Part 1 Preliminary
1 Name of Regulation
This Regulation is the Industrial Relations (General) Regulation 2001.
2 Commencement
This Regulation commences on 1 September 2001.Note—This Regulation replaces the Industrial Relations (General) Regulation 1996 which is repealed on 1 September 2001 under section 10 (2) of the Subordinate Legislation Act 1989.
3 Definitions
(1) In this Regulation:corporation has the same meaning as in section 57A of the Corporations Act 2001 of the Commonwealth.hearing allocation fee means a fee for allocating a date for the hearing of proceedings.hearing fee means a fee for the hearing of proceedings.Industrial Court means the Industrial Court of New South Wales as referred to in section 151A of the Act.the Act means the Industrial Relations Act 1996.the IRC Rules means the Industrial Relations Commission Rules 1996.the 1991 Act means the Industrial Relations Act 1991 (as repealed by the Industrial Relations Act 1996).Note—Expressions used in this Regulation that are defined in the Act have the meanings given by the Act (see section 11 of the Interpretation Act 1987).(2) The explanatory note, table of contents and notes in the text of this Regulation (other than those in Schedule 1) do not form part of this Regulation.cl 3: Am 2005 (386), Sch 1 [1] [2]; 2008 (321), Sch 1 [1].
Part 2 Enterprise agreements
4 Notification of proposed enterprise agreement to which employees are parties
The Industrial Registrar is to advise, pursuant to section 36 (3) of the Act, the following of a proposed enterprise agreement under which employees are a party that is notified to the Industrial Registrar:(a) the secretary or chief executive of each State peak council,(b) the secretary or chief executive of any industrial organisation that is a party to an award or enterprise agreement that then applies to the employees for whom the proposed enterprise agreement is to be made.
Part 3 Unfair dismissals
5 Exemptions from unfair dismissal provisions—maximum annual remuneration of employees for whom employment conditions not set by industrial instrument
(1) For the purposes of section 83 (1) (b) of the Act, the amount prescribed is:(a) except as provided by paragraph (b)—the specified rate referred to in regulation 12.3 of Chapter 2 of the Workplace Relations Regulations 2006 of the Commonwealth from time to time, or(b) that amount as indexed from time to time in accordance with regulation 12.6 of Chapter 2 of those Regulations.(2) This clause applies with respect to dismissals occurring on or after 1 October 1997, whether the contracts of employment concerned were entered into before or after that date.(3) A change in the amount prescribed in accordance with subclause (1) applies with respect to dismissals occurring on or after the date on which the change occurs, whether the contracts of employment concerned were entered into before or after that date.cl 5: Am 2006 (363), Sch 1 [1] [2].
6 Other exemptions from unfair dismissal provisions
(1) For the purposes of section 83 (2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act:(a) employees engaged under a contract of employment for a specified period of time, if the specified period is less than 6 months,(b) employees engaged under a contract of employment for a specific task,(c) employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either:(i) the period, or the maximum duration, is 3 months or less, or(ii) if the period, or the maximum duration, is more than 3 months—the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment,(d) employees engaged on a casual basis for a short period except employees who:(i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and(ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer.(2) This clause applies only with respect to dismissals under contracts of employment entered into on or after 1 October 1997.
Part 4 Pay slips and employers’ records
Division 1 Pay slips
7 Particulars of remuneration to be supplied to employees
(1) For the purposes of section 123 (1) of the Act, the following written particulars are to be supplied by the employer to an employee when remuneration is paid to the employee:(a) the name and Australian Business Number of the employer,(b) the name of the employee,(c) if the remuneration of the employee is set by an industrial instrument—the classification of the employee under that instrument,(d) the date on which the payment was made,(e) the period of employment to which the payment relates,(f) the gross amount of remuneration (including overtime and other payments),(g) the amount paid as overtime or such information as will enable the employee to calculate the amount paid as overtime,(h) the amount deducted for taxation purposes,(i) the amount deducted as employee contributions for superannuation purposes,(j) the particulars of all other deductions,(k) the net amount paid.Note—Section 123 of the Act provides that a failure by the employer to provide the above particulars is an offence punishable by a maximum penalty of 20 penalty units. The section enables an employer, with the approval of the Industrial Registrar, to make different arrangements for the supply of information about remuneration.(2) Subclause (1) (a) does not take effect until 1 January 2002.
Division 2 Employers’ records
8 Application
This Division prescribes, for the purposes of section 129 of the Act:(a) the daily records that an employer must keep in relation to employees of the employer (in addition to records of remuneration paid and hours worked by employees required by section 129 (1) (a)), and(b) the manner and form of keeping daily records required by section 129.Note—Section 129 of the Act provides that:(a) the Industrial Registrar may approve of different requirements for the manner and form of keeping the records than those prescribed by this Division, and(b) the employer must keep the records for a period of at least 6 years, and(c) a contravention of section 129 or this Division is an offence punishable by a maximum penalty of 20 penalty units.
9 Content of records—general
(1) The prescribed records relating to an employee must contain the following particulars:(a) the name of the employer,(b) the Australian Business Number of the employer,(c) the name of the employee,(d) if any conditions of employment of the employee are set by an industrial instrument—the classification of the employee under that instrument,(e) whether the employee is employed full-time or part-time,(f) whether the employee is employed on a permanent, temporary or casual basis,(g) if the employee is an apprentice or trainee within the meaning of the Industrial and Commercial Training Act 1989—the date the person became such an apprentice or trainee,(h) the date on which the employee was first employed with the employer,(i) if the employee’s employment is terminated—the date of termination.(2) Subclause (1) (b) does not take effect until 1 January 2002.
10 Content of records—remuneration and hours worked
(1) The prescribed records relating to an employee must contain the following particulars concerning the remuneration paid and hours worked by the employee:(a) if the relevant industrial instrument prescribes the number of hours to be worked per week, day or other period—the number of hours worked by the employee during each such period,(b) if the relevant industrial instrument limits the daily hours of work and provides for the payment of daily overtime—the number of hours worked by the employee during each day and the times of starting and ceasing work,(c) if the relevant industrial instrument prescribes a rate of remuneration per week, day, hour or other period—the rate of remuneration per week, day, hour or other period at which the employee is paid,(d) if the relevant industrial instrument prescribes piece-work—the number and description of pieces made by the employee and the rate per piece at which the employee is paid,(e) the gross amount of remuneration paid to the employee, showing the deductions made from that remuneration,(f) such other particulars as are necessary to show that the requirements of the relevant industrial instrument relating to remuneration paid and hours worked are being complied with.(2) In this clause, remuneration includes overtime and other payments.
11 Content of records—leave
The prescribed records relating to an employee must contain the following particulars about leave of any kind to which the employee is entitled under the industrial relations legislation or an industrial instrument:(a) the leave taken by the employee,(b) the employee’s entitlement from time to time to that leave,(c) accrual of leave.
12 Content of records—superannuation contributions
(1) The prescribed records relating to an employee must contain the following particulars about any superannuation contributions that the employer must make for the benefit of the employee under an industrial instrument:(a) the amount of the contributions made,(b) the period over which the contributions were made,(c) when the contributions were made,(d) the name of the fund or funds to which the contributions were made,(e) the basis on which the employer became liable to make the contributions (including particulars of any relevant election by the employee).(2) The particulars referred to in subclause (1) (a)–(c) are not required in the case of contributions to a defined benefit superannuation fund within the meaning of the Occupational Superannuation Standards Regulations of the Commonwealth.
13 Manner and form of keeping records
(1) The prescribed records must be:(a) in legible form in the English language, or(b) in computerised or other form that is readily accessible and is convertible into a legible form in the English language.(2) For the purposes of enabling an inspector or other person to exercise any power conferred by the Act to inspect any records kept in the form referred to in subclause (1) (b), the relevant part of the records are to be converted into legible form in the English language.
14 Transfer of records to successor employers
(1) This clause applies to the transfer of records kept by an employer (the former employer) relating to a transferred employee (as defined in section 101 of the Act) to the successor of the employer (the new employer).(2) The former employer must transfer to the new employer all prescribed records relating to the transferred employee that, at the date of transfer, the former employer is required to keep under section 129 of the Act.(3) The new employer is to keep those transferred records as if they had been made by the new employer at the time they were made by the former employer.(4) The former employer is required to keep a copy of the transferred records for a period of at least 6 years after those records were made.(5) The new employer is not required to make records of anything occurring in the course of the transferred employee’s employment with the former employer.
Part 5 Industrial Relations Commission
15 Acting President
(1) This clause applies whenever the President and Vice-President of the Commission are both absent from duty and an Acting President has not been appointed under clause 1 (2) of Schedule 2 to the Act or, if such an Acting President has been appointed, the Acting President is absent from duty.(2) In any such case, the next most senior judicial member (including an acting judicial member) of the Commission who is not absent from duty is the Acting President of the Commission.(3) Any such Acting President has the functions of the President and anything done by that Acting President in the exercise of those functions has effect as if it had been done by the President.(4) In this clause, an absence from duty includes a vacancy in the relevant office.cl 15: Am 2014 (46), cl 3.
16 Oaths to be taken by members of Commission
A member of the Commission appointed after the commencement of the Act is to take, on appointment, the oath of allegiance and:(a) in the case of a judicial member—the judicial oath, or(b) in any other case—the official oath.
17 Regions
For the purposes of section 157 (3) of the Act, the following areas of New South Wales are prescribed as regions of the State:(a) the Hunter Region—comprising the local government areas of Cessnock, Dungog, Gloucester, Great Lakes, Lake Macquarie, Maitland, Merriwa, Murrurundi, Muswellbrook, Newcastle, Port Stephens, Scone, Singleton and Wyong,(b) the Illawarra-South Coast Region—comprising the local government areas of Kiama, Shellharbour, Shoalhaven and Wollongong.
18 Nominators of Industrial Committees
(1) For the purposes of section 198 (3) of the Act, the members of an Industrial Committee (other than the Chairperson) are to be appointed by the Industrial Registrar on the nomination of such industrial or other organisations as are determined by the Commission in respect of the Committee.(2) The number of members to be nominated by any such organisation is to be determined by the Commission.(3) Nominations are to be made within such time, and in accordance with such requirements, as are notified to the organisation concerned by the Industrial Registrar.(4) The Commission may, in accordance with section 198 of the Act and this clause, determine that different or alternative members are to be nominated for different matters dealt with by the Industrial Committee.
19 Oaths to be taken by members of Industrial Committees
A member of an Industrial Committee (other than a member of the Commission) appointed after the commencement of the Act is to take, on appointment, the official oath.
20 Expenses of persons summonsed
(1) This clause applies to any summons (however described) for the purposes of the Act that is issued at the request of a party and requires a person to do either or both of the following:(a) attend and give evidence,(b) attend and produce documents or other things.(2) Any such person is not required to comply with the summons unless an amount sufficient to meet the reasonable expenses of the person in complying with the summons is paid or tendered to the person at the time of service of the summons or not later than a reasonable time before the day on which the person is required to comply with the summons.(3) If the person required to comply with the summons is not a party and, in order to comply with the summons, incurs expense or loss substantially exceeding any amount paid under subclause (2), the Commission may order the party who requested the issue of the summons to pay to the person an amount sufficient to make good the expense or loss.
21, 22 (Repealed)
cll 21: Rep 2005 (386), Sch 1 [3].
cll 22: Rep 2005 (386), Sch 1 [3].
23 Functions of Industrial Registrar
(1) The Industrial Registrar may exercise the following functions in connection with any matter before the Industrial Registrar:(a) subject to the Act, determine his or her own procedure in the matter,(b) issue a summons under section 165 of the Act for the purposes of dealing with the matter,(c) adjourn proceedings in the matter to any time and place,(d) make any amendments to the proceedings in the matter that the Industrial Registrar considers necessary in the interests of justice,(e) conduct proceedings in the matter publicly or, if the Industrial Registrar considers it necessary, privately,(f) require the presentation of the respective cases of the parties in the matter to be limited to the periods of time that the Industrial Registrar determines are reasonably necessary for the fair and adequate presentation of the cases,(g) require evidence or argument in the matter to be presented in writing and decide on the matters on which the Industrial Registrar will hear oral evidence or argument,(h) dismiss at any stage any proceedings in the matter if the Industrial Registrar considers the proceedings are frivolous or vexatious,(i) notify any person or body of proceedings in, or any other aspect of, the matter if the Industrial Registrar considers that the person or body may be affected by the matter.(2) The Industrial Registrar has, in connection with proceedings for the approval of an enterprise agreement or contract agreement, the function of notifying the persons or bodies who may be entitled to appear or be represented in the proceedings that the agreement has been lodged for approval.(3) The functions conferred by this clause are in addition to any functions delegated to the Industrial Registrar by the Commission or conferred on the Industrial Registrar by the Act, by any other provision of the regulations or by the rules of the Commission.
Part 5A Commission fees
pt 5A: Ins 2005 (386), Sch 1 [4].
23A Amounts payable in relation to proceedings in the Commission
(1) Subject to this Regulation, the fee that a person must pay in respect of a matter referred to in Column 1 of Schedule 1 is:(a) except as provided by paragraph (b), the fee specified in respect of that matter in Column 2 of that Schedule, or(b) if the person is a corporation and a fee is specified in respect of that matter in Column 3 of that Schedule, the fee so specified.(2) Despite subclause (1), the fee payable by a corporation that produces evidence, satisfactory to the Industrial Registrar:(a) that its turnover, in the financial year of the corporation immediately preceding the financial year in which the fees are to be taken, was less than $200,000, oris the fee specified in Column 2 of Schedule 1.(b) if the corporation has not been in existence for a full financial year, that its turnover in its first financial year is likely to be less than $200,000,cl 23A: Ins 2005 (386), Sch 1 [4].
23B Persons by and to whom fees are payable
(1) Any fee imposed by Schedule 1 (other than a hearing allocation fee or hearing fee) is payable, by the person at whose request the relevant document is filed or service rendered, to the Industrial Registrar.(2) If a document is filed or service rendered at the request of a person acting as solicitor or agent for another person, each of those persons is jointly and severally liable for payment of any such fee.cl 23B: Ins 2005 (386), Sch 1 [4]. Am 2007 (289), Sch 1 [1].
23C When fees become due
(1) A fee imposed by Schedule 1 (other than a hearing allocation fee or hearing fee) becomes due when the document concerned is filed or the service concerned is rendered.(2) Despite subclause (1), the Industrial Registrar may require any fee for the document or service to be paid before the document is filed or the service rendered.cl 23C: Ins 2005 (386), Sch 1 [4].
23D Payment of hearing allocation fees
(1) A hearing allocation fee in relation to any proceedings is payable:(a) except as provided by paragraph (b), by the applicant or appellant, or(b) if the Commission or the Industrial Registrar makes any order as to the payment of the fee, by the parties and in the proportions so ordered.(2) If a person is acting as solicitor or agent for a party to any proceedings, the person and the party are jointly and severally liable for payment of the hearing allocation fee.(3) A hearing allocation fee is not payable in relation to any interlocutory hearing.(4) A hearing allocation fee becomes payable:(a) immediately after a date is allocated for hearing the proceedings, orwhichever first occurs.(b) when the Commission or the Industrial Registrar notifies the parties in writing of the Commission’s or Industrial Registrar’s intention to allocate a date for hearing the proceedings,cll 23D: Ins 2005 (386), Sch 1 [4]. Am 2007 (289), Sch 1 [1].
23E Payment of hearing fees
(1) A hearing fee in relation to any proceedings is payable:(a) except as provided by paragraph (b), by the applicant or appellant, or(b) if the Commission or the Industrial Registrar makes any order as to the payment of the fee, by the parties and in the proportions so ordered.(2) If a person is acting as solicitor or agent for a party to any proceedings, the person and the party are jointly and severally liable for payment of the hearing fee.(3) A hearing fee is not payable in relation to a hearing whose sole purpose is the delivery of a reserved judgment.(4) A hearing fee is not payable in respect of any day or part of a day (and, if paid, is to be remitted) if:(a) the hearing fails to take place on that day or part of a day, and(b) the Industrial Registrar is satisfied that the hearing failed to take place due to circumstances beyond the control of the parties.(5) A hearing fee becomes payable when the Commission or the Industrial Registrar gives written notice to the person liable to pay the hearing fee of the amount of the fee payable.cll 23E: Ins 2005 (386), Sch 1 [4]. Am 2007 (289), Sch 1 [1].
23F General power to waive, postpone and remit
(1) The Industrial Registrar may, by order in writing, direct that the whole or any part of any fee payable to the Industrial Registrar be postponed, waived or remitted on grounds of financial hardship, subject to such conditions (if any) as the Industrial Registrar thinks fit to impose.(2) The powers conferred by this clause are to be exercised in accordance with such guidelines as may from time to time be published by the Attorney General.cl 23F: Ins 2005 (386), Sch 1 [4].
23G Circumstances in which fees not chargeable
(1) Fees under Schedule 1 are not payable by the Crown, or by any person (other than the WorkCover Authority) acting on behalf of the Crown, with respect to any proceedings to which any of the following persons or bodies (other than the WorkCover Authority) is a party:(a) the Crown,(b) any Minister of the Crown,unless Schedule 1 expressly so provides.(c) any statutory body whose expenditure is paid out of the Consolidated Fund,(2) Subclause (1) does not prevent the recovery by the Crown or any such person or body of any fees that would, had they been paid by the Crown or any such person or body, have been so recoverable.(3) The Industrial Registrar may require evidence to be furnished for the purpose of deciding whether a statutory body’s expenditure is paid out of the Consolidated Fund.(4) Fees under Schedule 1 are not payable by:(a) any industrial organisation, orunless Schedule 1 expressly so provides.(b) any association registered under Chapter 6 of the Act,cl 23G: Ins 2005 (386), Sch 1 [4]. Am 2008 (321), Sch 1 [2].
Part 6 Industrial organisations
24 Copies of certificates of registration
The Industrial Registrar may issue to an industrial organisation a copy of the certificate of registration previously issued to it under section 221 (3) of the Act.
25 Rules to provide for seal of organisation
The rules of a State organisation must provide for a seal of the organisation to be kept by a member of the committee of management of the organisation and to be affixed to a document only with the authority of at least 2 members of that committee.
26 Rules for elections—State and Federal organisations
(1) For the purposes of section 239 (1) (a) of the Act, the membership of a State branch of a Federal organisation and the membership of a State organisation registered under Chapter 5 of the Act is substantially similar if the Industrial Registrar is satisfied that the membership would be substantially similar but for the fact that persons employed in the Australian Capital Territory are members of the State branch of the Federal organisation.(2) For the purposes of section 239 (1) (b) of the Act, the rules of a State branch of a Federal organisation comply substantially with the requirements relating to election of the holders of offices under the Act if the Industrial Registrar is satisfied that the rules would comply substantially with those rules but for the fact that the rules cover persons employed in the Australian Capital Territory.
27 Rules for elections—exemptions by Industrial Registrar
An opportunity by an industrial organisation to be heard for the purposes of section 240 (6) and (7) of the Act is to be given by notifying the organisation of the Industrial Registrar’s intention to take the relevant action and by allowing the organisation at least 14 days after the notice is given in which to show cause why the action should not be taken.
28 Regulation of industrial organisations (other than State organisations)
In accordance with section 291 of the Act, the provisions of section 280 of the Act (Organisations to notify particulars of loans, grants and donations) apply to industrial organisations that are not State organisations.
29 Deemed registration of Newcastle Trades Hall Council
(1) In accordance with section 217 (3) of the Act, the Newcastle Trades Hall Council is taken to be registered as an industrial organisation of employees under Chapter 5 of the Act.(2) The provisions of Chapter 5 of the Act do not apply to that organisation, except for the following provisions (with any necessary modifications):(a) section 221,(b) section 224,(c) section 263 (and section 266 in so far as it applies to section 263),(d) sections 267–271,(e) sections 278–281.(3) The Newcastle Trades Hall Council is required to lodge a copy of its rules with the Industrial Registrar as soon as practicable after any change to the rules.
29A Emergency Medical Service Protection Association (NSW)
(1) It is hereby declared under section 217 (3) of the Act that the Emergency Medical Service Protection Association (NSW), as referred to in the application for registration of that body as a State organisation of employees filed in the Industrial Registry on 17 August 2012, is capable of registration as a State organisation of employees, even if it is not so registrable because of the operation of section 218 (1) (m) of the Act.(2) A reference in section 218 (1) (o) of the Act to an application made by an organisation of employees referred to in Schedule 5 includes a reference to the application made by the Emergency Medical Service Protection Association (NSW) for registration of that body as a State organisation of employees and filed in the Industrial Registry on 17 August 2012.(3) This clause is made for the avoidance of doubt.cl 29A: Ins 2013 (69), cl 3.
30 Former non-industrial organisations
(1) The repeal of the 1991 Act does not affect the continuity of any non-industrial organisation under that Act that is not a registered industrial organisation under the Industrial Relations Act 1996 on that repeal.(2) If any such non-industrial organisation was incorporated under the 1991 Act, the following provisions apply on the repeal of that Act:(a) the organisation ceases to be a body corporate under that Act, but does not cease to be an unincorporated organisation,(b) the property of the incorporated organisation is the property of the unincorporated organisation and is required to be held and applied for the purposes of the organisation under the rules of the organisation so far as they can still be carried out or observed.
31 Other provisions relating to elections
(1) This clause applies until the regulations under the Act otherwise provide.(2) The provisions of sections 442–451 of the 1991 Act (and the regulations under those provisions) apply to a State organisation as regulations made under section 249 of the Act.
Part 7 Public vehicles and carriers
32 Contract of carriage—meaning
(1) For the purposes of section 309 (1) (a), (b) and (c) of the Act, the following circumstances are prescribed:(a) driving or riding on a motor vehicle or bicycle by a person who is employed (whether pursuant to a contract of employment or not and whether by the carrier or not) to take the place temporarily of a person directly involved in the business who is sick, on annual leave or is otherwise temporarily unavailable,(b) riding on a motor vehicle by a person who is employed (whether pursuant to a contract of employment or not and whether by the carrier or not) for the purpose of loading or unloading, or assisting in loading or unloading, goods being transported by means of the motor vehicle.(2) In this clause:person directly involved in the business means:(a) if the carrier is not a partnership or body corporate—the carrier, or(b) if the carrier is a partnership—a partner, or(c) if the carrier is a body corporate—a person referred to in section 309 (1) (c) (i), (ii) or (iii) of the Act.
33 Notification of proposed contract agreements to which groups of carriers are parties
The Industrial Registrar is to advise, pursuant to section 325A (3) of the Act, the following of a proposed contract agreement under which a group of carriers is a party that is notified to the Industrial Registrar:(a) the secretary or chief executive of each State peak council,(b) the secretary or chief executive of any association of contract carriers that is a party to the making of a contract determination, or to a contract agreement, that then applies to the conditions of engagement of those carriers under contracts to which the proposed contract agreement is to apply,(c) the secretary or chief executive of any association of employing contractors that is a party to the making of a contract determination, or to a contract agreement, that then applies to the conditions of engagement of those carriers under contracts to which the proposed contract agreement is to apply (unless the association is to be a party to the proposed contract agreement).
34 Publication of application for registration of association of contract drivers or carriers
Notice of an application under section 335 of the Act is to be published in a newspaper circulating throughout the State within 14 days after the lodgment of the application.
35 Objection against registration of association of contract drivers or carriers
For the purposes of section 336 of the Act, a person who objects to the granting of an application under section 335 of the Act must serve the notice of objection on the Industrial Registrar within 28 days after the notice of the application is duly published by the Industrial Registrar in a newspaper circulating throughout the State.
36 Withdrawal of registration of association at request of members
(1) An application for a certificate of withdrawal of registration of an association under section 338 of the Act:(a) is to be made by a majority of the members of the governing body of the association or by a majority of the members of the association, and(b) is not to be made until the applicants have given at least 14 days’ written notice of their intention to apply for the certificate to all financial members of the association at their last known place of residence or business.(2) An application for such a certificate may not be made if:(a) it is contrary to the rules of the association, or(b) proceedings have been duly instituted within the association to prevent the making of the application.
Part 8 Enforcement
37 Authority to prosecute
(1) The purpose of this clause is to prescribe certain persons as persons who may institute proceedings for an offence against the Act or the regulations.(2) An industrial organisation concerned in the industry to which the proceedings relate is prescribed for the purposes of section 399 (1) (c) of the Act.
38 Notification of proceedings
(1) An industrial organisation that institutes proceedings for an offence against the Act or the regulations must, within 3 days after doing so, send particulars of the proceedings to the Director-General of the Department of Industrial Relations.Maximum penalty: 5 penalty units.(2) Particulars of proceedings sent to the Director-General in accordance with this clause are sent for information only.
39 Penalty notices
(1) For the purposes of section 396 of the Act:(a) each offence created by a provision specified in Column 1 of Schedule 2 is declared to be a penalty notice offence, and(b) the prescribed penalty for such an offence is the amount specified in Column 2 of Schedule 2.(2) If the reference to a provision in Column 1 of Schedule 2 is qualified by words that restrict its operation to specified kinds of offences or to offences committed in specified circumstances, an offence created by the provision is a prescribed offence only if it is an offence of a kind so specified or is committed in the circumstances so specified.cl 39: Am 2011 No 62, Sch 3.16 [1].
40 (Repealed)
cl 40: Rep 2011 No 62, Sch 3.16 [2].
Part 9 Additional persons deemed to be employees
41 Additional persons prescribed by regulation
(1) The persons described in this Part as employees are taken to be employees for the purposes of the Act.(2) A person described in this Part as the employer of any such employee is taken to be the employer for the purposes of the Act.Note—Clause 1 (m) of Schedule 1 to the Act authorises the making of regulations prescribing additional categories of deemed employees and their deemed employer.
42 Security industry workers
(1) Any person (other than a bona fide contractor employing labour for that purpose) who performs security officer work, or security transport work, under a contract with another person is taken to be an employee.(2) In such a case, the other person is taken to be the employer of the person who performs that work.(3) For the purposes of this clause, security officer work is work for which a rate of pay is fixed by the Security Industry (State) Award when performed by an employee, being the work of security officers in the security or watching industries:(a) including the work of persons engaged in control rooms to monitor, respond to or act on security alarm systems, but(b) not including the work of persons engaged solely as general office or clerical workers.(4) For the purposes of this clause, security transport work is work for which a rate of pay is fixed by the Transport Industry—Armoured Cars, &c. (State) Award when performed by an employee, being the work of transporting cash or other valuables by armoured vehicle (whether as an armoured vehicle operator, a despatch hand or an armoured vehicle escort).
Part 10 Miscellaneous
43 Industrial Magistrate—civil procedure
(1) For the purposes of section 383 of the Act, the provisions of the Act, the regulations and rules of the Commission as to the practice and procedure of the Industrial Court (except in criminal proceedings) apply, with all necessary modifications, to proceedings before the Chief Industrial Magistrate or other Industrial Magistrate.(2) Without limiting subclause (1), the Chief Industrial Magistrate or other Industrial Magistrate may hear evidence orally or by affidavit and may hear evidence whether or not notice to call the evidence has been given. However, if the interests of justice so require, a witness is to be called to give oral evidence instead of evidence by affidavit.(3) This clause does not apply to proceedings for an offence or to proceedings under section 357 of the Act for a civil penalty for a contravention of an industrial instrument.cl 43: Am 2008 (321), Sch 1 [3].
43A Subcontractor’s statement about payment of employees
(1) Without limiting the form in which a written statement under section 127 (3) of the Act may be made, the written statement may be in a form approved by the Director-General of the Department of Commerce.(2) A written statement under section 127 (3) of the Act may include, or be included in, any statement made by the subcontractor for the purposes of section 31H of the Pay-roll Tax Act 1971, section 175B of the Workers Compensation Act 1987 or a similar provision under any other Act.cl 43A: Ins 17.10.2003. Am 2006 (363), Sch 1 [3].
43B Maximum amount payable on small claims applications
For the purposes of section 379 (3) (b) of the Act, the amount of $20,000 is prescribed.cl 43B: Ins 2006 (574), cl 2.
44 Savings and transitional provisions
(1) Any act, matter or thing that, immediately before the repeal of the Industrial Relations (General) Regulation 1996, had effect under that Regulation continues to have effect under this Regulation.(2) No hearing allocation fee or hearing fee is payable under this Regulation in respect of any proceedings before the Full Bench of the Commission on an application for leave to appeal if proceedings on the application were commenced before 1 August 2005.(3) No hearing allocation fee or hearing fee is payable under this Regulation in respect of any proceedings before the Full Bench of the Commission on an appeal if proceedings on the application for leave from which the appeal arises were commenced before 1 August 2005.(4) No hearing fee is payable under this Regulation in respect of any hearing in any other proceedings before the Commission if a date for the hearing was allocated before 1 August 2005.(5) Despite the repeal of the Government and Related Employees Appeal Tribunal Act 1980, clauses 10 and 11 of Schedule 1 to that Act (the preserved provisions) continue to have the same effect after that repeal in relation to a person holding office as Senior Chairperson or Chairperson of the Government and Related Employees Appeals Tribunal immediately before that repeal who is appointed as an acting Commissioner (an affected person) as they had in relation to that person in relation to his or her appointment as Senior Chairperson or Chairperson. For that purpose, those clauses are taken to be part of this Regulation.(6) For the purposes of subclause (5), a reference in the preserved provisions to:(a) the Tribunal—is taken to be a reference to the Commission, and(b) the Chairperson—is taken to be a reference to an affected person who is appointed as an acting Commissioner.(7) An affected person retains any right to annual leave, extended leave or sick leave accrued or accruing to the affected person under the Government and Related Employees Appeal Tribunal Act 1980 immediately before its repeal.cl 44: Am 2005 (386), Sch 1 [5]; 2010 (592), Sch 1.
Schedule 1 Commission fees
(Clause 23A)
Fees for proceedings before Commission sitting as Industrial Court | |||
Column 1 | Column 2 | Column 3 | |
Matter for which fee payable | Standard fee | Corporation fee | |
1 | Filing an application under Division 2 of Part 9 of Chapter 2 of the Act | $859.00 | $1,718.00 |
2 | Filing an application for an order under section 246 of the Criminal Procedure Act 1986 in respect of an offence dealt with: (a) under section 397 (1) (b) of the Industrial Relations Act 1996, or (b) under section 229B (2) (b) of the Work Health and Safety Act 2011 | $859.00 | $1,718.00 |
3 | Filing notice of leave to appeal: (a) under section 197 (1) (a), (b), (c) or (d) of the Act in respect of a decision of the Local Court, or (b) against any decision on a question of law: | $283.00 | $566.00 |
4 | Filing a notice of motion in any of the following proceedings: (a) proceedings under Division 2 of Part 9 of Chapter 2 of the Act, (b) proceedings on an appeal under section 197 (1) (a), (b), (c) or (d) of the Act in respect of a decision of the Local Court, (c) proceedings on an appeal against any decision on a question of law: (d) proceedings for an offence dealt with: | $200.00 | $400.00 |
5 | For allocation of a date for hearing in relation to proceedings under Division 2 of Part 9 of Chapter 2 of the Act | $1,640.00 | $3,280.00 |
6 | For the hearing of proceedings under Division 2 of Part 9 of Chapter 2 of the Act, for each half day of hearing on or after the 11th day Note— For the purposes of this item, a half day comprises a period of 3 hours or less, with such period to include any adjournment of less than half an hour. | $306.00 | $612.00 |
Fees for proceedings before Commission (otherwise than sitting as Industrial Court) | |||
Column 1 | Column 2 | Column 3 | |
Matter for which fee payable | Standard fee | Corporation fee | |
1 | Filing an application under section 84 of the Act | $76.00 | — |
2 | Filing notice of leave to appeal to the Full Bench of the Commission under section 187 of the Act in relation to a decision of the Commission under: | ||
(a) Part 6 of Chapter 2 of the Act, or | $254.00 | $508.00 | |
(b) Division 2 of Part 9 of Chapter 2 of the Act | $955.00 | $1,910.00 | |
3 | Filing a notice of motion in proceedings on an appeal to the Full Bench of the Commission under section 187 of the Act in relation to a decision of the Commission under Division 2 of Part 9 of Chapter 2 of the Act | $200.00 | $400.00 |
4 | For allocation of a date for hearing in relation to proceedings on an appeal to the Full Bench of the Commission under section 187 of the Act in relation to a decision of the Commission under Division 2 of Part 9 of Chapter 2 of the Act | $1,640.00 | $3,280.00 |
Miscellaneous fees | |||
Column 1 | Column 2 | Column 3 | |
Matter for which fee payable | Standard fee | Corporation fee | |
1 | Issuing a summons for production, or for production and to give evidence | $76.00 | $152.00 |
2 | Issuing a summons to give evidence | $37.00 | $74.00 |
3 | Opening or keeping open the registry or part of the registry: | ||
(a) on a Saturday, Sunday or public holiday, or | $678.00 | $1,356.00 | |
(b) on any other day: | |||
| $678.00 | $1,356.00 | |
| $72.00 | $144.00 | |
4 | Furnishing a certified copy of a judgment or order, or of the written opinion or reasons for opinion of any member of the Commission or the Industrial Registrar Note— Fees under this item are not chargeable to any party to proceedings in respect of the first such copy that is supplied to that party. | $76.00 | $152.00 |
5 | Furnishing an uncertified copy of a judgment or order, or of the written opinion or reasons for opinion of any member of the Commission or the Industrial Registrar Note— Fees under this item are not chargeable to any party to proceedings in respect of the first such copy that is supplied to that party. | $41.00 | $82.00 |
6 | Making a copy of any document (otherwise than as provided for by items 4 and 5): | ||
(a) for the first 20 pages, and | $12.00 | — | |
(b) for each 10 pages (or part of 10 pages) after the first 20 pages | $5.95 | — | |
Note 1— Except as provided in Note 2, fees under this item are chargeable: (a) to the Crown or any person acting on behalf of the Crown, and (b) to an industrial organisation or association registered under Chapter 5 of the Act. Note 2— Fees under this item are not chargeable to any person in respect of whom the Secretary of the Treasury, or the President of the Anti-Discrimination Board, has authorised the making of such a copy without charge. | |||
7 | Supplying a duplicate tape recording of sound-recorded evidence—per cassette Note 1— Except as provided in Note 2, fees under this item are chargeable: (a) to the Crown or any person acting on behalf of the Crown, and (b) to an industrial organisation or association registered under Chapter 5 of the Act. Note 2— Fees under this item are not chargeable to any person to whom the Secretary of the Treasury, or the President of the Anti-Discrimination Board, has authorised the supply of such a recording without charge. | $47.90 | — |
8 | Supplying a copy of the transcript of any proceedings: | ||
(a) where the matter being transcribed is under 3 months old: | |||
| $83.30 | — | |
| $10.20 | — | |
(b) where the matter being transcribed is 3 months old or older: | |||
| $102.40 | — | |
| $11.60 | — | |
Note 1— Except as provided in Note 2, fees under this item are chargeable: (a) to the Crown or any person acting on behalf of the Crown, and (b) to an industrial organisation or association registered under Chapter 5 of the Act. Note 2— Fees under this item are not chargeable to any person to whom the Secretary of the Treasury, or the President of the Anti-Discrimination Board, has authorised the supply of such a copy without charge. | |||
9 | For retrieval from archives of any document or file | $76.00 | $152.00 |
10 | Providing any service for which a fee is not otherwise imposed by this Schedule Note— A fee may not be imposed under this item except with the approval of the Industrial Registrar. | $38.00 | $76.00 |
sch 1: Subst 2005 (386), Sch 1 [6]; 2006 (364), Sch 1; 2007 (289), Sch 1 [2]; 2008 (321), Sch 1 [4]; 2009 (272), Sch 1. Am 2007 No 94, Sch 2. Subst 2010 (335), Sch 1; 2011 (366), Sch 1; 2012 (283), Sch 1; 2013 (337), Sch 1; 2014 (434), Sch 1.
Schedule 2 Penalty notice offences
(Clause 39)
Column 1 | Column 2 | ||
Provision | Penalty $ | ||
Offences under the Act | |||
Section 67 (2) | 220 | ||
Section 78 (1) | 220 | ||
Section 78 (2) | 220 | ||
Section 78 (3) | 220 | ||
Section 123 (1) | 220 | ||
Section 129 (6) | 220 | ||
Section 341 (5) | 220 | ||
Section 360 (1) | 220 | ||
Section 360 (2) | 220 | ||
Section 361 (1) | 220 | ||
Section 387 (2) | 220 | ||
Offences under this Regulation | |||
Clause 38 (1) | 220 | ||
sch 2: Am 2011 No 62, Sch 3.16 [3]–[5].