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Workplace Relations Amendment (Right of Entry) Bill 2004

2004-2005

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Workplace Relations Amendment (Right of Entry) Bill 2004

 

No.      , 2004

 

(Employment and Workplace Relations)

 

 

 

A Bill for an Act to amend the Workplace Relations Act 1996 , and for related purposes

   

   



Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Schedule(s).......................................................................................... 2

4............ Transitional provisions....................................................................... 2

Schedule 1—Amendments                                                                                                  4

Workplace Relations Act 1996                                                                                  4

 



A Bill for an Act to amend the Workplace Relations Act 1996 , and for related purposes

The Parliament of Australia enacts:

1   Short title

                   This Act may be cited as the Workplace Relations Amendment (Right of Entry) Act 2004 .

2   Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

 

2.  Section 4

The 28th day after the day on which this Act receives the Royal Assent.

 

3.  Schedule 1

The 28th day after the day on which this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3   Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

4   Transitional provisions

             (1)  If a permit was in force under the repealed Part IX immediately before the commencement of this section:

                     (a)  the permit continues in force as if it had been issued under the new Part IXA; and

                     (b)  the permit may be revoked or suspended under the new Part IXA.

             (2)  In this section:

new Part IXA means Part IXA of the Workplace Relations Act 1996 .

repealed Part IX means Part IX of the Workplace Relations Act 1996 , as in force immediately before the commencement of this section.



 

Schedule 1 Amendments

   

Workplace Relations Act 1996

1  Subsection 127AA(2)

Omit “section 285G”, substitute “Part IXA”.

2  After subsection 170LU(2A)

Insert:

          (2B)  Despite section 170LT, the Commission must refuse to certify an agreement if the Commission is satisfied that it contains a provision that requires or permits an officer or employee of a union (within the meaning of Part IXA) to exercise rights of a kind covered by that Part.

3  Part IX

Repeal the Part, substitute:

Part IXA Union right of entry

Division 1 Preliminary

280A   Objects of this Part

                   In addition to the objects set out in section 3, this Part has the following objects:

                     (a)  to establish a framework that balances:

                              (i)  the right of unions to represent their members in the workplace, hold discussions with potential members and investigate suspected breaches of industrial laws and industrial instruments; and

                             (ii)  the right of occupiers of premises and employers to conduct their businesses without undue interference or harassment;

                     (b)  to ensure that permits to enter premises and inspect records are only held by persons who understand their rights and obligations under this Part and who are fit and proper persons to exercise those rights;

                     (c)  to ensure that occupiers of premises and employers understand their rights and obligations under this Part;

                     (d)  to ensure that permits are suspended or revoked where rights granted under this Part are misused.

280B   Definitions

                   In this Part, unless the contrary intention appears:

affected employee means:

                     (a)  in relation to the entry onto premises under section 280M to investigate a suspected breach—an employee for whom all the following are satisfied:

                              (i)  the employee carries out work on the premises;

                             (ii)  the employee is a member of the permit holder’s union;

                            (iii)  the suspected breach relates to, or affects, the employee or the work; and

                     (b)  in relation to the entry onto premises under section 280W to hold discussions—an employee for whom all the following are satisfied:

                              (i)  the employee carries out work on the premises;

                             (ii)  the employee is a member of the permit holder’s union or is eligible to become a member of that union;

                            (iii)  the employee is one of the employees with whom the discussions are to be held.

affected employer means an employer of affected employees.

authorised person means an inspector or authorised officer.

authority documents , in relation to the entry onto premises by a permit holder, means:

                     (a)  if the permit holder entered the premises in reliance on an entry notice:

                              (i)  the permit holder’s permit; and

                             (ii)  the entry notice; or

                     (b)  if the permit holder entered the premises in reliance on an exemption certificate:

                              (i)  the permit holder’s permit; and

                             (ii)  the exemption certificate; or

                     (c)  if the permit holder entered the premises in reliance on an order of the Commission:

                              (i)  the permit holder’s permit; and

                             (ii)  the order.

civil penalty provision means:

                     (a)  a section in this Part (other than a section that is divided into subsections) that has a note at its foot stating “Civil penalty applies.”; or

                     (b)  a subsection in this Part that has a note at its foot stating “Civil penalty applies.”.

Commonwealth union means an organisation that is registered under the Registration and Accountability of Organisations Schedule.

conduct includes an omission.

entry notice means an entry notice in the form approved under section 280C.

exemption certificate means an exemption certificate under section 280Q.

Industrial Registrar means the Industrial Registrar appointed under section 67.

Note:          See also section 281N, which allows delegation by the Industrial Registrar.

officer , in relation to a union, means a person who holds an office in the union.

official , in relation to a union, means an officer or employee of the union.

OHS law means a law of a State or Territory that is prescribed for the purposes of this definition.

permit means a permit under this Part.

permit holder means a person who holds a permit under this Part.

permit holder’s union , in relation to a permit, means the union for which the permit was issued.

repealed Part IX means Part IX of this Act, as in force at any time before the commencement of this Part.

State industrial instrument means a State award or a State employment agreement.

State industrial law means an industrial law of a State.

State union means:

                     (a)  an association of employees; or

                     (b)  an association of employees and independent contractors;

that is registered or recognised as such under a State industrial law.

union means a Commonwealth union or a State union.

280C   Form of entry notice

             (1)  The Industrial Registrar must, in writing, approve a form of entry notice for the purposes of this section.

             (2)  The form:

                     (a)  must require the following matters to be specified by the person using the form:

                              (i)  the premises that are proposed to be entered;

                             (ii)  the union in respect of which the relevant entry permit was issued;

                            (iii)  any other matters prescribed by the regulations; and

                     (b)  must include any other information prescribed by the regulations.

             (3)  Subsection (2) does not, by implication, limit the matters that may be contained in, or required by, the form.

Division 2 Issue of entry permits

280D   Issue of permit

             (1)  A union may apply to the Industrial Registrar for the issue of a permit to an official of the union. The application must be in writing.

             (2)  The Industrial Registrar may issue a permit to the official named in the application.

             (3)  The permit:

                     (a)  must include any conditions that are imposed by the Industrial Registrar under section 280E; and

                     (b)  must include any conditions that are applicable under section 280J at the time of issue.

             (4)  The regulations may make provision in relation to the following matters:

                     (a)  the form of an application for a permit;

                     (b)  the declarations and other documents that must accompany the application;

                     (c)  verification, by statutory declaration, of those documents;

                     (d)  the form of a permit.

Note:          Under the Criminal Code and the Statutory Declarations Act 1959 , penalties apply to false statements etc.

280E   Imposition of permit conditions at time of issue

             (1)  At the time of issuing a permit, the Industrial Registrar may impose conditions that limit the circumstances in which the permit has effect.

Note:          For example, the conditions could limit the premises to which the permit applies or the time of day when the permit operates.

             (2)  In deciding whether to impose conditions, the Industrial Registrar must have regard to the matters specified in subsection 280F(2).

280F   Permit not to be issued in certain cases

Official not a fit and proper person

             (1)  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.

             (2)  For the purposes of subsection (1), the Industrial Registrar must have regard to the following matters:

                     (a)  whether the official has received appropriate training about the rights and responsibilities of a permit holder;

                     (b)  whether the official has ever been convicted of an offence against an industrial law;

                     (c)  whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

                              (i)  entry onto premises; or

                             (ii)  fraud or dishonesty; or

                            (iii)  intentional use of violence against another person or intentional damage or destruction of property;

                     (d)  whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in respect of conduct of the official;

                     (e)  whether any permit issued to the official under this Part, or under the repealed Part IX, has been revoked or suspended or made subject to conditions;

                      (f)  whether a court, or other person or body, under a State industrial law, has cancelled, suspended or imposed conditions on a right of entry for industrial purposes that the official had under that law;

                     (g)  whether a court, or other person or body, under a State industrial law, has disqualified the official from exercising, or applying for, a right of entry for industrial purposes under that law;

                     (h)  any other matters that the Industrial Registrar considers relevant.

Banning order or disqualification applies under this Part

             (3)  The Industrial Registrar must not issue a permit to an official:

                     (a)  during a disqualification period specified by the Industrial Registrar under section 280H; or

                     (b)  if the issue is prevented by a Commission order under section 280J or 281M.

Disqualification etc. applies under State industrial law

             (4)  The Industrial Registrar must not issue a permit to an official at a time when:

                     (a)  a suspension, imposed by a court or other person or body, applies under a State industrial law to a right of entry for industrial purposes that the official has under that law; or

                     (b)  a disqualification, imposed by a court or other person or body, prevents the official from exercising, or applying for, a right of entry for industrial purposes under a State industrial law.

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

280G   Expiry of permit

                   Unless earlier revoked, a permit expires at the earlier of the following times:

                     (a)  at the end of the third anniversary of the date of issue; or

                     (b)  when the permit holder ceases to be an official of the union that applied for the permit.

280H   Revocation, suspension etc. by Industrial Registrar

             (1)  An authorised person, or a person prescribed by the regulations, may apply to the Industrial Registrar to take action under this section against a permit holder. The application must be made in accordance with the regulations.

             (2)  On application made under subsection (1), the Industrial Registrar may do any of the following in relation to one or more permits held by the permit holder:

                     (a)  revoke the permit (whether or not the permit is already suspended);

                     (b)  suspend the permit for a specified period;

                     (c)  impose conditions on the permit (whether or not the permit is already suspended).

             (3)  In exercising powers under subsection (2), the Industrial Registrar must have regard to the matters specified in subsection 280F(2).

Industrial Registrar must revoke or suspend in certain circumstances

             (4)  If the Industrial Registrar is satisfied that any of the things mentioned in subsection (5) has happened since the first of the permits was issued, then the Industrial Registrar must take the following action in relation to each permit held by the permit holder:

                     (a)  if the permit expires before the end of the minimum disqualification period—the Industrial Registrar must revoke the permit;

                     (b)  if the permit does not expire before the end of the minimum disqualification period—the Industrial Registrar must either:

                              (i)  revoke the permit; or

                             (ii)  suspend the permit for a period that does not end earlier than the end of the minimum disqualification period.

The Industrial Registrar must also specify a disqualification period for the purposes of section 280F. The disqualification period cannot be shorter than the minimum disqualification period.

             (5)  The things are:

                     (a)  a court, or other person or body, under a State industrial law, cancelled or suspended a right of entry for industrial purposes that the permit holder had under that law; or

                     (b)  a court, or other person or body, under a State industrial law, disqualified the permit holder from exercising, or applying for, a right of entry for industrial purposes under that law.

Definitions

             (6)  In this section:

minimum disqualification period , in relation to action by the Industrial Registrar under subsection (4) (the current action ), means:

                     (a)  if the Industrial Registrar has never previously taken action against the permit holder under that subsection—the period of 3 months starting when the current action is taken; or

                     (b)  if the Industrial Registrar has previously taken action against the permit holder under that subsection on only one occasion—the period of 12 months starting when the current action is taken; or

                     (c)  if the Industrial Registrar has previously taken action against the permit holder under that subsection on at least 2 occasions—the period of 5 years starting when the current action is taken.

280J   Orders by Commission for abuse of system

             (1)  If the Commission is satisfied that a union, or any official of a union, has abused the rights conferred by this Part, then the Commission may make whatever orders it considers appropriate to restrict the rights of the union, or officials of the union, under this Part.

             (2)  The Commission may make the orders:

                     (a)  of its own motion; or

                     (b)  on application by an authorised person.

             (3)  The orders may include:

                     (a)  an order that revokes or suspends some or all of the permits that have been issued in respect of the union; and

                     (b)  an order that imposes limiting conditions on some or all of the permits that have been issued in respect of the union or that might in future be issued in respect of the union; and

                     (c)  an order that bans, for a specified period, the issue of permits in respect of the union, either generally or to specified persons.

For the purposes of this subsection, limiting condition means a condition that limits the circumstances in which a permit has effect.

             (4)  A union, or an official of a union, who is subject to an order under this section must comply with the order.

Note:          Civil penalty applies.

             (5)  The powers of the Commission under this section are exercisable by:

                     (a)  the President; or

                     (b)  a Presidential Member assigned by the President for the purposes of the matter concerned; or

                     (c)  a Full Bench, if the President so directs.

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

             (1)  If any of the following happens to a permit, then the permit holder must within 7 days return the permit to the Industrial Registrar:

                     (a)  the permit is revoked;

                     (b)  the permit expires;

                     (c)  the permit is suspended;

                     (d)  conditions are imposed on the permit after it is issued.

Note:          Civil penalty applies.

             (2)  In the case of a suspended permit, the Industrial Registrar must, on application by the permit holder or the permit holder’s union, return the permit to the permit holder after the end of the suspension period if the Industrial Registrar is satisfied that the permit is then still in force.

Note:          In the meantime the permit might have been revoked or might have expired.

280L   Extra conditions to be endorsed on permit

                   If conditions are imposed on a permit by the Industrial Registrar under section 280H or by the Commission under section 280J, then the permit ceases to have effect until the Industrial Registrar endorses those conditions on the permit.

Division 4 Right of entry to investigate suspected breaches

280M   Right of entry to investigate breach

Right of entry for breach of Commonwealth industrial law etc.

             (1)  If a permit holder for a Commonwealth union suspects, on reasonable grounds, that a breach has occurred, or is occurring, of:

                     (a)  this Act; or

                     (b)  an award or a certified agreement or an order of the Commission under this Act, being an award, certified agreement or order that is binding on the permit holder’s union;

then, for the purpose of investigating the suspected breach, the permit holder may, during working hours, enter premises if:

                     (c)  work is being carried out on the premises by one or more employees who are members of the permit holder’s union; and

                     (d)  the suspected breach relates to, or affects, that work or any of those employees.

No right to investigate AWA breach unless employee requests

             (2)  Paragraph (1)(a) does not apply to a breach of section 170VT unless the employee who is a party to the AWA makes a written request to the union to investigate the breach.

Right of entry for breach of State industrial law etc.

             (3)  If a permit holder for a State union suspects, on reasonable grounds, that a breach has occurred, or is occurring, of:

                     (a)  a State industrial law; or

                     (b)  a State industrial instrument that is binding on the permit holder’s union;

then, for the purpose of investigating the suspected breach, the permit holder may, during working hours, enter premises if:

                     (c)  work is being carried out on the premises by one or more employees who are members of the permit holder’s union; and

                     (d)  the suspected breach relates to, or affects, that work or any of those employees; and

                     (e)  at least one of the following applies:

                              (i)  the employer of the employees is a constitutional corporation;

                             (ii)  the premises are in a Territory or Commonwealth place.

280N   Rights of permit holder after entering premises

             (1)  This section applies if a permit holder has entered premises under section 280M for the purpose of investigating a suspected breach.

Inspection of work etc. and interviewing employees

             (2)  While on the premises, the permit holder may, for the purpose of investigating the suspected breach:

                     (a)  during working hours, inspect or view any work, material, machinery, or appliance, that is relevant to the suspected breach; and

                     (b)  during working hours, interview the following persons about the suspected breach:

                              (i)  employees who are members of the permit holder’s union; or

                             (ii)  employees who are eligible to become members of the permit holder’s union.

             (3)  For the avoidance of doubt, a refusal or failure by a person to participate in an interview under this section is not to be treated as conduct covered by section 149.1 of the Criminal Code .

Inspection of records while on the premises

             (4)  While on the premises, the permit holder may, for the purpose of investigating the suspected breach, require an affected employer to allow the permit holder, during working hours, to inspect and make copies of, any records relevant to the suspected breach (other than non-member records) that:

                     (a)  are kept on the premises by the employer; or

                     (b)  are accessible from a computer that is kept on the premises by the employer.

Inspection of records at later time

             (5)  The permit holder may, for the purpose of investigating the suspected breach, by notice in writing, require an affected employer, on a later day or days specified in the notice:

                     (a)  to produce, or allow access to, all records, or particular records, relevant to the suspected breach (other than non-member records), either at the premises or at another place that is agreed between the permit holder and the employer; and

                     (b)  to allow the permit holder, during working hours, to inspect and make copies of, any of those records.

The permit holder may give the notice while on the premises or within 5 days after the day on which the permit holder entered the premises.

             (6)  A day specified in a notice to an employer under subsection (5) cannot be earlier than 14 days after the notice is given to the employer.

             (7)  Before issuing a requirement to an affected employer under subsection (4) or (5), the permit holder must produce the permit holder’s authority documents for inspection by the employer.

             (8)  If a permit holder has given a notice to an employer under subsection (5) requiring the employer to produce, or allow access to, records at the premises, then the permit holder is entitled to enter the premises during working hours for the purpose of inspecting and copying the records in accordance with the notice.

Application to Commission for access to non-member records

             (9)  The permit holder may, for the purposes of investigating the suspected breach, apply to the Commission for either or both of the following orders:

                     (a)  an order to allow the permit holder to enter the premises and to inspect and make copies of non-member records that are relevant to the suspected breach;

                     (b)  an order to require an affected employer to produce, or allow access to, such records for inspection and copying.

           (10)  The Commission may make such an order if it is satisfied that the order is necessary to investigate the suspected breach. Before doing so, the Commission must have regard to the conditions (if any) that apply to the permit holder’s permit.

           (11)  An application for an order under subsection (9):

                     (a)  must be in accordance with the regulations; and

                     (b)  must set out the grounds on which the application is made.

Definitions

           (12)  In this section:

non-member record means a record that:

                     (a)  relates to the employment of a person who is not a member of the permit holder’s union; and

                     (b)  does not also relate to the employment of a person who is a member of the permit holder’s union.

record relevant to the suspected breach means a record:

                     (a)  that is relevant to the suspected breach; and

                     (b)  that is of the following kind:

                              (i)  a time sheet;

                             (ii)  a pay sheet;

                            (iii)  any other record or document, other than an AWA, an ancillary document (within the meaning of Part VID) or a record or document that shows some or all of the content of an AWA or of an ancillary document.

280P   Limitation on rights—entry notice or exemption certificate

             (1)  Section 280M does not authorise entry to premises unless:

                     (a)  the conditions in subsection (2) of this section are satisfied; or

                     (b)  the conditions in subsection (3) of this section are satisfied.

             (2)  The conditions are:

                     (a)  the permit holder gave an entry notice to the occupier of the premises at least 24 hours, but not more than 14 days, before the entry; and

                     (b)  the entry notice specifies section 280M as the section that authorises the entry; and

                     (c)  the entry notice specifies particulars of the suspected breach or breaches; and

                     (d)  the entry is on a day specified in the entry notice.

             (3)  The conditions are:

                     (a)  the entry is on a day specified in an exemption certificate under section 280Q and the premises are the premises specified in the exemption certificate; and

                     (b)  the permit holder gave a copy of the exemption certificate to the occupier of the premises not more than 14 days before the entry.

             (4)  Conduct after entry is not authorised by section 280N unless the conduct is for the purpose of investigating a suspected breach identified in the permit holder’s authority documents.

280Q   Exemption from requirement to provide entry notice

             (1)  A union may apply to the Industrial Registrar for an exemption certificate in respect of the entry onto premises under section 280M to investigate a suspected breach.

             (2)  If the Industrial Registrar is satisfied that there are reasonable grounds for believing that advance notice of entry onto the premises under section 280M might result in the destruction, concealment or alteration of relevant evidence, then the Industrial Registrar must issue an exemption certificate in respect of entry onto those premises.

             (3)  An exemption certificate must:

                     (a)  specify the premises to which it applies; and

                     (b)  specify the union to which it relates; and

                     (c)  specify the day or days on which it operates; and

                     (d)  specify particulars of the suspected breach or breaches to which it relates; and

                     (e)  specify section 280M as the section that authorises the entry.

             (4)  The regulations may make provision in relation to the following matters:

                     (a)  the form of an application for an exemption certificate;

                     (b)  the form of an exemption certificate.

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

             (1)  This Division does not authorise a permit holder to enter, or remain on, premises if the permit holder fails to produce the permit holder’s authority documents for inspection when requested to do so by an affected employer or by the occupier of the premises.

             (2)  This Division does not authorise a permit holder to enter, or remain on, premises if:

                     (a)  an affected employer or the occupier of the premises requests the permit holder to comply with an occupational health and safety requirement that applies to the premises; and

                     (b)  the request is a reasonable request; and

                     (c)  the permit holder fails to comply with the request.

             (3)  This Division does not authorise a permit holder to enter, or remain on, premises if:

                     (a)  an affected employer or the occupier of the premises asks the permit holder to do either or both of the following:

                              (i)  to conduct interviews in a particular room or area of the premises;

                             (ii)  to take a particular route to reach a particular room or area of the premises; and

                     (b)  the request is a reasonable request; and

                     (c)  the permit holder fails to comply with the request.

Note:          The Commission may make an order under section 281K if the request is unreasonable.

             (4)  For the purposes of subsection (3), if an affected employer or the occupier requests the permit holder to hold discussions in a particular room or area, or to take a particular route to reach a particular room or area, the request is not unreasonable only because it is not the room, area or route that the permit holder would have chosen.

280S   Limitation on rights—residential premises

                   This Division does not authorise a person to enter any part of premises that is used for residential purposes.

280T   Limitation on rights—permit conditions

             (1)  A permit holder’s rights under this Division in respect of a permit are subject to any conditions that apply to the permit.

             (2)  Subsection (1) does not apply to rights of a permit holder under an order by the Commission under section 280N.

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

                   If a person:

                     (a)  is authorised by section 280M to enter premises to investigate a suspected breach and to do other things for the purpose of investigating the suspected breach; or

                     (b)  would be so authorised if:

                              (i)  the person held a permit that is not subject to any conditions; and

                             (ii)  sections 280P, 280R and 280S were omitted;

then the person has no right under any other industrial law (other than an OHS law), or any State industrial instrument, to enter those premises to investigate that suspected breach or to do those other things for the purpose of investigating the suspected breach.

280V   Burden of proving reasonable grounds for suspecting breach

                   Whenever it is relevant to determine whether a permit holder had reasonable grounds for suspecting a breach, as mentioned in section 280M, the burden of proving the existence of reasonable grounds lies on the person asserting the existence of those grounds.

Division 5 Right of entry to hold discussions with employees

280W   Right of entry to hold discussions with employees

Employees covered by Commonwealth industrial instrument

             (1)  A permit holder for a Commonwealth union may enter premises for the purposes of holding discussions with any eligible employees who wish to participate in those discussions. For this purpose, eligible employee means any employee who:

                     (a)  on the premises, carries out work that is covered by an award, or certified agreement, that is binding on the permit holder’s union; and

                     (b)  is a member of the permit holder’s union or is eligible to become a member of that union.

Employees covered by State industrial instrument

             (2)  A permit holder for a State union may enter premises for the purposes of holding discussions with any eligible employees who wish to participate in those discussions. For this purpose, eligible employee means any employee who:

                     (a)  on the premises, carries out work that is covered by a State industrial instrument that is binding on the permit holder’s union; and

                     (b)  is a member of the permit holder’s union or is eligible to become a member of that union.

             (3)  Subsection (2) does not authorise the permit holder to enter premises unless at least one of the following paragraphs applies:

                     (a)  the employer of the employees is a constitutional corporation and the proposed discussions relate to employment issues or industrial issues;

                     (b)  the premises are in a Territory or Commonwealth place.

280X   Limitation on rights—times of entry and discussions

                   The permit holder may only enter the premises under section 280W during working hours and may only hold the discussions during the employees’ meal-time or other breaks.

280Y   Limitation on rights—conscientious objection certificates

             (1)  This Division does not authorise entry to premises, or subsequent conduct on the premises, if all of the following conditions are satisfied:

                     (a)  no more than 20 employees are employed to work at the premises;

                     (b)  all the employees at the premises are employed by an employer who is the holder of a conscientious objection certificate in force under section 180 of the Registration and Accountability of Organisations Schedule, that has been endorsed by a Registrar under subsection (2) of this section, or under section 285C of the repealed Part IX;

                     (c)  none of the employees employed at the premises is a member of a union.

             (2)  Subject to subsection (3), a Registrar may, on the application of an employer, endorse a certificate issued to that employer under section 180 of the Registration and Accountability of Organisations Schedule if the Registrar is satisfied that the employer is a practising member of a religious society or order whose doctrines or beliefs preclude membership of an organisation or body other than the religious society or order of which the employer is a member.

             (3)  A Registrar must not endorse a certificate under subsection (2) unless satisfied that, at the time application is made for endorsement, all of the employees employed by the applicant have agreed that the applicant’s certificate should be endorsed.

             (4)  An application under subsection (2) may be made at the time of an application under section 180 of the Registration and Accountability of Organisations Schedule or at any later time.

             (5)  The endorsement of a Registrar under subsection (2) remains in force for the period that the certificate remains in force.

Note:          A certificate issued under section 180 of the Registration and Accountability of Organisations Schedule remains in force for the period (not exceeding 12 months) specified in the certificate, but may be renewed. A Registrar’s endorsement under subsection (2) does not remain in force when a certificate is renewed, but a new application for endorsement may be made.

280Z   Limitation on rights—entry notice

             (1)  This Division does not authorise entry to premises, or subsequent conduct on the premises, unless all the following conditions are satisfied:

                     (a)  the permit holder gave an entry notice to the occupier of the premises at least 24 hours, but not more than 14 days, before the entry;

                     (b)  the entry notice specifies section 280W as the section that authorises the entry;

                     (c)  the entry is on a day specified in the entry notice.

             (2)  This Division does not authorise entry to premises, or subsequent conduct on the premises, if:

                     (a)  the conduct is for the purposes of recruitment, but the entry notice does not specify recruitment as a purpose of entry; or

                     (b)  the conduct is for the purposes of recruitment and a permit holder for the union entered the premises in the preceding 6 months for that purpose.

             (3)  In this section:

recruitment means encouraging employees to become members of the permit holder’s union.

281A   Limitation on rights—residential premises

                   This Division does not authorise a person to enter any part of premises that is used for residential purposes.

281B   Limitation on rights—failure to comply with requests of occupier or affected employer

             (1)  This Division does not authorise a permit holder to enter, or remain on, premises if the permit holder fails to produce the permit holder’s authority documents for inspection when requested to do so by an affected employer or by the occupier of the premises.

             (2)  This Division does not authorise a permit holder to enter, or remain on, premises if:

                     (a)  an affected employer or the occupier of the premises requests the permit holder to comply with an occupational health and safety requirement that applies to the premises; and

                     (b)  the request is a reasonable request; and

                     (c)  the permit holder fails to comply with the request.

             (3)  This Division does not authorise a permit holder to enter, or remain on, premises if:

                     (a)  an affected employer or the occupier of the premises asks the permit holder to do either or both of the following:

                              (i)  to hold discussions in a particular room or area of the premises;

                             (ii)  to take a particular route to reach a particular room or area of the premises; and

                     (b)  the request is a reasonable request; and

                     (c)  the permit holder fails to comply with the request.

Note:          The Commission may make an order under section 281K if the request is unreasonable.

             (4)  For the purposes of subsection (3), if an affected employer or the occupier requests the permit holder to hold discussions in a particular room or area, or to take a particular route to reach a particular room or area, the request is not unreasonable only because it is not the room, area or route that the permit holder would have chosen.

281C   Limitation on rights—permit conditions

                   A permit holder’s rights under this Division in respect of a permit are subject to any conditions that apply to the permit.

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

                   If a person:

                     (a)  is authorised by this Division to enter premises and hold discussions with employees (either generally or in relation to particular matters); or

                     (b)  would be so authorised if:

                              (i)  the person held a permit that is not subject to any conditions; and

                             (ii)  sections 280X, 280Y, 280Z, 281A and 281B were omitted;

then the person has no right under any other industrial law (other than an OHS law), or any State industrial instrument, to enter those premises and hold those discussions with those employees.

Division 6 Contravention of civil penalty provisions

281E   Definitions

                   In this Part, unless the contrary intention appears:

pecuniary penalty order means an order under paragraph 281F(1)(a).

person , in relation to a contravention of a civil penalty provision, includes an industrial association.

281F   Penalties etc. for contravention of civil penalty provision

             (1)  The Court, on application by an eligible person, may make one or more of the following orders in relation to a person (the defendant ) who has contravened a civil penalty provision:

                     (a)  an order imposing a pecuniary penalty on the defendant;

                     (b)  an order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention;

                     (c)  any other order that the Court considers appropriate.

             (2)  The maximum pecuniary penalty is 300 penalty units if the defendant is a body corporate and otherwise 60 penalty units.

             (3)  The orders that may be made under paragraph (1)(c) include:

                     (a)  injunctions (including interim injunctions); and

                     (b)  any other orders that the Court considers necessary to stop the conduct or remedy its effects.

             (4)  A pecuniary penalty is payable to the Commonwealth, or to some other person if the Court so directs. It may be recovered as a debt.

             (5)  Each of the following is an eligible person for the purposes of this section:

                     (a)  an authorised person;

                     (b)  a person affected by the contravention;

                     (c)  a person prescribed by the regulations for the purposes of this paragraph.

             (6)  A regulation prescribing persons for the purposes of paragraph (5)(c) may provide that a person is prescribed only in relation to circumstances specified in the regulation.

281G   Multiple proceedings for same conduct

             (1)  The Court must not make a pecuniary penalty order against a person for a contravention if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.

             (2)  Proceedings for a pecuniary penalty order against a person are stayed if:

                     (a)  criminal proceedings are started or have already been started against the person for an offence; and

                     (b)  the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.

             (3)  Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether an order under this Division has been made against the person.

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

                   Evidence of information given by an individual, or evidence of production of documents by an individual, is not admissible in criminal proceedings against the individual if:

                     (a)  the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and

                     (b)  the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.

However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.

Division 7 Miscellaneous

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

             (1)  A permit holder exercising, or seeking to exercise, rights under section 280M, 280N or 280W must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

Note:          Civil penalty applies.

             (2)  A person must not refuse or unduly delay entry to premises by a permit holder who is entitled to enter the premises under section 280M, subsection 280N(8) or (9) or section 280W.

Note:          Civil penalty applies.

             (3)  An employer must not refuse or fail to comply with a requirement under subsection 280N(4) or (5).

Note:          Civil penalty applies.

             (4)  A person must not otherwise intentionally hinder or obstruct a permit holder exercising rights under section 280M, 280N or 280W.

Note:          Civil penalty applies.

             (5)  To avoid doubt, a failure to agree on a place as mentioned in paragraph 280N(5)(a) does not constitute hindering or obstructing a permit holder exercising rights under section 280N.

             (6)  Without limiting subsection (4), that subsection:

                     (a)  extends to hindering or obstructing that occurs after the entry notice is given but before the permit holder enters the premises; and

                     (b)  applies whether or not the person who is hindering or obstructing knows at the time which permit holder will be exercising the rights in respect of the entry notice.

Note:          For example, if an entry notice is given to the occupier and a person then destroys, conceals or manufactures evidence relating to the suspected breach, that conduct would amount to hindering or obstructing.

281K   Unreasonable requests by occupier or affected employer

             (1)  If the Commission is satisfied that:

                     (a)  an affected employer or the occupier of premises has made a request to a permit holder as mentioned in section 280R or 281B; and

                     (b)  the request is not a reasonable request;

then the Commission may make whatever orders it considers appropriate in respect of the rights of the union, or officials of the union, to investigate breaches as mentioned in section 280M, or to hold discussions with employees as mentioned in section 280W, as the case requires.

Note:          Unreasonable requests might amount to a breach of subsection 281J(4).

             (2)  Without limiting subsection (1), the Commission may order that, for a specified period, the permit holder who was exercising or seeking to exercise rights under section 280N or 280W is entitled to enter specified premises, or a specified part of specified premises, for a specified period, and exercise those rights.

             (3)  The powers of the Commission under this section are exercisable by:

                     (a)  the President; or

                     (b)  a Presidential Member assigned by the President for the purposes of the matter concerned; or

                     (c)  a Full Bench, if the President so directs.

             (4)  The Commission may make an order under this section of its own motion or on application in accordance with the regulations.

281L   Misrepresentations about right of entry

             (1)  A person must not, in the circumstances mentioned in subsection (2), engage in conduct:

                     (a)  with the intention of giving a second person the impression; or

                     (b)  reckless as to whether a second person would get the impression;

that the first person, or a third person, is authorised by this Part to do a particular thing.

Note:          Civil penalty applies.

             (2)  The circumstances are:

                     (a)  the first person or the third person (as the case requires) is not authorised by this Part to do that thing; and

                     (b)  the first person knows, or has reasonable grounds to believe, that the first person or the third person (as the case requires) is not authorised by this Part to do that thing.

281M   Powers of Commission to settle industrial disputes

             (1)  In spite of section 89A, the Commission may exercise its powers under Part VI to prevent and settle industrial disputes about the operation of this Part, but must not make an order for that purpose conferring rights that are additional to, or inconsistent with, rights exercisable under this Part.

             (2)  However, the Commission does have power, for the purpose of preventing or settling an industrial dispute, to:

                     (a)  revoke or suspend a permit issued to a person under this Part; or

                     (b)  impose limiting conditions on a permit issued to a person under this Part.

If the Commission does so, it may make any order that it considers appropriate, for the purpose of preventing or settling the industrial dispute, about the issue of any further permit to the person, or of any permit or further permit to any other person, under this Part.

             (3)  In this section:

limiting condition means a condition that limits the circumstances in which a permit has effect.

281N   Delegation by Industrial Registrar

             (1)  The Industrial Registrar may, in writing, delegate all or any of his or her powers and functions under this Part to a Deputy Industrial Registrar other than powers or functions prescribed by the regulations for the purposes of this subsection.

             (2)  In exercising powers or functions under a delegation, the delegate must comply with any directions of the Industrial Registrar.