Version No. 032
Discharged Servicemen's Preference Act 1943
Act No. 4989/1943
Version incorporating amendments as at 20 December 2001
table of provisions
SectionPage
1
SectionPage
1.Short title and commencement
2.Definitions
3.As to operation of this Act
4.Application of certain provisions of this Act to Crown
Discharged Servicemen's Employment Board
5, 5A. Repealed
6.Functions of Board
Re-instatement of Discharged Servicemen in Employment
7.Re-instatement of discharged servicemen in employment
Appointment and Promotion of Discharged Servicemen
8.Limitation of operation of two succeeding sections
9.Preference to discharged servicemen in filling positions after public advertisement
10.Preference to discharged servicemen in promotions after invitation
11.As to what constitutes failure to give preference
12.Discharged servicemen not to be dismissed without
reasonable cause
General
13.Offences
14.Penalties and expenses
15.Authority to prosecute
16.Power to court to declare position vacant on certain
convictions
17.Appeal
18.Regulations
═══════════════
ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
1
Version No. 032
Discharged Servicemen's Preference Act 1943
Act No. 4989/1943
Version incorporating amendments as at 20 December 2001
An Act Relating to Preference in Employment for Discharged Members of the Defence Forces and for other purposes.
1
Act No. 4989/1943
Discharged Servicemen's Preference Act 1943
BE IT ENACTED by the King's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):
1.Short title and commencement
(1)This Act may be cited as the Discharged Servicemen's Preference Act 1943.
(2)This Act shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.
2.Definitions
(1)In this Act unless inconsistent with the context or subject-matter—
"appointment" means appointment by an employer of a person not in his employment to a position in his employment, and "appoint", and the derivatives thereof, have corresponding interpretations;
S. 2(1) def. of "Board" substituted by No. 1/1995
s. 17(a).
[1]"Board" means the Defence Reserves ReEmployment Board established by the Defence Reserves Re-Employment Act 1995;
"casual or temporary employment" means employment in any position the duties of which are not likely to continue for more than thirty days;
S. 2(1) def. of "discharged serviceman" amended by No. 7788
s. 2(a).
"discharged serviceman" means—
(a)any person who—
(i)in Victoria, or while domiciled in Victoria, was appointed enlisted or enrolled for continuous full-time service during the war which commenced in the year One thousand nine hundred and fourteen; or
(ii)being domiciled in Victoria at the commencement of this Act had been appointed enlisted or enrolled for continuous full-time service during the war which commenced in the year One thousand nine hundred and fourteen; or
s. 2
(b)any person who in Victoria, or while domiciled in Victoria, was appointed enlisted enrolled or called up for continuous full-time service during the war which commenced in the year One thousand nine hundred and thirty-nine, the United Nations operations in Korea which commenced in the year One thousand nine hundred and fifty, the operations in Malaya (including Singapore) which commenced in the year One thousand nine hundred and fifty, the operations in Vietnam which commenced in the year One thousand nine hundred and sixty-two or the operations in Sabah, Sarawak and Brunei which commenced in the year One thousand nine hundred and sixty-two—
and who served in a prescribed theatre of war as a member of the naval military or air forces of His Majesty or the Commonwealth or any of His Majesty's Dominions or any of the women's services or bodies auxiliary to any of those forces and who has completed his war service and who provides evidence of such matters in the prescribed manner;
S. 2(1) def. of "domestic partner" inserted by No. 72/2001 s.3(Sch. item6.1).
"domestic partner" of a person means an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—
(a)for fee or reward; or
s. 2
(b)on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);
"employment" includes employment in any position in any profession calling business trade or industry whether at a salary wage piece-rate or commission or other form of remuneration, and "employ", and the derivatives thereof, have corresponding interpretations;
"employer" includes any person company or public corporation or any member of any partnership who or which employs or seeks to employ any person; and also includes any member director manager secretary or other officer of or employed by any such person company corporation or partnership who has the duty of employing any persons on behalf thereof; and, where the context so requires, includes any successor or predecessor of an employer in the same profession calling business trade or industry;
"promotion" means promotion by an employer of a person already in his employment to a position of higher remuneration or more favourable conditions, but does not include an increase of remuneration where there is no alteration of position, and "promote", and the derivatives thereof, have corresponding interpretations;
"public advertisement" means advertisement in a newspaper circulating in the locality in question, or such other form of public advertisement as is prescribed in respect of any particular profession calling business trade or industry;
S. 2(1) def. of "public corporation" amended by No. 12/1989
s. 4(1)(Sch. 2 item 25.1).
"public corporation" means any corporation board commission trust or other body corporate or unincorporate established or constituted by or under any Act for any public purpose and includes any municipal council;
s. 2
"prescribed" means prescribed by this Act or by the regulations;
"regulations" means regulations made under this Act;
S. 2(1) def. of "spouse" inserted by No. 72/2001 s.3(Sch. item6.1).
"spouse" of a person means a person to whom the person is married;
S. 2(1) def. of "suitable and competent" amended by No. 46/1987
s. 6.
"suitable and competent", in respect of any applicant for employment in any position, means—
(a)of good character;
(b)of a suitable age;
(c)having the necessary professional or technical qualifications;
(d)having had reasonable experience in the same or a similar kind of employment and possessing a satisfactory degree of competence; and
s. 2
(e)(where the nature of the employment is such as necessarily to require special characteristics) having those characteristics;
S. 2(1) def. of "war service" amended by No. 7788 s.2(b).
"war service" means the service of any person during either of the wars or any of the operations referred to in the interpretation of "discharged serviceman" as a member of any of the forces services or bodies referred to in the said interpretation.
S. 2(1A) inserted by No. 72/2001 s.3(Sch. item6.2).
(1A)For the purposes of the definition of "domestic partner" in sub-section (1)—
(a)in determining whether persons are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 275(2) of the Property Law Act 1958 as may be relevant in a particular case;
(b)a person is not a domestic partner of another person only because they are co-tenants.
(2)Where the duties of any position are such as to be likely to continue for more than thirty days employment in that position shall not be deemed casual or temporary employment notwithstanding that the employment given or offered is expressed to be for any shorter period or from day to day or week to week or otherwise.
(3)For the purposes of this Act, where any person has been employed under the Public Service Acts or the Railways Acts or otherwise by or under the Crown in right of the State of Victoria as a temporary employé or supernumerary from any date prior to the third day of September One thousand nine hundred and thirty-nine—
s. 2
(a)the appointment of that person to a permanent office or position under either of the said Acts or under the Crown shall, notwithstanding that such appointment may be made after public advertisement, be deemed to be a promotion and not an appointment;
(b)the provisions of section nine of this Act shall not apply thereto; and
(c)for the purposes of section ten of this Act any such temporary employé or supernumerary shall be deemed to be a person already in the relevant employment, and any such advertisement, so far as it affects any such temporary employé or supernumerary, shall be deemed to be an invitation of applications only from persons in the relevant employment.
3.As to operation of this Act
s. 3
(1)The provisions of this Act shall take effect notwithstanding anything to the contrary in any Act or enactment or in any regulation by-law or determination thereunder or in any contract or agreement, and no person shall be deemed guilty of any offence or be liable for any breach of contract or agreement by reason only of compliance with the provisions of this Act.
(2)Where under any other Act or enactment or regulation any privilege or immunity relating to employment (not being a direct preference or priority over other persons in respect of appointment or promotion) is conferred on any person by reason of his being a "discharged soldier" or "person who enlisted with an Expeditionary Force" or of his having rendered war service in relation to the war which commenced in the year One thousand nine hundred and fourteen, such privilege or immunity shall extend and apply to and with respect to any discharged serviceman within the meaning of this Act.
(3)Nothing in this Act shall be construed as preventing or affecting the appointment or promotion to any position during his absence on war service of any person who on the completion of his war service would become a discharged serviceman within the meaning of this Act.
4.Application of certain provisions of this Act to Crown
(1)The provisions of section seven and sections nine to twelve of this Act shall be observed in respect of employment by or under the Crown in right of the State of Victoria as if the Crown were an employer within the meaning of this Act.
(2)Where the Governor in Council is satisfied upon a report in writing of the Board that a contravention of or failure to comply with any of the said provisions has occurred or is likely to occur in relation to any employment by or under the Crown in right of the State of Victoria, the Governor in Council may by Order, notwithstanding anything in any Act, make or cancel any appointment or promotion or direct the making or cancellation of any appointment or promotion or do any other act matter or thing which appears to the Governor in Council to be necessary or expedient in order to give full effect to the said provisions or any of them.
(3)Sections seventy-two and seventy-five of the Public Service Act 1928 as amended by any Act and section one hundred and forty-three of the Railways Act 1928 are hereby repealed.
Discharged Servicemen's Employment Board
S. 5
amended by No. 7991
s. 2(a)(b), repealed by No. 1/1995
s. 17(b).[2]
*****
S. 5A
inserted by No. 7991 s.3, repealed by No. 1/1995
s. 17(b).[3]
*****
6.Functions of Board
s. 6
S. 6(1) amended by No. 1/1995
s. 17(c).
(1)[4]The functions of the Board under this Act and the regulations shall be—
(a)to assist discharged servicemen to obtain employment;
(b)to inquire into and to recommend to the Minister means for the furtherance of the objects of this Act;
(c)to obtain information as to opportunities of employment for discharged servicemen in Victoria and so far as possible to keep a record of the incidence of unemployment among discharged servicemen in Victoria;
(d)to examine allegations of contraventions of and failure to comply with the provisions of this Act;
(e)with the consent of the Minister, to publish from time to time in any prescribed manner information for the guidance of employers in relation to their rights obligations and liabilities under this Act;
(f)to recommend to the Minister that authority be granted for the institution of proceedings for any contravention of or failure to comply with the provisions of this Act, and to report to the Minister any such contravention or failure which has occurred or is likely to occur in relation to employment by or under the Crown in right of the State of Victoria; and
s. 6
(g)to carry out such other functions as are conferred on it by this Act or the regulations.
S. 6(2) repealed by No. 1/1995
s. 17(d).[5]
*****
(3)Before recommending to the Minister that authority be granted for the institution of proceedings for an offence against this Act the Board shall give to the employer concerned a reasonable opportunity to submit to the Board such considerations as the employer thinks fit.
S. 6(4) repealed by No. 1/1995
s. 17(d).[6]
*****
Re-instatement of Discharged Servicemen in Employment
7.Re-instatement of discharged servicemen in employment
s. 7
(1)Where any discharged serviceman, within two months after the completion of his war service, applies for reinstatement in employment by the employer by whom he was employed for any period of not less than thirty days immediately prior to the date upon which he volunteered for war service or received a notice requiring him to perform war service (as the case may be), the employer shall, immediately after the receipt of the application, re-instate him in his employment in a position and under conditions not less favorable to him than those which would have been applicable to him had he remained in the employment of that employer (including any increase of remuneration to which he would have become entitled had he remained in such employment).
(2)In any proceedings for a contravention of or failure to comply with the provisions of the last preceding sub-section it shall be a defence for the employer to prove—
(a)that the discharged serviceman is of bad character;
(b)that, having been offered re-instatement, he failed without reasonable excuse to present himself for employment at the time and place notified to him by the employer;
(c)that by reason of a change of circumstances (other than the employment of some other person to replace him)—
(i)it was not reasonably practicable to reinstate him; or
(ii)his re-instatement in a position and under conditions not less favorable to him than those which would have been applicable to him had he remained in the employment of the employer was impracticable and that the employer had offered to re-instate him in the most favorable position and under the most favorable conditions reasonably practicable; or
(d)that he had been employed to take the place of an employé who had volunteered or been called up for war service and that that employé had been re-instated in his employment.
s. 7
(3)Where an employer has re-instated a discharged serviceman pursuant to this section, he shall not without reasonable cause terminate that employment or vary it by employing him in a position or under conditions less favorable than those of the employment to which he was so reinstated.
(4)In any proceedings for a contravention of the last preceding sub-section the onus of proving reasonable cause shall lie on the employer.
Appointment and Promotion of Discharged Servicemen
8.Limitation of operation of two succeeding sections
s. 8
The provisions of the next two succeeding sections shall not apply—
(a)in respect of any employer who employs not more than one employé immediately prior to the appointment or promotion in question; or
(b)in respect of the appointment or promotion by any employer (being a natural person or one of the members of a partnership conducting any profession calling business trade or industry on his or its own account)—
S. 8(b)(i) amended by No. 72/2001 s.3(Sch. item6.3).
(i)of the spouse, domestic partner, father mother brother sister son or daughter of such employer; or
S. 8(b)(ii) amended by No. 9902
s. 2(1)(Sch. item 70).
(ii)of the adopted child or adopter (within the meaning of the Adoption of Children Act 1964, of such employer.
9.Preference to discharged servicemen in filling positions after public advertisement
(1)Where any employer by public advertisement invites applications for appointment to any position in his employment (other than casual or temporary employment) he shall in making any appointment or promotion to that position give preference to a suitable and competent discharged serviceman who applies for that employment within the time and in the manner specified in that advertisement.
(2)Where any employer, not having previously invited applications by public advertisement, appoints any person (other than a discharged serviceman) to any position in his employment (other than casual or temporary employment), the appointment of that person to that position shall be deemed provisional, and within the period of seven clear days after such appointment any discharged serviceman may apply in writing to the employer for appointment or (where the case so requires) promotion to that position, and the employer shall in filling such position whether by appointment or promotion give preference to a suitable and competent discharged serviceman who so applies.
10.Preference to discharged servicemen in promotions after invitation
s. 10
(1)Where any employer invites applications for any position in his employment only from persons in his employment, he shall in making any promotion to that position give preference to a suitable and competent discharged serviceman in his employment who applies for that promotion within the time and in the manner specified in the invitation.
(2)Where any employer, not having previously invited applications as provided in the last preceding sub-section, promotes any person in his employment (not being a discharged serviceman) to any position, the promotion of that person to that position shall be deemed provisional, and within the period of seven clear days after such promotion any discharged serviceman in his employment may apply in writing to the employer for promotion to that position, and the employer shall in making any promotion to that position give preference to a suitable and competent discharged serviceman who so applies.
(3)The provisions of the last preceding sub-section shall not apply in the case of a promotion made in accordance with the last preceding section.
11.As to what constitutes failure to give preference
s. 11
For the purposes of the provisions of section 9 or section 10—
(a)the appointment or promotion by an employer to a position in his employment of a person other than a discharged serviceman to whom such employer is by the provisions of this Act required to give preference; or
(b)(where an appointment or promotion is deemed provisional under section 9 or section 10) the failure of an employer to make a final appointment or promotion within a reasonable time after the end of the period of seven clear days referred to in the relevant section—