Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Workplace Relations Amendment (Right of Entry) Bill 2004

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

2004

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

WORKPLACE RELATIONS AMENDMENT (RIGHT OF ENTRY) BILL 2004

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment and

Workplace Relations, the Honourable Kevin Andrews MP)

 

 



WORKPLACE RELATIONS AMENDMENT (RIGHT OF ENTRY) BILL 2004

 

 

 

OUTLINE

 

This Bill proposes to amend the Workplace Relations Act 1996 (WR Act) to enhance the right of entry system to clearly spell out parties’ rights and responsibilities, and limit scope for State law to be used to circumvent Federal requirements.

Expansion of the Commonwealth right of entry regime

The Bill would use a range of constitutional powers to enable the Commonwealth to exclude the operation of State right of entry laws or industrial instruments within constitutional limits. 

The Bill does not impinge upon any right of entry provided for under occupational health and safety legislation.

Improvements in the process for union right of entry

The Bill would provide a framework which balances the right of unions to represent their members in the workplace, hold discussion with potential members and investigate suspected breaches of industrial laws and instruments, with the rights of employers and occupiers of premises to conduct their business without undue interference or harassment.

The Bill:

·            strengthens the provisions for dealing with the issue, suspension and revocation of right of entry permits;

·            imposes a “fit and proper person” requirement for union officials seeking a right of entry permit;

·            more clearly sets out the rights and obligations of union officials, employers and occupiers of premises;

·            empowers the Australian Industrial Relations Commission (Commission) to deal with abuses of the right of entry system; and

·            provides that the Commission must not certify a federal certified agreement that contains right of entry provisions.

 

FINANCIAL IMPACT STATEMENT

 

The proposals contained in the Bill are budget neutral.

 

 



NOTES ON CLAUSES

Clause 1 - Short title

This is a formal provision and provides the short title of the Act.

Clause 2 - Commencement

This clause sets out a table that specifies when the various provisions of the Bill are to commence.  The effect of this clause is that:

·          Schedule 1 to the Act will come into operation on the 28 th day after the day on which the Act receives the Royal Assent;

·          Clause 4 will come into operation on the 28 th day after the day on which the Act receives the Royal Assent;

·          Clauses 1 to 3 will commence on the day on which the Act receives Royal Assent.

Clause 3 - Schedule

This clause provides that each Act specified in the Schedule to this Bill is amended or repealed as set out in the Schedule, and that any other item in the Schedule operates according to its terms.

Clause 4 - Transitional Provisions

This clause provides that permits in force under the repealed Part IX immediately before commencement of this section continue to operate.  Those permits would be subject to the new Part IXA arrangements including the rules relating to revocation and suspension.

Subclause (2) defines new Part IXA and repealed Part IX.

 



 

SCHEDULE 1 - AMENDMENTS

Workplace Relations Act 1996

Item 1 - Subsection 127AA(2)

1.1       This item makes a consequential amendment to subsection 127AA(2).  It replaces a reference to section 285G of the repealed Part IX with a reference to new Part IXA.

Item 2 - After subsection 170LU(2A)

1.2       This item inserts a new subsection (2B) which provides that the Commission must not certify an agreement if satisfied that it contains a provision that deals with union right of entry within the meaning of Part IXA.

 

Item 3 - Part IX

1.3       This item repeals Part IX — Entry and inspections by organisations and inserts a new Part IXA — Union right of entry.

Division 1 - Preliminary

Section 280A - Objects of this Part

1.4       Proposed section 280A sets out the objects of this Part, which are additional to the objects set out in section 3.  These objects are to:

·          establish a framework that balances the right of unions to represent their members in the workplace and the right of occupiers and employers to conduct their business without undue interference or harassment;

·          ensure that permit holders are fit and proper persons and understand their rights and obligations under this Part;

·          ensure that occupiers and employers understand their rights and obligations under this Part; and

·          provide that permits are suspended or revoked where rights granted under this Part are misused.

Section 280B   - Definitions

1.5       Proposed section 280B defines a number of terms used in this Part.

Section 280C - Form of entry notice

1.6       This section requires the Registrar to approve a form of entry notice in writing (subsection (1)).

1.7       Subsection (2) sets outs the particulars that the form must include.  However, subsection (2) does not limit the matters which may be required by, or contained in, the form of entry notice (subsection (3)).

Division 2 - Issue of permits

Section 280D - Issue of permit

1.8       Proposed section 280D provides for the issuing of permits by the Industrial Registrar to officials of unions who are named in applications by unions (subsections (1) and (2)).  The term “official” is defined in section 280B to include both office holders and employees of a union.

 

1.9       Subsection (3) provides that the permit must include any conditions imposed by the Industrial Registrar (under section 280E), and any conditions ordered by the Commission for abuse of the permit system (under section 280J). 

 

1.10     Regulations may be made on a number of matters relating to the application for, and issue of, permits under section 280D - the regulations may, for example, specify the documents that must accompany an application for a permit and the form of the permit (subsection (4)).

 

Section 280E - Imposition of permit conditions at time of issue

1.11     Proposed section 280E provides that at the time a permit is issued the Industrial Registrar may impose conditions on that permit that limit the effect of the permit, having regard to the list of matters specified in subsection 280F(2). 

 

1.12     A legislative note indicates that the conditions that might be imposed could include a limit on the range of premises to which a permit applies, or the time of day when entry may be made.

 

Section 280F - Permit not to be issued in certain cases

1.13     Proposed section 280F states where an application for a permit must be refused.

 

1.14     Subsection (1) provides that the Industrial Registrar must not issue a permit to an official unless the Industrial Registrar is satisfied that the official is a fit and proper person to hold the permit having regard to the matters referred to in subsection (2).  These include whether:

·          the official has received appropriate training about the rights and responsibilities of a permit holder;

·          the official has ever been convicted of a prescribed offence;

·          the official or any other person (such as the official’s union) has ever been ordered to pay a civil penalty under any industrial law in respect of the official’s conduct;

·          a previous permit issued to the official has been revoked or suspended under this Part , or under the repealed Part IX , or made subject to conditions;

·          the official’s right of entry for industrial purposes under a State industrial law has ever been suspended, cancelled, or had conditions imposed on it, or the official has been disqualified under a State industrial law from exercising or applying for a right of entry for industrial purposes.

 

1.15     Subsections (3) and (4) prohibit the Industrial Registrar from issuing a permit:

·          where the issue is prevented by an order of the Commission under section 280J or 281M (section 280J provides that the Commission can make orders where there is an abuse of the permit system and section 281M relates to the powers of the Commission to settle industrial disputes about the operation of this Part);

·          during a disqualification period specified by the Industrial Registrar under section 280H (section 280H provides for the revocation and suspension of a permit by the Industrial Registrar);

·          where an official’s right to enter for industrial purposes has been suspended under a State industrial law, or that person has been disqualified from exercising or applying for a right of entry permit under State industrial law.

 

Division 3 - Expiry, revocation, suspension etc. of entry permits

Section 280G - Expiry of permit

1.16     Proposed section 280G provides that a permit remains in force for three years unless it is revoked or the permit holder ceases to be an official of the union before that date, whichever happens first.

 

Section 280H - Revocation, suspension etc. by Industrial Registrar

1.17     Proposed section 280H provides for the revocation, suspension or imposition of conditions on permits by the Industrial Registrar.  An application may be made by an authorised person or a prescribed person, and must be in accordance with the Regulations.

 

1.18     On application, the Industrial Registrar may revoke, suspend or impose conditions on one or more permits held by the permit holder, having regard to the matters specified in subsection 280F(2) (subsections (2) and (3)).

 

1.19     Subsections (4) and (5) set out the circumstances in which the Industrial Registrar must revoke or suspend a permit:

·          the permit holder’s right of entry for industrial purposes under a State industrial law was cancelled or suspended or the permit holder has been disqualified under a State industrial law from exercising or applying for a right of entry for industrial purposes;

 

1.20     A period of suspension or revocation under subsection (4) must be for at least the “minimum disqualification period”: three months on the first occasion the Industrial Registrar takes action under this subsection; 12 months on the second occasion, and five years on the third and any subsequent occasion.

 

1.21     Subsection (6) defines “minimum disqualification period”. 

 

1.22     The Industrial Registrar’s decision will be appellable under section 81 of the WR Act. 

 

Section 280J - Orders by Commission for abuse of system

1.23     This section allows the Commission to make orders restricting the rights of a union or an official of a union, who has abused rights conferred by this Part (subsection (1)).  The Commission may make an order on its own motion or on application by an authorised person (subsection (2)).

 

1.24     The Commission may:

·          revoke or suspend some or all of the permits that have been issued in respect of the union;

·          impose conditions on some or all of the permits that have been issued in respect of a union or might in the future be issued in respect of the union;

·          ban the issue of permits for a specified period in relation to a specified person or in respect of the union generally (subsection (3)). 

 

1.25     A union, or official of a union who is subject to an order must comply with the order (subsection (4)).  This subsection is a civil penalty provision.

 

1.26     Subsection (5) provides that the Commission’s powers to make orders under this section may only be exercised by the President or, if the President directs, another Presidential member or a Full Bench.

 

Section 280K - Revoked etc. permit must be returned to Industrial Registrar

1.27     A permit holder must return his or her permit within seven days of their permit’s revocation, expiration and suspension or when conditions are imposed on the permit after is issued (subsection (1)).  This is a civil penalty provision.

 

1.28     In the case of a suspended permit, subsection (2) requires the Industrial Registrar to return the permit to the permit holder or the permit holder’s union on application, if satisfied that the permit is still in force.

 

Section 280L - Extra conditions to be endorsed on permit

1.29     Where conditions are imposed on a permit - by the Industrial Registrar under section 280H or by the Commission under section 280J - the permit ceases to have effect until the conditions have been endorsed on the permit. 

 

Division  4 - Right of Entry to investigate suspected breaches

1.30     Division 4 sets out the circumstances in which a Commonwealth or State union official may seek entry to investigate suspected breaches of industrial law or relevant industrial instruments.  The general rule is set out in proposed section 280M.  Proposed sections 280P, 280R - 280T impose limitations on the right of entry.

 

1.31     The rules in this Part do not apply to entry by consent.  In such a case, it is the consent that authorises entry, not the provisions of this Part.

 

Section 280M - Right of entry to investigate breach

1.32     Proposed section 280M sets out the circumstances in which a permit holder for a Commonwealth or a State union may enter premises to inspect a breach of industrial law or a relevant industrial instrument.

 

1.33     Subsection (1) authorises a permit holder of a Commonwealth union to enter premises for the purpose of investigating a suspected breach of:

·          the WR Act; or

·          an award, certified agreement or order under the WR Act binding on the permit holder’s union .

 

1.34     Subsection (1) provides that a right of entry must only be exercised during working hours and in respect to premises where work is being carried out by one or more employees who are members of the permit holder’s union and the suspected breach relates to or affects that work or any of those employees.

 

1.35     Subsection (2) provides that right of entry to investigate a breach of the WR Act does not apply to a breach of an AWA unless the employee who is a party to the AWA makes a written request to the union to investigate the breach.  Section 170VT provides that parties to an AWA must not breach an AWA.

 

1.36     Subsection (3) authorises a State union permit holder to enter premises for the purpose of investigating a suspected breach of a State industrial law, or a State industrial instrument that is binding on the permit holder’s union.

 

1.37     Subsection (3) also provides that a right of entry must be exercised during working hours and only in respect of premises where:

·          work is being carried out by one or more employees who are members of the permit holder’s State union and the suspected breach relates to or affects that  work or any of those employees; and

·          the employer of the employees is a constitutional corporation or the premises are in a Territory or Commonwealth place.

 

1.38     A permit holder must have reasonable grounds for believing there is a suspected breach.

 

Section 280N - Rights of permit holders after entering premises

1.39     Proposed section 280N specifies what permit holders may do after entering premises for the purpose of investigating a suspected breach.

 

1.40     Subsections (2) and (4) provide that while on premises, permit holders can, in order to investigate a suspected breach, exercise a number of rights during working hours including: 

·          inspect machinery or materials;

·          interview employees who are members or are eligible to be members of the permit holder’s union;

·          require an affected employer to produce or allow access to any records relevant to the suspected breach other than non-member records - the term “non-member record” is defined in subsection (12).

 

1.41     Subsection (3) makes it clear, for the avoidance of doubt, that a refusal or failure by a person to participate in an interview under subsection (2) does not constitute conduct covered by section 149.1 of the Criminal Code (which relates to obstruction of Commonwealth officials).

 

1.42     Subsection (5) authorises a permit holder to issue a notice to require an affected employer to:

·          produce or allow access to records (other than “non-member records”) relevant to the suspected breach at the premises or at another agreed place on a later day or days specified in the notice;

·          allow the permit holder to inspect and make copies of any of these records during working hours on a later day or days specified in the notice. 

 

1.43     The date in the notice must be at least 14 days after the day on which it is given (subsection (6)). 

 

1.44     Subsection (7) provides that before exercising rights under subsections (4) or (5), the permit holder must show the employer documents evidencing the authority to exercise right of entry.

 

1.45     Subsection (8) entitles a permit holder to enter premises during working hours for the purpose of inspecting and copying the records under a notice in subsection (5).

 

1.46     Upon application by a permit holder (subsection 9)), the Commission may order access to non-member records if satisfied that access is necessary to investigate the suspected breach.  Before making such an order the Commission must have regard to any conditions that apply to the permit holder’s permit (subsection 10)).  If the permit holder obtains an order under subsection (10) then the entry will be authorised by the order and will be subject to any conditions in the order.

 

1.47     Subsection (12) defines the terms “non-member record” and “record relevant to the suspected breach”.

 

Section 280P - Limitation on rights - entry notice or exemption certificate

1.48    Proposed section 280P provides that entry to premises under section 280M is not authorised unless the notice requirements in either subsection (2) or subsection (3) are complied with.

 

1.49    Subsection 280P(2) provides that a permit holder is not authorised to enter premises under section 280M unless:

·          the permit holder has given an entry notice to the occupier of the premises at least 24 hours but not more than 14 days before the entry;

·          the notice specifies entry is authorised under section 280M and identifies the particulars of the suspected breach or breaches.  The requirement to specify particulars means that specific details of the alleged breach(es) must be provided beyond merely identifying what instrument or areas of the Act or a State industrial law are alleged to have been breached.  The details should be sufficiently specific to enable the employer to identify which particular parts of the business or categories of employees are affected by the alleged breach; and

·          entry is on the day specified in the notice.

 

1.50     Subsection (4) provides that the exercise of post-entry rights under section 280N is not authorised unless the conduct is for the purpose of investigating a suspected breach identified in the entry notice.

 

1.51     Subsection (3) provides that a permit holder is not authorised to enter premises under section 280M unless:

·          a copy of an exemption certificate issued under section 280Q is given to the occupier of the premises not more than 14 days before the entry.

·          entry is on the day specified in the certificate;

·          the premises are those specified in the certificate.

 

1.52     Section 280P relates to entry authorised by section 280M, not entry in other circumstances.  So, it is not applicable to entry to inspect records at a later agreed time (under subsection 280N(8)) or entry under a Commission order to enter premises to inspect non-member records (under subsection 280N(10)).

 

Section 280Q - Exemption from requirement to provide entry notice

1.53     Proposed section 280Q allows a union to apply for a certificate exempting it from the notice requirements for entry onto premises under section 280M (subsection (1)).

 

1.54     The Industrial Registrar must issue such a certificate if satisfied that there are reasonable grounds for believing that advance notice of entry might result in relevant evidence being destroyed, altered or concealed (subsection (2)).

 

1.55     The exemption certificate must specify certain matters, including the premises and the union to which it applies, the particulars of the suspected breach or breaches and the day or days on which it operates (subsection (3)). 

 

1.56     Regulations may be made in relation to the form of application and the exemption certificate (subsection (4)).

 

Section 280R - Limitation on rights - failure to comply with requests of occupier or affected employer

1.57     Proposed section 280R provides that entry is not authorised under this Division unless a permit holder complies with specific requests of an occupier or affected employer.

 

1.58     Under this section, a permit holder is not authorised to enter or remain on premises if the permit holder fails to comply with a request by an occupier or affected employer to:

·          produce documents evidencing authority to enter (subsection (1));

·          observe occupational health and safety (OHS) requirements that apply to the premises, provided the request is reasonable (subsection (2));

·          conduct interviews in a particular room or area of the premises or to take a particular route to reach a particular room or area of the premises to conduct an interview, provided the request is reasonable (subsection (3)). 

 

1.59     To avoid doubt, subsection (4) makes clear that a request to conduct interviews in a particular room or take a particular route to reach a particular room or area of the premises is not unreasonable merely because it is not the room, area or route that the permit holder would have chosen.

 

Section 280S - Limitation on rights - residential premises

1.60     Proposed section 280S provides that this Division does not authorise a person to enter any part of premises that is used for residential purposes. 

 

Section 280T - Limitation on rights - permit conditions

1.61     Proposed section 280T provides that, other than in relation to entry authorised by the Commission under subsection 280N(10), a permit holder’s rights under this Division are subject to any conditions that apply to his or her permit. 

 

Section 280U - Exclusion of rights of entry under other industrial laws or instruments

1.62     Proposed section 280U excludes all rights to enter under other industrial laws or State industrial instruments where there is a right to enter conferred by this Division, or where there would be a right to enter under this Division if the permit holder’s right was not subject to any conditions, and the limitations identified in sections 280P (entry notice requirements), 280R (reasonable requests) and 280S (residential premises) did not apply.

 

1.63     This section does not exclude right of entry under an OHS law prescribed in the regulations.

 

Section 280V - Burden or proving reasonable grounds for suspecting breach

1.64     Proposed section 280V provides that the burden of proving the existence of reasonable grounds for suspecting a breach, as mentioned in section 280M, is on the person asserting the existence of those grounds.  This is designed to ensure that a suspicion of a suspected breach on the part of the permit holder is objectively reasonable having regard to the information in the possession of the permit holder at the time of the purported exercise of the right of entry. 

 

Division 5 - Right of entry to hold discussions with employees

1.65     Division 5 sets out the circumstances in which a Commonwealth or State union official may seek entry to hold discussions with employees.  The general rule is set out in section 280W.  Sections 280X - 281C impose limitations on the right of entry.

 

1.66     The rules in this Division do not apply to entry by consent.  In such a case, it is the consent that authorises entry, not the provisions of this Division.

 

Section 280W - Right of entry to hold discussions with employees

1.67     Proposed section 280W sets out the circumstances in which a permit holder for a Commonwealth or a State union may enter premises to hold discussions with employees.

 

1.68     Subsection (1) authorises entry by a permit holder who is a Commonwealth union official for the purpose of holding discussions with employees who wish to participate in those discussions provided the employees:

·          are members or eligible to be members of the permit holder’s union; and

·          carry out work on the premises which is covered by an award or certified agreement that binds the permit holder’s union.

 

1.69     Subsection (2) authorises a permit holder of a State union to enter premises for the purpose of holding discussions with employees who wish to participate in those discussions provided the employees:

·          are members or eligible to be members of the permit holder’s union; and

·          carry out work on the premises which is covered by a state industrial instrument that binds the permit holder’s union.

 

1.70     Permit holders of State unions are not authorised to enter premises unless the employer of the employees is a constitutional corporation and the proposed discussions relate to employment issues or industrial issues, or the premises are in a Territory or a Commonwealth place (subsection (3)).  State unions continue to exercise rights under State law in respect of sites not subject to Commonwealth constitutional coverage.

 

Section 280X - Limitation on rights - times of entry and discussions

1.71     Proposed section 280X provides that the permit holder is only allowed to enter under section 280W during working hours and may only hold discussions during the employees’ meal-time or other breaks.

 

Section 280Y - Limitation on rights - conscientious objection certificates

1.72     Proposed section 280Y provides that a permit holder is not authorised to enter premises if an employer:

 

·          holds a conscientious objection certificate in force under section 180 of Schedule 1B to the WR Act which has been endorsed under subsection 280Y(2) of Part IXA, or section 285C of the repealed Part IX of the WR Act, indicating that the employer is a practicing member of a religious society or order whose beliefs preclude membership of any other body; and

 

·          employs 20 or fewer employees at the premises, none of whom are union members.

 

Section 280Z - Limitation on rights - entry notice

1.73    Subsection (1) provides that a permit holder is not authorised to enter premises or subsequent conduct on the premises under section 280W unless:

 

·          an entry notice is given to the occupier at least 24 hours but not more than 14 days before the entry;

 

·          the notice specifies section 280W as authorising entry; and

 

·          entry is on the day specified in the notice.

 

1.74    Further limits are imposed in relation to entry for recruitment purposes (subsection (2)).  Entry under section 280W and subsequent conduct is not authorised if the conduct is for the purpose of recruitment and the entry notice does not specify recruitment as a purpose for entry or any other permit holder for the union entered the premises in the preceding 6 months for the purpose of recruiting.

 

Section 281A - Limitation on rights - residential premises

1.75     Proposed section 281A provides that this Division does not authorise entry onto any part of a premises which is used for residential purposes.

 

Section 281B - Limitation on rights - failure to comply with requests of the occupier or affected employer

1.76     Proposed section 281B provides that unless a permit holder complies with specified requests of occupiers or affected employers entry is not authorised under this Division to hold discussions.  Specifically, a permit holder must comply with a request to:

·          produce documents evidencing authority to enter (subsection (1));

·          observe occupational health and safety requirements that apply to the premises, provided the request is reasonable (subsection (2));

·          conduct interviews in a particular room or area of the premises or to take a particular route to reach a particular room or area of the premises to conduct an interview, provided the request is reasonable (subsection (3)). 

 

1.77     To avoid doubt, subsection (4) makes clear that a request to conduct interviews in a particular room or take a particular route to reach a particular room or area of the premises is not unreasonable merely because it is not the room, area or route that the permit holder would have chosen.

 

 

Section 281C - Limitation on rights - permit conditions

1.78     Proposed section 281C provides that a permit holder’s rights under this Division are subject to any conditions, including conditions imposed by the Commission or the Registrar, that apply to his or her permit.

 

Section 281D - Exclusion of rights of entry under other industrial laws or instruments

1.79     Proposed section 281D excludes rights to enter under other industrial laws or State industrial instruments where there is a right to enter conferred by this Division, or where there would be a right to enter under this Division if the permit holder’s right was not subject to any conditions, and the limitations in sections 280X (times of entry and discussion), 280Y(conscientious objection certificate), 280Z (entry notice requirements), 281A (residential premises) and 281B (reasonable requests).

 

1.80     It does not exclude the operation of right of entry under an OHS law prescribed in the regulations.

 

Division 6- Contravention of civil penalty provisions

Section 281E - Definitions

1.81     Proposed section 281E contains relevant definitions for the purposes of Division 6.

 

Section 281F - Penalties etc. for contravention of civil penalty provision

1.82     An “eligible person” may apply to the Court in respect of a contravention of a civil penalty provision.

 

·            an “eligible person” is: an authorised person, who is an inspector or authorised officer appointed under the WR Act, a person affected by the contravention, or a person prescribed by the regulations (subsection (5))

·            the Court is the Federal Court of Australia (section 3)

 

1.83     Subsection (1) sets out the orders that the Court can make against a person who contravenes a civil penalty provision.

 

1.84     The Court may order a pecuniary penalty.  The maximum pecuniary penalty that may be ordered is 300 penalty units in the case of a body corporate, or 60 penalty units in other cases.  

·          By operation of section 4AA of the Crimes Act 1914 , the value of a penalty unit is currently $110.

 

1.85     The Court may also order:

 

·         damages payable to a specified person;

 

·         any other order the Court thinks appropriate including an injunction.

 

 

1.86     A penalty ordered under this section is payable to the Commonwealth or some other person if the Court directs.  The penalty may be recovered as if it were a judgment debt (subsection (4)).

 

1.87     Subsection (6) allows regulations prescribing a person as an “eligible person” (i.e. a person able to bring proceedings for breach of a civil penalty provision) to limit the circumstances in which the person may make an application.

 

Section 281G - Multiple proceedings for same conduct

1.88     To avoid double penalties in respect of the same conduct, subsection (1) prevents the Court from making an order for a pecuniary penalty against a person if the person has already been convicted of an offence constituted by substantially the same conduct as the contravention of a civil penalty provision.

 

1.89     Subsection (2) provides that where criminal proceedings have commenced in respect of conduct that is substantially the same as that relating to proceedings for a pecuniary penalty order for a contravention of a civil penalty provision, the civil proceedings are stayed.  If the person is later convicted of the offence, then the proceedings for an order for breach of the civil penalty provisions are dismissed.  Otherwise, the proceedings may be resumed.

 

1.90     Subsection (3) ensures that if an order in respect of a contravention of a civil penalty provision has been made, criminal proceedings relating to substantially the same conduct may still be instituted.

 

Section 281H - Evidence given in proceedings for penalty not admissible in criminal proceedings

1.91     Proposed section 281H prevents admission of evidence in criminal proceedings where the evidence was previously given in proceedings for a pecuniary penalty order relating to contravention of a civil penalty provision and the criminal proceedings relate to substantially the same conduct.  An exception is made for criminal proceedings regarding false evidence given in the civil penalty proceedings.

 

Division 7 - Miscellaneous

Section 281J - Hindering, obstruction etc. in relation to this Part

1.92     Proposed section 281J prohibits certain conduct in relation to the exercise of powers under this Part, including (subsections (1)-(4)) :

·          permit holders intentionally hindering, obstructing or acting in an improper manner;

·          persons intentionally hindering or obstructing a permit holder exercising rights under this Part or refusing or unduly delaying entry to premises by a permit holder entitled to enter;

·          employers refusing or failing to comply with a requirement to produce documents under subsections 280N(4) or (5).

 

1.93     To avoid doubt, a failure by a permit holder and an affected employer to agree on a place to provide access to documents for inspection under paragraph 280N(5)(a) does not constitute hindering or obstructing (subsection (5)).

 

1.94     Subsection (6) provides that a person may be found to have hindered or obstructed a permit holder exercising rights by engaging in conduct before a permit holder enters the premises.  For example, a person may contravene the provisions by concealing documents.

 

1.95     Subsections (1)-(4) are civil penalty provisions.

 

Section 281K - Unreasonable requests by occupier or affected employer

1.96     Proposed section 281K allows the Commission to make appropriate orders in respect of the rights of a permit holder under sections 280M (entry to investigate) or 280W (entry for discussions) if satisfied that the occupier of the premises has made a request to a permit holder under section 280R or 281B that is not a reasonable request (subsection (1)).  A request would not be unreasonable merely because the employer did not provide the room or area of the permit holder's choice but would be unreasonable if it involved specifying a room or particular area of premises for interviews or discussions that was patently inadequate for the purpose.

 

1.97     Such orders that can be made include an order authorising access to premises for specified purposes (subsection (2)).

 

1.98     The Commission may act on application or on its own motion (subsection (4)).  The Commission’s powers to make orders under this section may only be exercised by the President or, if the President directs, another Presidential member or a Full Bench (subsection (3)).

 

Section 281L - Misrepresentations about right of entry

1.99     Proposed section 281L prohibits a person (first person) from intentionally or recklessly giving an impression to a second person that the first person, or another person, is authorised to under this Part to exercise particular rights.

 

1.100   Examples of behaviour which this section intends to cover are:

·          where a person purports to enter premises without a valid permit; or

·          a permit holder does not comply with a condition attached to a permit.

 

1.101   The “authorised” matters referred to in this section also include the right to enter under an order by the Commission in section 280N(10).

 

Section 281M - Powers of Commission to settle industrial disputes

1.102   This section permits the Commission to exercise its dispute settling powers to prevent and settle industrial disputes about the operation of this Part.  Any order that the Commission makes cannot, however, confer rights that are additional to, or inconsistent with, rights exercisable under this Part (subsection (1)).

 

1.103   Subsection (2) makes it clear that the Commission has the power, for the purpose of preventing or settling an industrial dispute, to revoke, suspend or impose “limiting conditions” on a right of entry permit issued under this Part.

 

1.104   Subsection (3) defines “limiting condition”.

 

 

Section 281N - Delegation by Industrial Registrar

1.105   This section provides that the Industrial Registrar may delegate any or all of his or her powers and functions under this Part to a Deputy Industrial Registrar.  The regulations may prescribe exceptions.