Version No. 003
Federal Awards (Uniform System) Act 2003
No. 18 of 2003
Version incorporating amendments as at 27 June 2007
table of provisions
SectionPage
1
SectionPage
Part 1—Preliminary
1.Purposes
2.Commencement
3.Definitions
4.What is an industry?
5.Act binds the Crown
Part 2—Common Rule Orders
6.What is a common rule order?
7.Effect of common rule order
8.Application for common rule order
9.Procedure on application for common rule order
10.Restrictions on discretion of Tribunal
11.Requirement on Tribunal to specify scope of order
12.Variation of common rule orders
13.Revocation of common rule orders
Part 3—Compliance
Division 1—Information Services Officers
14.What are the functions of information services officers?
15.Appointment of information services officers
16.Identity cards
17.Police to assist information services officers
18.When may powers be exercised?
19.Power of entry
20.Powers on entry
21.Power to require production of documents
22.Retention of documents
23.Search warrant
24.Announcement before entry
25.Copy of warrant to be given to occupier
26.Confidentiality
Division 2—Entry and Inspection of Premises etc. by Registered Organisations
27.Definitions and purpose of Division
28.Investigating suspected contraventions of Act
29.Discussions with employees
30.Conduct not authorised under sections 28 and 29
31.Issue of permits
32.Revocation of permits
33.Conduct attracting civil penalties
34.Civil penalties
35.Application and enforcement of civil penalties
Division 3—Victimisation
36.Prohibition of victimisation
Division 4—Other Offences
37.Failing to produce documents, hindering information services officers and giving them false information
38.Protection against self-incrimination
39.Impersonation of information services officer
Division 5—Prosecutions, Evidence and Recovery of Money
40.Proceedings for offences to be brought in Industrial Division
of the Magistrates' Court
41.Who can prosecute under this Act?
42.Judicial notice of signatures
43.Conduct of agents imputed to corporations
44.Reverse onus of proof in certain cases
45.Recovery of money owed
46.Court may order payment of arrears on finding of guilt
47.Representation in Magistrates' Court proceedings
48.Proceedings by and against unincorporated clubs
Part 4—General
49.Regulations
Part 5—Repealed
50–53.Repealed
Part 6—Amendment of Victorian Civil and Administrative Tribunal Act 1998
54.Amendment of Schedule 1
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
1
Version No. 003
Federal Awards (Uniform System) Act 2003
No. 18 of 2003
Version incorporating amendments as at 27 June 2007
1
Federal Awards (Uniform System) Act 2003
No. 18 of 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
(b)to empower the Victorian Civil and Administrative Tribunal to make orders applying federal award conditions as common rules in Victoria.
2.Commencement[1]
(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 section4A(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;
"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;
s. 3
"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;
"relevant industrial legislation" means—
s. 3
(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.
4.What is an industry?
s. 4
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. 5
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Part 2—Common Rule Orders
6.What is a common rule order?
s. 6
(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.
(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
s. 8
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
(c)a peak body that is representative of employers or employees in the relevant industry.
9.Procedure on application for common rule order
s. 9
(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 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—
s. 10
(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.
11.Requirement on Tribunal to specify scope of order
s. 11
(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.
(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
s. 12
(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.
(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
s. 13
(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.
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Part 3—Compliance
Division 1—Information Services Officers
14.What are the functions of information services officers?
s. 14
(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.
S. 15 amendedby No.108/2004 s.117(1) (Sch.3 item75).
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 thePublic Administration Act 2004 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.
16.Identity cards
s. 16
(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.
19.Power of entry
s. 19
(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
(v)the procedure for contacting the officer for further details of the entry; and
(b)post a copy of the notice—