalty, be paid— (a) into the Consolidated Fund; or (b) to a particular registered organisation or other person. (2) An order imposing a penalty under section 34(1) is taken, for the purposes of enforcement, to be an order made by the court in a civil proceeding. Division 3—Victimisation 36. Prohibition of victimisation (1) An employer, a registered organisation or an interested organisation must not victimise an employee. Penalty: 120 penalty units. (2) An employer or an organisation victimises an employee if the employer or organisation subjects or threatens to subject the employee to any detriment because the employee, or a person associated with the employee, has— (a) claimed a benefit or exercised a power or right that he or she is entitled to claim or exercise under this Act or a common rule order; or (b) brought, or otherwise participated in, a proceeding under this Act; or s. 35 -- 31 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 29 (c) informed any person of an alleged contravention of this Act, the regulations or a common rule order by any person. (3) In this section— "employee" includes a prospective employee; "employer" includes a prospective employer. Division 4—Other Offences 37. Failing to produce documents, hindering information services officers and giving them false information (1) A person must not, without reasonable excuse— (a) fail to comply with a notice to produce a document given under section 20 or 21; or (b) otherwise obstruct or hinder an information services officer performing functions or exercising powers under this Part. Penalty: 60 penalty units. (2) A person must not— (a) give information to an information services officer that the person knows to be false or misleading in a material particular; or (b) produce a document to an information services officer that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information. Penalty: 60 penalty units. 38. Protection against self-incrimination (1) It is a reasonable excuse for a natural person to refuse or fail to give information, produce a document or do any other thing that the person is required to do by or under this Act if the giving of s. 37 -- 32 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 30 the information, the production of the document or the doing of the other thing would tend to incriminate the person. (2) Despite sub-section (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a record or other document that the person is required to keep by this Act or the regulations, if the production of the record or other document would tend to incriminate the person. (3) Nothing in this section affects the application of section 105 of the Victorian Civil and Administrative Tribunal Act 1998. 39. Impersonation of information services officer A person must not impersonate an information services officer. Penalty: 60 penalty units. Division 5—Prosecutions, Evidence and Recovery of Money 40. Proceedings for offences to be brought in Industrial Division of the Magistrates' Court If a person is charged with an offence against this Act or the regulations, the charge must be heard, and all penalties recovered, before the Magistrates' Court sitting as the Industrial Division. 41. Who can prosecute under this Act? (1) A prosecution for an offence against this Act or the regulations may only be brought by a person authorised by— (a) the Minister; or (b) the Secretary, if the Minister has authorised the Secretary to give such an authorisation; or s. 39 -- 33 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 31 (c) a person employed in the Department under Part 3 of the Public Sector Management and Employment Act 1998 who the Minister has authorised to give such an authorisation. (2) Any authorisation— (a) must be in writing; and (b) may be given generally, or only in relation to a particular case or cases, or a particular class of case or cases; and (c) may be revoked by the person who gave it at any time by notice in writing. (3) The revocation of an authorisation does not affect any proceedings started by a person before that person's authorisation was revoked unless the notice of revocation states otherwise. (4) In a prosecution for an offence against this Act or the regulations, the Industrial Division of the Magistrates' Court must presume, in the absence of evidence to the contrary, that the prosecutor is authorised to bring the prosecution. (5) A prosecution may only be conducted by— (a) the person authorised to bring the prosecution; or (b) a legal practitioner (within the meaning of the Legal Practice Act 1996) briefed by the person authorised to bring the prosecution. 42. Judicial notice of signatures All courts must take judicial notice of— (a) the signature of a person who is, or was at the time the signature purports to have been made, the Minister, the Secretary or an employee to whom section 41(1)(c) applies; and s. 42 -- 34 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 32 (b) the fact that a person listed in paragraph (a) held the position he or she purported to hold at the time the signature purports to have been made. 43. Conduct of agents imputed to corporations For the purposes of this Act, any conduct engaged in on behalf of a corporation— (a) by a director, employee or agent of the corporation acting within the scope of the person's actual or apparent authority; or (b) by any other person at the direction, or with the consent (express or implied) of such a director, employee or agent— is also conduct engaged in by the corporation. 44. Reverse onus of proof in certain cases In a prosecution against an employer for failing to pay an employee an amount owed to the employee under a contract of employment if— (a) the employee is dead; and (b) the employer alleges that the period shown in the charge as being the period of continuous employment of the employee with the employer is wrong— the employer bears the onus of proving the allegation. 45. Recovery of money owed (1) An employee who is owed any money by an employer under this Act or any other Act, or under any contract of employment or common rule order, may take proceedings in the Industrial Division of the Magistrates' Court to recover the money owing. The debt must arise out of the employment relationship. s. 43 -- 35 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 33 (2) The proceedings must be started within 6 years after the employee's entitlement to the money arising. (3) Before proceedings may be started under this section, the employer must be given a written demand for the money owed. (4) If the Court is satisfied that the employer— (a) had reasonable notice of the employee's claim; and (b) had no reasonable grounds on which to dispute the claim; and (c) in the circumstances should have paid the claim without the need for proceedings being taken to establish the validity of the claim— the Court may order the employer to pay interest to the employee on top of any other amount to which the employee is entitled. (5) The interest must not be greater than the rate fixed under section 2 of the Penalty Interest Rates Act 1983 that applies at the time the Court makes the order. (6) If a claim is made under this section by an employee's personal representative, sub-sections (4) and (5) apply despite anything to the contrary in section 29 of the Administration and Probate Act 1958. 46. Court may order payment of arrears on finding of guilt (1) If the Industrial Division of the Magistrates' Court finds an employer guilty of an offence relating to the underpayment of an employee, the Court may order the employer to pay the employee any amount that the employee was underpaid and that is still owed to the employee, in addition to imposing a penalty for the offence. s. 46 -- 36 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 34 (2) However, under this section the Court may only order the employer to pay an amount in respect of a period of up to 6 years. (3) Sub-sections (4), (5) and (6) of section 45 apply to this section. (4) An order under this section may be enforced as if it were an order made by the Court in a civil proceeding. However, if any amount remains to be paid after all reasonable means of civil enforcement have been tried, the order may be enforced as if it were a fine imposed by the Court. (5) Nothing in this section limits an employee's rights under section 45, and nothing in that section limits the power of the Court under this section. 47. Representation in Magistrates' Court proceedings (1) An employee may be represented in any proceeding referred to in section 45 or 46 by a person who is an employee or agent of— (a) a registered organisation of which the employee is a member or eligible to become a member; or (b) a peak body of which an organisation representing the employee is a member. (2) An employer may be represented in any proceeding referred to in section 45 or 46 by a person who is an employee or agent of— (a) a registered organisation of which the employer is a member or eligible to become a member; or (b) an interested organisation of which the employer is a member or eligible to become a member; or (c) a peak body of which an organisation representing the employer is a member. s. 47 -- 37 of 44 -- Part 3—Compliance Federal Awards (Uniform System) Act 2003 Act No. 18/2003 35 48. Proceedings by and against unincorporated clubs (1) For the purposes of this Act, the treasurer of a club is to be taken to be the employer of a person employed for the purposes or on behalf of the club, and any proceeding that may be taken under this Act by or against the club may be taken by or against the treasurer on behalf of the club. (2) The treasurer is authorised to retain out of the funds of the club sufficient money to meet payments made by the treasurer on behalf of the club under this section. (3) In this section— "club" means an unincorporated club; "treasurer" includes a person having possession or control of any funds of a club. __________________ s. 48 -- 38 of 44 -- Part 4—General Federal Awards (Uniform System) Act 2003 Act No. 18/2003 36 PART 4—GENERAL 49. Regulations (1) The Governor in Council may make regulations for or with respect to— (a) requiring employers to keep records in relation to work to which a common rule order relates; (b) prescribing any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act. (2) The regulations— (a) may be of general or limited application; (b) may differ according to differences in time, place or circumstances; (c) may impose a penalty, not exceeding 20 penalty units, for a contravention of the regulations. __________________ s. 49 -- 39 of 44 -- Part 5—Amendment of Commonwealth Powers (Industrial Relations) Act 1996 Federal Awards (Uniform System) Act 2003 Act No. 18/2003 37 PART 5—AMENDMENT OF COMMONWEALTH POWERS (INDUSTRIAL RELATIONS) ACT 1996 50. Definition In section 3 of the Commonwealth Powers (Industrial Relations) Act 1996, insert the following definition— ' "industry" includes— (a) any business, trade, manufacture, undertaking or calling of employers; and (b) any calling, service, employment, handicraft, industrial occupation or vocation of employees; and (c) a branch of an industry and a group of industries;'. 51. Common rules In section 5(1) of the Commonwealth Powers (Industrial Relations) Act 1996, paragraph (e) is repealed. 52. New section 4A inserted After section 4 of the Commonwealth Powers (Industrial Relations) Act 1996 insert— "4A. Further reference—common rules (1) The matter of the making of an award or order as, or declaring any term of an award or order to be, a common rule in the State for an industry, but so as not to exclude or limit the concurrent operation of any law of the State, to the extent to which it is not otherwise included in the legislative powers of the Commonwealth, is referred to the Parliament of the Commonwealth for a period commencing on the day on which s. 50 See: Act No. 59/1996. LawToday: www.dms. dpc.vic. gov.au -- 40 of 44 -- Part 5—Amendment of Commonwealth Powers (Industrial Relations) Act 1996 Federal Awards (Uniform System) Act 2003 Act No. 18/2003 38 section 52 of the Federal Awards (Uniform System) Act 2003 commences and ending on the day fixed under sub-section (2) as the day on which the reference of that matter under this Act terminates but no longer. (2) The Governor in Council, by proclamation published in the Government Gazette, may fix a day as the day on which the reference under sub-section (1) terminates. (3) The matter referred to the Parliament of the Commonwealth by sub-section (1) is so referred subject to the Commonwealth of Australia Constitution Act and pursuant to section 51(xxxvii) of that Act.". 53. Matters excluded from a reference In section 5(1) and (2) of the Commonwealth Powers (Industrial Relations) Act 1996, after "section 4" insert "or 4A". __________________ s. 53 -- 41 of 44 -- Part 6—Amendment of Victorian Civil and Administrative Tribunal Act 1998 Federal Awards (Uniform System) Act 2003 Act No. 18/2003 39 PART 6—AMENDMENT OF VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998 54. Amendment of Schedule 1 In Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, before Part 8 insert— "PART 7A—FEDERAL AWARDS (UNIFORM SYSTEM) ACT 2003 28A. Constitution of Tribunal In a proceeding under the Federal Awards (Uniform System) Act 2003 the Tribunal is to be constituted by— (a) one member who, in the opinion of the President, has knowledge of, or experience in, industrial relations matters; or (b) if it is constituted by more than one member, at least one member who, in the opinion of the President, has knowledge of, or experience in, industrial relations matters. 28B. Intervention by Minister The Minister administering the Federal Awards (Uniform System) Act 2003 may intervene in a proceeding under that Act at any time before the Tribunal has finished hearing it. 28C. Unincorporated associations can be parties (1) Section 61(1) does not apply to a proceeding under the Federal Awards (Uniform System) Act 2003. (2) An unincorporated association that is a party to a proceeding under the Federal Awards (Uniform System) Act 2003 has the same right to representation in the proceeding as a body corporate. s. 54 See: Act No. 53/1998. Reprint No. 2 as at 15 July 2001 and amending Act Nos 98/2000, 2/2001, 68/2001, 96/2001, 36/2002, 41/2002 and 45/2002. LawToday: www.dms. dpc.vic. gov.au -- 42 of 44 -- Part 6—Amendment of Victorian Civil and Administrative Tribunal Act 1998 Federal Awards (Uniform System) Act 2003 Act No. 18/2003 40 28D. Representation In addition to any right of representation under section 62, a party to a proceeding under the Federal Awards (Uniform System) Act 2003 may be represented by an employee or agent of— (a) a registered organisation or interested organisation of which the party is a member or eligible to become a member; or (b) a peak body of which an organisation representing the employee is a member.". ═══════════════ s. 54 -- 43 of 44 -- Federal Awards (Uniform System) Act 2003 Act No. 18/2003 41 ENDNOTES † Minister's second reading speech— Legislative Assembly: 27 February 2003 Legislative Council: 8 April 2003 The long title for the Bill for this Act was "to amend the Commonwealth Powers (Industrial Relations) Act 1996 to refer to the Parliament of the Commonwealth a further matter relating to industrial relations, to empower the Victorian Civil and Administrative Tribunal to make orders applying federal award conditions as common rules in Victoria and for this purpose to amend the Victorian Civil and Administrative Tribunal Act 1998 and for other purposes." Endnotes -- 44 of 44 --