1987, No. 77 Labour Relations 635
ANALYSIS
Title Powers 1. Short Title and commencement 21. Powers of unions and employers 2. Interpretation organisations 22. Power to lend or borrow money or give PART I guarantees or purchase or lease land REGISTRATION OF UNIONS AND EMpWYERS 23. Power to sue and service of notices ORGANISATIONS 24. Execution of documents 3. Object 4. Registrar of Unions Amalgamation 0/ UnioTIJ or Employers 5. Deputy Registrar of Unions OrganisatlOTIJ 25. Amalgamation of unions or employers Registration Unions 0/ organisations 6. Unions 26. Effect of cancellation of registration 7. Purpose of registration resulting from amalgamation 8. Incorporation of union 27. Final audit on amalgamation of unions or employers organisations Procedure for Rtgutration 0/ Union 9. Application for re~tration A.uocialioTIJ 0/ UnlOTIJ or Employers OrganisatlOTIJ 10. Registration of uruon 28. Associations of unioJ;lS or employers organisations may be registered PrUIIUwnal RegutratlOn if Unions 11. Access to provisional registration Cancellation 0/ Registration 12. Consequential changes to coverage 29. Vohmtary cancellation of registration of 13. Effect of provisional registration union Of employers organisation 14. End of provisional registration 30. Cancellation of registration of union on reduction of membership below Changes to Cuverage minimum 15. Requirements where changes to 31. Cancellation of registration for failure coverage sought to deliver annual accounts 32. Cancellation of registration for failure Appeals to make annual return 16. Appeals 33. Cancellation of registration of defunct union or employers organisation RegutratlOn 0/ Employers OrganISatIOns 34. Effect of cancellation of registration not 17. Employers organisations resulting from amalgamation 18. Incorporation of employers 35. Disposal of surplus assets on organisation cancellation of registration
Procedure for RegutratlOn 0/ Employers PARTII OrganuatlOn AFFAIRS OF UNIONS AND EMPLOYERS 19. Application for registration ORGANISATIONS 20. Registration of employers organisation 36. Object
8-2 636 Labour Relations 1987, No. 77
Rules rf UnIOns and Employers Organuations 70. Effect of amalgamation of wUons on 37. Matters to be provided for in rules wUon membership clause 38. Name of wUon or employers 71. Effect of failure to comply with union organisation not to be same as name membership clause of another wUon or employers 72. Undue influence organisation or body corporate 39. Amendments of rules to be recorded by Exemptwn from UnIOn MembershIp Registrar 73. Union Membership Exemption Tribunal 40. Special powers of Registrar in relation 74. Functions of Tribunal to rules 75. Membership of Tribunal 41. Appeals 76. Term of office of members 42. Evidence of rules 7 7. Extraordinary vacancies 78. Deputy members of Tribunal Lrotes and SubscnptlOIU 79. Procedure of Tribunal 80. Administrative and secretarial services 43. Restrictions as to levies and 81. Remuneration and expenses of Tribunal subscriptions payable by members of 82. Application for exemption wUons or employers organisations 83. Grounds for exemption 44. Recovery of levies and subscriptions 84. Form of application 85. Fee AdministratIOn of UnIOns and Employers 86. Reference of application to union OrganISatIOns 87. Objection by wUon 45. Registered office 88. Unopposed application 46. Notice to members of change of 89. Hearing of application registered office or postal address 90. Intervention by other wUons or central 47. Accounts of wUons and employers organisation of workers organisations 91. Exem~tio~ pending detertnination of 48. Audit of accounts applicauon 49. Delivery of accounts and auditor's 92. Power to grant exemption certificate to Registrar 93. Duration of exemption 50. Power of Registrar to require audit of 94. Notice of decision accounts 95. Certificate of exemption 51. Obligation of wUons and employers 96. Rehearing organisations to retain accounting 97. Appeal on question of law records, etc. 52. Annual return PART IV 53. Statement of officers and members CHANGE OF UNION CoVERAGE whenever required 98. Object 54. Information to be provided by 99. Procedure in relation to extension of employer membership 55. Special voting in ballots 100. Notice of proposed change 56. Right. of entry for purposes of wUon 101. Definition of category or categories of busmess workers 57. Union meetings 102. Ballot of union wishing to extend its coverage PART III 103. Ballot for change of wUon coverage UNION MEMBERSHIP PROVISIONS Conduct rf BallotJ 58. Object 59. Interpretation 104. Conduct of union coverage ballots 60. Right of workers to become members of 105. Restrictions on union coverage ballots wUons 106. Consequences of change of wUon coverage Union Membership Clauses 107. Enforcement 61. Insertion of wUon membership clause DemarcatIOn 62. Insertion of wUon membership clause 108. Demarcation dispute in composite award or composite 109. Demarcation ballot agreement 110. Amendment of membership rule 63. Provision for ballots 64. Obligatory rules concertIing union PART V membership ballots 65. Notice to Registrar DISPUTED BAlLOTS OR ELEC1"IONS 66. Conduct of ballot 111. Int~retation 67. Result of ballot 112. Applications for inquiries into ballots 68. Effect of ballot 113. Power to require list of members 69. Currency of wUon membership clause 114. Directions as to hearing 1987, No. 77 Labour Relatioru 637
115. Interim order Awards Covering Young Worhm 116. Functions and powers of Court 156. Interpretation 117. Enforcement of orders 157. Negotiation ofloung worker awards 118. Validation of certain acts, etc. 158. Enforcement 0 young worker awards 119. Ballot papers, etc., to be preserved 159. Obligations of employers in respect of 120. Offences in connection WIth ballots young workers
PART VI Award Cooerage TRIPARTITE WAGE CoNFERENCE 160. Parties bound by award 121. Tripartite Wage Conference 161. Addition of parties outside locality of 122. Presiding officer award 123. Deputies 162. Power to amend coverage of award 124. Participants 125. Public notice Negotiation of Agreements 126. Submissions 163. Object in relation to agreements 127. Consultations about economic 164. Agreements environment 165. Persons on whom agreement is binding 128. Consultations about interests of low· 166. Composite agreements paid 167. Persons on wnom composite agreement 129. Conclusions and recommendations is binding 130. Briefing on state of economy 168. Power to add parties to composite 131. Working parties agreement 169. Withdrawal from composite agreement
PART VII Awards and Agreements Generally NEGOTtATlON OF AWARDS AND AGREEMENTS 170. Content of award or agreement General Object 1 71. Currency of award or agreement 132. General object in relation to awards and 172. Forty.hour five·day week agreements 173. Holidays 174. Awards and agreements to prevail over contracts of service in cases of Negotiation of Awards conflict 133. Object in relation to awards 1 75. Evidence of award or agreement 134. Initiation of negotiations for awards 176. Power to amend award or agreement 135. Separate negotiations 136. Effect of separate negotiations Under-rate Worhm 137. Composite awards 177. Under·rate workers 138. Duty of Chief Mediator 139. Mediator to determine date for New Mattm negotiations 140. Action where mediator cannot 178. New matters constitute conciliation council 179. Application to Labour Court 141. Conciliation council 180. Decision of Labour Court 142. Substitute ne~otiators 143. Persons enutled to be heard in Metlwd of Negotiating New Matters conciliation council 181. Award negotiations 144. Powers and functions of mediator in 182. Negotiations for agreement relation to conciliation council 183. Registration of awards and agreements 145. Powers and functions of conciliation arising out of new matters council with respect to dispute 146. Conciliated settlement Redundancy 147. ~nsettled disputes 184. Redundancy 148. Criteria 149. Arbitration Publication of Awards 150. Commission may refuse to register award 185. Publication of awards 151. Power of Commission to waive technical irregularities PART VIII DISPUTES ABoUT, AND ENFORCEMENT OF, Exemptwn from Award AWARDS AND AGREEMENTS 152. Failure to give notice of separate 186. Object negotiations 153. Application DIsputes of Rights 154. Powers of Labour Court 187. Inclusion of procedures for settlement 155. Effect of exemption of disputes of rights 638 Labour Relations 1987, No. 77
188. Parties to dispute of rights 221. Special procedures where sexual 189. Failure to observe dispute of rights harassment alleged procedure 222. Sexual harassment by person other than 190. Report employer 191. Role of Labour Court 223. Continuation of work 192. Continuation of work 224. Statements privileged 225. Statement of reasons for dismissal Valuiity 226. Choice of procedures 193. Validity of awards and agreements Remedtes Wages and Time Record 227. Remedies 228. Reinstatement to be primary remedy 194. Wages and time record 229. Reimbursement 195. Offence of failing to keep records PART X Rights Entry of STRIKES AND LocKOlITS 196. Right of entry for enforcement 230. Object purposes 231. Definition of strike 197. Power of entry for Inspectors 232. Definition of lockout
RecUIJtry of Wages Lawful and Unlawful StrWs and Lockouts 198. Recovery of wages 233. Strikes and lockouts in relation to 199. Failure to keep or produce records disputes of interest 234. Unlawful strikes and lockouts Penalties 235. Requirements as to notice in relation to 200. Jurisdiction concerning penalties strikes in essential services 201. Recovery of penalties 236. Requirements as to notice in relation to 202. Penalties for breach of award or lockouts in essential services agreement 237. Strikes and lockouts on grounds of 203. Actions to be brought within 12 months safety or health 204. Application of penalties recovered Partu:ular Rlf5hts of Employers Judgments 238. Employer not liable for wages during 205. Enforcement of judgment lockout 206. Recovery from members of union or 239. Suspension of striking workers employers organisation or association 240. Suspension of non·striking workers if it defaults where work not available during strike 241. Basis of suspension Compliance Order 207. Power to order compliance Ctvtl ActWn in Relatwn to Stnlus and Lockouts 208. Enforcement of order 242. Jurisdiction of Labour Court in relation to torts PART IX 243. Jurisdiction of Labour Court in relation PERsoNAL GRIEVANCES to injunctions 209. Object SPecial Powers in Relatwn to Strikes and Defimtwns Lockouts 210. Personal grievance 244. Power of Chief Mediator where existing 211. Discrimination or threatened strike or lockout 212. Sexual harassment affecting essential service 213. Duress 245. Power of Minister where existing or 214. Definitions relating to personal threatened strike or lockout affecting grievances essential service 246. Power of Minister following report of Procedures mediator 247. Power of Minister to call Ministerial 215. Inclusion of procedures for settlement conference in case of strike or lockout of personal grievances 248. Power of Minister to appoint committee 216. Right to use personal grievance of inquiry procedures 249. Power of mediator to call conference in 217. Role of Labour Court case of strike or lockout 218. Direct access to Labour Court 250. Remuneration and travelling expenses 219. Access of employer to Labour Court in relation to conferences and 220. Nature of grievance inquiries 1987, No. 77 Labour Relations 639
PART XI 290. Salaries and allowances of Judges INSTITUTIONS 291. Appointment of temporary Judges Mediation Service Procedure of Court 251. Mediation Service 252. Functions of Chief Mediator 292. Court may delegate certain functions to 253. Functions of mediators a District Court Judge 254. Tenn of office 293. Court may dismiss frivolous cases 255. Vacation of office 294. Statement of case for Court of Appeal 256. Retiring age 295. Sittings of Court 257. Salaries and allowances 296. Urgency 258. Temporary mediators 297. Full Court 298. Q!.torum and decision of Court Arbitration Commwion 299. Appearance of parties 300. Power to proceed if any party fails to 259. Arbitration Commission attend 260. Jurisdiction of Commission 301. Withdrawal of reference 261. Membership of Commission 302. Rehearing 262. Tenn of office of Commissioners 303. Evidence 263. Vacation of office 304. Proceedings to continue on change in 264. Deputies of Commissioners Court 265. Temporary Arbitration Commission 305. Proceedings not to abate by reason of 266. Powers and procedure of temporary death Commission 306. Service of process on Sundays void 267. Salaries and allowances of 307. Court may male rules Commissioners and deputies 268. Panel of members RetJiew of Proceedmgs 269. Remuneration and travelling allowances of/anel members 308. Review of proceedings before Labour 270. Chie Executive Officer and officers of Court the Commission 271. Seal of Commission Appeals 309. Appeals to Court of Appeal in respect of Procedure of CommwlOn proceedings founded on tort 272. Sittings and procedure of Commission 3 I O. Appeal to Court of Appeal against order 273. Evidence in proceedings or sentence in respect of contempt of 274. Appearance of parties Court 275. Power to proceed if any party fails to 311. Appeal to Court of Appeal in respect of attend order on application for review 276. Q!.torum and decision of Commission 312. Appeals to Court of Appeal on question 277. Commission may refer question of law of law to Labour Court 313. Court of Appeal may refer appeals back for reconsideration Labour Court 278. Labour Court Speci4l Pruvision in Respect of Rrozews and Appeals JuriJdiction of Labour Court 314. Obligation to have regard to special 279. Jurisdiction of Labour Court jurisdiction of Labour Court 280. Jurisdiction of Labour Court in respect of applications for review Miscellaneous PrOOUlOnJ 281. Power in respect of contempt of Court 315. Validation of informal proceedings, etc. 282. Power of Court to award interest on 316. Documents under seal and certain arrears of wages signatures to be judicially noticed 283. Power to award costs 317. Powers of Commission or Court as to 284. Power to prohibit publication joinder, waiver, and extension of time Constitution of Labour Court 285. Constitution of Labour Court PART XII 286. Registrar and officers of Labour Court ADMINISTRATION 287. Seal of Court 318. Act to be administered by Department of Labour Judges of the Court 319. Labour districts 288. Appointment of Judges 320. Alteration of boundaries 289. Senior Jud~e to act as Chief Judge in 321. Awards and agreements to continue in certam ClTcumstances force when boundaries changed 640 Labour Relations 1987, No. 77
PART XIII Amendments to Labour Department Act 1954 MISCELLANEOUS PROVISIONS 843. Duties of Department 322. Register of accidents 344. First Schedule amended 323. Record of work stoppages 324. Regulations Amendments to Parltamentary Servu:e Act 1985 345. Application of State Services Conditions PARTXN of Employment Act 1977 AMENDMENTS TO 0niER ACTS 846. Labour Relations Act 1987 not to apply Amendment to Accident CompensatIOn Act 1982 Amendments to Police Act 1958 325. Staff not in service of Crown 847. Int~retation 348. Abolition of Police Staff Tribunal Amendments to Apprentu:e5h,p Act 1983 849. Transitional provisions 326. Labour Court to act as controlling authority Amendmenl5 to Shippmg and Seamen Act 1952 327. Arbitration Commission may make 350. Abolition of provision for setdement of apprenticeship orders questions oy Superi~ltendent 328. Breaches of Act, recovery of money, 851. AbOlition of Shippmg Industry Tribunal etc. Amendment to TramwaY5 Amendment Act 1910 Amendments to Broaticruting Act 1976 352. Appeal Board 329. Symphony Orchestra 330. Application of State Services Conditions Amendmenl5 to Union Repre5entattves EducatIOn of Employment Act 1977 Leave Act 1986 331. Labour Relations Act 1987 not to apply 853. Interpretation 354. Disputes Amendments to Coal Mme5 Act 1979 355. Unaue influence 332. Interpretation 356. Jurisdiction of Public Sector Tribunal in 338. Repeals ~espect of penalties for undue 334. Revocation influence 357. Dismissal and other prtjudicial acts in Amendment to Factorie5 and Commercial respect of employees Premue5 Act 1981 PART XV 335. Wages and time record RF.PEAu, REVOCATIONS, AND TRANSmONAL PROVISIONS Amendment to HarWu1l Act 1950 358. Repeals and revocations 336. Appeals and Appeal Board 359. Consequential amendments in relation to repeal of Industrial Relations Act Amendments to Health Service Pmonnel Act 1973 1983 360. Existing appointments 387. Interpretation 361. Existing proceedings 888. Part III not to apply to certain 362. Existing causes of action employees 368. Appropriate bodies 364. Existing instruments Amendments to Human Rights Commi.s.sion Act 365. Enforcement of existing instruments 1977 366. Existing bodies 367. Unions 889. Industrial unions and professional and 868. Employers organisations trade associations 369. Associations 340. Jurisdiction of Labour Court 370. Union rules 371. Union membership Amendments to Judicature Amendment Act 1972 372. Ministerial powers 841. Interpretation 373. Under·rate workers' permits 34 2. Jurisdiction of Labour Court Schedules
1987, No. 77 An Act to refonn the law relating to labour relations and, in particular,- (a) To facilitate the fonnation of effective and accountable unions and effective and accountable employers organisations: 1987, No. 77 Labour Relations 641
(b) To provide procedures for the orderly conduct of relations between workers and employers: (c) To provide a framework to enable agreements to be reached between workers and employers: (d) To repeal the Industrial Relations Act 1978 and certain other enactments [27 May 1987 BE IT ENACTED by the Parliament of New Zealand as follows: 1. Short Tide and commencement-( 1) This Act may be cited as the Labour Relations Act 1987. (2) Except as provided in section 57 (6) of this Act, this Act shall come into force on the 1st day of August 1987. 2. Interpretation-(l) In this Act, unless the context other wise requires,- "Accounting records", in relation to a union or employers organisation, includes any minute or record recording a resolution affecting the financial affairs and transactions of the union or employers organisation: "Agreement" means an agreement registered by the Arbitration Commission in settlement of a dispute of interest between the parties to it by means of the procedure described in section 164 of this Act; and includes a composite agreement under section 166 of this Act: "Association" means an association registered under this Act: "Authorised union representative" or "authorised representative", in relation to a union, means- (a) An officer of the union; or (b) Any person who is authorised in writing by an officer of the union to act on behalf of the union: "Award" means an award registered by the Arbitration Commission in settlement of a dispute of interest between the parties to it by means of the procedure described in sections 134 to 151 of this Act; and includes a composite award under section 137 of this Act and a young worker award under section 157 of this Act: "Branch", in relation to a union or employers organisation, means any portion or division of the membership of the union or employers organisation in respect of which provision is made in the rules or by resolution of the union or employers organisation (or branch in the case of a sub-branch) for the local 642 Labour Relations 1987, No. 77
government of that portion or division of the membership by an executive or committee of management; and includes a sub-branch: "Central organisation of employers" means the national organisation of employers that is most representative of employers in New Zealand and is formed for the purpose of protecting or furthering the interests of employers in labour relations: "Central organisation of workers" means the national organisation of workers that is most representative of workers in New Zealand and is formed for the purpose of protecting or furthering the interests of workers in labour relations: "Central organisations" means the central organisation of employers and the central organisation of workers: "Chief Commissioner" means the Chief Commissioner of the Arbitration Commission: "Chief Executive Officer", in relation to the Commission, means the Chief Executive Officer appointed under section 2 70 of this Act; and includes the Deputy Chief Executive Officer: "ChiefJudge" means the ChiefJudge of the Labour Court: "Chief Mediator" means the Chief Mediator appointed under this Act: "Commission" means the Arbitration Commission constituted under this Act: "Commissioner" means a member of the Arbitration Commission appointed under section 261 (1) (a) of this Act: "Compliance order" means an order of the Labour Court or District Court requirin~ compliance with- (a) Any provision of this Act or of any award or agreement; or (b) An order, determination, direction, or requirement made or given under this Act by the Labour Court or the District Court or the Commission or a disputes committee or a grievance committee or the Registrar of Unions: "Conciliation Council" means a conciliation council constituted under this Act: "Coverage clause" means the clause or clauses in an award or agreement by which the coverage of that award or agreement is determined: "Demarcation ballot" means a ballot conducted pursuant to section 109 of this Act: 1987, No. 77 Labour Relations 643
"Demarcation dispute" means any dispute as to which union covers persons who are, or will be, engaged in certain work: "Dispute" means any dispute arising between one or more employers or employers organisations or associations of empl?y~rs org~ations and one or more unions or assocIatIons of uruons: "Dispute of interest" means a dispute created with intent to procure an agreement or award under this Act establishing terms and conditions of employment of workers and such other terms and conditions as may be agreed or determined, whether or not the agreement or award is to be in substitution for an existing agreement or award; and includes a dispute created with intent to procure an agreement or award or amendment of an agreement or award to settle a new matter: "Dispute of rights" means a dispute concerning the interpretation, application, or operation of an agreement or award: "Disputes committee" means a disputes committee that (a) Is set up under the clauses required by section 187 of this Act to be inserted in an award or agreement; and (b) Has the function of hearing and determining disputes of rights: "District", or "labour district", means a labour district constituted under this Act: "Employer" means a person employing any worker or workers; and includes a person engaging or employing a homeworker: "Employer party", in relation to a proposed award or agreement, means the employers or employer who employ or employs workers who will be bound by the proposed award or agreement: "Employers organisation" means an employers organisation registered under this Act: "Essential service" means a service specified in the Eighth Schedule to this Act: "Financial member", in relation to any union or employers organisation, means a member of the union or employers organisation who is a financial member within the meaning of the rules of the union or employers organisation: 644 Labour Relations 1987, No. 77
"Grievance committee" means a gnevance committee that is- (a) Set up under the clauses required by section 215 of this Act to be included in an award or agreement; and (b) Has the function of hearing and determining personal ~evances: "Homeworker' means a person who is engaged, employed, or contracted by any other person (in the course of that other person's trade or business) to do work for that other person in a dwellinghouse (not being work on that dwellinghouse or on fixtures, fittings, or furniture in it); and includes a person who is in substance so engaged, employed, or contracted notwithstanding that the form of the contract between the parties is technically that of vendor and purchaser: "Inspector" has the meaning assigned to it by section 2 (1) of the Factories and Commercial Premises Act 1981; and includes- (a) A Bush Inspector appointed under section 4 of the Bush Workers Act 1945; and (b) A Construction Safety Inspector appointed under section 5 of the Construction Act 1959; and (c) In relation to any coal mine, an Inspector of Coat Mines within the meaning of the Coal Mines Act 1925; and (d) In relation to any mine, an Inspector of Mines within the meaning of the Mining Act 1971: 'Judge" means a Judge of the Labour Court; and includes a tempor~ Jud?e: "Labour Court' or 'Court" means the Labour Court constituted under this Act: "Lockout" has the meaning assigned to it by section 232 of this Act: "Mediator" means a mediator appointed under this Act: "Membership rule" means the rule in a union's rules or employers organisation's rules that determines the coverage of the union or employers organisation: "Minister" means the Minister of Labour: "Negotiators" means the persons who negotiate in award negotiations on behcilf of the union party and the employer party: "New matter" has the meaning given to it by section 1 78 (2) of this Act: 1987, No. 77 Labour Relations 645
"Officer", in relation to any union, emplorers organisation, or association, means president, VIce president, treasurer, or secretary; and includes any other officer elected or appointed in accordance with the rules of the union, employers organisation, or association: "Original party", in relation to an award or agreement, means a party specified by name in the award or agreement: "Panel member" means a member of the panel established and maintained by the Minister under section 268 of this Act: "Person intending to work" means a person who has been offered, and accepted, work; and "intended work" has a corresponding meaning: "Personal grievance", or "grievance", has the meaning assigned to it by section 210 of this Act: "Postal address", in relation to a worker, does not include- (a) The address of the worker's workplace unless the worker lives at that address; or (b) The address of the worker's employer unless the worker lives at that address: "Prescribed" means prescribed by regulations under this Act: "Registrar", or "Registrar of Unions", means the Registrar of Unions under this Act: "Registrar of the Court" means the Registrar of the Labour Court; and includes any Deputy Registrar or Assistant Registrar: "State enterprise" means an organisation that is named in the First Schedule to the State Services Conditions of Employment Amendment Act 1987: "State services" has the meanin~ given to it by section 4 of the State Services ConditiOns of Employment Act 1977: "State Services Co-ordinating Committee" means the State Services Co-ordinating Committee established under section 13 of the State Services Conditions of Employment Act 1977: "Strike" has the meaning assigned to it by section 231 of this Act: "Union" means a union registered or deemed to be registered under this Act: 646 Labour Relations 1987, No. 77
"Union coverage ballot" means a ballot conducted under section 104 of this Act by which workers covered by one union determine whether another union should have coverage of them: "Union membership ballot" means a ballot conducted under section 63 of this Act of all adult workers who will be required, on request of a union, to become members of that union if a union membership clause is inserted in an award or agreement: "Union membership clause", in relation to any award or agreement, has the meaning assigned to it by section 59 of this Act: "Union party", in relation to a proposed award or agreement, means the union or unions which covers or cover the workers who will be bound by the proposed award or agreement: "Wages and time record" means a wages and time record kept pursuant to section 159 or section 194 of this Act: "Worker" - (a) Means any person of any age employed by an employer to do any work for hire or reward; and (b) Includes- (i) A homeworker; or (ii) A person intending to work: "Young worker award" means an award under section 157 of this Act. (2) For the purposes of this Act, an award is subsequent to another award if- (a) It replaces that award, either wholly or partially; or (b) It replaces, either wholly or partially, any such replacement award or any replacement of such an award,- and such a relationship shall continue to exist between awards notwithstanding the number of replacement awards that have been negotiated or the period tnat has intervened; and an award precedes another in corresponding circumstances. er. 1973, No. 19, ss. 2 (1), 130 (6); 1977, No. 108, s. 6 (1); 1979, No. 59, s. 8 (3); 1981, No. 131, s. 3 (2)
PART I REGISTRATION OF UNIONS AND EMPLOYERS ORGANISATIONS 3. Object-The object of this Part of this Act is to establish that- 1987, No. 77 Labour Relations 647
(a) The right of association is formally recognised by the registration of groups of workers as unions and groups of employers as employers organisations: (b) Each union registering under this Act (other than one registering provisionally) must represent a minimum number of workers: (c) Each provisionally registered union must either obtain the minimum number of workers within 2 years of its registration or have its registration cancelled: (d) Each worker should be covered by only one union: (e) Workers and unions determine their community of interest for themselves: (f) Registration grants a union or employers organisation the right to exercise the full range of functions and powers provided \Ulder this Act: (g) Failure to fulfil certain obligations under this Act makes a union or employers organisation liable to have its registration cancelled. 4. R.egistrar of Unions-( 1) There shall from time to time be appointed under the State Services Act 1962 a Registrar of Unions. (2) In any matter arising in or out of the performance of the Registrar's duties or in the exercise of the Registrar's powers, the Registrar may state a case for the advice and opinion of the Court. Cf. 1973, No. 19, s. 4 5. Deputy R.egistrar of Unions-( 1) There may also from time to time be appointed under the State Services Act 1962 a Deputy Registrar of Unions, who shall, under the control of the Registrar, perform such general official duties as the Deputy Registrar is called upon to perform by the Registrar. (2) On the occurrence from any cause of a vacancy in the office of Registrar (whether by reason of death, resignation, or otherwise), and in the case of the absence from duty of the Registrar (from whatever cause arising), and so long as any such vacancy or absence continues, the Deputy Registrar shall have and may exercise all the powers, dUties, and functions of the Registrar. (3) The fact that the Deputy Registrar exercises any such power, duty, or function shall be conclusive evidence of the Deputy Registrar's authority to do so, and no person shall be 648 Labour Relations 1987, No. 77
concerned to inquire whether the occasion has arisen requiring or authorising die Deputy Registrar to do so. Cr. 1973, No. 19, s. 5
Registration of Unions 6. Unions-( 1) Subject to the frovisions of this Act, any group (whether a society or not) 0 workers may be registered under this Act as a union. (2) Subject to the provisions of this Act, no group shall be registered as a union under this Act unless it will at the time of registration consist of at least 1,000 members (being workers) or such other number of members as is from time to time specified by the Governor-General by Order in Council for the purposes of this subsection. 7. Purpose of registration-( 1) Registration as a union gives that union- (a) Exclusive coverage of the workers covered by the union's membership rule: (b) Exclusive rights to negotiate on behalf of those workers: (c) Access to compulsory conciliation procedures for the negotiation of awards: (d) Ability to negotiate awards that have effect beyond the original parties to them: (e) Ability to negotiate awards and agreements that are enforceable: (f) Access to procedures for resolving disputes of interest and disputes of rights and personal grievances: (g) Access to the Labour Court and the Arbitration Commission in accordance with the procedures provided under this Act. (2) Registration as a union means that all persons who are members of the union at the time of regtstration or who become members after registration shall be bound by the rules of the union during the continuance of their membership. (3) Registration as a union requires that union to comply with certain minimum requirements under this Act relating to its internal management and makes its actions subject to review by the Labour Court. Cr. 1973, No. 19, s. 167; 1977, No. 108, s. 6 (1) 8. Incorporation of union-Every group registered as a union shall, as from the date of registration, become a body corporate by the registered name, having perpetual succession 1987, No. 77 Labour Relations 649 and a common seal, until the registration is cancelled under this Act. e£ 1973, No. 19, s. 166
Procedure for Registration of Union 9. Application for registration-( 1) Every application for the registration of any group as a union shall be made to the Registrar of Unions in writing, stating the name of the proposed union, and signed by 2 or more representatives of the group. (2) Every such application shall be accompanied by- (a) A list of the members and representatives of the group, stating in each case the specific occupation of the member or representative, with the locaIity in which the members and representatives work: (b) Evidence in writing that a majority of the members of the group desires that the group be registered as a union, which evidence shall consist of,- (i) In the case of a society, a copy of a resolution passed by a majority of the members present at a general meeting of the society specially called in accordance with its rules for that purpose; or (ii) In the case of a group of workers, such evidence as the Registrar considers sufficient: (c) Three copies of the proposed rules of the union: (d) If any of the workers wbo will be members of the union are covered by an existing union, the names and oc~upatio~ of those persons and the name of that eXlStmg uruon. e£ 1973, No. 19, s. 164 (1), (2) (a)-(c) 10. Registration of union-( 1) Subject to subsection (2) of this section, where the Registrar is satisfied, on receiving an application made in accordance with section 9 of this Act, that- (a) The group is qualified in terms of section 6 of this Act to be registered under this Act; and (b) The group consists only of workers not bound by an award or agreement; and (c) The rulrs of the proposed union conform to the provisions of this Act relating to rules of unions,- the Registrar shall, without fee, register the group as a union. (2) Where the application for registration is made by a group consisting wholly or partly of workers covered by the 650 Labour Relations 1987, No. 77 membership rule of an existing union, the Registrar shall not register that group as a union under subsection (1) of this section unless, at least 30 days before the date of registration, the Registrar has given to each union considered by the Registrar to have coverage of all or some of the workers in the group a notice stating- (a) That the application for registration has been made; and (b) That, notwithstanding that the application for registration is considered by the RegIStrar to affect workers covered by the existing union's membership rule, the Registrar considers that the group consists only of workers not bound by an award or agreement. (3) On registering the group as a union, the Registrar shall (a) Issue a certificate of registration; and (b) Record the rules; and (c) Amend the rules of any other union to the extent necessary to exclude from their coverage any persons covered by the rules of the new union; and (d) Notify any union affected by an amendment made under paragraph (c) of this subsection. (4) Upon the recording of a new name for a union the Registrar shall issue a certificate of registration bearing the name of the union. (5) Every certificate of registration issued under this section shciU, unless proved to be cancelled, be conclusive evidence of the fact of the registration and of its validity. Cf. 1973, No. 19, s. 165
Provisional Registration of Unions 11. Access to provisional registration-( 1) Subject to subsections (2) and (3) of this section, where the Registrar is satisfied, on receiving an application made in accordance with section 9 of this Act,- (a) That the group does not have the minimum number of members required by section 6 (2) of this Act; but (b) That t~e group otherwise qualifies for registration as a UIllon; and (c) That the group consists only of workers not bound by an award or agreement; and (d) That the number of members of the group is likely, within 2 years of the provisional registration of the group, to increase to 1,000 or such other number as is specified at the time of the provisional registration for the purposes of section 6 (2) of this Act,- 1987, No. 77 Labour Relations 651
the Registrar shall, without fee, provisionally register the group as a union. (2) Where the application for registration is made by a group consisting wholly or partly of workers covered by the membership rule of an existing union, the Registrar shall not provisionally register that group as a union under subsection (1) of this section unless, at least 30 days before the date of registration, the Registrar has given to each union considered by the Registrar to have coverage of all or some of the workers in the group a notice stating- (a) That tbe application for registration has been made; and (b) That, notwitbstanding that the application for registration is considered by the Regtstrar to affect workers covered by the existing union's membership rule, the Registrar considers that the group consists only of workers not bound by an award or agreement. (3) A union formed by the amalgamation of2 or more unions may not be provisionally registered under this section.
12. Consequential changes to coverage-( 1) Where a union is provisionally registered under section 11 of this Act and its membership rule covers persons who are covered by the membership rule of an existing union (being persons not bound by an award or agreement), the membership rule of that existing union shall, subject to subsection (3) of this section, be deemed to be amended to exclude coverage of the persons covered by the membership rule of the provisionally registered union for the period of the provisional registration. (2) If the union which is provisionally registered under section 11 of this Act becomes registered under sections 10 and 14 of this Act, the amendment to the membership rule of the existing union that was deemed by subsection (1) of this section to be made shall be confirmed and the Registrar shall record it accordingly. (3) If the provisional registration of the union is cancelled under section 14 of this Act, the amendment to the membership rule of the existing union that was deemed to be made by subsection (1) of this section shall cease to have effect, and the existing union shall assume its former coverage.
18. Effect of provisional registration-(I) Subject to subsection (2) of this section and to section 14 of this Act, provisional registration as a union has the same effect as registration under section 10 of this Act. 652 Labour Relations 1987, No. 77 (2) While a union is provisionally registered,- (a) No amendment to the membership rule of the union shall have the effect of including within the coverage of the union any workers who are covered by the membership rule of any registered union; and (b) No amendment to the membership rule of any registered union shall have the effect of including within the coverage of the registered union any workers who are covered by the membership rule of the provisionally registered union; and (c) No membership rule of any new union, whether provisionally registered or otherwise, shall have the effect of including within the coverage of that union any workers who are covered by the membership rule of the provisionally registered union. 14. End of provisional registration-( 1) Where a provisionally registered union satisfies the Registrar, within 2 years after the date of its provisional registration,- (a) That the number of members of the union (being workers) has increased to at least 1,000 or such other number as is specified for the purposes of section 6 (2) of this Act; and (b) That those members of the provisionally registered union are covered by the membership rule of the union, the Registrar shall cancel its provisional registration and register the union under section 10 of this Act. (2) If a provisionally registered union does not become registered as a union under section 10 of this Act within 2 years after the date of its provisional registration, the Registrar shall cancel the provisional registration of the union and publish notice of that fact in the Gazette. Changes to Coverage 15. Requirements where changes to coverage sought Where an application for registration or provisional registration is made under section 10 or section 11 of this Act and that application is made by a group consisting wholly or partly of workers covered by the membership rule of an existing union (on the basis that those workers are not bound by an award or agreement), the following provisions shall apply: (a) In respect of any workers who are covered by the membership rule of an existing union, the group shall supply a definition which shall define precisely, for the purposes of the rules of the proposed union and 1987, No. 77 Labour Relatioru 653
for the p';lll>0ses of the proposed change to the rules of an existmg union, die category or categories of workers proposed to be included in the proposed union's membership coverage: (b) No definition supplied for the purposes of paragraph (a) of this subsection shall- (i) Contain a list of names of workers or a list of indIvidual positions or a combination of both; or (ii) Define any category or categories of workers by reference to any salary bar contained in any award or agreement: (c) Any definition supplied for the purposes of paragraph (a) of this subsection shall define the category or categories of workers by reference to all or any of the following matters: (i) The locality or place in which they work; or (ii) The type of work performed by them; or (ill) The employer or the employers or the class of employers for whom they work.
Appeals 16. Appeals-( 1) Where the Registrar refuses an application under section 9 of this Act for the registration of any group as a union, that group may appeal in the prescribed manner to the Labour Court against the decision. (2) Where the Registrar registers a group as a union under section lO of this Act, that group and any union affected by an amendment made under subsection (3) (c) of that section may appeal in the prescribed manner to the Labour Court against die decision or any part of the decision. (3) Where the Registrar provisionally registers a group as a union under section 11 of this Act, that group and any union that had coverage of all or some of the workers in the group may appeal in the prescribed manner to the Labour Court against the decision or any part of the decision. (4) Where the Registrar refuses, under section 14 (1) of this Act, to amend the provisional registration of a union and to register that union under section 10 of this Act, that union may appeal in the prescribed manner to the Labour Court against tne decision. (5) On any such app,eal the Labour Court, after making full inquiry and hearing, If it desires to appear, the group or the UnIon concerned, shall advise the Registrar whether in its opinion the society should be registered or provisionally 654 Labour Relations 1987, No. 77 registered, as the case may require, as a union; and the Registrar shall act on the advice of the Court. Cf. 1973, No. 19 s. 168 (4), (6), (8)
Registration of Employers Organisations 17. Employers organisations-Subject to the provisions of this Act, any group of employers (whether a society or not) may be registered under this Act as an employers organisation. 18. Incorporation of employers organisation-Every group registered as an employers organisation shall, as from the date of registration, become a body corporate by the re~stered name, having perpetual succession and a common seaI, until the registration is cancelled under this Act. Cr. 1973, No. 19, s. 166
Procedure for Registration of Employers Organisation 19. Application for registration-( 1) Every application for the registration of any group as an employers organisation shall be made to the Registrar of Unions in writing, stating the name of the proposed organisation, and signed by 2 or more representatives of the group. (2) Every such application shall be accompanied by- (a) A list of the members and representatives of the group, stating in each case the business of the member or representative, with the locality in which the members and representatives carry on their activities: (b) Evidence in writing that a majority of the members of the group desires that the group be registered as an employers organisation, which evidence shall consist of,- (i) In the case of a society, a copy of a resolution passed by a majority of the members present at a general meeting of the society specially called in accordance with its rules for that purpose; or (ii) In the case of a group of employers, such evidence as the Registrar considers sufficient: (c) A copy of the proposed rules of the organisation. Cr. 1973, No. 19, s. 164 (1), (2) (a), (c) 20. Registration of employers organisation-( 1) Where the Registrar is satisfied, on receiving an application made in accordance with section 19 of this Act, that- 1987, No. 77 Labour Relatioru 655
(a) The group is qualified in terms of section 17 of this Act to be registered under this Act; and (b) The rules of the proposed employers organisation conform to the provisions of this Act relating to rules of employers organisations,- the Registrar sball, without fee, register the group as an employers organisation. (2) On registering the group as an employers organisation, the Registrar shall- (a) Issue a certificate of registration; and (b) Record the rules. (3) Upon the recording of a new name of an employers organisation, the Registrar shall issue a certificate of registration bearing the name of the employers organisation. (4) Every certificate of registration issued under this section shall, unless proved to be cancelled, be conclusive evidence of the fact of the registration and of its validity. C£ 1973, No. 19, s. 165
Powers 21. Powers of unions and employers organisations Subject to this Act, every union and every employers organisation may undertake any lawful activity that is within the scope of the objects of the union or employers organisation as defuied in its rules and, in so doing, shall have such of the rights, powers, and privileges of a natural person as are necessary for undertaking such activity. 22. Power to lend or borrow money or give guarantees or purchase or lease land-(I) For the avoidance of doubt, it is hereby declared that, without further authority than this section, but in pursuance of its objects, a union or employers organisation may, among other things,- (a) Lend or borrow money; and (b) Guarantee and give guarantees for the payment of money or the performance of contracts or obligations by any person; and (c) Purchase or take on lease, in the name of the union or employers organisation or of trustees for the union or employers organisation, any house or building, and any land; and (d) Sell, mortgage, exchange or let the whole or any part of any such house, building, or land. 656 Labour Relations 1987, No. 77
(2) Notwithstanding anything in subsection (1) of this section, any power referred to in that subsection may be exercised by the union or employers organisation either alone or in conjunction with other persons. (3) No person shall be bound to inquire whether the union or employers organisation or any trustees for the union or employers organisation have authoritl to exercise any of the powers referred to in subsection (1) 0 this section. (4) The receipt of the union or employers organisation or of trustees for the union or employers organisation shall be a discharge for any money arising from the exercise of any of the powers referred to in subsection (1) of this section. ef. 1973, No. 19, s. 189; 1979, No. 141, s. 4
28. Power to sue and service of notices-( 1) A union or employers organisation may sue or be sued by the name by which it is registered. (2) Service of any process, notice, or document of any kind on the union or employers organisation may be effected by delivering it to the president or secretary of the union or employers organisation, or by leaving it at the union's or employers organisation's registered office, or by posting it to that registered office in a duly registered letter addressed to the secretary of the union or employers organisation. ef. 1973, No. 19, s. 190 24. Execution of documents-Deeds and instruments may be executed by a union or employers organisation in such manner as the rules of the union or employers organisation prescribe. ef. 1973, No. 19, s. 191
Amalgamation of Unions or Employers Organisations 25. Amalgamation of unions or employers organisations-( 1) Any 2 or more unions or any 2 or more employers organisations may apply to the Registrar to amaIgamate if they have agreed to amalgamate by either- (a) One union amending its rules so as to include in its membership rule the coverage of the other union or unions, or one employers organisation amending its rules to include in its membership rule the coverage of the other employers organisation or organisations; or 1987, No. 77 Labour RelatIOns 657
(b) Registering one new amalgamated union or. one new amalgamated employers organisation in their stead, in which case the provisions of subsections (2) to (4) of this section shall apply. (2) The application for the registration of the proposed new union or new employers organisation shall be made in writing, stating the name of the new union or new employers organisation, and shall be executed by each union or employers organisation that is a party to the amalgamation. (3) The application shall be accompanied by- (a) A list of the officers of the proposed new union or new employers organisation, with the locality in which they work or carry on their activities: (b) The number of proposed members: (c) A copy of the rules of the proposed new union or new employers organisation: (d) Evidence that the decision by each union or employers organisation to amalgamate was made in accordance with its rules. (4) Subject to the provisions of this section, the provisions of this Act relating to the registration of any group as a union or as an employers organisation shall apply, so far as they are applicable, to the registration of a new union or employers organisation under this section. (5) The Registrar shall not record an amendment to the rules of a union or employers organisation, or register a new union or employers organisation, under this section unless- (a) The Registrar is satisfied that, in the case of each union or employers organisation that is a party to the amalgamation, the decision to amalgamate has been made in accordance with its rules; and (b) The provisions of section 26 of this Act are complied with. (6) On the recording of any amendment to rules as a result of an application under subsection (1) (a) of this section, the registration of the union or unions or employers organisation or employers organisations whose members have been included in the membership of the union or employers organisation that has amended its rules shall be cancelled. (7) On the registration of a new union or new employers organisation pursuant to this section,- (a) The registration of every union or employers organisation that is amalgamated shall be cancelled; and 658 Labour Relations 1987, No. 77
(b) Every reference in any award or agreement in force unmediately before the amalgamation to a union or employers organisation that is amalgamated shall be read as if it were a reference to the new union or new employers organisation respectively. C£ 1973, No. 19, s. 192 (1)-(6), (7), (8) 26. Effect of cancellation of registration resulting from amalgamation-Where the registration of any union or employers organisation is to be cancelled pursuant to section 25 of this Act on any amalgamation under that section, the following provisions shall apply: (a) The Registrar shall not cancel such registration, or register the new amalgamated union or employers organisation, until the Registrar has received, in respect of every union or employers organisation whose registration is to be cancelled, the final auditor's certificate to be delivered to the Registrar pursuant to section 27 of this Act: (b) On the registration of the new union or employers organisation or on the amendment of the rules of the existing union or employers organisation, all the property, rights, duties, and obligations of any union or employers organisation whose registration is cancelled shall become the property, rights, duties, and obligations of the new union or employers organisation or of the remaining union or employers organisation, as the case may be: (c) The cancellation of the registration of the union or employers organisation shall not affect the operation of any award or agreement in force at the date of the cancellation.
27. Final audit on amalgamation of unions or employers organisations-Where as a consequence of the amalgamation of unions or employers organisations the registration of any union or empfoyers organisation will be cancelled, that union or employers organisation shall, before cancellation occurs, deliver to the Registrar of Unions a certificate provided by the auditor that the auditor has carried out a final audit of the accounts of the union or employers or~anisation and has duly reported on those accounts to the UIllon or employers organisation. C£ 1973, No. 19, s. 186 (14) 1987, No. 77 Labour Relations 659 Associations of Unions or Employers Organisations 28. Associations of unions or employen organisations may be registered-(I) Any body, however designated, representing at least 2 unions or at least 2 employers organisations may be registered respectively as an association of unions or an association of employers organisations under this Act. (2) All the provisions of this Act relating to unions and their officers and members shall, as far as they are applicable and with the necessary modifications, apply to an association of unions and its officers and members. (3) All the provisions of this Act relating to employers organisations and their officers and members shall, as far as they are applicable and with the necessary modifications, apply to an association of employers organisations and its officers and members. Cf. 1973, No. 19, s. 197 (1)-(2)
Cancellation of Registration 29. Voluntary cancellation of registration of union or employen organisation-(I) Any union or employers organisation may at any time apply to the Registrar in the prescribed manner for the cancellation of the registration of the union or employers organisation. (2) After receiving an application duly made under subsection (1) of this section, the Registrar may, if satisfied that the decision to apply for the cancellation of the registration of the union or employers organisation has been made in accordance with the appropriate rules, cancel the registration of the union or employers organisation. (3) The Registrar shall not cancel the registration of any uruon or employers organisation under this section until at least 30 clear days after the day on which the application is received by the Registrar. (4) The effect of the cancellation shall be to dissolve the incorporation of the union or employers organisation, but in no case shall the cancellation or dissolution relieve the union or employers organisation or any member of it from the obligations of any award or agreement or order of the Court, nor from any penalty or liability incurred before the cancellation. C£ 1973, No. 19, s. 193 (1)-(3) 660 Labour Relations 1987, No. 77
80. Cancellation of registration of union on reduction of membership below minimum-( 1) When an annual return delivered to the Registrar by a union under section 52 of this Act shows that the number of financial members of the union has fallen below the minimwn nwnber specified for the purposes of section 6 (2) of this Act, the Registrar shall, unless the union is provisionally registered, notify the union in writing that its registration will be cancelled unless, within 1 year after the date of such notification, the union satisfies the Registrar that the minimum nwnber of members has been restored. (2) Subject to subsection (3) of this section, if the union does not so satisfy the Registrar, the Registrar shall, at the expiry of the said year, cancel the registration of the union and publish notice of that fact in the Gazette. (3) The Registrar shall not cancel the registration of a union under subsection (2) of this section if, before the expiry of the said year, the union has made an application to the Registrar under section 25 of this Act and that application has not been disposed of. (4) If- (a) The application referred to in subsection (3) of this section does not result in the amalgamation o( the union with another union or unions; and (b) The union does not satisfy the Registrar that the minimum number of members has been restored, the Registrar shall cancel the registration of the union and publish notice of that fact in the Gazette. Cf. 1973, No. 19, s. 194 81. Cancellation of registration for failure to deliver annual accounts-( I} If a union or em{>loyers organisation fails, in resf>ect of any financial year or penod, to deliver to the Registrar of Unions, in accordance with section 49 of this Act, a copy of its accounts for that financial year or period, together with a certificate signed by the auditor, the Registrar shall notify the union or employers organisation in writing- (a) That it is required to deliver to the Registrar a copy of its accounts for that financial year or period, together with a certificate signed by the auditor, in accordance with that section; and (b) That if the union or employers organisation does not forward a copy of its accounts for that financial year or period, together with a certificate signed by the auditor, in accordance with that section within the 1987, No. 77 Labour Relatiom 661
period of 60 days begirming with the day after the date of the notice, a notice will be published in the Gazette with a view to cancelling the registration of the union or employers organisation. (2) If the union or employers organisation does not so deliver a copy of its accounts, together with a certificate signed by the auditor, to the Registrar, the Registrar shall, at the expiry of the said period of 60 days, publish in the Gazette and send to the union or employers organisation by post, a notice that its registration as a union or employers organisation will be cancelled unless, within the period of 30 days begirming with the day after the date of the publication of the notice in the Gazette, the union or employers organisation forwards to the Registrar a copy of its accounts, together with a certificate signed by the auditor, in accordance with section 49 of this Act. (3) At the expiration of the time specified in the notice published under subsection (2) of this section, the Registrar shall, unless the copy of its accounts, together with a certificate signed by the auditor, is received, cancel the registration of the union or employers organisation, and publish notice of that fact in the Gazette. 82. Cancellation of registration for failure to make annual return-( 1) If a union or employers organisation fails to deliver to the Registrar in any year a full and correct annual return in accordance with section 52 of this Act, the Registrar shall notify the union or employers organisation in writing- (a) That it is required to deliver to the Registrar a full and correct return in accordance with that section; and (b) That if the union or employers organisation does not deliver a full and correct return in accordance with that section within the period of 60 days begirming with the day after the date of the notice, a notice will be published in the Gazette with a view to cancelling the registration of the union or employers organisation. (2) If the union or employers organisation does not so deliver such a full and correct return to the Registrar, the Registrar shall, at the expiry of the said period of 60 days, publish in the Gazette and send to the union or employers organisation by post, a notice that its registration as a union or employers organisation will be cancelled unless, within the period of 30 days beginning with the day after the date of the publication of the notice in the Gazette, the union or employers organisation 662 Labour Relations 1987, No. 77 delivers to the Registrar a full and correct return in accordance with section 52 of this Act. (3) At the expiration of the time specified in the notice published under subsection (2) of this section, the Registrar shall, wliess the return is received, cancel the registration of the union or employers organisation, and publish notice of that fact in the Gazette.
SS. Cancellation of registration of defunct union or employers organisation-( 1) If the Registrar has reasonable cause to believe that a union or empfoyers organisation is defunct, the Registrar may send by post to the last known officer or officers of the union or employers organisation a letter inquiring whether the union or employers organisation is in existence and setting out the provisions of subsections (2) and (3) of this section. (2) If within 60 days after sending the letter the Registrar does not receive a reply, or receives a reply from one or more of the officers of the union or employers organisation to the effect that the union or employers organisation has ceased to exist, the Registrar shall publish in the Gazette, and send to the last known officer or officers of the union or employers organisation a notice declaring that the registration of the union or employers organisation will, wliess cause to the contrary is shown, be cancelled at the expiration of the 30th day after the date of the notice. (3) At the expiration of the time specified in the notice, the Registrar shall, wliess cause to the contrary is shown, cancel the registration of the union or employers organisation, and publish notice of that fact in the Gazette. Cf. 1973, No. 19, s. 195
S4. Effect of cancellation of registration not resulting from amalgamation-( 1) In any case in which the registration of a union or employers organisation is cancelled including a case in which cancellation takes place under section 14 of this Act but not including a case in which cancellation takes place on an amalgamation under section 25 of this Act, any award or agreement to which the union or employers organisation is a party shall continue in force for the penod specified in it, except, in the case of cancellation of registration of a union, that any union membership clause contained in the award or agreement shall cease to have effect on the date of the cancellation of registration of the union. 1987, No. 77 Labour Relations 663
(2) Where any award or agreement which is continued in force by subsection (1) of this section is not superseded or replaced before the expiry of the period specified in the award or agreement, it shall, to the extent that it is not superseded or replaced during the period of 1 year beginning with the expiry of the period specified in the award or agreement, continue in force until the expiration of that period of 1 year. e£ 1973, No. 19, s. 196 85. Disposal of surplus assets on cancellation of registration-(I) Subject to section 26 (b) of this Act, on the cancellation of the registration of a union or an employers organisation all surplus assets, after the payment of all costs, debts, and liabilities, shall, subject to any trust affecting the same, be disposed of in manner provided by the rules of the union or organisation or, if such assets cannot be disposed of in accordance with the rules, then as a Judge directs. (2) Where any direction is given under subsection (1) of this section, there may (for the purposes of that direction) be included in that direction, or in a subsequent direction given by a Judge, all or any of the following further directions: (a) A direction vesting all or any of the assets of the union or organisation without transfer, conveyance, or assignment in such person or persons as may be specified in the direction, subject to all charges, encumbrances, estates, and interests affecting the same: (b) If anything remains to be done to complete any matters outstanding on the cancellation of the registration of the union or organisation or to provide for the payment of all costs, debts, and liabilities of and in .relation to the union or organisation, such directions as may be necessary or expedient to make provision for the completion and payment thereof: (c) A direction conferring on any person such powers as may be necessary or expedient to enable that person to carry out the functions and duties imposed on that person by any direction given under this section. (3) Every direction given under subsection (2) of this section shciJ1 have effect according to its tenor as soon as the direction becomes final; and for the purposes of this subsection such a direction shall become final- (a) On the date specified therein if that date commences after the time determined under paragraph (b) of this subsection: 664 Labour Relations 1987, No. 77
(b) In any case where no date on which the direction is to become final is specified therein, or where the date for finality that is specified therein does not commence after the time specified in this paragraph- (i) When the direction under subsection (2) of this section is given, if at that time no right of appeal is subsisting in respect of the direction providing for the distribution of the said surplus assets, and all appeals duly made against that direction have been determined; or (ii) Upon the expiration of the time allowed for any appeal that may lie against the direction providing for tlie distribution of the said surplus assets, or upon the determination of all appeals against that direction that are duly made either withfu that time or while any other appeal against that direction is awaiting determination, whichever is the later, if when the direction under subsection (2) of this section is given a right of appeal without special leave is subsisting in respect of the direction providing for the distribution of the said surplus assets or any appeal duly made against that direction has not been determined. (4) Where by any direction under this section any estate or interest in land under the Land Transfer Act 1952 is vested in any person, then, subject to the provisions of that direction, the District Land Registrar for the land registration district in which the land is situated, on application made to that District Land Registrar by that person in such form as may be prescribed by the Governor-General by Order in Council and on the registration or deposit of such documents or plans as the District Land Registrar may require, shall make such entries in the register and generally do all such things as may be necessary to give fiill effect to the provisions of the direction.
PART 11
AFFAIRS OF UNIONS AND EMPLOYERS ORGANISATIONS 86. Object-The object of this Part of this Act is to establish that- (a) Unions and employers organisations determine their own objects and rules, subject only to certain statutory minima: 1987, No. 77 Labour Relations 665 (b) Rules of unions and employers organisations that are unreasonable, undemocratic, or unfairly discriminatory or prejudicial cannot be registered under this Act: (c) Unions must attain and retain an acceptable degree -of internal democracy and accountability to members, through requirements for democratic rules, for ballots to change rules, and for elections of officers with decision-making powers: (d) Certain minimum standards must be met with regard to the keeping of financial and membership records: (e) The effective operation of a union is facilitated by the . right to enter employers' premises for the purpose of conducting union business.
Rules of Unions and Employers Organisations 37. Matters to be provided for in rules-(l) The rules of every union and every employers organisation shall specify the objects of the union or employers organisation. (2) The rules of every union shall provide for the matters specified in the First Schedule to this Act. (3) The rules of every employers organisation shall provide for the matters specified in the Second Schedule to this Act.
38. Name of union or employers organisation not to be same as name of another union or employers organisation or body corporate-( 1) No union or employers organisation shall be registered under a name which is identical with that of any other union or employers organisation registered under this Act, or of a company carrying on business in New Zealand (whether registered in New Zealand or not), or of any other body corporate established or registered in New Zealand under any Act, or which so nearly resembles that name as to be likely to confuse, except where that other union or employers organisation or company or body corporate, as the case may be, signifies its consent in such manner as the Registrar requires, and the Registrar is satisfied that registration of the union or employers organisation by the proposed name will not be contrary to the public interest. (2) Except with the consent of the Labour Court, no union or employers organisation shall be registered by a name which, in the opinion of the Registrar of Unions, is undesirable. Cf. 1973, No. 19, s. 184 (3) 666 Labour Relations 1987, No. 77 S9. Amendments of rules to be recorded by Registrar One copy of all amendments to the rules of a union or employers organisation shall, after being verified by the secretary or some other officer of the union or employers organisation, be sent to the Registrar of Unions, who shall record them on being satisfied that they have been made in accordance with the requirements of the existing rules and are not in conflict with the requirements of this Act; and the amendments shall thereupon take effect according to their tenor. Cf. 1973, No. 19, s. 178 40. Special powers of Registrar in relation to rules- (1) No rule of any union or employers organisation shall be- (a) Unreasonable; or (b) Undemocratic; or (c) Unfairly discriminatory or unfairly prejudicial; or (d) Contrary to this Act; or (e) Contrary to law. (2) Where a rule or part of a rule or any combination of rules of any union contravenes subsection (1) of this section, the Registrar of Unions- (a) May refuse to record the rule or the part or the combination; or (b) If the rule or the part or the combination has been recorded, may amend it or delete it (unless the amendment or deletion affects a membership rule). (3) The Registrar of Unions may, subject to section 370 (7) of this Act, exercise at any time at his or her discretion, the power conferred by, subsection (2) of this section; but shall exercise that power If directed to do so by the Labour Court. (4) Where the Registrar of Unions amends or deletes any rule and records the amendment or the deletion of the rule under this section, the Registrar shall supply a copy of the amendment or details of the deletion to the secretary of the union or employers organisation concerned. 41. Appeals-( 1) Where the Registrar of Unions- (a) Kefuses to record an amendment to the rules of a union or employers organisation; or (b) Refuses to record, or amends or deletes after it has been recorded, any rule or part of a rule or combination of rules of any union or employers organisation,- 1987, No. 77 Labour Relations 667 that union or employers organisation or any other union or employers organisation affected by the refusal or amendment or deletion, may, unless the refusal or amendment or deletion was made pursuant to a direction of the Labour Court, appeal in the prescribed manner to the Labour Court against the refusal or amendment or deletion. (2) Where the Registrar of Unions records an amendment to the rules of a union or employers organisation, that union or employers organisation or any other union or employers organisation affected by the decision may, unless the amendment was made pursuant to a direction of the Labour Court, appeal in the prescribed manner to the Labour Court against the decision or any part of the decision. (3) On any such appeal the Labour Court, after making full inquiry and hearing, if it desires to appear, the union or employers organisation, shall advise the Registrar of Unions whether in its opinion the decision made by the Registrar was correct and shall, if necessary, give the Registrar such directions as it thinks fit. Cf. 1973, No. 19, s. 179 (2)
42. Evidence of rules-In all proceedings affecting a union or employers organisation, prima facie evidence of the rules of the union or employers organisation and of their validity may be given by the production of what purports to be a copy of the rules, certified as a true copy under the seal of the union or employers organisation and the hand of the secretary or some other officer of the union or employers organisation or certified as a true copy by the Registrar of Unions. Cf. 1973, No. 19, s. 181
Levies and Subscriptions 4S. Restrictions as to levies and subscriptions payable by members of unions or employers organisations (1) No person who seeks to be admitted or readmitted as a member of a union shall be required to pay on that person's admission or readmission, or as a condition of that person's admission or readmission, an entrance fee that exceeds 10 percent of the union's annual subscription. (2) No member of any union shall be required to pay a subscription to the union in respect of any period during which that person was not required to be a member and was not a member of the union and every union shall effect a pro rata
B-3 668 Labour Relations 1987, No. 77
reduction in any rate of subscription whenever such a reduction is necessary to ensure, in respect of any member, compliance with this subsection. (3) No member of any union or employers organisation shall be required to pay any levies unless,- (a) In the case of a levy whose amount would increase the aggregate amount of the levies payable in anyone year by a member of the union to more than 10 percent of the last annual subscription payable to the union or employers organisation by the member, the levy is first approved by a resolution passed by a majority of the valid votes cast at a secret ballot of the financial members of the union or employers orf?anisation on whom the levy is being imposed, bemg either a postal ballot or a meetings·based ballot or a ballot conducted in such other manner as may be approved by the Registrar of Unions: (b) In the case of any other levy, it is first approved by a resolution (notice of the terms of which and of the amount of the levy having been given before the date of the meeting at which the resolution is to be proposed) passed at a general or special meeting of the union or employers organisation or, where the form of government of the union or employers organisation is such that its highest governing authority is a conference of delegates elected in accordance with the rules of the union or employers organisation, at a general or special meeting of the conference. (4) Where any levy is made by any branch of any union or employers organisation, the provisions of subsection (3) of this section shall be construed, so far as they are applicable, as if references to the union or employers organisation were references to the branch. For the purposes of this subsection, the term "branch" includes only a branch or sub-branch that has control of any income or expenditure of the union or employers organisation. (5) It shall be competent for a union or employers organisation to provide in its rules for the payment of subscriptions in advance for any period not exceeding one year. (6) Notwithstanding anything in the foregoing provisions of this section or in the rules of any union or employers organisation, where any fine or penalty has been imposed, under this Act, on any union or employers organisation, or 1987, No. 77 Labour Relations 669 where any damages have been awarded against a tmion or employers organisation by the Labour Court, the tmion or employers organisation may require its members, by means of a resolution passed in accordance with subsection (3) (b) of this section, to pay a levy to be applied- (a) In payment of the whole or any part of that fine or penalty or those damages; or (b) In reimbursing the funds of the tmion or employers organisation for any amount applied in payment of the whole or part of that fine or penalty. C£ 1973, No. 19, s. 182 (1), (lA), (2)-(5), (5A); 1978, No. 40, s. 10; 1983, No. 105, s. 14; 1985, No. 101, s. 12
44. Recovery of levies and subscriptions-All fees, subscriptions, fines, or levies payable to a tmion or employers organisation by any member of that tmion or employers organisation under its rules may, so far as they are owing for any period of membership subsequent to the registration of the tmion or employers organisation under this Act or any corresponding former Act, be recovered in the name of the tmion or employers organisation in any Court of competent jurisdiction by the secretary or the treasurer of the tmion or employers organisation, or by any other person who is authorised in that behalf by the committee of management or by the rules. Cf. 1973, No. 19, s. 183
Administration of Unions and Employers Organisations 45. Registered office-(I) Every union and every employers organisation shall, as from the date of its registration, have a registered office in New Zealand to which all communications and notices may be addressed. (2) Notice of the situation of the registered office of a union or employers organisation shall be given to the Registrar of Unions on or before the date of the registration of the tmion or employers organisation and the Registrar of Unions shall record the same. (3) Notice of any change in the situation of the registered office of a union or employers organisation shall be given to the Registrar of Unions forthwith and the Registrar of Unions shall record the same. The date of the change shall be stated in the notice. C£ 1973, No. 19, s. 185 670 Labour Relations 1987, No. 77
46. Notice to members of change of registered office or postal address-Every change in the situation of the registered office or in the postal address of a union or employers organisation shall be forthwith notified to the members of the union or employers organisation in such manner as the committee of management of the union or employers organisation determines. ef. 1973, No. 19, s. 185
47. Accounts of unions and employers organisations Every union and every employers organisation shall keep accounting records in which sIiall be set out, in such manner as to enable them to be conveniently and properly audited, full, true, and complete accounts of the financial affairs and transactions of the union or employers organisation. Cf. 1973, No. 19, s. 186 (1)
48. Audit of accounts-( 1) Every union and every employers organisation shall arrange for the audit of its accounts and the preparation of an annual income and expenditure account and an annual balance sheet by a member of the New Zealand Society of Accountants. (2) Every annual income and expenditure account and balance sheet shall be signed by the secretary or other person responsible for the keeping of the accounts of the union or employers organisation, and shall, together with the auditor's report on the accounts, be presented to the next succeeding annual or other periodical general meeting or conference of the union or employers organisation held after the date of that report. Cf. 1973, No. 19, s. 186 (2) (a), (9)
49. Delivery of accounts and auditor's certificate to Registrar-( 1) Every union and every employers organisation shall, within 3 months after the end of its financial year, or, where its accounts are prepared at intervals of less than 12 months, within 3 months after the end of the period covered by the accounts, deliver to the Registrar of Unions a copy of the accounts for that financial year or that period, together with a certificate signed by the auditor that the auditor- (a) Has carried out the audit of the accounts of the union or employers organisation; and (b) Has seen in the course of the audit the audited accounts of the branches (if any) of the union or employers 1987, No. 77 Labour Relations 671 organisation for the last preceding accounting period with any reports made by the branch auditor on those accounts; and (c) Has duly reported on those accounts to the union or employers organisation. (2) If a union or employers organisation fails to comply with subsection (1) of this section, the registration of the union or employers organisation shall be cancelled under section 31 of this Act. (3) The Registrar shall acknowledge receipt of every copy of accounts which, together with a copy of the certificate signed by the auditor, is delivered to the Registrar under this section. er. 1973, No. 19, s. 186 (4)
50. Power of Registrar to require audit of accounts (1) Where the Registrar of Unions is satisfied, on the application of not less than 10 percent or 100 of the financial members of a union or employers organisation (whichever is the smaller number), that there is reasonable ground for believing that an additional audit of the accounts of that union or employers organisation is necessary, the Registrar may require that union or employers organisation to submit its accounts to an auditor nominated by the Registrar, which auditor shall be a member of the New Zealand Society of Accountants. (2) Where under subsection (1) of this section the Registrar of Unions has required the accounts of any union or employers organisation to be submitted to an auditor, the union or employers organisation shall, not later than 14 days after receiving the auditor's report, deliver those accounts to the Registrar together with a copy of the auditor's report. (3) The cost of an audit required by the Registrar of Unions pursuant to subsection (1) of this section shall be met by the union or employers organisation. (4) In this section the expression "union" includes a branch and a sub·branch of a union. er. 1973, No. 19, s. 186 (12)-(13)
51. Obligation of unions and employers organisations to retain accounting records, etc.-Every union and every employers organisation shall keep for a period of at least 7 years from the date of the last entry therein all accounting records of the union or employers organisation, together with 672 Labour Relations 1987, No. 77 all such vouchers, invoices, receipts, and other documents as are necessary to verify the entries in any such accounting records. e£ 1973, No. 19, s. 186 (17)
52. Annual return-( 1) Subject to subsection (2) of this section, every union or employers organisation shall, in the month of April in every year, deliver to the Registrar of Unions a return showing- (a) The names, addresses, and occupations of the officers and auditors of the union or employers organisation; and (b) The address of the union's or employers organisation's registered office; and (c) The physical address of the office from which the business of the union or employers organisation is conducted; and the telephone number of that office; and (d) The number of the union's or employers organisation's financial members (being members covered by the membership rule of the union), as at the end of the last preceding month. (2) Where the Registrar of Unions is satisfied, in the case of any union,- (a) That its membership fluctuates because most of its members are involved in seasonal employment; and (b) That, because of its fluctuating membership, it would not be appropriate for that union to deliver in April the return required by subsection (1) of this section, the Registrar may, from time to time, by notice in writing to that union, require that union to deliver that return in such other month in every year as shall be specified by the Registrar in that notice. (3) Every return delivered under this section shall be certified by the president or secretary of the union or employers organisation to be a full and correct return. (4) The Registrar shall acknowledge receipt of every return delivered to the Registrar under this section. (5) Where a return is incomplete or is incorrect in a material particular, the Registrar may, for the purposes of section 32 (1) of this Act, elect to treat it as if it had not been delivered and, in any notice given by the Registrar under section 32 (2) of this Act in relation to the failure to deliver a full and correct return, shall indicate accordingly. 1987, No. 77 Labour Relatioru 673
(6) If a union or employers organisation fails to comply with subsection (1) of this section, the registration of the union or employers organisation shall be cancelled under section 32 of this Act. ef. 1973, No. 19, s. 187 (1)-(3)
53. Statement of officers and members whenever required-( 1) The Registrar of Unions may at any time require any union or employers organisation to furnish within 14 days a statement showing the names, addresses, and occupations of the officers of the union or employers organisation, and of any or all of its members. (2) If default is made in complying with any requirement under this section, the union or employers organisation, and every officer of the union or employers organisation, commits an offence and is liable on summary conviction to a fine not exceeding 52,000. (3) In any prosecution for an offence against subsection (2) of this section, it shall be a good defence if the defendant proves- (a) That he or she did not intend to commit an offence against that subsection; and (b) That he or she took all reasonable steps to ensure that the statement required was furnished in accordance with subsection (1) of this section. (4) Every person commits an offence and is liable on summary conviction to a fine not exceeding 52,000 who makes or orders to be made any false entry in or any omission from any statement furnished pursuant to this section. (5) No prosecution for an offence against this section shall be commenced except on the information of the Registrar of Unions. ef. 1973, No. 19, s. 188
54. Information to be provided by employer-(l) An employer bound by an award or agreement shall, on the written request of a union which is a party to that award or agreement, supply to that union, within 30 days after a date specified in the request,- (a) A list of the names and postal addresses of any workers employed by that employer who are covered by the coverage clause of that award or agreement; and 674 Labour Relations 1987, No. 77
(b) A list of the jobs or classification of the workers named in the list supplied pursuant to paragraph (a) of this subsection. (2) No employer shall be obliged to make such a return to a union on more than one occasion in any period of 6 months. (3) Where a union makes a request under subsection (1) of this section and the employer concerned is a company, that employer shall also provide the union with the registered name of that company. 55. Special voting in ballots-The procedures set out in the Third Schedule to this Act shall apply in respect of any ballot held by a union under the requirements of tbis Act. 56. Right of entry for purposes of union business (1) For the purpose ofconducting the business of the union, but subject to subsections (2) to (4) of this section, an officer or paid official of a union may, where that officer or paid official has reasonable grounds to believe in respect of any premises (other than a dwellinghouse) that a member of the uruon or a person covered by its membership rule is employed on those premises and that those premises are under the control of that member's or person's employer, enter those premises, at any reasonable time during any period when workers are employed to work on the premises, to do one or more of the following things: (a) Interview- (i) Any individual member of the union; or (ii) Any individual person reasonably believed by that officer or official to be covered by the membership rule of the union: (b) Request any person reasonably believed by that officer or official to be covered by the membership rule of the union to join the union: (c) Collect any fees, subscriptions, levies, or other charges payable to the union by any person on the premises: (d) Obtain from the employer any information required for the purposes of any ballot to be conducted under this Act. (2) In entering any premises under subsection (1) of this section, an officer or official shall be bound by any existing reasonable health and safety procedures and requirements applying on the premises and shall, to the extent that such procedures or requirements reasonably limit or prohibit the entry of persons other than workers to particular parts of the premises, not enter those parts of the premises. 1987, No. 77 Labour Relations 675
(3) Every person who enters any premises under the authority of subsection (1) of this section shall on first entering those premises and, if requested, at any subsequent time produce to the employer or a representative of the employer evidence of- (a) That person's identity; and (b) The n~ture of that person's authority to represent the UnIon. (4) Where any person enters any premises under the authority of subsection (1) of this section and is unable, despite reasonable efforts, to find on those premises the employer or any representative of the employer, that person shall, after the entry and inspection and before leaving those premises, leave on those premises a written notice addressed to the employer, which shall state- (a) That person's identity; and (b) The nature of that person's authority to represent the union; and (c) The date and time of the entry; and (d) The reasons for the entry. (5) Every person commits an offence and is liable on sununary conviction to a fine not exceeding $1,000 who- (a) Refuses to allow any officer or official of a union to exercise the powers conferred on that officer or official by this section; or (b) Obstructs any officer or official of a union in the exercise or attempted exercise of any of that officer's or official's powers under this section; or (c) Wilfully fails to comply with the provisions of this section. (6) No prosecution for an offence against this section shall be conunenced except on the information of an officer of the union or an employer. (7) For the purposes of this section, "officer" means the president, vice·president, or secretary of the union or branch thereoE Cf. 1973, No. 19, s. 96; 1983, No. 105, s. 3; 1985, No. 101, s.3 57. Union meetings-(I) Subject to subsections (2) to (5) of this section, every employer shall allow every union member employed by that employer to attend, on ordinary pay, at least 2 union meetings (each of a maximum of 2 hours duration) in each year (being the period beginning on the 1st day ofJanuary and ending on the following 31st day of December). 676 Labour Relations 1987, No. 77
(2) The union shall give the employer at least 14 days notice of the date and time of any union meeting to which subsection (1) of this section is to apply. (3) The union shall make such arrangements with the employer as may be necessary to ensure that the employer's business is maintained during any union meeting, including, where appropriate, an arrangement for sufficient union members to remain available during the meeting to enable the employer's operation to continue. (4) Work shall resume as soon as practicable after the meeting, but the employer shall not be obliged to pay any union member for a period greater than 2 hours in respect of any meeting. (5) Only union members who actually attend a union meeting shall be entitled to pay in respect of that meeting and to that end the union shall supply the employer with a list of members who attended and shall advise the employer of the time the meeting finished. (6) This section shall come into force on the 1st day of January 1988.
PART III
UNION MEMBERSHIP PROVISIONS 58. Object-The object of this Part of this Act, in relation to union membership provisions, is to establish that- (a) While unions may provide for a wider membership, all persons working who fall within the coverage of a union membership rule have a right to join that union: (b) Where an award or agreement contains a union membership clause any adult worker covered by that award or agreement must become a member within 14 days of being requested to do so by the union: (c) The insertion of a union membership clause can be negotiated by the parties to an award or agreement, but, if not settled by negotiation, the matter can be determined by a ballot of all workers bound by the award or agreement: (d) Union membership ballots must be supervised by the Registrar of Unions: (e) Exemption from union membership may be sought only on the groun~s: of conscience or other deeply held personaf conVIctIOn. 1987, No. 77 Labour Relations 677
59. Interpretation-In this Part of this Act, unless the context otherwise requires,- "Adult person" means- (a) Any person of the age of 18 years or upwards: (b) Any person of any age who for the time being is in receipt of not less than the minimum rate of wages or salary payable to a person of the age of 18 years or upwards under the applicable award or agreement and "adult worker" has a corresponding meaning: "Union membership clause" means,- (a) In relation to any award or agreement, a clause which is included in the award or agreement and which provides as follows: "Any adult worker (other than one who holds a certificate of exemJ;>tion from union membership issued under section 1120 of the Industrial Relations Act 1973 or under section 95 of this Act) who is covered by this award (or agreement) shall (if not already a member) become a member of the union bound by this award (or agreement) within 14 days after having been requested to do so by an officer or authorised representative of the union; and every such worker shall remain a member of the union so long as that person continues in the position or employment"; or (b) In relation to a composite award or a composite agreement, a clause which is included in the award or agreement and which provides as follows: "Any adult worker (other than one who holds a certificate of exemption from union membership issued under section 1120 of the Industri3.l Relations Act 1973 or under section 95 of this Act) who is covered by this award (or agreement) shall (if not already a member) become a member of the union bound by this award (or agreement) whose membership rule applies to that worker within 14 days after having been requested to do so by any officer or authorised representative of that union; and every such worker shall remain a member of that union for so long as that worker continues in the position or employment." 60. Right of workers to become members of unions Subject to the provisions of this Act, every person who, by virtue of that person's work or intended worK, is within the 678 Labour Relations 1987, No. 77 coverage of the membership rule of a union shall be entitled to be admitted to membership of the union and on application the union shall admit such a person to membership; and so far as the rules of any union are inconsistent with the provisions of this section they shall be null and void. er. 1973, No. 19, s. 104; 1983, No. 105, s. 5 Union Membership Clauses 61. Insertion of union membership clause-(I) A union membership clause may be inserted in an award or agreement only- (a) By agreement between the parties in any proceedings involving a dispute of interest; or (b) Failing such agreement, by ballot. (2) No award or agreement shall contain a provision (other than a union membership clause inserted in accordance with the provisions of this Act) requiring any worker engaged or employed by an employer bound by the award or agreement to join any union. (3) The parties in any proceedings involving a dispute of interest may not agree to tbe insertion of a union membership clause in an award or agreement if a union membership ballot has been conducted in relation to that award or agreement or either of the two awards or agreements which immediately preceded that award or agreement. (4) A union shall not conduct a union membership ballot in relation to an award or agreement if such a ballot has been conducted in relation to that award or agreement or either of the two awards or agreements which immediately preceded that award or agreement. 62. Insertion of union membership clause in composite award or composite agreement-Where a ballot is required to determine whether a union membership clause is to be inserted in a composite award or composite agreement,- (a) Separate union membership ballots shall be conducted in respect of each and every union that is a party to the composite award or composite agreement; and (b) A union membership clause shall not be inserted in the composite award or composite agreement as a result of diose ballots unless not less than 50 percent of the valid votes recorded in each and every one of those ballots are in favour of the insertion of the union 1987, No. 77 Labour Relations 679
membership clause in the composite award or composite agreement. ef. 1973, No. 19, s. 101c; 1981, No. 101, s. 4 63. Provision for ballots-( 1) Where, in negotiations for a proposed award or agreement, the employer does not agree to the insertion of a union membership clause in the award or agreement, the union may, subject to section 61 (4) of this Act, decide to conduct a ballot for the pwpose of determining whether a union membership clause is to be inserted in the award or agreement. (2) Where a union decides to conduct a ballot for the pwpose of determining whether a union membership clause is to be inserted in an award or agreement,- (a) That ballot shall be a ballot of all adult workers who will be required, on request of the union, to become members of the union if the clause is inserted in the award or agreement; and (b) That ballot shall be conducted in accordance with the rules set out in the Fourth Schedule to this Act; and (c) A union membership clause shall not be inserted in the award or agreement as a result of that ballot unless not less than 50 percent of the valid votes recorded in the ballot are in favour of the insertion of the union membership clause in the award or agreement. 64. Obligatory rules concerning union membership baUots-The rules of every union shall include, or, in the case of the rules of a union that is registered at the commencement of this section, shall be deemed to include, the rules relating to union membership ballots set out in the Fourth Schedule to this Act (which shall not be amended by the union and which shall prevail over any other provision of the rules). 65. Notice to Registrar-Where a union intends to conduct a union membership ballot pursuant to its rules, the committee of management of the union shall,- (a) At least 30 days before the day on which the special meeting or the first of the series of special meetings required is held, give or post to the Registrar of Unions written notice of that intention in the prescribed form, which notice shall state, among other things, the date, time, and place of each special meeting; or 680 Labour Relations 1987, No. 77
(b) In the case of a postal ballot, give or post to the Registrar of Unions written notice of that intention in the prescribed form, at least 30 days before the date on which all votes have to be receIved by the Returning Officer, which notice shall state, among other things, that date. Cf. 1973, No. 19, s. 102; 1985, No. 101, s. 4
66. Conduct of ballot-( 1) Every union membership ballot conducted pursuant to the rules of any union shall be conducted by the union under the supervision of the Registrar of Unions, or of some person, being an employee of the Department of Labour, designated by the Registrar to supervise that ballot. (2) The ballot paper shall be in the prescribed form. (3) The Returning Officer shall, at the conclusion of the special meeting or, where there is a series of special meetings, at the conclusion of that series, or at the conclusion of a postal ballot prepare and make available to the Registrar and to any voter or other interested person, a record showing- (a) The number of votes in favour of the union membership clause: (b) The number of votes against the union membership clause: (c) The number of informal votes. (4) The expenses incurred by the Registrar or designated person in connection with the conduct of every such ballot shall be paid out of money to be appropriated by Parliament for the purpose. (5) Notwithstanding anything in the rules of the union, the Registrar or designated person may take such action and give such directions as the Registrar or designated person considers necessary to prevent the occurrence of any irregularity in or in connection with the ballot. (6) In this section the term "designated person" means any person designated under subsection (1) of this section to supervise the ballot on behalf of the Registrar. Cf. 1973, No. 19, s. 102A; 1985, No. 101, s. 4
67. Result of ballot-(I) The Registrar shall issue a certificate in the prescribed form showing the result of the ballot, and shall supply one copy of the certificate to the Commission and another to the union. 1987, No. 77 Labour Relations 681
(2) Every such certificate shall be conclusive evidence of the resUlt of the ballot. 68. Effect of ballot-Where, as the result of any ballot conducted pursuant to the rules of a union and in accordance with this Act, a union membership clause is required to be inserted in any award or agreement, the Commission shall, where necessary, amend the award or agreement by inserting in it a union membership clause. Cf. 1973, No. 19, s. 101; 1985, No. 101, s. 4 69. Currency of union membership clause-( 1) Where a union membership clause is inserted in an award or agreement by agreement between the parties, that clause shall have the same currency as the award or agreement. (2) Where a union membership clause is inserted in an award or agreement as a result of a ballot conducted in accordance with the rules set out in the Fourth Schedule to this Act, that clause shall, as a result of that ballot, also be inserted in- (a) The award or agreement that is subsequent to the award or agreement in which the clause was inserted; and (b) The award or agreement that is subsequent to the award or agreement specified in paragraph (a) of this subsection; and (c) The award or agreement that is subsequent to the award or agreement specified in paragraph (b) of this subsection, but only for the first 3 months of the period for which it is current. (3) This section is subject to section 106 of this Act relating to change of union coverage. 70. Effect of amalgamation of unions on union membership clause-Where- (a) Two or more unions amalgamate (by whatever method); and (b) Any union membership clause in any award or agreement is binding on a union that is a party to the amalgamation,- that union membership clause shall have effect as if the new union or the amalgamated union, as the case may be, were the union referred to in the clause. 71. Effect of failure to comply with union membership clause-Where an adult worker (other than a worker who holds a certificate of exemption from union membership issued 682 Labour Relations 1987, No. 77 under section 95 of this Act or under section 1120 of the Industrial Relations Act 1973, or who is exempt for the time being pursuant to section 91 of this Act) fails to become a member of a union within 14 days after having been requested to do so by an officer or authorised representative of the union, the employer may, by reason of that failure, lawfully and justifiably dismiss that worker from the position or employment held by that worker if the request was made pursuant to a union membership clause contained in an award or agreement by which the employer and worker were bound. 72. Undue influence-(I) No union or association and no officer or other person acting on behalf of any union or association (whether lawfully authorised to do so or not) shall exert undue influence on any person with intent to induce that person- (a) To become or remain a member of a union or a particular union; or (b) To cease to be a member of a union or a particular union; or (c) Not to become a member of a union or a particular union; or (d) To support a change in union coverage; or (e) Not to support a change in union coverage; or (f) To participate in the formation of a new union; or (g) Not to participate in the formation of a new union; or (h) On account of the fact that the worker is, or, as the case may be, is not a member of a union or a particular union, to resign from or leave any employment. (2) No employer or person acting on behalf of an employer (whether lawfully authorised to do so or not) shall exert undue influence on any prospective employee of that employer with intent to induce that prospective employee- (a) To become or remain a member of a union or a particular union; or (b) To cease to be a member of a union or a particular union; or (c) Not to become a member of a union or a particular union; or (d) To support a change in union coverage; or (e) Not to support a change in union coverage; or (f) To participate in the formation of a new union; or (g) Not to participate in the formation of a new union. (3) Every person who contravenes subsection (1) or subsection (2) of this section shall be liable,- 1987, No. 77 Labour Relatioru 683
(a) If an officer of a union or association or person acting on behalf of a union or association (whether lawfully authorised to do so or not), to a penalty not exceeding $500: (b) If a union or association, to a penalty not exceeding $2,000: (c) If an employer or person acting on behalf of an employer (whether lawfully authorised to do so or not), to a penalty not exceeding $2,000. (4) An action for the recovery of a penalty may be brought in respect of an alleged contravention of subsection (1) of this section only by the person or worker in relation to whom the contravention is alleged to have taken place or by the employer or intended employer of that person. (5) An action for the recovery of a penalty may be brought in respect of an alleged contravention of subsection (2) of this section only by the person in relation to whom the contravention is alleged to have taken place or by the union which has coverage of that person.
Exemption from Union Membership 7S. Union Membership Exemption Tribunal-(l) There shall continue to be a Tribunal to be known as the Union Membership Exemption Tribunal. (2) The Tribunal shall, within the scope of its jurisdiction, be deemed to be a Commission of Inquiry under the Commissions of Inquiry Act 1908, and subject to this Act and to any regulations made for the purposes thereof, the provisions of that Act, except sections 2, 4A, 11, and 12, shall apply accordingly. (3) The Union Membership Exemption Tribunal is hereby declared to be the same Tribunal as that established by section 105 of the Industrial Relations Act 1973. Cf. 1973, No. 19, s. 105; 1985, No. 101, s. 4
74. Functions of Tribunal-(l) The principal function of the Tribunal shall be to consider and determine applications made to it under section 82 of this Act for certificates of exemption from union membership. (2) The Tribunal shall also have such other functions as are conferred on it by or under this Act or any other Act. Cf. 1973, No. 19, s. 106; 1985, No. 101, s. 4 684 Labour Relations 1987, No. 77
75. Membership of Tribunal-( 1) The Tribunal shall consist of 3 members, who shall be appointed by the Governor General on the recommendation of the Minister, and of whom one shall be appointed as the Presiding Officer of the Tribunal_ (2) In recommending any person for appointment, the Minister shall have regard to- (a) The person's personal attributes; and (b) The person's knowledge of and experience in one or more of the following fields: (i) Human rights: (ii) Religious beliefs: (iii) Labour relations (including the affairs of unions)_ (3) Every member of the Tribunal shall retire from office on attaining the age of 68 years_ Cf. 1973, No_ 19, s. 107; 1985, No. 101, s. 4 76. Tenn of office of members-(I) Except as otherwise provided by this Act, every member of the Tribunal shall hold office for such tenn as the Governor-General on the recommendation of the Minister shall specify in the member's appointment, being a tenn not exceeding 5 years. (2) Every member of the Tribunal shall be eligible for reappointment from time to time. (3) Every member of the Tribunal, unless that member sooner vacates office under section 75 (3) or section 77 of this Act, shall continue in office until either that member is reappointed or that member's successor comes into office, notwithstanding that the tenn for which that member was appointed may have expired. Cf. 1973, No. 19, s. 108; 1985, No. 101, s. 4 77. Extraordinary vacancies-( 1) Any member of the Tribunal may at any time be removed from office by the Governor-General for disability, banlauEtcy, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General. (2) Any member may at any time resign the office by writing addressed to the Minister. (3) If any member dies or resigns or is removed from office, the office shall become vacant and the vacancy shall be deemed to be an extraordinary vacancy. (4) An extraordinary vacancy shall be filled in the manner in which the appointment to the vacant office was originally made. 1987, No. 77 Labour Relations 685
(5) Every person appointed to fill an extraordinary vacancy in the office of a member may be appointed for the residue of the term for which the vacating member was appointed. (6) The functions and powers of the Tribunal shall not be affected by any vacancy in its membership. Cf. 1973, No. 19, s. 109; 1985, No. 101, s. 4
78. Deputy members of Tribunal-( 1) The Governor· General may from time to time appoint a Deputy Presiding Officer of the Tribunal, and such deputy members thereof as the Governor·General thinks fit, to hold office during the pleasure of the Governor·General. (2) On the occurrence from any cause of a vacancy in the office of Presiding Officer or member of the Tribunal, and in the case of the absence of the Presiding Officer or any member (from whatever cause arising) and as long as the vacancy or absence continues, the powers and functions of the Presiding Officer or member may be exercised and performed by the Deputy Presiding Officer or by a deputy member, as the case may be. (3) No act done by the Tribunal sitting with a Deputy Presiding Officer or a deputy member, or done by any such Deputy Presiding Officer or deputy member, shall be questioned on the ground that the occasion for the deputy's acting had not arisen or had ceased. Cf. 1973, No. 19, s. 110; 1985, No. 101, s. 4
79. Procedure of Tribunal-( 1) The procedure of the Tribunal shall, subject to this Act and to any regulations made under it, be such as the Tribunal thinks fit. (2) The Tribunal may admit and accept such evidence as it thinks fit, whether admissible in a Court of law or not. (3) The Tribunal shall sit at such times and places as may be determined by the Presiding Officer. (4) Subject to section 88 of this Act, no sittings of the Tribunal shall take place unless all the members or their deputies are present, but the decision of the majority of the members shall be the decision of the Tribunal. (5) The Presiding Officer shall preside at all sittings of the Tribunal at which the Presiding Officer is present. If the Presiding Officer and the Deputy Presiding Officer are absent, the members present shall appoint one of their number to be the Presiding Officer for the purposes of that sitting. 686 Labour Relations 1987, No. 77
(6) Subject to section 88 of this Act, the decision of the Tribunal on any application shall be in writing signed by the Presiding Officer and at least one other member of the Tribunal. (7) Subject to section 97 of this Act, every such decision shall, for the purposes of this Part of this Act, be final and conclusive. e£ 1973, No. 19, s. Ill; 1985, No. 101, s. 4
80. Administrative and secretarial services-The Department of Labour shall provide for the Tribunal a Secretary and such administrative, secretarial, and other services as may be necessary to enable it to exercise its functions and powers and to perform its duties. ef. 1973, No. 19, s. 112; 1985, No. 101, s. 4
81. Remuneration and expenses of Tribunal-(I) The Tribunal is hereby declared to De a statutory Board within the meaning of the Fees and Travelling Allowances Act 1951. (2) There shall be paid out of money appropriated by Parliament for the purpose to the members and deputy members of the Tribunal remuneration by way of salary, fees, or allowances and travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951, and the provisions of that Act shall apply accordingly. (3) No person shall be deemed to be employed in the service of Her Majesty for the purposes of the State Services Act 1962 or the Government Superannuation Fund Act 1956 by reason of that person's appointment under this Act as a member or deputy member of the Tribunal. ef. 1973, No. 19, s. 112A; 1985, No. 101, s. 4
82. Application for exemption-Any person who is required under a union membership clause to become or to remain a member of a union may apply to the Secretary of the Union Membership Exemption Tribunal for a certificate of exemption from union membership. ef. 1973, No. 19, s. 112B; 1985, No. 101, s. 4
8S. Grounds for exemption-An application for a certificate of exemption may be made only on the grounds that the applicant genuinely objects, on the grounds of conscience or other deeply held personal conviction, to becoming or 1987, No. 77 Labour Relatiorn 687 remaining a member of any union whatsoever or of a particular union. Cf. 1973, No. 19, s. 112c; 1985, No. 101, s. 4
84. Fonn of application-(I) Every application for a certificate of exemption shall be in writing in the prescribed form. (2) The application shall set out the facts and beliefs on which the application is based. Cf. 1973, No. 19, s. 112D; 1985, No. 101, s. 4
85. Fee-(I) Every application shall be accompanied by the prescribed fee. (2) The Secretary of the Tribunal shall pay the prescribed fee into the Consolidated Account. Cf. 1973, No. 19, s. 112E; 1985, No. 101, s. 4
86. Reference of application to union-On receipt of an application under section 82 of this Act and on payment of the fee prescribed for the purposes of section 85 of this Act, the Secretary of the Tribunal shall refer a copy of the application to the secretary of the union to which the applicant would, but for the application, be required to belong. Cf. 1973, No. 19, s. 112F; 1985, No. 101, s. 4
87. Objection by union-If the union wishes to object to the application, it shall, within 28 days after the date on which the copy of the application is referred to the secretary of the union, give written notice of its objection to the Secretary of the Tribunal. Cf. 1973, No. 19, s. 112c; 1985, No. 101, s. 4
88. Unopposed application-If no objection is received from the union, within the time prescribed by section 87 of this Act, the Presiding Officer of the Tribunal may, after considering the application, determine, on behalf of the Tribunal, that a certificate of exemption be issued to the applicant. Cf. 1973, No. 19, s. 112H; 1985, No. 101, s. 4
89. Hearing of application-(I) If- (a) An objection is received from the union within the time prescribed by section 87 of this Act; or 688 Labour Relations 1987, No. 77
(b) The Presiding Officer of the Tribunal, after considering an application to which section 88 of this Act applies, does not determine, on behalf of the Tribunal, that a certificate of exemption be issued to the applicant but decides instead to require the application to be heard,- the Tribunal shall fix a time and place for the hearing of the application and shall give notice of the time and place to the applicant and to the secretary of the union to which the applicant would, but for the application, be required to belong. (2) The applicant shall have the right to be assisted before the Tribunal by an agent or a barrister or solicitor. (3) The secretary of that union or any other person appointed in that behalf by the union shall be entitled to be present and to be heard at the hearing of the application. ef. 1973, No. 19, s. 1121; 1985, No. 101, s. 4
90. Intervention by other unions or central organisation of workers-( 1) Where any other union or the central organisation of workers considers that it has an interest in the hearing of the application, it may apply to the Secretary of the Tribunal for the union's or central organisation s secretary or any other person appointed in that behalf to also be present and be heard at the nearing. (2) The Secretary of the Tribunal shall refer every application under this section to the Tribunal, which shall determine, before the hearing, whether or not the union or the central organisation of workers has such an interest in the hearing as would justify the union's or central organisations' secretary or other person so appointed being entitled to be present and to be heard. ef. 1973, No. 19, s. 1121; 1985, No. 101, s. 4
91. Exemption pending determination of application-Pending the determination by the Tribunal of any application made under section 82 of this Act, the applicant shall not be required to belong to any union. ef. 1973, No. 19, s. 112K; 1985, No. 101, s. 4
92. Power to grant exemption-The Tribunal shall grant the exemption if it is satisfied that the applicant genuinely objects, on the grounds of conscience or other deeply held 1987, No. 77 Labour Relatwm 689 personal conviction, to becoming or remaining a member of any union whatsoever or of a particular union. er. 1973, No. 19, s. 112L; 1985, No. 101, s. 4 98. Duration of exemption-The exemption shall take effect from the commencement of the day on which the application under section 82 of this Act is received by the Secretary of the Tribunal and shall, unless sooner revoked, continue in force until the person to whom it is issued dies. er. 1973, No. 19, s. 112M; 1985, No. 101, s. 4 94. Notice of decision-Where the Tribunal makes a decision on any application made under section 82 of this Act, the Secretary of the Tribunal shall give notice of the decision- (a) To the applicant; and (b) To every union whose secretary or appointee was entitled to be present and to be heard at the hearing of the application; and (c) If the secretary or appointee of the central organisation of workers was entitled, by virtue of a detennination under section 90 (2) of this Act, to be present and be heard at the hearing of the application, to the central organisation of workers. er. 1973, No. 19, s. 112N; 1985, No. 101, s. 4 95. Certificate of exemption-( 1) Where the Tribunal grants the applicant exemption from union membership, the Secretary of the Tribunal shall issue to the applicant a certificate of exemption. (2) A certificate of exemption issued to any person under this section shall, while it remains in force, permit the employment of that person in any position or occupation as if that person were a member of the union to which that person would, but for the exemption, be required to belong. er. 1973, No. 19, s. 1120; 1985, No. 101, s. 4 96. Rehearing-( 1) The Tribunal may rehear the proceedings on any application under section 82 of this Act if- (a) The applicant or union involved in those proceedings applies for a rehearing on the grounds that the decision in those proceedings was procured by fraud or was made in error or that new and material evidence is available; or 690 Labour Relations 1987, No. 77
(b) A union that was not involved in those proceedings applies for a rehearing on the grounds- (i) That the work of the person to whom the certificate of exemption has been issued is different from that being done by that person when the application for exemption was made; and (ii) That the person's new work is such that the person would, but for the exemption, be required to belong to the union applying for the rehearing. (2) The application for a rehearing shall be served on the other parties not less than 5 clear days before the day fixed for the hearing of the application and shall state the grounds relied on. (3) On receiving an application under subsection (1) of this section, the Tribunal may in its discretion rehear the application and may cancel, vary, or confinn its previous decision. C£ 1973, No. 19, s. 112p; 1985, No. 101, s. 4 97. Appeal on question of law-(l) Any person who is directly affected by any decision of the Tribunal and who is dissatisfied with that decision as being erroneous in point of law may, within such time and in such manner as mar be prescribed, appeal to the Labour Court on that question of law only. (2) Every appeal under this section shall be dealt with in accordance with regulations made under this Act. Cf. 1973, No. 19, s. 112Q; 1985, No. 101, s. 4
PART IV
CHANGE OF UNION COVERAGE 98. Object-The object of this Part of this Act, in relation to union coverage, is to establish that- (a) A union's coverage may be challenged by an existing union seeking to extend its membership coverage: (b) A challenge by an existing union to a union's coverage is determined ultimately by independently conducted ballots of the workers involved: (c) The coverage of unions with provisional registration is protected: (d) In the case of a demarcation dispute, the Labour Court will decide which union, if any, has coverage. 1987, No. 77 Labour Relations 691
99. Procedure in relation to extension of membership-No union may change its rules so as to include within its membership coverage any category or categories of workers who are covered by the membership rule of any other union unless it complies with the procedure set out in sections 100 to 103 of this Act. 100. Notice of proposed change-The procedure referred to in section 99 of this Act shall begin with the union notifying- (a) The Registrar of Unions; and (b) The central organisation of workers; and (c) Any union affected by the proposed change of coverage,- that, at the expiry of a period of 3 months from the giving of the notice, it intends to apply to the Registrar of Unions for approval of a definition of the category or categories of workers tliat the union wishes to include within its membership coverage, and the notice shall include the proposed definition. 101. Definition of category or categories of workers (1) The union may, after the expiry of the period of 3 months referred to in section 100 of thiS Act,- (a) Apply to the Registrar of Unions for approval of the definition of the category or categories of workers that the union wishes to include within its membership coverage (which definition shall be the same as that previously notified under section 100 of this Act); and (b) Give to the Registrar of Unions the names of any unions that are considered to have membership coverage of the workers within the category or categories. (2) The definition shall define a category of workers by reference to all or any of the following matters: (a) The locality or place in which they work; or (b) The type of work performed by them; or (c) The employer or the employers or the class of employers for whom they work. (3) The Registrar of Unions shall refuse to approve the detuUtion if- (a) It does not define precisely, for the purposes of the proposed changes in the rules of the umons affected, the category or categories of workers proposed to be included within the union's membership coverage: 692 Labour Relations 1987, No. 77
(b) It contains a list of names of workers or a list of individual positions or a combination of both.
102. Ballot of union wishing to extend its coverage (1) Where the definition of the category or categories of workers has been approved by the Registrar of Unions, the union that obtained that approval shall, if it wishes to proceed with the extension of coverage, conduct a ballot of its members for the purpose of determining whether those members are in favour of amending its membership rule to include within its coverage that category or those categories of workers. (2) Every ballot conducted for the purpose of subsection (1) of this section by a union shall be conducted in accordance with the procedures which are set out in the union's rules and which apply in respect of amendments to the rules of the union.
103. Ballot for change of union coverage-(l) Where a majority of the valid votes recorded in a ballot conducted by a union under section 102 of this Act is in favour of the inclusion within the coverage of the union's membership rule of the category or categories of workers to which the ballot related, the union may make application to the Registrar of Unions for approval of the necessary amendment or amendments to the union's membership rule. (2) Every application under subsection (1) of this section shall be accompanied by evidence of the result of the ballot. (3) The Registrar of Unions, on receiving both an application under subsection (1) of this section and the evidence required by subsection (2) of this section, shall conduct, in respect of each union that has coverage of the workers within the category or categories of workers to which the application relates, a union coverage ballot in accordance with the procedure set out in the Fifth Schedule to this Act. (4) Each union coverage ballot shall be for the purpose of determining whether the workers balloted are in favour of being included within the membership coverage of the union that made the application under subsection (1) of this section. (5) Each union coverage ballot conducted in respect of a union under subsection (3) of this section shall be a ballot of the workers who belong to the union and who are within the category or categories of workers to which the application under subsection (1) of this section relates. (6) Where a majority of the valid votes recorded in each and every union coverage ballot is in favour of the workers balloted 1987, No. 77 Labour Relations 693 being included within the membership coverage of the union that made the application under subsection (1) of this section, the Re~trar of Unions shall amend the membership rule of that UIllon accordingly and shall amend the membership rule of each union whose members were the subject of a union coverage ballot in such a way that the members balloted are no longer eligible for membership of that union. (7) Notwithstanding anything in subsection (3) of this section, if in any ballot conducted pursuant to that subsection in relation to any application under this section a majority of the valid votes is not recorded in favour of the workers balloted being included within the membership coverage of the applicant union, no further ballots shall be conducted pursuant to that subsection in relation to that application and that application shall then lapse.
Conduct cif Ballots 104. Conduct of union coverage ballots-Every union coverage ballot shall be conducted by the Registrar of Unions, or by some person being an employee of the Department of Labour designated by the Registrar of Unions in that behalf, in accordance with the provisions of the Fifth Schedule to this Act. 105. Restrictions on union coverage ballots-( 1) No union that is provisionally registered may make an application under section 101 of this Act. (2) No union coverage ballot may be conducted in respect of any of the membership coverage of a union that is provisionally registered. (3) Where any worker or workers may be eligible to vote in 2 or more union coverage ballots, those ballots shall be conducted in the order in which the applications are received by the Registrar of Unions and any amendments to union rules approved in those ballots shall be recorded before the ballots in respect of the next succeeding application are conducted. 106. Consequences of change of union coverage Where a union has extended its membership coverage to include a category or categories of workers as a result of a union coverage ballot, the following provisions shall apply: (a) Any award or agreement that bound that category or those categories of workers immediately before the change of coverage shall (except for the provisions of any union membership clause) continue in force in 694 Labour Relations 1987, No. 77
respect of that category or those categories of workers and their employer or employers until: (i) The expiration of one year from the date on whi~h that award or agreement is expressed to exprre; or (ii) The date on which an award or agreement subsequent to that award or agreement is registered; or (iii) The date of registration of an award or agreement registered in respect of that category or those categories of workers,- whichever occurs first: (b) No award or agreement registered in respect of that category or those categories of workers shall come into force in respect of those workers on a date earlier than the date of the expiry of the currency of the award or agreement that bound that category or those categories of workers immediately before the change of union coverage. 107. Enforcement-( 1) This section applies where- (a) A union extends its coverage under section 103 of this Act to cover workers previously covered by another union; and (b) An award or agreement is continued in force by section 106 of this Act in respect of workers previously covered by another union. (2) Where this section applies, the union that has obtained coverage may enforce the award or agreement under this Act in respect of those workers until- (a) The expiration of one year from the date on which the award or agreement is expressed to expire; or (b) The date on which the award or agreement is superseded; or (c) The date of the coming into force of an award or agreement registered in respect of the workers, whichever occurs first.
Demarcation 108. Demarcation dispute-( 1) Where a union or an employer considers that a demarcation dispute affects that union or employer, that union or employer may apply to the Labour Court to make a decision on that dispute. (2) Unless the Labour Court- 1987, No. 77 Labour Relations 695
(a) Decides that none of the unions who are parties to the dispute has coverage; or (b) Is of the opinion that two or more of the unions who are parties to the dispute have coverage and decides to hold a ballot under section 109 of this Act,- that Court shall decide which one of the unions who are parties to the dispute has coverage. (3) In making a decision, the Labour Court shall have regard to an of the following considerations: (a) The membership rule of each of the unions: (b) The work done or to be done by the workers whose union coverage is the subject of the dispute: (c) The substantial nature of the occupation of those workers in terms of those membership rules: (d) Any relevant provisions of any relevant awards or agreements: (e) Subject to paragraphs (a) to (d) of this subsection, long· established practice in respect of the type of work. (4) The Labour Court shall, before making a decision on a demarcation dispute, give the representatives of the parties and of the central organisation of workers, an opportunity to be heard. . (5) The decision of the Labour Court on any demarcation dispute shall be final and binding on all parties to the dispute. (6) The jurisdiction conferred on the Labour Court by this section and by sections 109 and 110 of this Act shall be exercised by a Judge sitting with 2 panel members. Cr. 1973, No. 19, s. 119 109. Demarcation ballot-( 1) Where the Labour Court is of the opinion in a demarcation dispute that two or more unions have coverage of the workers and considers that a ballot is the only fair, democratic, and practicable way of resolving the dispute, it may order that a ballot (to be called a demarcation ballot) be conducted of such workers or categories of workers as it thinks fit for the purpose of determining which union is favoured by the workers balloted as the union that should have coverage of them. (2) The ballot shall be conducted by the Registrar of Unions in accordance with such provisions and procedures as the Labour Court determines. (3) Orders made by the Labour Court in relation to a demarcation ballot may include an order directing any union or employer to provide the Registrar of Unions, by a date 696 Labour Relations 1987, No. 77 specified in the direction (which date shall be not later than 2 months after the date on which the direction is given to the person or body), with a list containing the correct names, occupations, and postal addresses of all those workers whose coverage is in dispute. (4) Subject to subsection (5) of this section, the result of the ballot shall be binding on all the parties to the dispute and shall be decided in favour of the union that obtains the greatest number of valid votes recorded in the ballot. (5) Where the result of the ballot is not in favour of any union, the dispute shall be referred back to the Labour Court and in such a case the Labour Court shall decide which one of the unions has coverage. (6) The result of any demarcation ballot shall not affect the coverage of any workers who were not amongst those whom the Court ordered to be balloted under subsection (1) of this section. 110. Amendment of membership rule-The Labour Court may, for the purpose of giving effect to any decision made by it on a demarcation dispute or for the purpose of giving effect to the result of any ballot held under section 109 of this Act, order the Registrar of Unions to amend the membership rule or rules, or part of the membership rule or rules, of any union involved in the dispute.
PART V
DISPUTED BALLOTS OR ELECTIONS Ill. Interpretation-( 1) In this Part of this Act, unless the context otherwise requires,- "Ballot" means a ballot conducted pursuant to this Act or to the rules of a union or employers organisation; and includes an election: "Election", in relation to any office, means an election for the filling of that office: "Inquiry" means an inquiry by the Labour Court under this Part of this Act: "Irregularity", in relation to a ballot, includes- (a) A breach of the rules of a union or employers organisation; and (b) Any act, omission, or other means whereby (i) The full and free recording of votes by all persons entitled to record votes, and by no other persons; or 1987, No. 77 Labour Relations 697
(ii) The correct ascertainment or declaration of the results of the voting,- is, or is attempted to be, prevented or hindered: "Office", in relation to any union or branch of a union or any employers organisation, means- (a) The office or position of a member of the committee of management of the union or branch or employers organisation; and (b) The office or position of a person holding, whether as trustee or otherwise, property of the union or branch or employers organisation, or property in which the union or branch has a beneficial interest; and (c) Every office or position within the union or branch or employers organisation in relation to which an election is conducted within the union or branch or employers organisation: "Union" includes an association. (2) For the purposes of this Part of this Act, a ballot shall be deemed to be completed when the result is certified. Cf. 1973, No. 19, s. 199 112. Applications for inquiries into ballots-( 1) Where a claim diat there has been an irregularity in or in connection with a ballot is made- (a) In the case of a ballot in which financial members of a union or employers organisation or branch are eligible to vote, by not less than 10 percent or 50 of those financial members (whichever number is the less); or (b) In the case of an election in respect of an office in an association or any branch of it, by any union represented in the association; or (c) In the case of a ballot in which persons who are not members of a union are eligibfe to vote, by not less than 10 percent or 50 of the persons eligible to vote (whichever number is the less),- the members or union or persons may lodge an application for an inquiry by the Labour Court into the matter. (2) An application under this section shall- (a) Be in writing in the prescribed form: (b) Be lodged with the Registrar of the Court before the completion of the ballot or within one month after the completion of the ballot: 698 Labour Relations 1987, No. 77
(c) Specify the ballot in respect of which the application is made and the irregularity which is claimed to have occurred, and state the facts relied on in support of the application: (d) Be accompanied by a statutory declaration by one of the applicants declaring that the facts stated in the application are, to the best of that applicant's knowledge and belief, true. Cf. 1973, No. 19, s. 200
118. Power to require list of members-Where an application under section 112 of this Act is lodged with the Registrar of the Labour Court, that Registrar may, by notice in writing, require the union or employers organisation to supply to the Registrar of the Court by such date (being not more than 2 months after the date on which the notice is given to the union or employers organisation) as is specified in the notice, a list, as at such date as is specified in the notice, of the names and postal addresses of alf financial members of the union or empfoyers organisation to whom the ballot relates.
114. Directions as to hearing-( 1) Where the Labour Court is inquiring into a ballot, a Judge shall fix a time and place for conducting the inquiry, and shall give such directions as the Judge thinks necessary to ensure that all persons who are justly entitled to appear or to be represented at the inquiry are notified of the time and place so fixed. (2) In any inquiry into a ballot, the Court may require or request the Registrar of Unions to appear or to be represented before the Court at the hearing of the inquiry and in any such case may require the Registrar to give or call evidence in relation to any specified matter in connection with the ballot or in relation to the ballot generally. (3) Where the Registrar of Unions appears or is represented before the Court pursuant to subsection (2) of this section, the Registrar shall have all the rights of a party to the inquiry, including the right to call witnesses, to cross· examine witnesses, and to make submissions. Cf. 1973, No. 19, s. 203
115. Interim order-( 1) At any time after an inquiry in connection with a ballot has been instituted the Labour Court may, if it thinks fit, after giving the parties interested an 1987, No. 77 Labour Relatwru 699 opportunity to be heard, make one or more of the following orders: (a) An order that no further steps be taken in the conduct of the ballot or in carrying into effect the result of the ballot: (b) An order that a person who has assumed an office or continued to act in an office, or claims to occupy an office, being an office to which the inquiry relates, shall not act in that office: (c) An order that a person who holds, or who last held before the ballot, an office to which the inquiry relates may act or continue to act in that office: (d) Where the Court considers that an order under paragraph (c) of this subsection would not be practicab1e or would be prejudicial to the efficient conduct of the affairs of the union or branch or employers organisation or would be inappropriate having regard to the nature of the inquiry, an order that any person specified may act in an office to which the inquiry relates: (e) An order incidental or supplementary to an order under this subsection: (f) An order varying or discharging an order under this subsection. (2) Where the Court orders that a person may act or continue to act in any office, that person shall, while the order continues in force, and notwithstanding anything in the rules of the union or employers organisation, be deemed for all purposes to hold the office. (3) An order under this section shall continue in force, unless expressed to operate for a shorter period or unless sooner discharged, until the completion of the proceedings in the Court in connection with the ballot and of all matters ordered (otherwise than under this section) by the Court in those proceedings. C£ 1973, No. 19, s. 204 116. Functions and powers of Court-(l) Where an application is made to the Labour Court for an inquiry into a baIlot, the Court, on being satisfied that the applicants for the inquiry are entitled under section 112 (1) of this Act to make the application, shall inquire into and determine the question whether any irregularity has occurred in or in connection with
8-4 100 Labour Relations 1987, No. 77 the ballot, and such further questions concerning the conduct and results of the ballot as the Court thinks necessary. (2) In the course of conducting an inquiry the Court may make such orders (including an order for the recounting of votes) as the Court thinks necessary for the purposes of the inquiry. (3) If the Court finds that an irregularity has occurred, the Court may, in its discretion, but subject to subsection (4) of this section, make one or more of the following orders: (a) An order declaring the ballot, or any step taken in or in connection with the ballot, to be void: (b) An order declaring a person purporting to have been elected not to have been elected: (c) An order directing a new ballot to be held, or any step in or in connection with the ballot to be taken again, in accordance (subject to any order under paragraph (d) of this subsection) with this Act or the rules of the union or employers organisation: (d) An order directing, notwithstanding anything in the rules of the union or employers organisation concerned, the taking of. suc~ safe~~ds as the Court thinks necessary agamst rrregulantIes in or in connection with- (i) Any such new ballot: (ii) Any such steps so ordered to be taken again: (ill) Any uncompleted steps in the ballot,- and, for the purposes of any such order, an order appointing and authorising a person to act as a returning officer instead of or in conjunction with the returning officer (if any) acting under the rules of the union or employers organisation in connection with the ballot, and to exercise such powers as the Court directs: (e) An order declaring the true result of the ballot: (f) An order incidental or supplementary to any order under this section. (4) The Court shall not declare a ballot, or any step taken in or in connection with a ballot, to be void, or declare that a person was not elected, unless the Court is of opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihOOd that similar irregularities may have occurred or may occur, the result of the ballot may have been 1987, No. 77 Labour Relations 701 affected, or may be affected, by the irregularity or irregularities. Cf. 1973, No. 19, s. 206 117. Enforcement of orders-(l) The Labour Court may make such orders as it thinks necessary for the effectual exercise of its powers and functions and the enforcement of its orders under this Part of this Act. (2) Every person commits an offence against this Part of this Act who refuses or fails to comply with an order of the Court under this Part or obstructs or hinders the carrying out of any such order. Cf. 1973, No. 19, s. 207 (1), (2)
118. Validation of certain acts, etc.-(l) Where the Labour Court declares void the election of a person who has, since the election, purported to act in the office to which that person purported to have been elected, all acts done by that person whiIe so purporting to act which could validly have been done by that person if that person had been duly elected shall, subject to this section, be valid and effectual for all purposes. (2) The Court may, if it considers it desirable to do so, after having heard such evidence as it thinks fit in relation to acts that have taken place after the election, declare any such act to have been void, and thereupon that act shall for all purposes be deemed not to have been validly done. (3) Where an election is held, or any step in or in connection with an election is taken, in pursuance of an order of the Court, that election or step shall not be invalidated by reason only of any departure from the rules of the union or employers organisation involved in compliance with the order of the Court. Cf. 1973, No. 19, s. 208
119. Ballot papers, etc., to be preserved (1) Notwithstanding anything in the rules of the union or employers organisation, every union and every employers organisation and every officer of a union or employers organisation or branch of a union or employers organisation who is able to do so shall take all reasonable steps to ensure that all ballot papers, envelopes, lists, and other documents used in connection with, or relevant to, any ballot conducted by the union or employers organisation are preserved and kept at the registered office of the union or empfoyers organisation, or 702 Labour Relatwru 1987, No. 77
(if the ballot relates to a branch of the union or employers organisation) at the office of that branch, for a period of at least one year after the completion of the ballot or, where an inquiry is instituted in relation to the ballot, until at least 1 month after the determination of the inquiry. (2) Every rerson commits an offence against this Part of this Act who, bemg a union or employers organisation or an officer thereof, fails to comply with subsection (1) of this section. ef. 1973, No. 19, s. 210 120. Offences in connection with ballots-( 1) Every person commits an offence against this Part of this Act who, without lawful authority or excuse, in or in connection with a ballot,- (a) Personates another person to secure a ballot paper to which the personator is not entitled or personates another person for the purpose of voting: (b) Destroys, defaces, alters, takes, or otherwise interferes with a nomination paper, ballot paper, or envelope: (c) Puts a ballot paper or other paper into a ballot box or other ballot receptacle, or into the post: (d) Delivers a ballot paper or other paper to a person receiving ballot papers for the purposes of the election: (e) Records a vote which that person is not entitled to record: (~ Records more than one vote: (g) Forges a nomination paper, ballot paper, or envelope: (h) Supplies a ballot paper: (i) Obtains, or has in that person's possession, a ballot paper: mDestroys, takes, opens, or otherwise interferes with a ballot box. (2) Every person commits an offence against this Part of this Act who, in or in connection with a ballot,- (a) Threatens, offers, or suggests any violence, punishment, or damage for or on account of, or to induce- (i) Any candidature or withdrawal of candidature: (ii) Any vote or omission to vote: (iii) Any support or opposition to any candidate or proposal: (iv) Any promise of any vote, omission, support, or opposition: (b) Uses, causes, inflicts, or procures any violence, punishment, or damage for or on account of any such 1987, No. 77 Labour Relations 703
candidature, withdrawal, vote, omission, support, or opposition. (3) Every person who commits an offence against this Part of this Act shall be liable on summary conviction 1:0 a fine not exceeding $1,000. (4) No prosecution for an offence against this Part of this Act sh3.U be commenced except on the information of the Registrar of Unions. Cf. 1973, No. 19, s.212
PART VI
TRIPARTITE WAGE CONFERENCE 121. Tripartite Wage Conference-(I) In each year ending on the 31st day of December, the Minister of Labour shall, after consultation with the Minister of Finance, arrange a Tripartite Wage Conference between- (a) Persons representing the New Zealand Government; and (b) Persons representing workers and State employees, which persons shall comprise- (i) Persons nominated by the central organisation of workers; and (ii) Persons nominated by the service organisation within the meaning of the State Services Conditions of Employment Act 1977 that is known at the commencement of this Part of this Act as the Combined State Unions; and (c) Persons representing employers of workers and employers of State employees, which persons shall comprise (i) Persons nominated by the central organisation of employers; and (ii) Persons nominated by the State Services Co ordillating Committee. (2) The Minister shall appoint the day for the beginning of each Tripartite Wage Conference. (3) Each Tripartite Wage Conference shall, unless all parties to the conference agree, end not later than the close of the 90th day after the day on which it begins. (4) No meeting of a Tripartite Wage Conference shall take place unless persons representing each of the 3 groups and each of the subgroups mentioned in paragraphs (a) to (c) of subsection (1) of this section are present. Cf. 1973, No. 19, s. 16A; 1984, No. 12, s. 3 704 Labour Relations 1987, No. 77
122. Presiding officer-(I) Subject to subsection (2) of this section, the presiding officer of a Tripartite Wage Conference shall be a Minister of the Crown. (2) Any 2 Ministers of the Crown may act as co·presiding officers of a Tripartite Wage Conference. Cr. 1973, No. 19, s. 16B; 1984, No. 12, s. 3
128. Deputies-(I) Any body of persons that is entitled to nominate a person under section 121 (1 ) (b) or section 121 (1 ) (c) of this Act to attend a Tripartite Wage Conference may from time to time appoint another person to act as the nominated person's deputy and may from time to time cancel any such appointment. (2) Subject to subsection (3) of this section, every deputy appointed under subsection (1) of this section shall, during the continuance of the deputy's appointment, be entitled to act, under this Act, on behalf of the nominated person in respect of whom the deputy is appointed. (3) Nothing in subsection (2) of this section shall prevent any person, who is nominated under section 121 (1) (b) or section 121 (1) (c) of this Act to attend a Tripartite Wage Conference, from exercising any power or perfonnmg any function conferred upon that person by this Act. (4) No appointment of a deputy and no act done by a deputy as such, and no act done by a Tripartite Wage Conference while any deputy is acting as such, shall in any proceedings be questioned on the ground that the occasion for the deputy's so acting had not arisen or had ceased. Cr. 1973, No. 19, s. 16c; 1984, No. 12, s. 3
124. Participants-The only persons entitled to attend a Tripartite Wage Conference and to participate in the consultations that take place at a Tripartite Wage Conference shall be- (a) The persons mentioned in paragraphs (a) to (c) of section 121 (1) of this Act: (b) Any deputy nominated under section 123 of this Act: (c) Any person who, in respect of a Tripartite Wage Conference, is- (i) An adviser to any of the 3 groups or any of the subgroups mentioned in paragraphs (a) to (c) of section 121 (1) of this Act; or 1987, No. 77 Labour Relations 705
(ii) A member of a working party set up under section 131 of this Act. Cf. 1973, No. 19, s. 16D; 1984, No. 12, s. 3 125. Public notice-The Minister of Labour shall give public notice of any Tripartite Wage Conference arranged under section 121 of this Act. cf. 1973, No. 19, s. 16E; 1984, No. 12, s. 3 126. Submissions-( 1) Any person may make written submissions in relation to the subject-matter of any Tripartite Wage Conference. (2) Such submissions shall be sent to the Minister of Labour. (3) The submissions received by the Minister of Labour shall be made available by that Minister to those participating in the consultations that take place at the Tripartite Wage Conference. cf. 1973, No. 19, s. 16F; 1984, No. 12, s. 3 127. Consultations about economic environment (1) Each Tripartite Wage Conference shall be a forum for consultations about- (a) The economic environment in which wages and other remuneration and conditions of employment will be settled after the Conference; and (b) In relation to that environment, the Government's economic policies. (2) Those consultations, which are to be based on a full and frallk exchange of infonnation by those attending, shall relate to- (a) Past trends and likely developments in (i) Inflation; and (ii) The distribution of incomes from all sources; and (iii) The competitiveness of New Zealand industry; and (b) The implications of the Government's fiscal and monetary policies; and (c) The employment situation; and (d) Such other matters as the Conference determines from time to time. cf. 1973, No. 19, s. 16G; 1984, No. 12, s. 3 706 Labour Relations 1987, No. 77
128. Consultations about interests of low-paid-( 1) Each Tripartite Wage Conference shall also be a forum for consultations about the interests of the low·paid and methods by which the interests of the low·paid may be protected. (2) Those consultations, which are to be based on a full and frink exchange of information by those attending, shall relate to- (a) The wages of the low·paid and their other remuneration and conditions of employment; and (b) The rates of social security benefits; and (c) The rates of taxation; and (d) The appropriate mix of Government spending, taxation, and wage policies required to protect the interests of the low· paid, including- (i) The effectiveness of the mechanism by which the minimum wage is fixed; and (ii) The level of the minimum wage and other minimum standards governing the employment of workers and State employees. Cf. 1973, No. 19, s. 16H; 1984, No. 12, s. 3
129. Conclusions and recommendations-Each Tripar· tite Wage Conference may, by unanimous decision, reach such conclusions and make such recommendations as it thinks fit in relation to any aspects of any matter in respect of which consul· tations take place under section 127 or section 128 of this Act. Cf. 1973, No. 19, s. 161; 1984, No. 12, s.3
180. Briefing on state of economy-(I) The Government shall arrange for the supply to those participating in a Tripartite Wage Conference of a full written briefing on the state of the New Zealand economy. (2) The Conference may request from the Government additional information about any matter to which consultations under section 127 or section 128 of this Act relate. Cf. 1973, No. 19, s. 16K; 1984, No. 12, s. 3
181. Working parties-A Tripartite Wage Conference may set up working parties, which shall have such members and such functions as the Conference thinks fit. Cf. 1973, No. 19, s. 16L; 1984, No. 12, s. 3 1987, No. 77 Labour Relations 707
PART VII
NEGOTIATION OF AWARDS AND AGREEMENTS General Object 182. General object in relation to awards and agreements-The general object of this Part of this Act is to establish that- (a) The terms and conditions relating to the employment of groups of workers are fixed by a single set of negotiations: (b) The scope of negotiations is determined by the parties to them: (c) The union party to award negotiations must choose, before an award is negotiated, whether the employer of any particular group of workers will be covered by the negotiations for the award or by separate negotiations for an agreement: (d) Where the union party chooses separate negotiations with an employer of a particular group of workers- (i) That employer and that group of workers shall not be covered by the ensuing award; and (ii) Any agreement reached as a result of those separate negotiations shall apply, to the exclusion of the award; and (iii) That employer and that group of workers will be brought back within the scope of any subsequent award negotiations only if that employer and the union so agree: (e) Any agreement reached with an employer bound by an award who has not been specified for separate negotiations cannot be registered and allows the employer to seek exemption from that award: (f) Notwithstanding that an award or agreement is current and whether or not separate negotiations for an agreement have been sought in respect of any employer and any particular group of workers, a composite agreement may be negotiated and registered at any time: (g) On the expiry of a composite agreement, any party may opt ror resumption of award coverage or may negotiate an agreement: (h) Disputes concerned with matters which are confirmed by the Labour Court as new matters and which arise during the currency of an award or agreement may 708 Labour Relatioru 1987, No. 77
result in the renegotiation of parts of the award or agreement before its expiry: (i) The central organisation of workers may, in certain circumstances, negotiate separate awards to cover young workers.
Negotiation of Awards 138. Object in relation to awards-The object of this Part of this Act, in relation to awards, is to establish that- (a) Where negotiations for an award have been initiated by one party and a conciliation council cannot be constituted because of an act or omission of another party to those negotiations, the failure to constitute a conciliation council shall not prevent an award being determined: (b) The conciliation council is chaired by an independent third party who is a mediator: (c) If the conciliation council settles the dispute, that settlement is registered as an award and becomes enforceable: (d) If the conciliation council fails to settle the dispute, any decision to submit the unsettled dispute for determination by the Commission must be agreed to by both parties: (e) In hearing and determining any dispute the Commission is required to have regard to specified criteria: (f) If the conciliation council fails to settle the dispute and the parties do not agree to the dispute being heard and determined by the Commission, a Commissioner is to determine the most appropriate procedure for dealing with the unsettled dispute: (g) An award, however achieved, can cover and bind all employers and workers involved in the work to which the award relates, whether or not they are original parties to that award. 184. Initiation of negotiations for awards-(l) Subject to this Act, a union party or employer party may at any time initiate negotiations for the making or renewal of an award by submitting a notice to the Chief Mediator in the prescribed form. (2) The submission of a notice to the Chief Mediator under subsection (1) of this section creates a dispute of interest between the union party and the employer party. 1987, No. 77 Labour Relations 709
(3) Every notice submitted under subsection (1) of this section shall- (a) Cite the proposed coverage clause of the award: (b) In the case of a notice submitted by the employer party, cite the name of the union party: (c) In the case of a notice submitted by the union party, cite the name of any relevant employers organisation and the names of the proposed original employer parties, being employers representative of the proposed coverage of the award: (d) Where the notice is submitted by the union party, and the union party wishes or has agreed to enter into separate negotiations with any employer for an agreement,- (i) Indicate that the union party so wishes or has agreed; and (ii) Name the employer; and (iii) Describe the relevant group of workers: (e) Indicate any claims that the initiating party wishes to make against the other party. (4) Negotiations for an award shall not be initiated unless there are at least 2 employers within the proposed coverage of the proposed award. (5) The initiating party may, at any time before a settlement of the dispute of interest has been reached, withdraw a notice submitted under subsection (1) of this section by giving written notice to that effect to the Chief Mediator. (6) Immediately after the submission of a notice under subsection (1) or subsection (5) of this section, the party that submitted the notice shall- (a) Give a copy of the notice to the Commission; and (b) Serve a copy on the named parties cited in the notice pursuant to subsection (3) (b) or subsection (3) (c) of this section, as the case may be; and (c) In the case of a notice submitted by a union party, notify any employers specified for separate negotiations under subsection (3) (d) of this section. (7) Where an employer (not being a proposed original party) considers that a proposed award will bind that employer, the Chief Mediator shall on request make availabfe to that employer a copy of any notice submitted under subsection (1) of this section in relation to the proposed award. 710 Labour Relatioru 1987, No. 77
(8) Either party may make such claims or counterclaims in relation to negotiations initiated under this section as it considers appropriate.
185. Separate negotiations-( 1) Where negotiations for an award are initiated under section 134 of this Act by an employer party and a union party wishes or has agreed to enter into separate negotiations WIth an employer for an agreement, that union party may, at any time after the notice has been served in accordance with section 134 (6) (b) of this Act but before a conciliation council is constituted under section 141 of this Act in respect of the negotiations for an award, serve on that employer a notice- (a) Indicating that the union party so wishes or has agreed; and (b) Describing the relevant group of workers. (2) Where negotiations for an award are initiated under section 134 of this Act by a union party and that union party wishes or has agreed to enter into separate negotiations with an employer for an agreement fixing the wages or other conditions of employment of any group of workers, that union party may, at any time before a conciliation council is constituted under section 141 of this Act in respect of the negotiations for an award, serve on that employer a notice- (a) Indicating that the union party so wishes or agrees; and (b) Describing the relevant group of workers. (3) Where a union party serves any notice on an employer under subsection (1) or subsection (2) of this section, it shall forthwith serve a copy of that notice on the original employer parties to the proposed award.
186. Effect of separate negotiations-( 1) Where, in relation to negotiations for an award, an employer is specified pursuant to section 134 (3) (d) or section 135 of this Act as an employer with whom the union party wishes or agrees to enter into separate negotiations for an agreement in relation to a group of workers, the following provisions shall apply: (a) Neither that employer nor that group of workers shall be bound by that award: (b) That employer shall not be bound by any subsequent award unless- (i) That employer and the union party so agree; and 1987, No. 77 Labour Relations 711
(ii) No agreement is current, in respect of that group of workers, between that employer and the union party. (2) Where the employer and the union party do agree, pursuant to subsection (1) (b) ofthis section, to be bound by any subsequent award and no agreement is current, they shall jointly notify the Commission in writing. (3) Following such joint notification the provisions of this Act relating to the initiation of negotiations for an award shall once again apply.
187. Composite awards-(l) For the purposes of this section, the expression "composite award" means an award that is registered by the Arbitration Commission in settlement of a dispute of interest between 2 or more unions or associations representing workers and 2 or more employers or employers organisations. (2) A composite award may be negotiated and registered under this Act. (3) Negotiations for a composite award may be initiated jointly by 2 or more unions or by 2 or more employers under section 134 (1) of this Act.
188. Duty of Chief Mediator-The Chief Mediator shall, on receiving a notice submitted under section 134 (1) of this Act, designate a mediator to facilitate negotiations in relation to the dispute of interest created by the submission of the notice.
189. Mediator to determine date for negotiations-(I) A mediator shall, as soon as practicable after being designated by the Chief Mediator, detennine, in consultation with the representatives of the parties, a date, time, and place for negotiations in relation to the dispute. (2) The mediator shall- (a) Notify the union party and the employer party of the date, time, and place detennined for the negotiations; and (b) Notify the union party and the employer party that they may each nominate up to 10 persons as negotiators on behalf of the parties to the dispute. Cf. 1973, No. 19, s. 69
140. Action where mediator cannot constitute conciliation council-( 1) Where the mediator is unable to 712 Labour Relations 1987, No. 77 constitute a conciliation council, the mediator shall infonn the Commission accordingly. (2) The Commission shall then attempt to facilitate or arrange the constitution of a conciliation council and may, for that purpose,- (a) Give such directions incidental thereto as it thinks fit: (b) Call on the services of the Chief Mediator or any other person. (3) Subject to subsection (4) of this section, where the Commission's actions do not result in the constitution of a conciliation council, the Commission shall, subject to section 150 of this Act, proceed to hear and determine the dispute by making an award. (4) Where the Commission is satisfied that the inability of the mediator or other person to constitute a conciliation council was caused by the party which initiated the negotiations for an award under section 134 (1) of this Act, the Commission- (a) Shall not proceed to hear and determine the dispute under subsection (3) of this section; and (b) Shall regard the notice submitted under section 134 (1) of this Act as being withdrawn and shall notify the parties to the award negotiations accordingly. (5) Where the parties to award negotiations are notified under subsection (4) (b) of this section, those negotiations shall lapse. C£ 1973, No. 19, s. 72A; 1976, No. 63, s. 9 141. Conciliation council-(I) When the mediator is satisfied- (a) That the persons nominated by the union party and the employer party to be negotiators are adequately representative of the parties to the dispute and have authority on behalf of the larties to negotiate a setdement of the dispute; an (b) That the parties have lawful authority to negotiate the proposed coverag-e clause,- the mediator shall by wnting declare a conciliation council, consisting of the mediator and those negotiators, to be constituted in relation to the dispute. (2) The conciliation council so constituted shall, except where otherwise provided, be deemed to be so constituted until (a) An award is registered; or (b) The notice submitted under section 134 (1) of this Act is withdrawn; or 1987, No. 77 Labour Relations 713
(c) The Commission has notified the parties under section 147 (7) of this Act that the negotiations have lapsed. (3) No barrister or solicitor who holds a practising certificate for the time being in force under the Law Practitioners Act 1982, whether that barrister or solicitor is acting under a power of attorney or otherwise, shall be allowed to act as a negotiator on a conciliation council unless the parties agree. ef. 1973, No. 19, ss. 72, 78 (3) 142. Substitute negotiators-(I) If at any time a negotiator is not present at any meeting of the conciliation council, the mediator may pennit any other person to act in that negotiator's place if the mediator is satisfied that- (a) The person has been nominated by the party that nominated the negotiator who is not present; and (b) The negotiators will, after the person has been substituted for the negotiator who is not present, still be adequately representative of the parties to the dispute and still have authority on behalf of the parties to negotiate a settlement of the dispute. (2) The powers and functions of a conciliation council shall not be affected by any vacancy in the number of negotiators, and during any such vacancy the council may, so far as it thinks fit, exercise all its powers and functions in the same manner as if it were fully constituted. ef. 1973, No. 19, s. 74 143. Persons entided to be heard in conciliation council-In any negotiations in a conciliation council, any union or any employer or any employers organisation or any association shall be entitled to appear and be heard in every respect as if it were a party to the negotiations if, in the opinion of the mediator, the union, organisation, or association or its members may in any manner be affected by the result of the negotiations. ef. 1973, No. 19, s. 228; 1977, No. 108, s. 6 (1) 144. Powers and functions of mediator in relation to conciliation council-(I) For the purposes of enabling a conciliation council to deal more effectively with any issue, the mediator may, at any time during the negotiations, on the application of any of the parties, and upon such terms as the mediator thinks fit,- (a) Direct parties to be joined or struck out: 714 Labour Relations 1987, No. 77
(b) Amend or waive any error or defect in the proceedings: (c) Generally give such directions as are deemed necessary or expedient in the circumstances. (2) The mediator may at any time, of the mediator's own volition or at the request of the council, state a case for the advice or opinion of the Labour Court. (3) The mediator shall make and preserve a record of the negotiations before the council. (4) The mediator may adjourn from time to time the proceedings of any conciliation council. Cf. 1973, No. 19, ss. 77 (9), 80, 299 (1) (a), (b), (d); 1977, No. 108, s. 6 (1)
145. Powers and functions of conciliation council with respect to dispute-( 1) A conciliation council shall use its best endeavours to bring about a settlement of the dispute. (2) Subject to subsection (3) of this section, the procedure of the council (which shall be determined by the mediator in consultation with the principal representatives of the parties) shall in all respects be absolutely in its discretion. (3) The council may receive and take into account any relevant evidence or information, whether or not the same would normally be admissible in a Court of law. Cf. 1973, No. 19, s. 77 (1), (3), (4)
146. Conciliated settlement-( 1) If a settlement of a dispute of interest is arrived at in a conciliation council, the mediator shall record in writing the terms of settlement, which shall be signed and dated by- (a) The mediator; and (b) An authorised representative of the union party; and (c) An authorised representative of the employer party. (2) The terms of settlement shall be given by the mediator to- (a) The representatives of the parties; and (b) The Cruef Mediator; and (c) The Commission. (3) When the Commission has received the terms of settlement, a Commissioner shall, subject to section 150 of this Act,- (a) Register the terms of settlement as an award; and 1987, No. 77 Labour Relations 715
(b) Forward a copy of the award to each of the central organisations, to the representatives of the parties, to the Secretary of Labour, and to the Chief Mediator. C£ 1973, No. 19, s. 82 (1), (2), (2A), (3); 1984, No. 12, s. 10 (1) 147. Unsettled disputes-( 1) If a dispute of interest is not settled by a conciliation council, the meruator- (a) Shall refer the dispute to the Commission; and (b) Shall deliver to the Commission- (i) A concise indication of the state of the negotiations before the conciliation council; and (ii) If a partial settlement has been reached, a statement of that settlement dated and signed on behalf of each party by a negotiator authorised to do so and by the mediator. (2) If the parties agree in writing, the Commission, after giving the parties an opportunity to be heard, shall, subject to the provisions of this Act, hear and determine the dispute and make an award. (3) If the parties do not agree to the dispute being heard and determined by the Commission, a Commissioner shall forthwith call the parties to a meeting for the purpose of determining the most appropriate method of resolving the dispute. (4) At any such meeting the Commissioner shall hear the parties and may do all or any of the following: (a) Refer the dispute to the Chief Mediator to arrange (by delegation if necessary) for informal negotiations between the parties to try and resolve the dispute: (b) Refer the dispute back to the mediator for further negotiations by the conciliation council: (c) Consult the central organisations with a view to ascertaining whether they could assist in resolving the dispute: (d) With the written consent of the parties, refer it to the Commission to hear and determine the dispute: (e) Take such other action as the Commissioner considers in all the circumstances might assist to resolve the dispute. (5) Any action or actions taken by a Commissioner under subsection (4) of this section shall not preclude the Commissioner from taking any further action under that subsection. 716 Labour Relations 1987, No. 77
(6) After any reference or consultation under subsection (4) of this section, the Chief Mediator, the mediator, or the central organisations, as the case may be, shall report the result of the reference or consultation to the Commissioner who may then exercise any of the other powers conferred on the Commissioner by that subsection. (7) Where, in respect of any dispute,- (a) A Commissioner has exercised any or all of the powers conferred by subsection (4) of this section; and (b) That Commissioner is satisfied that no action short of hearing and determining the dispute will settle it; and (c) The parties do not agree to the dispute being heard and determined by the Commission- the Commission shall regard the notice submitted under section 134 (1) of this Act as being withdrawn, and the award negotiations shall lapse when the Commission notifies the parties accordingly. Cr. 1973, No. 19, s. 84 (1)-(6), (8); 1984, No. 12, s. 13 148. Criteria-( 1) The Commission, in hearing and determining a dispute of interest in relation to a proposed award, shall have regard to- (a) The supply and demand factors for the skills of the worKers covered by the proposed award; and (b) The need for fairness and equity in the rate of pay and conditions of employment for the work covered by the proposed award; and (c) Any changes in the content of any job or in the skills, duties, or responsibilities of positions covered by the proposed award; and (d) Any changes in productivity arising from, for example, the introduction of new technology; and (e) Relativities within the proposed award, and between it and other awards and agreements. (2) In applying the criteria, the Commission- (a) Shall not be bound by historical precedent and practice of any sort; and (b) Shall consider whether relativities or conditions of employment should be changed to take account of factors that are specific to the work covered by the proposed award. Cr. 1973, No. 19, s. 86A; 1984, No. 12, s. 14 149. Arbitration-(I) Where the Commission hears and determines the dispute under section 140 (3) or section 147 (2) 1987, No. 77 Labour Relatioru 717 or section 147 (4) (d) of this Act, the Commission shall then register the award, which shall have appended to it a memorandum containing the Commission s reasons for its detennination. (2) The award shall- (a) Be signed by the Chief Commissioner: (b) Have the Commission's seal attached to it: (c) Be deposited in the office of the Commission: (d) Be open for inspection during office hours by all interested persons. (3) The Commission shall forthwith forward a copy of the award to- (a) The representatives of the parties; and (b) The Chief Mediator; and (c) Each of the central organisations; and (d) The Secretary of Labour. C£ 1973, No. 19, ss. 84 (7), 86 (1), (3), (4); 1984, No. 12, s. 13 150. Commission may refuse to register award (1) When a dispute of interest has been referred to the Commission under section 147 (2) or section 147 (4) (d) of this Act or terms of settlement are received by the Commission under section 146 (2) of this Act, the Commission shall refuse to register an award if it is satisfied that- (a) The parties or any of them do not have the right to represent the employers or workers or some of the employers or workers whom the award would purport to cover if the award were made or the terms of settlement were registered as an award: (b) Any matter contained in the proposed award is contrary to any enactment: (c) The proposed award's coverage clause overlaps that of an existing award or agreement or is likely to overlap with that of a proposed agreement with an employer who has been specified for separate negotiations under section 134 (3) (d) or section 135 of this Act. (2) Where the Commission, acting under subsection (1) of this section, refuses to register an award, it shall- (a) Inform the parties of the reasons for its refusal; and (b) Give the parties an opportunity to overcome the barrier to registration of the award. (3) For the purposes of subsection (2) (b) of this section, a Commissioner may exercise any of the powers conferred on a 718 Labour Relations 1987, No. 77
Commissioner by section 147 (4) of this Act and, where a Commissioner does so, subsections (5) and (7) of that section shall apply accordingly with all necessary modifications. (4) Where the Commission is satisfied, in relation to any dispute of interest, that any barrier to the registration of an award has been overcome, the Commission shall register an award notwithstanding that on one or more previous occasions it refused, in relation to that dispute of interest, to register an award. C£ 1973, No. 19, s. 88
151. Power of Commission to waive technical irregularities-The Commission in its discretion may waive any technical irregularity or omission that may have occurred in the submission or reference of a dispute of interest to the Commission, if it is satisfied that the provisions of this Act have been substantially complied with. Cf. 1973, No. 19, s. 90
Exemption from Award 152. Failure to give notice of separate negotiations (1) Where an award applies to an employer and a union or group of workers informs that employer (not being an employer specified under section 134 (3) (d) or section 135 of this Act as one with whom that union, or the union which covers the group of workers, intended to negotiate separately) that it wishes to enter into separate negotiations to resolve a dispute in the nature of a dispute of interest, that employer may, if that dispute does not relate to a new matter or a proposed composite agreement, either- (a) Agree to enter into negotiations; or (b) Refuse to enter into negotiations. (2) If the employer enters into the negotiations and an agreement is concluded as a result of those negotiations, that agreement cannot be registered under this Act and the employer may apply to the Labour Court for exemption from the award. (3) If the employer- (a) Refuses to enter into the negotiations or withdraws from or terminates the negotiations; and (b) A strike occurs which is related to the refusal, withdrawal, or termination,- that strike shall be unlawful. 1987, No. 77 Labour Relations 719
158. Application-(I) Every application to the Court under section 152 (2) of this Act shall include- (a) A statement of the grounds for the application; and (b) Particulars of the award to which the application relates; and (c) Particulars of the exemption sought. (2) The applicant shall serve copies of the application on (a) The union party to the award; and (b) Where appropriate, a representative of the group of workers if the group rather than the union initiated the negotiations under section 152 (1) of this Act.
154. Powers of Labour Court-(l) The Labour Court shall, on hearing an application under section 152 (2) of this Act and on being satisfied that copies of it have been served in accordance with section 153 (2) of this Act, determine, after hearing the applicant and the union or the group of workers or both or after giving them an opportunity to be heard, whether to grant the application. (2) The Court shall not grant any such application if it is satisfied that- (a) The dispute concerned related to a new matter or a composite agreement; or (b) The agreement to which the application relates is registrable under this Act. (3) Where the Court grants the exemption,- (a) It shall direct the Commission to amend the award accordingly; and (b) The exemption shall take effect from the date of the Court's decision. (4) The jurisdiction conferred on the Labour Court by this section shall be exercised by a Judge alone, and section 296 of this Act relating to urgency shall apply.
155. Effect of exemption-Where the Labour Court acting under section 154 of this Act, grants an employer exemption from an award- (a) The exemption shall apply in respect of- (i) The existing award and the award subsequent to that award; and (ii) Until the parties affected agree to be covered by award negotiations again, any subsequent award; and 720 Labour Relations 1987, No. 77
(b) No agreement shall be registered under section 164 of this Act in respect of that employer and the workers covered by the exemption while that award or the subsequent award is current.
Awards Covering Young Workers 156. Interpretation-In sections 157 to 159 of this Act, unless the context otherwise requires,- «Employer" includes any agent or representative of an employer if that employer does not have direct contact with a young worker: "Young worker" means a worker who has not attained the age of 18 years. 15'1. Negotiation of young worker awards-(I) An award to cover only young workers may be registered under this Act if, immediately before the award is registered, the young workers are not covered by any award or agreement. (2) Negotiations for such an award shall be conducted in accordance with the provisions of sections 134 to 151 of this Act relating to the negotiation of awards generally, which provisions shall apply, so far as they are applicable and with the following modifications: (a) The central organisation of workers shall be the union party and shall be deemed to represent the young workers within the proposed coverage clause of the award: (b) Negotiators nominated by the union party may include parents of young workers within the proposed coverage clause of the award: (c) The central organisation of workers may delegate any of its functions and powers as union party to the negotiations to any District Trades Council or Trade Union Committee or any union or unions, whether or not the delegate has coverage of the young workers. 158. Enforcement of young worker awards-( 1) The central organisation of workers may enforce any award negotiated by it or on its behalf under section 157 of this Act in respect of young workers as if that award were an award negotiated by a union and as if the central organisation were that union. (2) The central organisation of workers may delegate to any District Trades Council or Trade Union Committee or any 1987, No. 77 Labour Relations 721 union or unions its power to enforce any award negotiated under section 157 of this Act in respect of young workers. 159. Obligations of employers in respect of young workers-( 1) Every employer of a young worker who is covered by an award negotiated under section 157 of this Act shall keep a wages and time record in respect of that worker. (2) Every such wages and time record shall be open for inspection by a representative of the central organisation of workers at all reasonable times during ordinary business hours. (3) The central organisation of workers may delegate to any District Trades Council or Trade Union Committee or any union or unions the power conferred on it by subsection (2) of this section. (4) Every employer of a young worker who is covered by an award negotiated under section 157 of this Act shall inform that worker of the physical address of the employer. (5) Every employer of a young worker who is covered by an award negotiated under section 157 of this Act shall supply on request to the central organisation of workers a list of an such young workers employed by that employer, their jobs or classification, and where that employer is a company, the registered name of that company. (6) The central organisation of workers shall not request a list under subsection (5) of this section from anyone employer more frequently than once every 6 months.
Award Coverage 160. Parties bound by award-( 1) An award shall be binding- (a) On the parties to it; and (b) On every person who is a member of any union, employers organisation, or association that is a party to or bound by it and who is covered from time to time by the coverage clause. (2) Subject to subsections (3) and (4) of this section, every award shall, on registration, by force of this Act extend to and bind as a subsequent party thereto- (a) Every employer who, not being an original party, employs, when the award comes into force or at any time while it is in force, workers in connection with or engaged in any work to which the award applies within the locality to which the award relates; and 722 Labour Relations 1987, No. 77
(b) Every worker who is, at the time while the award is in force, employed by any emJ?loyer on whom the award is binding and engaged m any employment to which the award applies. (3) Nothing in subsection (2) of this section affects the coverage of an award limited in coverage to the original parties, but in every case there shall be at least 2 employers as original parties. (4) Subsections (1) and (2) of this section shall not apply to (a) The parties to any agreement: (b) Any employer who, in relation to that award, has been specified for separate negotiations under section 134 (3) (d) or section 135 of this Act or the relevant workers of that employer: (c) Any employer exempted under section 154 of this Act and the relevant workers of that employer. Cf. 1973, No. 19, ss. 82 (4), 83 (1), (2) (a); 1984, No. 12, s. 11 161. Addition of parties outside locality of award (1) Subject to this section, the Commission shall at any time during the currency of an award on the joint application of the parties (being the original employer party and the original union party and the party to be added) extend the award so as to add as a party thereto any union, employers organisation, association, or employer who is engaged m the description of work to which the award relates but is outside the locality in which the award has effect. (2) Any such application may be made to the Commission direct, without previous reference to a conciliation council. (3) The Commission shall extend an award under this section only if it is satisfied that the parties who are proposed to be added have the right to represent the workers or some of the workers whom the extended award would purport to cover. Cf. 1973, No. 19, s. 83A (1), (5); 1976, No. 63, s. 12; 1984, No. 12, s. 12 162. Power to amend coverage of award-(I) Subject to this section, the Commission may at any time while an award is in force amend the award so as to exclude from its scope workers who are bound by another award or agreement. (2) The power conferred on the Commission by this section may be exercised on the application of any union of workers that alleges that workers covered by its membership rule 1987. No. 77 Labour Relations 723
should not be bound by the award to which the application relates. (3) The Commission, in its discretion, may grant or refuse the application, either wholly or partly, and may in granting the application, modify in such manner as it thinks fit the wording of the coverage cfause of the award to which the application relates. (4) At least 30 days' notice of every application under subsection (1) of this section shall be served on each of the parties to the award or agreement. (5) An application under subsection (1) of this section may be made to the Commission direct, without previous reference to a conciliation council. Cf. 1973, No. 19, s. 82 (5)
Negotiation of Agreements 168. Object in relation to agreements-The object of this Part of this Act, in relation to agreements, is to establish that (a) Negotiations for an agreement are voluntary: (b) The scope of agreement negotiations is determined by the parties: (c) The situations in which negotiations for an agreement can be fonnalIy initiated are limited to anyone of the 3 following situations: (i) Where a union has, before award negotiations, given notice that it wishes or agrees to engage in negotiations for an agreement: (ii) Where no award applies: (iii) Where an award applies but new matters have arisen which require negotiation and the parties elect to resolve them by negotiating an agreement: (d) If the parties reach an agreement, it may be registered with the Commission and become enforceable: (e) If the parties fail to settle any issue, they may agree to that issue being determined by the Commission: (f) Any issues settled by the Commission become part of the voluntary settlement of the dispute: (g) Agreements are binding only on the parties by which they are negotiated. 164. Agreements-(I) Subject to this Act, one or more unions and one or more employers may jointly agree to negotiate an agreement for the voluntary settlement of a dispute of interest. 724 Labour Relations 1987, No. 77
(2) For the purposes of this Act, a dispute of interest to procure an agreement is created when- (a) Either party serves notice of claims for an agreement on the other party; or (b) The parties jointly agree to negotiate an agreement, whichever is the earlier. (3) If there are issues on which the parties fail to agree, the Commission may hear and determine those issues if the parties, by agreement in writing, refer those issues to the Commission. (4) The determinations of the Commission on issues referred to it under subsection (3) of this section shall be treated as if they were part of the voluntary settlement of the dispute. (5) Every voluntary settlement of a dispute of interest arrived at under this section shall be recorded in writing, shall be forwarded by the parties to the Commission, and, subject to subsection (6) of this section, shall be registered by the Commission as an agreement. (6) The Commission shall refuse to effect registration under subsection (5) of this section if, after having given the parties the opportunity to be heard, it is satisfied that- (a) The parties or any of them do not have the right to represent the workers or some of the workers whom the agreement would purport to cover if the voluntary settlement of the dispute of interest were registered by the Commission as an agreement: (b) Any matter contained in the voluntary settlement of the dispute of interest is contrary to any enactment: (c) There is a current award or agreement binding on an employer party to the agreement and covering the workers which the agreement proposes to cover, or some of those workers: (d) An employer party to the agreement has obtained an exemption from the current award under section 154 of this Act in respect of the workers the agreement proposes to cover or some of those workers. (7) A copy of every agreement registered under this section shall be deposited in the office of the Commission and a copy shall be forwarded by the Commission to each of the central organisations, to the representatives of the parties, and to the Secretary of Labour. C£ 1973, No. 19, s. 65 (1), (2A), (2B), (3)-(5); 1975, No. 80, s. 2 (1); 1984, No. 12, s. 7 (1) 1987, No. 77 Labour Relations 725
165. Persons on whom agreement is binding-Every agreement registered under section 164 of this Act shall be binding- (a) On the parties to it; and (b) On every person who- (i) Is in the employ of an employer who is bound by the agreement; and (ii) Is engaged in a category of work to which the agreement applies within the locality to which the agreement relates. Cf. 1973, No. 19,s. 65 166. Composite agreements-( 1) For the purposes of this section, the expression "composite agreement" means any agreement- (a) Which is made in voluntary setdement of a dispute of interest between one or more employers in any undertaking or group of undertakings and 2 or more unions or associations representing workers within the undertaking or group of undertakings; and (b) Which has as parties either- (i) A number of unions that is at least 50 percent of the number of unions involved in the undertaking or group of undertakings; or (ii) At least 5 of the unions involved in the undertakin~ or group of undertakings,- whichever IS the lesser. (2) Subject to this Act, one or more employers and 2 or more unions or associations may joindy agree to negotiate a composite agreement for the voluntary setdement of a dispute of interest. (3) If there are issues on which the parties fail to agree, the Commission may hear and determine those issues if the parties, by agreement in writing, refer those issues to the Commission. (4) The determinations of the Commission on issues referred to it under subsection (3) of this section shall be treated as if they were part of the voluntary setdement of the dispute. (5) Every voluntary'setdement of a dispute of interest arrived at under this section shall be recorded in writing, shall be forwarded by the parties to the Commission, and, subject to subsection (6) of this section, shall be registered by the Commission as a composite agreement. 726 Labour Relations 1987, No. 77
(6) The Commission shall refuse to register a composite agreement if, after having given the parties the opportunity to be heard, it is satisfied that- (a) The parties or any of them do not have the right to represent the workers or some of the workers whom the composite agreement would purport to cover if the voluntary settlement of the dispute of interest were registered as a composite agreement: (b) Any matter contained in the voluntary settlement of the dispute of interest is contrary to any enactment. (7) Notwithstanding that an award is in force in respect of an undertaking or group of undertakings, a composite agreement may be concluded and registered under this section without notice to any of the parties to that award. (8) A composite agreement shall take effect according to its tenor and sball apply instead of any award or agreement applying to the workers engaged in the undertaking or group of undertakings to which the composite agreement relates. (9) A copy of every composite agreement registered under this section shall be deposited in the office of the Commission and a copy shall be forwarded by the Commission to each of the central organisations, to the representatives of the parties, and to the Secretary of Labour. 167. Persons on whom composite agreement is binding-A composite agreement registered under section 166 of this Act shall be binding- (a) On the parties to it; and (b) On every person who- (i) Is in the employ of an employer who is bound by the agreement; and (ii) Is engaged in a category of work to which the composite agreement applies within the locality to whicb the agreement relates. 168. Power to add parties to composite agreement Where, during the currency of any composite agreement or while any composite agreement is continuing in force under section 171 (3) of this Act, the Commission is satisfied that- (a) Any employer in any undertaking or group of undertakings to which the composite agreement relates, or any union or association representing workers employed within that undertaking or group of undertakings, wishes to become a party to the composite agreement; and 1987, No. 77 Labour Relations 727
(b) The employers who, and the unions or associations of workers which, are existing parties to the composite agreement agree in writing to that employer or union or association becoming a party to the composite agreement,- the Commission shall make that employer or union or association a party to the composite agreement and make any necessary amendments to it. 169. Withdrawal from composite agreement-(I) A party to a composite agreement may at any time give written notice to the other parties to the composite agreement of its intention to withdraw from it. (2) Every notice given under subsection (1) of this section shall take effect- (a) On the expiration of the currency of the composite agreement; or (b) If the composite agreement is continuing in force after its expiry, on the expiration of the 7th day after the date on which the notice was given. (3) Where, as a result of any withdrawal under subsection (1) of this section, any workers cease to be subject to a composite agreement, those workers shall become subject to the award or agreement (if any) that would have applied to them but for the composite agreement. (4) A withdrawal under subsection (1) of this section does not affect the validity of a composite agreement, even though, as a result of that withdrawal, the agreement no longer qualifies as a composite agreement under section 166 (1) of this Act.
Awards and Agreements Generally 170. Content of award or agreement-(I) Subject to subsection (3) of this section, an award or agreement may contain provisions relating to any matter whatever. (2) Every award or agreement shall contain a coverage clause. (3) An award or agreement shall not contain any provision that is contrary to this Act or any other Act. Cf. 1973, No. 19, s. 91 (4) 171. Currency of award or agreement-(I) Subject to the provisions of this Act, every award or agreement shall specify the date on which it expires and shall continue in force at least until the close of that date. 728 Labour Relations 1987, No. 77
(2) In no case shall the date on which an award or agreement, or any part of it, is to come into force be earlier than the date of the expiry of the currency of an existing award or agreement being wholly or partially superseded by the first· mentioned award or agreement. (3) Notwithstanding the expiry of the currency of an award or agreement, it shall continue in force to the extent that it is not superseded by another award or agreement; but it shall be cancelled at the expiry of 1 year after the expiry of its currency unless any party to it notifies the Commission in writing before the expiration of that year that the party wishes the award or agreement to continue in force for a period of 1 year. (4) Where an award or agreement has continued in force under subsection (3) of this section, it shall be cancelled at the end of the period for which it was so continued in force unless any party to it notifies the Commission in writing before the expiration of that period that the party wishes it to continue in force for a further period of one year. (5) Notwithstanding anything in subsections (3) and (4) of this section, no award or agreement shall continue in force for more than 3 years after the expiry of its currency. (6) For the purposes of this Act, the period for which an award or agreement is current is the period beginning on the date on which it is expressed to come into force and ending on the date specified in it for its expiry. Cf. 1973, No. 19, s. 92 (1), (4), (5) 172. Forty-hour five-day week-( 1) Subject to subsections (2) and (3) of this section, every award and every agreement shall fix at not more than 40 the maximum number of hours (exclusive of overtime) to be worked in any week by any worker bound by the award or agreement. (2) The maximum number of hours (exclusive of overtime) fixed by the award or agreement to be worked by any worker in any week may be fixed at a number greater than 40 if- (a) The parties to the award or agreement so agree; or (b) The Commission, in hearing and determining a dispute finds that it would be impracticable to carry on efficiently any work to which the award or agreement relates if the working hours (exclusive of overtime) were limited to not more than 40. (3) Where the maximum number of hours (exclusive of overtime) fixed by the award or agreement to be worked by any worker in any week is not more than 40, the parties or the 1987, No. 77 Labour Relatiom 729
Commission, as the case may require, shall endeavour to fix the daily working hours so that no part of the working period falls on a Saturday or a Sunday. Cf. 1973, No. 19, ss. 93, 94
178. Holidays-( 1) Subject to subsection (3) of this section, every registered award or agreement shall provide for the grant to every worker bound by the award or agreement of not less than 11 whole holidays which shall, where they fall on days that would otherwise be working days for the worker, be holidays, on pay, in addition to annual holidays. (2) Subject to subsection (3) of this section, the holidays to be provided pursuant to subsection (1) of this section shall include Christmas Day, Boxing Day, New Year's Day, the second day of January (or some other day in its place), Good Friday, Easter Monday, Anzac Day, Labour Day, the birthday of the reigning Sovereign, Waitangi Day, and the day of the anniversary of the province (or some other day in its place). (3) Subject to the Anzac Day Act 1966 and the Waitangi Day Act 1976, subsections (1) and (2) of this section shall not apply in respect of any award or agreement where there are special reasons for making other provision in respect of holidals. For the purposes of this subsection, the expression 'special reasons" includes the necessity or desirability of making other provision in respect of holidays because of the nature of the work to which the award or agreement relates; and also includes any agreement made by the parties during negotiations for the making of such other provision as aforesaid; and also includes provision made in the award or agreement for not less than 11 whole holidays of which one or more is not a day specified in subsection (2) of this section. Cf. 1973, No. 19, s.95; 1979, No. 141, s. 2 (1)
174. Awards and agreements to prevail over contracts of service in cases of conflict-Every award or agreement shall prevail over any contract of service or apprenticeship (not being a contract within the meaning of the Apprenticeship Act 1983) or contract with a homeworker in force on the coming into force of the award or agreement, so far as there is any inconsistency between the award or agreement and the contract; and the contract shall thereafter be construed and have effect as if it had been modified, so far as necessary, in order to conform to the award or agreement. Cf. 1973, No. 19, s. 231; 1983, No. 16, s. 58 (1) 730 Labour Relations 1987, No. 77
175. Evidence of award or agreement-In all legal and other proceedings involving the proof of an award or agreement it shall be sufficient to produce a copy of the instrument under the seal of the Commission, or a copy of it certified by the Commission, or any official printed copy of it published by the Commission, and it shall not be necessary to prove any conditions precedent entitling the Commission to register the award or agreement. Cf. 1973, No. 19, s. 87 176. Power to amend award or agreement-Subject to the provisions of this Act, the Commission may at any time while an award or agreement is in force, on the joint application of the parties, amend any of its provisions for the purpose of removing ambiguity or remedying a defect. Cf. 1973, No. 19, s. 97 (1) (a)
Under-rate Workers 177. Under-rate workers-(I)Any award or agreement may include a provision enabling an employer to pay a worker who is incapable of earning the applicable minimum wage fixed by the award or agreement at a rate of pay below that fixed by the award or agreement. (2) Where any such provision is included in an award or agreement,- (a) It may be used only with the approval of the union; but (b) If it is so used, it shall have effect notwithstanding anything in the Minimum Wage Act 1983. (3) Approval under subsection (2) (a) of this section may be granted only on the application of the worker concerned. (4) On any such application the union shall determine whether the worker is capable of earning the applicable minimum wage fixed by the award or agreement and in so doing shall consider- (a) The worker's ability to carry out the work concerned; and (b) The worker's past earnings; and (c) Such other circumstances as the union thinks relevant; and (d) The evidence and argument put forward by the worker. (5) Where the union determines that the worker is incapable of earning the applicable minimum wage fixed by the award or agreement, it shall fix a rate to be paid to the worker and shall certify that rate in the portion of the employer's wage and time record relating to that worker. 1987, No. 77 Labour Relations 731
(6) Any such certification shall be valid for the period specified in it but in no case for longer than 6 months and may be subject to such conditions as the union thinks fit. (7) The union shall notify the Secretary of Labour in any case where it agrees to fix under this section a rate of pay below that fixed by an award or agreement.
New Matters 178. New matters-(I) Where a union or employer or employer party considers, in relation to an existing award or agreement,- (a) That that existing award or agreement does not deal adequately with any new matter relating to workers employed under it; and (b) That as a result negotiations under this Act should be entered into between the parties for- (i) An amendment to that existing award or agreement; or (ii) Another award or agreement to come into force during the currency of that existing award or agreement,- the union or employer or employer party, either alone or jointly, may apply to the Labour Court to determine whether a new matter eXIsts. (2) For the purposes of this Part of this Act, a new matter, in relation to any award or agreement, means a matter, significantly affecting the terms and conditions of employment or workers employed under the award or agreement, which- (a) Has arisen as a result of the action of an employer since the date on which the award or agreement was settled in writing; and (b) Is not dealt with in the award or agreement or is dealt with in the award or agreement only in the most general terms; and (c) Is not a dispute of rights; and (d) Does not relate to redundancy. (3) Neither the making of an application under subsection (1) of this section nor the entering into of negotiations in relation to any new matter prevents claims in respect of that matter being addressed in any negotiations for a new award or agreement.
B-5 732 Labour Relatiom 1987, No. 77
179. Application to Labour Court-(l) Every application to the Labour Court under section 1 78 (1) of this Act shall include- (a) A description of both the new matter and the manner in which it arose; and (b) Details of the claims that the applicant wishes to make in relation to the new matter; and (c) The names of the other party or parties with whom the applicant wishes to negotiate; and (d) An indication whether the union wishes to negotiate (i) An award to take the place of the existing award; or (ii) An amendment to the existing award or agreement; or (iii) An agreement to take the place of the existing agreement; or (iv) An agreement to take some workers or some employers out of the coverage of an existing award or agreement. (2) On any application under section 1 78 (1) of this Act, the applicant shall forthwith serve a copy of the application on any party to the existing award or agreement who may be affected by the proposed award, agreement, or amendment. 180. Decision of Labour Court-( 1) The Labour Court shall, on hearing an application under section 1 78 (1) of this Act and on being satisfied that copies of it have been served in accordance with section 1 79 (2) of this Act, determine, after hearing the parties or after giving them an opportunity to be heard, whether the matter to which the application relates is a new matter. (2) It shall be for the applicant to establish on the balance of probabilities that the matter to which the application relates is a new matter. (3) If the Labour Court determines that the matter to which the application relates is a new matter, the applicant may enter into negotiations under this Act. (4) The jurisdiction conferred on the Labour Court by this section shall be exercised by a Judge sitting alone, and section 296 of this Act relating to urgency shall apply.
Method of Negotiating New Matters 181. Award negotiations-( 1) Where the Labour Court has determined on an application under section 1 78 (1) of this Act 1987, No. 77 Labour Relations 733 that a new matter exists, the applicant may initiate negotiations for an award or an amendment to an award and sections 134 to 151 of this Act shall apply, with all necessary modifications, in relation to the dispute of interest created by the initiation of the negotiations. (2) Notwithstanding anything in section 171 (2) of this Act, where negotiations are initiated as a result of such a determination by the Court and they result in an award or an amendment to an award, the amendment or award may come into force on any date (other than a date earlier than the date of the commencement of the existing award). (3) Where an amendment to an existing award is so registered, the amendment shall remain in force for the same period as the award.
182. Negotiations for agreement-(I) Where the Labour Court has determined on an application under section 1 78 (1) of this Act that a new matter exists, the applicant may negotiate- (a) An amendment to an existing agreement; or (b) An agreement to take the place of an existing agreement; or (c) An agreement to take some workers or some employers out of the coverage of the award or agreement, and sections 164 and 166 of this Act shall apply, with all necessary modifications, in relation to the agreement or amendment. (2) Notwithstanding anything in section 1 7 1 (2) of this Act, where negotiations are initiated as a result of such a determination by the Court and they result in an agreement or an amendment to an agreement, the agreement or amendment may come into force on any date (other than a date earlier than the date of the commencement of the existing award or agreement). (3) Where such an agreement or amendment amends an agr.eement or takes some workers or some employers out of the coverage of an existing award or agreement, the Commission shall, on registering the agreement, make such amendments as are required to the existing award or agreement to ensure that any workers concerned are covered by a single award or agreement. (4) Where such an agreement replaces an eXlstmg agreement, the Commission shall, on registering the 734 Labour Relations 1987, No. 77 agreement, cancel the existing agreement, and the agreement shall be current for the period specified in it. (5) Where such an agreement amends an existing agreement, the agreement shall have the same currency as the existing agreement. (6) Where such an agreement takes some workers or some employers out of the coverage of an existing award, those workers and those employers may agree to be covered by award negotiations again in respect of any subsequent award.
188. Registration of awards and agreements arising out of new matters-(I) Section 150 (1) (c) of this Act shall not apply to the registration of any award that has been negotiated following a determination by the Labour Court that the dispute concerned a new matter. (2) Section 164 (6) (c) of this Act shall not apply to the registration of any agreement that has been negotiated following a determination by the Labour Court that the dispute concerned a new matter. (3) The Commission may refuse to register an award or agreement or amendment thereof that has been negotiated following a determination by the Labour Court that the dispute concerned a new matter if it is satisfied that the terms of the award, agreement, or amendment address matters other than the new matters. (4) Notwithstanding subsection (3) of this section, where the registration of a new award or agreement will have the effect of removing workers from the coverage of an existing award or agreement, the new award or agreement may incorporate not only the provisions relating to new matters but also the clauses relating to terms and conditions of employment contained in the existing award or agreement.
Redundancy 184. Redundancy-( 1) Any worker, union, employer, employers organisation, or association may, notwithstanding anythfug in any other section of this Act or in any award or agreement, at any time negotiate an agreement dealing with compensation for redundancy (in this Act referred to as a redundancy agreement). (2) If- (a) There is no current registered redundancy agreement; or 1987, No. 77 Labour Relations 735
(b) The award or agreement applicable to the workers concerned does not deal with compensation for redundancy,- the Commission may register a redundancy agreement negotiated pursuant to subsection (1) of this section. (3) The Commission may register a redundancy agreement under subsection (2) of this section notwithstanding any other section of this Act and notwithstanding that, in respect of the workers covered by the redundancy agreement, a current award or agreement is registered. (4) Any redundancy agreement registered by the Commission under this section shall have effect according to its tenor and may be enforced by the parties to it under this Act as if it were an agreement registered under section 164 of this Act. (5) In this section "redundancy" (a) Means a situation where- (i) A worker's employment is terminated by the employer, the termination being attributable, wholly or mainly, to the fact that the position filled by that worker is, or will become, superfluous to the needs of the employer; or (ii) In the case of a seasonal worker, that worker's usual seasonal employment is made unavailable by the employer, the unavailability being attributable, wholly or mainly, to the fact that the worker's position or usual position is, or will become, superfluous to the needs of the employer; but (b) Does not include a situation solely involving a seasonal lay·off or the completion of a fixed·term engagement.
Publication of Awards 185. Publication of awards-The Commission shall arrange for the printing and publication of registered awards. Cf. 1973,No. 19,s. 114
PART VIII
DISPUTES ABOUT, AND ENFORCEMENT OF, AWARDS AND AGREEMENTS 186. Object-The object of this Part of this Act is to establish that- (a) The registration of awards and agreements creates enforceable rights and obligations: 736 Labour Relations 1987, No. 77
(b) Disputes of rights are confined to disputes over questions of interpretation, application, or operation of registered awards and agreements: (c) All awards and agreements must contain an effective procedure for the settlement of disputes of rights, whether it be a procedure agreed upon by the parties or the procedure that otherwise applies under this Act: (d) The application of the procedure relating to the settlement of disputes of rights is not able to be frustrated by deliberate lack of co-operation on the part of any person: (e) It is the responsibility of the parties to enforce awards and agreements: (f) The primary remedy for a breach of an award or agreement or any provision of this Act is an order for compliance: (g) Decisions of disputes committees and of the Labour Court are enforceable in the Labour Court by giving the Labour Court power to order compliance.
Disputes of Rights 187. Inclusion of procedures for settlement of disputes of rights-( 1) Every award or agreement registered after the commencement of this Act shall contain a clause or clauses for the final and conclusive settlement, without stoppage of work, of all disputes of rights (which may be the clause or clauses set out in th.e Sixth Schedule to this Act). (2) Procedures provided pursuant to subsection (1) of this section may not be inconsistent with this Part of this Act. (3) Where a proposed award or agreement does not contain the clause or clauses required by subsection (1) of this section, the Commission shall, before registering the award or agreement, insert into the award or agreement the clauses set out in the Sixth Schedule to this Act. (4) Where the clauses in the form set out in the Sixth Schedule to this Act are inserted in an award or agreement, those clauses shall prevail over any provision in the award or agreement that is inconsistent with any provision of the clauses. (5) Where the clause or clauses required by subsection (1) of this section confer a right of appeal, that appeal shall, 1987, No. 77 Labour Relations 737 notwithstanding anything in the award or agreement, be to the Labour Court. Cf. 1973, No. 19, s. 115 (1)-(3), (7); 1984, No. 12, s. 16 (1) 188. Parties to dispute of rights-The parties to a dispute of rights are the person by whom the procedure for the final and conclusive settlement of that dispute of rights is invoked and the person against whom the procedure is invoked. 189. Failure to observe dispute of rights procedure Where any party to a dispute of rights fails to observe the procedure laid down in the clauses set out in the Sixth Schedule to this Act or in any other clause inserted in the award or agreement pursuant to section 187 of this Act, any party to the dispute may refer it to the Labour Court for settlement. Cf. 1973, No. 19, s. 115 (6); 1984, No. 12, s. 16 (1) 190. Report-( 1) Where a dispute of rights is referred to the Labour Court under the clause or clauses required by section 187 (1) of this Act or under this Act or an afpeal is brought to the Labour Court in relation to a dispute 0 rights, the person chairing the disputes committee shall, as soon as practicable, lodge with the Registrar of the Labour Court a wntten report on- (a) The facts of the dispute; and (b) The issues involved in the dispute. (2) Where a report is lodged under subsection (1) of this section, the Labour Court may at any time direct that a further report be lodged by the person charring the committee. (3) A copy of every report lodged under subsection (1) or subsection (2) of this section shall be supplied forthwith by the person chairing the committee to every party to the dispute and any such party shall be entitled, at the hearing of the dispute, to be heard and to tender evidence on any matter referred to in, or alleged to have been omitted from, the report. 191. Role of Labour Court-Where the Labour Court is required by this Part of this Act or any award or agreement to hear and determine any dispute of rights (whether on appeal or by reference), the Labour Court shall- (a) Afford both parties the opportunity to be heard and to tender evidence: (b) Have regard to any report provided under section 190 of this Act: 738 Labour RelatWns 1987, No. 77
(c) Make a determination by way of final setdement of the dispute, which shall be binding on the parties. 192. Continuation of work.-( 1) No workers employed by the employer party to a dispute of rights shall strike because of the dispute. (2) The employer party to a dispute of rights shall not, by reason of the dispute or any action arising out of it, lock out or dismiss any worker. Cf. 1973, No. 19, s. 116
Validity 198. Validity of awards and agreements-(l) On the application of any person who in the opinion of the Court appears to be justly entitled to be heard in relation to the validity of any award or agreement or of any provision of an award or agreement, the Labour Court may, after giving the parties to the award or agreement an opportunity to be heard, determine the validity of that award or agreement or that provision. (2) The Court shall declare an award or agreement or a provision of an award or agreement to be invalid if it is satisfied, on any application under subsection (1) of this section, that- (a) The parties to the award or agreement or any of them do not have the right to represent the employers or workers or some of the employers or workers who are purportedly covered by the award or agreement; or (b) Any matter contained in the award or agreement is contrary to any Act; or (c) The coverage clause in the award or agreement overlaps with that of another award or agreement. (3) Where the Labour Court determines that a provision of an award or agreement is invalid, it shall direct the Commission to amend the award or agreement to remove the invalidity. (4) Nothing in this section limits any power which the Labour Court or any other body or person has, apart from the provisions of this section, to determine the validity of any award or agreement or of any provision of an award or agreement. Cf. 1973, No. 19, s. 118A; 1977, No. 108, s. 4 1987, No. 77 Labour Relations 739
Wages and Time Record 194. Wages and time record-(I) Every employer bound by an award or agreement (including an employer of a homeworker) shall at all times keep a record (called the wages and time record) showing, in the case of each worker covered by the award or agreement,- (a) The name of the worker: (b) The worker's age, if under 20 years of age: (c) The worker's postal address: (d) The kind of work on which the worker is usually employed: (e) The award or agreement under which the worker is employed: (f) The classification or designation of the worker under the award or agreement according to which the worker is paid: (g) The hours between which the worker is employed on each day, and the days of the worker's empfoyment during each week: (h) The wages paid to the worker each week and the method of calculation: (i) Such other particulars as are prescribed. (2) Subject to subsections (3) and (4) of this section, every employer shall, upon request made at any reasonable time by an officer or paid official of a union or by an Inspector, produce forthwith for inspection by that person every wages and time record that is, or similar document that at any time during the preceding 6 years was, in use, under this Act or the Industrial Relations Act 1973 or the Factories and Commercial Premises Act 1981 or the A~cultural Workers Act 1977 or the Bush Workers Act 1945, ill respect of any person employed by that employer at any time in those 6 years. (3) An officer or paid official of a union shall be entitled to access to wages and time records under subsection (2) of this section only in respect of a person who is covered by the membership rule of that union. (4) Where an employer receives a request from an officer or paid official of a Wllon under subsection (2) of this section, that employer may, instead of providing that officer or official with the original record, provide instead, in respect of the worker, workers, or category to which the request relates, an extract from the wages and time record or similar document. (5) Where an employer keers a wages and time record in accordance with section 15 0 the Factories and Commercial 740 Labour Relations 1987, No. 77
Premises Act 1981 or section 8A of the Minimum Wage Act 1983 or section 7 of the Bush Workers Act 1945, that employer shall not be required to keep a wages and time record under this Act in respect of the same matters. Cf. 1973, No. 19, ss. 219, 222 (2); 1985, No. 101, s. 13 195. Offence of failing to keep records-( 1) Every employer commits an offence and is liable on summary conviction to a fine not exceeding $2,000 who fails to comply with section 194 (1) of this Act or with any request under section 194 (2) of this Act. (2) No prosecution for an offence against this section shall be commenced except on the information of an Inspector or an officer of a union. Cf. 1973, No. 19, s. 222 (1)
Rights of Entry 196. Right of entry for enforcement purposes (1) Where an officer or a paid official of a union has reasonable grounds to believe, in respect of any premises (other than a dwellinghouse), that a member of the union or a person covered by its membership rule is employed on those premises and that those premises are under the control of that member's or person's employer, that officer or official may, subject to subsections (2) to (4) of this section, for the purpose of enforcing any award or agreement to which the union is a party, enter those premises, at any reasonable time during any period when workers are employed to work on the premises, to do one or more of the following things: (a) Interview- (i) Any individual member of the union: (ii) Any individual person reasonably believed by that officer or official to be covered by the membership rule of the union: (b) Request any person reasonably believed by that officer or official to be bound by a union membership clause and covered by the membership rule of the union to join the union: (c) Inspect under section 194 of this Act any wages and time record or any extract from any wages and time record, being a record which is kept in accordance with any of the Acts referred to in that section and which relates to any person covered by an award or agreement to which tbe union is a party: 1987, No. 77 Labour Relations 741
(d) Either- (i) Obtain from the employer a copy of any such part of a wages and time record; or (ii) If the employer prefers, obtain from the employer such part of the wages and time record so that the officer or official can obtain a copy of it: (e) Question the employer about compliance with provisions of the award or agreement: (f) Make such inspections, examinations, and inquiries as are necessary to ascertain whether the provisions of the award or agreement have been or are being complied with. (2) In entering any premises under subsection (1) of this section, an officer or paId official of the union shall be bound by any existing reasonable health and safety procedures and requirements applying on the premises and shall, to the extent that such procedures or requirements reasonably limit or prohibit the entry of persons other than workers to particular parts of the premises, not enter such parts. (3) Every person who enters any premises under the authority of subsection (1) of this section shall, on first entering those premises, and, it requested, at any subsequent time, produce to the employer or a representative of the employer evidence of- (a) That person's identity; and (b) The nature of that person's authority to represent the union. (4) Where any person enters any premises under the authority of subsection (1) of this section and is unable, despite reasonable efforts, to find on those premises the employer or any representative of the employer, that person shall, after the entry and inspection and before leaving those premises, leave on those premises a written notice addressed to the employer, which shall state- (a) The identity of the person who entered the premises; and (b) The person's position in or with the union; and (c) The date and time of the entry; and (d) The reasons for the entry. (5) Any officer or official of a union who inspects any document pursuant to this section or pursuant to section 194 of this Act shall use any information obtained as a result of the inspection only for the purposes of this Part of this Act. (6) Every person is liable on summary conviction to a fine not exceeding $1,000 who- 742 Labour Relations 1987, No. 77
(a) Refuses to allow any officer or paid official of a union to exercise the powers conferred on that officer or official by this section; or (b) Obstructs any officer or paid official of a union in the exercise or attempted exercise of any of that officer's or official's powers under this section; or (c) Wilfully fails to comply with the provisions of this section. (7) No prosecution for an offence against this section shall be commenced except on the information of an officer of the union or an employer. (8) For the purposes of this section and section 194 of this Act, "officer" means the president, vice·president, or secretary of the union or branch thereof.
197. Power of entry for Inspectors-Every Inspector shall have, for the purposes of enforcing the reqUIrements of this Act, the powers of an Inspector under section 5 of the Factories and Commercial Premises Act 1981 and that section shall apply with any necessary modifications to the exercise by an Inspector of any functions under this Act.
Recovery of Wages 198. Recovery of wages-( 1) Without affecting any other remedies for the recovery of wages or other money payable by an employer to any worker whose position or employment is subject to an award or agreement, where there has been any default in payment to a worker of any such wages or other money or where any payment of any such wages or other money has been made to a worker at a rate lower than that fixed by the award or agreement or otherwise legally payable, the whole or any part, as the case may require, of any such wages or other money may be recovered to the use of the worker in the same manner as a penalty for a breach of the award or agreement, by action commenced in the Labour Court under section 201 of this Act by any union which has, or had when that worker was working, coverage of that worker, notwithstanding the acceptance by the worker of any payment at a lower rate or any express or implied agreement to the contrary. (2) Notwithstanding section 203 of this Act, an action under this section may be commenced within 6 years after the day on which the money became due and payable. 1987, No. 77 Labour Relations 743
(3) A claim under this section against any employer may be joined in the same action with a claim agamst the same employer for a penalty for a breach of the award or agreement. (4) Where by any award or agreement or any amendment thereof any money is made payable in respect of any period before the date of the award or agreement or amendment, as the case may be, the money shall be deemed for the purposes of this section to become due and payable on the date of the award, agreement, or amendment, as the case may be. C£ 1973, No. 19, ss. 158, 160; 1976, No. 63, ss. 30 (1), 31 199. Failure to keep or produce records-(I) Where any claim is brought before the Labour Court under section 198 of this Act to recover wages or other money on behalf of a worker, the plaintiff may call evidence to show that the defendant employer failed to keep or produce a wages and time record in respect of that worKer as required by this Act and that that failure prejudiced the plaintiffs ability to bring an accurate claim under section 198 of this Act. (2) Where evidence of the type referred to in subsection (1) of this section is given, the Court may accept as proved all claims made by the plaintiff in respect pf- (a) The wages actually paid to the worker: (b) The hours, days, and time worked by the worker, unless the defendant proves that those claims are incorrect.
Penalties 200. Jurisdiction concerning penalties-The Labour Court shall have full and exclusive jurisdiction to deal with all actions for the recovery of penalties under this Act, whether for the breach of an award or agreement or otherwise. C£ 1973, No. 19, s. 147 (1); 1981, No. 131, s. 10 (1) 201. Recovery of penalties-(I) Any action for the recovery of a penalty may be brought,- (a) In the case of a breach of an award or agreement, at the suit of any party to the award or agreement; or (b) In the case of a breach of this Act, at the suit of an Inspector. (2) A claim for 2 or more penalties against the same defendant may be joined in the same action. (3) In any claim for a penalty the Labour Court may give judgment for the total amount claimed or any amount not 744 Labour Relations 1987, No. 77 exceeding the maximum prescribed by this Act for a penalty, or the Court may dismiss the action. Cf. 1973, No. 19, s. 151 (1)-(3) 202. Penalties for breach of award or agreement (1) Every union, employers organisation, association, or employer who commits a breach of an award or agreement shall be liable to a penalty not exceeding $2,000 in respect of every such breach. (2) Every person, being an officer or member of the committee of management of a union or employers organisation or a person acting on behalf of an employer, who incites, instigates, aids, or abets any breach of an award or agreement shall be liable to a penalty not exceeding $200 in respect of every such breach. (3) Every worker who commits a breach of an award or agreement shall be liable to a penalty not exceeding $100 in respect of every such breach. Cf. 1973, No. 19, s. 148; 1976, No. 63, s. 27
208. Actions to be brought within 12 months-No action shall be commenced for the recovery of any penalty under this Part of this Act except within 12 months after the cause of action has arisen. Cf. 1973, No. 19, s. 157
204. Application of penalties recovered-( 1) Subject to any order made under subsection (2) of this section, every penalty recovered in any penalty action shall be paid into Court and not to the plaintiff, and shall then be paid by the Registrar of the Court into the Consolidated Account. (2) The Court may order that the whole or any part of any penalty recovered shall be paid to any person. Cf. 1973, No. 19, s. 153
Judgments 205. Enforcement of judgment-A certificate under the hand of the Registrar of the Labour Court, specifying the amount payable under any judgment given or order for the payment of money made by the Court, and the persons by whom and to whom it is payable, may be filed in any District Court, and shall then be enforceable in the same manner as a 1987, No. 77 Labour Relations 745 judgment given by the District Court ID an action for the recovery of a debt. Cf. 1973, No. 19, s. 154; 1976, No. 63, s. 28 206. Recovery from members of union or employers organisation or association if it defaults-If in any action judgment is given under the provisions of this Act against a union or employers organisation or association, and is not fully satisfied within one month thereafter, all persons who were members of that union or employers organisation or association at the time when the breach was committed in respect of which the judgment was given shall be jointly and severally liable on the judgment in the same manner as if it had been obtained against them personally, and all proceedings in execution or otherwise in pursuance of the judgment may be taken against them or any of them accordingly, except that no person shall be liable under this section for a larger sum than $50. Cf. 1973, No. 19, s. 155; 1976, No. 63, s. 29; 1978, No. 40, s.4 (7)
Compliance Order 207. Power to order compliance-( 1) Where any person has not observed or not complied with- (a) Any provision of this Act or of any award or agreement or of any rule of a union; or (b) Any order, determination, direction, or requirement made or given under this Act by the Labour Court or the District Court or the Commission or a disputes committee or a grievance committee or the Registrar ofUnions,- the Labour Court (or the District Court, in matters where this Act has given jurisdiction to that Court) may, in addition to any other power it may exercise, by order require in or in conjunction with any proceedings under this Act to which that person is a partr" that person to do any specified thing, or to cease any speCified activity, for the purpose of preventing further non-observance of or non-compliance with that provision, order, determination, direction, or requirement, and shall specify a time within which that order is to be obeyed. (2) Where any person (being a union or an employers organisation or an association or a worker or an employer) alleges that that person has been prejudicially affected by a non-observance or non-compliance of the kind described in 746 Labour Relations 1987, No. 77 subsection (1) of this section, that person may commence proceedings against any person in respect of the non· observance or non·compliance by applying to the Labour Court for an order of the kind described ID subsection (1) of this section. (3) The power given to the Labour Court (or to the District Court, as the case may be) by subsection (1) of this section may be exercised by that Court- (a) On the application of any party to the proceedings; or (b) Except where the proceedings are commenced under subsection (2) of this section, of its own motion. - (4) Any time specified by the Court under subsection (1) of this section may from time to time be extended by the Court on the application of the person who is required to obey the order. (5) Where the Labour Court or the District Court makes an order of the kind described in subsection (1) of this section, that order- (a) May be subject to such terms and conditions as the Court thinks fit (including conditions as to the actions of the applicant); and (b) May be expressed to continue in force until a specified time or the happening of a specified event. (6) Where the Labour Court or the District Court makes an order of the kind described in subsection (1) of this section in any proceedings, it may then adjourn the proceedings, without imposing any penalty or fine or making a final determination in the proceedings, to enable the order of the Court to be complied with while the proceedings are adjourned. (7) Where any person fails to comply with a compliance order made under this section, the Labour Court or the District Court, as the case may be, may do one or more of the following things: (a) If the person in default is a plaintiff, order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by the plaintiff in the proceedings: (b) If the person in default is a defendant, order that the defendant's defence be struck out and that judgment be sealed accordingly: (c) Order that the person in default be sentenced to imprisonment for a term not exceeding 3 months: (d) Order that the person in default be fined a sum not exceeding $5,000: 1987, No. 77 Labour Relatioru 747
(e) Order that the property of the person m default be sequestered. (8) The jurisdiction conferred on the Labour Court by this section shall be exercised by a Judge sitting alone, whether or not the application for a compliance order is made in conjunction with any other proceedings, and section 296 of this Act relating to urgency shall apply. 208. Enforcement of order-Any order made under section 207 of this Act may be filed in any District Court, and shall then be enforceable in the same manner as an order made or judgment given by the last-mentioned Court.
PART IX
PERSONAL GRIEVANCES 209. Object-The object of this Part of this Act is to establish that- (a) Personal grievances are not limited to unjustifiable dismissals but extend to other unjustifiable detrimental actions such as sexual harassment, duress, and discrimination: (b) Personal grievances are distinguishable from disputes of rights by their subject-matter and not by the number of workers affected: (c) All awards and agreements must contain an effective procedure for the settlement of personal grievances, whether it be a procedure agreed by the parties or the procedure that otherwise applies under this Act: (d) Access to a personal grievance procedure is a benefit of union membership, except in certain limited circumstances, and is not dependent on coverage by an award or agreement: (e) The application of the procedure relating to the settlement of personal grievances is not able to be frustrated by deliberate lack of co-operation on the part of any person: (f) The primary remedy for a proven grievance is, where requested, reinstatement as described in section 227 (a) of this Act: (g) Notwithstanding paragraph (f) of this section, the remedy for a personal grievance is determined in each case by the circumstances of the case: (h) The remedy for a personal grievance may include recommendations concerning future action: 748 Labour Relatiom 1987, No. 77
(i) The personal grievance procedure is an alternative to, and is not in addition to, any right to make a complaint under the Human Rights Commission Act 197 7 or the Race Relations Act 1971.
Definitions 210. Personal grievance-(l) For the purposes of this Act, "personal grievance" means any grievance that a worker may have against the worker's employer or former employer because of a clairn- (a) That the worker has been unjustifiably dismissed; or (b) That the worker's employment, or one or more conditions thereof, is or are affected to the worker's disadvantage by some unjustifiable action by the employer (not being an action deriving solely from the interpretation, application, or operation, or disputed interpretation, application, or operation, of any provision of any award or agreement); or (c) That the worker has been discriminated against in the worker's employment; or (d) That the worker has been sexually harassed in the worker's employment; or (e) That the worker has been subject to duress in the worker's employment in relation to membership or non· membership of a union. (2) For the purposes of this Part of this Act, a "representative", in relation to an employer and in relation to an alleged personal grievance, means a person- (a) Who is employed by that employer; and (b) Who either- (i) Has authority over the worker alleging the grievance; or (ii) Is in a position of authority over other workers in the workplace of the worker alleging the grievance. Cf. 1973, No. 19, s. 117 (1); 1985, No. 101, s. 7 (2) 211. Discrimination-(l) For the purposes of sections 210 (1) (c) and 218 (1) (b) of this Act, a worker is discriminated against in that worker's employment if the worker's employer or a representative of that employer- (a) Refuses or omits to offer or afford to that worker the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for 1987, No. 77 Labour Relations 749
other workers of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances; or (b) Dismisses that worker or subjects that worker to any detriment, in circumstances in which other workers employed by that employer on work of that description are not or would not be dismissed or subjected to such detriment- by reason of the colour, race, ethnic or national origins, sex, marital status, or religious or ethical belief of that worker or by reason of that worker's involvement in union activities. (2) For the purposes of subsection (1) of this section, a worker is deemed to be involved in union activities if, at any time within 12 months before the action complained of, that worker- (a) Was an officer of any union or branch of a union, or was a member of the committee of management of any union or branch, or was otherwise an official or representative of any union or branch; or (b) Had acted as a negotiator on a conciliation council; or (c) Had represented a union or a branch of a union in any negotiations between employers and workers; or (d) Had made or caused to be made a claim for some benefit of an award or agreement either for that worker or any other worker, or had supported any such claim, whether by giving evidence or otherwise; or (e) Was a member of any group that had apElied to be registered as a union or was in process of formation for that purpose or was involved in a change of union coverage; or (f) Had submitted another personal grievance to that worker's employer. (3) For the 'purposes of this section, "ethnic or national origins" and 'ethical belief' have the meanings assigned to them by the Human Rights Commission Act 1977. Cr. 1971, No. 150, s.5(1)(b), (c); 1977, No. 49, ss. 15 (l)(b), (c), 86 212. Sexual harassment-(I) For the purposes of sections 210 (1) (d) and 227 (e) of this Act, a worker is sexually harassed in that worker's employment if that worker's employer or a representative of that employer- (a) Makes a request of that worker for sexual intercourse, sexual contact, or other form of sexual activity which contains- 750 Labour Relations 1987, No. 77
(i) An implied or overt promise of preferential treatment in that worker's employment; or (ii) An implied or overt threat of detrimental treatment in that worker's employment; or (ill) An implied or overt threat about the present or future employment status of that worker; or (b) By- (i) The use of words (whether written or spoken) of a sexual nature; or (ii) Physical behaviour of a sexual nature, subjects the worker to behaviour which is unwelcome or offensive to that worker (whether or not that is conveyed to the employer or representative) and which is either repeated or of such a significant nature that it has a detrimental effect on that worker's employment, job performance, or job satisfaction. (2) For the purposes of section 210 (l)(d) and section 227 (e) of this Act, a worker is also sexually harassed in that worker's employment (whether by a co· worker or by a client or customer of the employer), if the circumstances described in section 222 of this Act have occurred. 213. Duress-For the purposes of sections 210 (1) (e) and 218 (1) (c) of this Act, a worker is subject to duress in that worker's employment in relation to membership or non· membership of a union if that worker's employer or a representatIve of that employer- (a) Other than in accordance with a union membership clause in any award or agreement, makes membership of a union or of a particular union a condition to be fulfilled if that worker wishes to retain that worker's employment; or (b) Makes non·membership of a union or of a particular union a condition to be fulfilled if that worker wishes to retain that worker's employment; or (c) Exerts undue influence on that worker, or offers, or threatens to withhold, or does withhold, any monetary incentive or advantage to or from that worker, or threatens to or does impose any monetary disadvantage on that worker, with intent to induce that worker- (i) To become or remain a member of a union or a particular union; or 1987, No. 77 Labour Relations 751
(ii) To cease to be a member of a umon or a particular union; or (iii) Not to become a member of a union or a particular union; or (iv) To support a change in union coverage; or (v) Not to support a change in union coverage; or (vi) To participate in the formation of a new union; or (vii) Not to participate in the formation of a new umon; or (viii) On account of the fact that that worker is, or, as the case may be, is not, a member of a union or a particular union, to resign from or leave any employment. Cf. 1973, No. 19, s. 146A (1); 1985, No. 101, s. 9 214. Definitions relating to personal grievances ~1) Each of the terms "personal grievance", "discrimination", 'sexual harassment", and "duress" shall have in an award or agreement the meanings given to those terms by sections 210 to 213 of this Act unless the award or agreement gives an extended meaning to the term. (2) Where an award or agreement contains the clauses set out in the Seventh Schedule to this Act, the award or agreement shall contain, in addition, the definition of the terms defined by sections 210 to 213 of this Act either in the form in which they are set out in those sections or, where they have been given an extended meaning, in their extended form.
Procedures 215. Inclusion of procedures for settlement of personal grievances-( 1) Every award or agreement registered after the commencement of this Act shall contain a clause or clauses providing effective procedures to deal with personal grievances (which may be the clauses set out in the Seventh Schedule to this Act). (2) Procedures provided pursuant to subsection (1) of this section may not be inconsistent with this Part of this Act. (3) Where a proposed award or agreement does not contain the clause or clauses required by subsection (1) of this section, the Commission shall, before registering the award or agreement, insert into the award or agreement the clauses set out in the Seventh Schedule to this Act. 752 Labour Relations 1987, No. 77
(4) Where the clauses in the form set out in the Seventh Schedule to this Act are inserted in an award or agreement, those clauses shall prevail over any provision in the award or agreement that is inconsistent with any provision of the clauses. (5) Where the clause or clauses required by subsection (1) of this section confer a right of appeal, that appeal shall, notwithstanding anything in the award or agreement, be to the Labour Court. Cf. 1973, No. 19, s. 117 (2), (3), (4) 216. Right to use personal grievance procedures (1) The personal grievance procedures required to be contained in awards and agreements by section 215 (1) of this Act shall be available for use by persons who, at the time when the personal grievance arises, are covered by the award or agreement concerned and, at the time when the union is requested to pursue the grievance, are union members. (2) Where a worker who is not covered by an award or agreement considers that he or she has grounds for a personal grievance, that worker shall have the right to submit the grievance in accordance with the procedure set out in the Seventh Schedule to this Act if, at the time the personal grievance is submitted, the worker is then a member of the union that had coverage of the work which the worker was performing at the time the personal grievance arose.
217. Role of Labour Court-(I) Where the Labour Court is required by the provisions of this Part of this Act (other than the provisions of section 218 or section 219) or the provisions of any award or agreement to hear and determine any personal grievance, the Labour Court shall- (a) Afford both parties an opportunity to be heard and to tender evidence: (b) Make a determination by way of final settlement which shall be binding on the parties. (2) The jurisdiction conferred on the Labour Court by this Part of this Act or by the provisions of any award or agreement to hear and determine any personal grievance shall be exercised by a Judge sitting with 2 panel members. 218. Direct access to Labour Court-(I) A worker who considers that he or she has grounds for a personal grievance may, with the leave of the Labour Court, apply directly to the Labour Court for the hearing and determination of that grievance if- 1987, No. 77 Labour Relatioru 753
(a) The worker, being a member of a union, is unable to have the grievance dealt with or is unable to have it dealt with promptly, because of a failure on the part of the worker's union or the employer or any other person to act or to act promptly m accordance with the procedure applicable in respect of the grievance; or (b) The worker, not being a member of a union, has been discriminated against in the course of the worker's employment because the worker was, at any time within 12 months before the action complained of, a member of a society or group that had applied to be registered as a union or was in the process of formation for that purpose or was involved in a change of union coverage; or (c) The worker, not being a member of a union, has been subjected to duress in the worker's employment in relation to membership or non-membership of a union; or (d) The worker holds a certificate of exemption from union membership issued under section 95 of this Act or under section 1120 of the Industrial Relations Act 1973 or is, by virtue of section 91 of this Act, not required for the time being to belong to a union. (2) Where an application is made under subsection (1) of this section, the Court, after inquiring fully into the alleged personal grievance and considering all representations made by or on behalf of the parties, shall make a determination by way of final settlement which shall be binding on the worker and the employer. (3) The Labour Court shall afford to the employer and to the worker and, where appropriate, to the union an opportunity to be heard and to tender evidence. (4) The Labour Court may hear evidence from such persons as it thinks fit. 219. Access of employer to Labour Court-(I) Where (a) Allegations that a worker has grounds for a personal grievance are made to the employer of that worker; and (b) A procedure for the settlement of the personal grievance is applicable; and (c) Either- (i) The procedure has not been invoked by the uruon; or 754 Labour Relations 1987, No. 77
(ii) The procedure has not been used to the extent necessary to enable a grievance committee or any other relevant body to make a decision settling the grievance; and (d) There has been a strike of that employer's workers in relation to the circumstances that allegedly gave rise to the personal grievance,- the employer may refer the alleged personal grievance to the Labour Court. (2) Where a grievance is referred to the Court under subsection (1) of this section, the Court, after inquiring fully into the alleged personal grievance and considering all representations made by or on behalf of the parties, shall make a determination by way of final setdement which shall be binding on the parties. (3) The Labour Court shall afford to the employer and the union and the worker an opportunity to be heard and to tender evidence. (4) The Labour Court may hear evidence from such persons as it thinks fit. 220. Nature of grievance-Nothing in this Part of this Act or in any award or agreement shall prevent the Labour Court or any grievance committee from finding that a personal grievance is of a type other than that alleged. 221. Special procedures where sexual harassment alleged-Where a personal grievance involves allegations of sexual harassment,- (a) Any grievance committee shall, if the worker so requires, consist of one person, being either- (i) A person (who may be a mediator) mutually agreed on by the parties; or (ii) If there is no such agreement, either a mediator or a person appointed by a mediator; and (b) The person or persons constituting the grievance committee may, before or after hearing the parties, conduct an investigation into the grounds of the personal grievance, but shall ensure that all parties have an opportunity to be heard regarding the findings of iliat investigation; and (c) Neither the grievance committee nor the Labour Court shall take into account any evidence of the worker's sexual experience or reputation; and 1987, No. 77 Labour Relatwru 755
(d) Subject to paragraphs (a) to (c) of this section, the procedure otherwise applicable in respect of that grievance shall apply. 222. Sexual harassment by person other than employer-( 1) Where- (a) A request of the kind described in section 212 (1) (a) of this Act is made to a worker; or (b) A worker is subjected to behaviour of the kind described in section 212 (1) (b) of this Act- by a person (not being a representative of the employer) who is in the employ of the worker's employer or who is a customer or client of the worker's employer, the worker may make a complaint in writing about that request or behaviour to the worker's employer or to a representative of the worker's employer. (2) The employer or representative, on receiving a complaint under subsection (1) of tIlls section,- (a) Shall inquire into the facts; and (b) If satisfied that such a request was made or that such behaviour took place,- shall take whatever steps are practicable to prevent any repetition of such a request or of such behaviour. (3) Where any person, being a person in relation to whom a worker has made a complaint under subsection (1) of this section,- (a) Either- (i) Makes to that worker after the complaint a request of the kind described in section 212 (1) (a) of thiS Act; or (ii) Subjects that worker after the complaint to behaviour of the kind described in section 212 (1) (b) of this Act; and (b) The employer of that worker or a representative of that employer has not taken whatever steps are practicable to prevent the repetition of such a request or such behaviour,- that worker shall be deemed for the purposes of this Act and for the purposes of an}' award or agreement to have a personal grievance by virtue of having been sexually harassed in the course of the worker's employment as if the request or behaviour were that of the worker's employer; and the relevant procedure for the settlement of a personal grievance shall apply accordingly. 756 LabouT Relatiom 1987, No. 77
228. Continuation of work.-Where any worker has a personal grievance against his or her employer,- (a) No worker employed by that employer shall strike because of that grievance: (b) The employer shall not, bY' reason of the grievance or any action arising out of it, lock out or dismiss any worker. Cf. 1973, No. 19, s. 117 (5) 224. Statements privileged-Any statements made or information given in the course of submitting a personal grievance in accordance with the procedure applicable under the clause or clauses set out in the award or agreement or in the Seventh Schedule to this Act or in the course of any proceedings before a grievance committee or the Court in respect of a personal grievance shall be absolutely privileged. Cf. 1973, No. 19, s. 117 (6) 225. Statement of reasons for dismissal-( 1) Where any worker is dismissed, that worker or that worker's union may request the employer to provide a statement in writing of the reasons for the dismissal. (2) Every employer to whom a request is made under subsection (1) of this section shall, within 14 days after the day on which the request is received, provide the statement to the person who made the request. 226. Choice of procedures-( 1) Where the circumstances giving rise to a personal grievance by a worker are also such that that worker would be entitled to make a complaint under the Human Rights Commission Act 1977 or the Race Relations Act 1971, the worker may take one but not both of the following steps: (a) The worker may invoke, in relation to those circumstances, the procedures applicable in relation to personal grievances under this Act or the relevant award or agreement: (b) The worker may make, in relation to those circumstances, a complaint under the Human Rights Commission Act 1977 or the Race Relations Act 197 1. (2) For the purposes of subsection (1) (a) of this section, procedures applicable in relation to personal grievances are invoked- (a) By the setting up of a grievance committee; or 1987, No. 77 Labour Relations 757
(b) Where no grievance committee is set up but an application is made to the Labour Court under section 218 of this Act, by the making of that application.
Remedies 227. Remedies-Subject to sections 228 and 229 of this Act, where a grievance committee or the Labour Court determines that a worker has a personal grievance, the committee or the Court may, in settling that grievance, provide for anyone or more of the following remedies: (a) Reinstatement, which may include the reinstatement of the worker in the worker's former position or the placement of the worker in the position that the worker would have been in if the personal grievance had not arisen or in a position no less advantageous to the worker: (b) The reimbursement to the worker of a sum equal to the whole or any part of the wages or other money lost by the worker: (c) The payment to the worker of compensation by the worker's employer, including compensation for- (i) Humiliation, loss of dignity, and injury to the feelings of the worker; and (ii) Loss of any benefit, whether or not of a monetary kind, which the worker might reasonably have been expected to obtain if the personal grievance had not arisen: (d) Recommendations to the union and the employer and the worker concerning future conduct or actions: (e) If a grievance committee or the Labour Court finds a worker to have been sexually harassed in that worker's employment, recommendations to the employer concerning the action the employer should take in respect of the person who made the request or was guilty of the behaviour, which action may include the transfer of that person, the taking of disciplinary action against that person, or the taking of rebabilitative action in respect of that person. 228. Reinstatement to be primary remedy-(I) Where (a) The remedies sought by or on behalf of a worker in respect of alersonal grievance include reinstatement (as describe in section 227 (a) of this Act); and 758 Labour Relations 1987, No. 77
(b) It is determined that the worker did have a personal grievance,- the grievance committee or the Labour Court shall, whether or not it provides for any of the other remedies provided for in section 227 of this Act, provide, wherever practicable, for reinstatement in accordance with section 227 (a) of this Act. (2) Where the remedy of reinstatement is provided by a grievance committee or the Court, the worker shall be reinstated immediately or on such date as is specified by the committee or the Labour Court and, notwithstanding any appeal against the determination of the committee or the Labour Court, the provisions for reinstatement shall remain in full force pending the determination of the appeal. 229. Reimbursement-(l) Subject to subsections (2) and (3) of this section, where a grievance committee or the Labour Court determines, in respect of any worker,- (a) That the worker has a personal grievance; and (b) That the worker has lost remuneration as a result of the personal grievance,- the grievance committee or the Labour Court shall, whether or not it provides for any of the other remedies provided for in section 227 of this Act, order the employer to pay to the worker the lesser of a sum equal to that lost remuneration or to 3 months' ordinary time remuneration. (2) Notwithstanding subsection (1) of this section, a grievance committee or the Labour Court may, in its discretion, order an employer to pay to a worker by way of compensation for remuneration lost by that worker as a result of a personal grievance, a sum greater than that to which an order under that subsection may relate. (3) Where- (a) A grievance committee or the Labour Court is obliged to make an order under subsection (1) of this section; and (b) The grievance committee or the Labour Court is satisfied that the situation that gave rise to the personal grievance resulted in part from fault on the part of the worker in whose favour the order is to be made,- the grievance committee or the Labour Court shall reduce, to such extent as the grievance committee or the Labour Court thinks just and equitable, the sum that would otherwise be ordered to be paid to the worker by way of reimbursement. 1987, No. 77 Labour Relations 759
PART X
STRIKES AND LoCKOUTS 280. Object-The object of this Part of this Act is to establish that- (a) The right of workers to strike and the right of an employer to lock out are recognised, subject to constraints: (b) The existence of a dispute of interest within 60 days of the expiry of the currency of an award or agreement does not render unlawful a strike or lockout arising out of that dispute of interest: (c) Where a procedure for determining an issue (other than a dispute of interest) is available, a strike or lockout arising out of that issue is unlawful: (d) Statutory penalties are not imposed for an unlawful strike or unIawfullockout: (e) The remedy for an unlawful strike or unlawful lockout may be obtained through a civil action for an injunction or damages or both or through a compliance order: (f) The Labour Court has jurisdiction (to the exclusion of the High Court) to entertain certain civil actions in respect of strikes or lockouts: (g) In relation to an essential service, a statutory period of notice is given before any worker strikes or any employer locks out and special powers are available to the Minister for resolving such disputes: (h) Where normal procedures fail or are likely to fail to avert a strike or lockout, the Minister has power to call a conference of the parties or to appoint a committee of inquiry.
281. Definition of strike-(l) In this Act the term "strike" means the act of any number ot workers who are or have been in the employment of the same employer or of different employers- (a) In discontinuing that employment, whether wholly or partially, or in reducing the normal performance of it; or (b) In breaking their contracts of service; or (c) In refusing or failing after any such discontinuance to resume or return to their employment; or (d) In refusing or failing to accept engagement for any work in which they are usually employed; or 760 Labour Relatwns 1987, No. 77
(e) In reducing their normal output or their normal rate of work- the said act being due to any combination, agreement, common understanding, or concerted action, whether express or implied, made or entered into by any workers; but does not include a union meeting allowed under this Act or authorised by an employer. (2) In this Act the expression "to strike" means to become a party to a strike. Cf. 1973, No. 19, s. 123; 1976, No. 7, s. 2 282. Definition of lockout-( 1) In this Act the term "lockout" means the act of an employer- (a) In closing the employer's place of business, or suspending or discontinuing the employer's business or any branch thereof; or (b) In discontinuing the employment of any workers, whether wholly or partially; or (c) In bre~g some or all of the employer's contracts of seIVlce; or (d) In refusing or failing to engage workers for any work for which the employer usually employs workers- with a view to compelling any workers, or to aid another employer in compelling any workers, to accept terms of employment or comply with any demands made by the employer. (2) In this Act the expression "to lockout" means to become a party to a lockout. Cf. 1973, No. 19, s. 124
Lawful and Unlawful Strikes and Lockouts 288. Strikes and lockouts in relation to disputes of interest-(I) Subject to section 234 (3) of this Act, a strike or lockout shall be lawful if- (a) It relates to a matter that is the subject of a dispute of interest created with intent to procure an award or agreement in substitution for an award or agreement and the date of expiry of that award or agreement is not more than 60 days after the date of the commencement of the strike or lockout; or (b) It relates to a matter that is the subject of a dispute of interest created with intent to procure an award or agreement to cover workers not currently covered by an award or agreement; or 1987, No. 77 Labour Relations 761
(c) It relates to a matter that the Labour Court has determined under section 180 of this Act is a new matter; or (d) It relates to a dispute created with intent to procure a redundancy agreement and- (i) There is no current redundancy agreement, or award or agreement dealing with compensation for redundancy, applying; and (ii) The only workers involved in the strike or lockout are those of the employer to whom the redundancy agreement will apply. (2) A strike or lockout that is lawful under subsection (1) of this section shall not give rise to proceedings founded on any of the torts specified in section 242 (1) of this Act. 284. Unlawful strikes and lockouts-( 1) A strike or lockout shall be unlawful if it concerns- (a) A dispute of rights; or (b) A personal grievance that can be submitted to a grievance committee or the Labour Court; or (c) Demarcation issues; or (d) Union membership (except in relation to negotiations for an award or agreement) or a change of union coverage; or (e) Cancellation of a union's registration under this Act. (2) A strike or lockout shall be unlawful if it relates to a matter that is the subject of a dispute of interest created with intent to procure an award or agreement in substitution for an award or agreement and the date of expiry of that award or agreement is more than 60 days after the date of the commencement of the strike or lockout. (3) A strike or lockout in an essential service that would otherwise be lawful shall be unlawful if the requirements as to notice that are contained in section 235 or section 236 of this Act, as the case may require, have not been complied with. (4) A strike shall be unlawful if it occurs in the situation described in section 152 (3) of this Act (which relates to failure to give notice of separate negotiations). (5) A strike or lockout shall be unlawful if it takes place in contravention of an order of the Labour Court. 285. Requirements as to notice in relation to strikes in essential services-( 1) No person, being a worker employed in an essential service, shall- 762 Labour Relations 1987, No. 77
(a) Strike without having given to the workers' emf>loyer, within one month before the date of the commencement of the strike, notice in writing of the worker's intention to strike; or (b) Strike before the expiry of notice of intention to strike given by the worker or on the worker's behalf under paragraph (a) of this subsection. (2) The period of notice to be specified in the notice required by subsection (1) (a) of this section shall,- (a) In the case of an essential service described in Part A of the Eighth Schedule to this Act, be not less than 14 days; and (b) In the case of an essential service described in Part B of the Eighth Schedule to this Act, be not less than 3 days. (3) The notice required by subsection (1) (a) of this section shciU specify- (a) The nature of the proposed strike, including whether or not the proposed action will be continuous; and (b) The place or places where the proposed strike will occur; and (c) The date on which the strike will begin. (4) The notice shall be signed either by the worker or by the worker's union on the worker's behalf. (5) Where the notice is signed by the worker's union, the notice need not specify by name the workers on whose behalf it is given if it is expressed to be given on behalf of all workers who are members of the union and who are employed in the service or at any particular place or places at which the service is carried on. Cf. 1973, No. 19, s. 125 (1)-(2); 1976, No. 63, s. 21; 1978, No. 40, s. 4 (2) (a); 1981, No. 131, s. 8 (1); 1983, No. 105, s.IO(a) 286. Requirements as to notice in relation to lockouts in essential services-( 1) No person, being an employer engaged in an essential service, snall- (a) Lock out any workers who are employed in the essential service without having given to those workers, within one month before the date of commencement of the lockout, notice in writing of the employer's intention to lock out; or (b) Lock out, after notice of intention to lock out has been given, by the employer or on the employer'S behalf 1987, No. 77 Labour Relatiom 763
under paragraph (a) of this subsection, but before the expiry of that notice, any of the workers to whom it is given. (2) The period of notice to be specified in the notice required by subsection (1) (a) of this section shall,- (a) In the case of an essential service described in Part A of the Eighth Schedule to this Act, be not less than 14 days; and (b) In the case of an essential service described in Part B of the Eighth Schedule to this Act, be not less than 3 days. (3) The notice required by subsection (1) (a) of this section shall specify- (a) The place or places where the proposed lockout will occur; and (b) The date on which the lockout will begin. (4) The notice shall be signed either by the employer or on the employer's behalf. Cf. 1973, No. 19, s. 125 (3); 1976, No. 63, s. 21; 1978, No. 40, s. 4 (2) (a); 1981, No. 131, s. 8 (1); 1983, No. 105, s. 10 (b) 287. Strikes and lockouts on grounds of safety or health-(I) A strike or lockout shall not be unlawful under section 234 of this Act if the workers who strike have, or the employer who locks out has, reasonable grounds for believing that the strike or lockout is justified on the grounds of safety or health. (2) Where it is proved in any proceedings that a strike or lockout of a kind described in section 234 of this Act has taken place, any party to that proceeding who alleges that, by virtue of subsection (1) of this section, the strike was not unlawful shall have the burden of proving that allegation. Cf. 1973, No. 19, s. 125 (6); 1976, No. 63, s. 21; 1978, No. 40, s. 4 (2) (e) Particular Rights of Employers 288. Employer not liable for wages during lockout (1) Where any workers are locked out by their employer, those workers shall not be entitled to any remuneration by way of salary, wages, allowances, or other emoluments in respect of the period of the lockout, unless the lockout is unlawful. (2) On the resumption of work by the workers their service shall be deemed to have been continuous for the purpose of
B-6 764 Labour Relations 1987, No. 77 any rights and benefits that are conditional on continuous service, notwithstanding the period of the lockout. Cf. 1973, No. 19, s. 128A; 1981, No. 131, s. 14
289. Suspension of striking workers-( 1) Where there is a strike, the employer may suspend the employment of any worker who is a party to the strike. (2) Unless sooner revoked by the employer, a suspension under subsection (1) of this section shall continue until the strike is ended. (3) The suspension under this section of all or any of the workers of an employer who are on strike shall not have the effect of ending the strike and those workers shall not, by reason only of their suspension under subsection (1) of this section, cease to be parties to the strike. (4) Where any worker is suspended under subsection (1) of this section, that worker sliall not be entitled to any remuneration by way of salary, wages, allowances, or other emoluments in respect of the period of the worker's suspension. On the resumption of the worker's employment the worker's service shall be deemed to have been continuous for the purpose of any rights and benefits that are conditional on continuous service, notwithstanding the period of suspension. Cf. 1973, No. 19, s. 127A; 1981, No. 131, s. 12
240. Suspension of non-striking workers where work not available during strike-( 1) Where there is a strike, and as a result of the strike any employer is unable to provide for any workers who are in the employer'S employment and not on strike work that is normally peiformed by them, the employer may suspend their employment until the strike is ended (2) Subject to any decision of the Labour Court on an appeal under subsection (3) of this section, where any worker is suspended under subsection (1) of this section, that worker shall not be entitled to remuneration by way of salary, wages, allowances, or other emoluments in respect of the period of that worker's suspension. On the resumption of that worker's employment that worker's service shall be deemed to have been continuous for the purpose of any rights and benefits that are conditional on continuous service, notwithstanding the period of suspension. (3) Where any worker or group of workers is so suspended, that worker or group or any union representing that worker or 1987, No. 77 Labour Relations 765 group may appeal to the Labour Court against the suspension. The appellant shall- (a) Within 14 days after the date on which the decision to suspend the worker or group was made known to the worker or group, give to the employer written notice of intention to appeal; and (b) Within 14 days after the date on which that notice has been given, lodge with the Registrar of the Labour Court a written notice of appeal. (4) On any such appeal the Labour Court may confirm or reverse or modify the decision appealed against, and may make such other order as it thinks just. Cf. 1973, No. 19, s. 128; 1976, No. 7, s. 3; 1981, No. 132, s. 13 241. Basis of suspension-Where an employer suspends any worker under section 239 or section 240 of this Act, the employer shall indicate to the worker at the time of the worker's suspension the section under which the suspension is being effected.
Civil Action in Relation to Strikes and Lockouts 242. Jurisdiction of Labour Court in relation to torts (1) Where a strike or lockout is occurring or has occurred and as a result proceedings are issued against any party to the strike or lockout and such proceedings are founded on any of the following torts, namely: (a) Conspiracy; or (b) Intimidation; or (c) Inducement of breach of contract; or (d) Interference by unlawful means with trade, business, or employment,- the Labour Court shall have full and exclusive jurisdiction to hear and determine such proceedings. (2) No Court other than the Labour Court shall have jurisdiction to hear and determine any action or proceedings founded on a tort specified in subsection (1) of this section and resulting from a strike or lockout. (3) Where any action or proceedings founded on a tort specified in subsection (1) of this section is commenced in the Labour Court, and the Court is satisfied that the action or proceedings resulted from a strike or lockout of the type described in section 233 (1) of this Act, the Court shall dismiss that action or those proceedings, and no proceeding founded 766 Labour Relations 1987, No. 77 on such a ton and resulting from that strike or lockout shall be commenced in the High Court. (4) The jurisdiction conferred on the Labour Court by this section shall be exercised by a Judge alone, and section 296 of this Act relating to urgency shall apply. 248. Jurisdiction of Labour Court in relation to injunctions-( 1) Where a strike or lockout occurs or is threatened and proceedings are issued for the grant of an injunction to prevent the strike or lockout, the Labour Court shall have full and exclusive jurisdiction to hear and determine those proceedings. (2) No Court (other than the Labour Court) shall have jurisdiction to hear and determine any action or proceedings seeking the grant of an injunction to stop a strike or lockout or to prevent a threatened strike or lockout. (3) Where any action or proceedings seeking the grant of an injunction to stop a strike or lockout or to prevent a threatened strike or lockout are commenced in the Labour Court, and the Court is satisfied that the strike or lockout is of the type described in section 233 (1) of this Act, the Court shall dismiss that action or those proceedings, and no proceeding seeking the grant of an injunction to stop that strike or lockout or to prevent that threatened strike or lockout shall be commenced m the High Coun. (4) The jurisdiction conferred on the Labour Court by this section shall be exercised by a Judge alone, and section 296 of this Act relating to urgency shall apply.
SpeCial Powers in Relation to Strikes and Lockouts 244. Power of Chief Mediator where existing or threatened strike or lockout affecting essential service (1) Where the Chief Mediator is of the opinion,- (a) That a strike or lockout exists or is threatened in an essential service; and (b) That the strike or lockout substantially affects or will substantially affect the public interest,.- the Chief Mediator may inquire into and report on the matter of the dispute or may request a mediator or some other person to inquire into and report on the matter of the dispute. (2) The mediator or other person to whom the matter of a dispute is referred under subsection (1) of this section shall (a) Inquire into the facts of the dispute; and (b) Endeavour to secure a settlement of the dispute. 1987, No. 77 Labour Relations 767
245. Power of Minister where existing or threatened strike or lockout affecting essential service-( 1) Where the Minister is of the opinion,- (a) That a strike or lockout exists or is threatened in an essential service; and (b) That the strike or lockout substantially affects or will substantially affect the public interest,- the Minister may request a mediator or some other person appointed by the Minister to inquire into the matter of the dispute. (2) The mediator or other person to whom the matter of a dispute is referred under subsection (1) of this section shall be requested- (a) To- (i) Inquire into the facts of the dispute; or (ii) Both inquire into the facts of the dispute and endeavour to secure a settlement of the dispute; and (b) To report to the Minister. (3) Nothing in this section affects any other power of the Minister to use a mediator or any other person in relation to a dispute (including a dispute to which this section applies). Cr. 1973, No. 19, s. 125B (1), (2), (4); 1981, No. 131, s. 9 246. Power of Minister following report of mediator (1) Where the Minister receives a report under section 245 (2) (b) of this Act or a report provided under section 244 of this Act, the Minister may, if the dispute has not been settled or if a strike or lockout exists in respect of that dispute, refer the matter of the dispute to the Labour Court for settlement. (2) Where the matter of a dispute is referred to the Labour Court under subsection (1) of this section, the Labour Court shall set a date for the hearing of the dispute as a matter of urgency. (3) The hearing shall be dealt with in accordance with the practice of the Labour Court and in accordance with any rules or regulations governing the procedure of the Labour Court. (4) If, after inquiring into the dispute, the Labour Court is satisfied that the strike or lockout or the threatened strike or lockout substantially affects or will substantially affect the public interest, the Labour Court shall make- (a) A determination settling the dispute; or (b) A determination prescribing the procedure to be followed in settling the dispute; or 768 Labour Relations 1987, No. 77
(c) In the case of a dispute of interest, an order referring the dispute to the Commission and directing the Commission either to hear and determine the dispute or to determine the procedure to be followed in settling the dispute. (5) Any determination of the Labour Court or ,the Commission under subsection (4) of this section shall be final and binding on the parties. (6) If, notwithstanding a determination under subsection (4) of this section, full work or the operation of any undertaking is not resumed, the Labour Court shall, on the application of any of the parties, order a resumption of full work or, as the case may require, of the operation of that undertaking, unless the Labour Court determines that there is good reason not to make an order under this subsection. Cf. 1973, No. 19, s. 125c; 1981, No. 131, s. 9
247. Power of Minister to call Ministerial conference in case of strike or lockout-( 1) Where the Minister has reasonable grounds for believing that a strike or lockout exists or is threatened, the Minister may, if the Minister thinks fit, call a Ministerial conference of the parties to the dispute or their representatives in an endeavour to secure a settlement of the dispute, and appoint any person (including a mediator) to chair the conference with power, if the Minister thinks fit, to make a decision settling the dispute. (2) Any such conference may be called by a notice in writing signed by the Minister notifying the date, time, and place of the conference. (3) In addition to the parties or representatives of the parties to the dispute, dte Minister may also request the attendance at the conference of any other person whose attendance would in the opinion of the Minister be likely to assist in securing a settlement of the dispute. (4) The person chairing the conference may at any time report to the Minister on the dispute. (5) Where the Minister has conferred on the person chairing the conference the power to make a decision settling the dispute, and- (a) The parties, or their representatives, who attend the conference are unable to agree on a settlement; or (b) The parties fail to attend or to be represented at the conference,- 1987, No. 77 Labour Relatioru 769 the person chairing the conference may make a decision settling the dispute; and that person's decision shall be final and binding on the parties. (6) Any statements made or infonnation given by any person in any such conference shall be absolutely privileged. Cf. 1973, No. 19, s. 120
248. Power of Minister to appoint committee of inquiry-(I) In any case to which section 247 of this Act applies, the Minister may, if the Minister thinks fit, instead of or in addition to calling a Ministerial conference under that section, appoint a committee of inquiry with power to inquire into the matter of the dispute generally or into such aspect of it as the Minister specifies. (2) The committee shall consist of an equal number of persons to represent respectively the employers and the workers concerned in the dispute, together with a person to chair the committee (who may be a mediator); but if the Minister thinks fit the committee may consist of one person (who may be a mediator). (3) The committee shall be deemed to be a Commission under the Commissions of Inquiry Act 1908, and the provisions of that Act, except sections 2, 4A, and 10 to 12, shall apply accordingly. (4) The committee shall report the results of its inquiry and its findings to the Minister. A copy of the report shall be made available by the Minister to each of the parties concerned in the dispute. (5) The Minister may publish the report of the committee or a summary of the report. Cf. 1973, No. 19, s. 121
249. Power of mediator to call conference in case of strike or lockout-( 1) If at any time a mediator has reasonable grounds for believing that a strike or lockout exists or is threatened, the mediator may, if the mediator thinks fit, call a conference of the parties in an endeavour to secure a settlement of the dispute. (2) Any such conference may be called by a notice in writing signed by the mediator notifying the date, time, and place of the conference. (3) In addition to the parties or their representatives, the mediator may also invite to attend the conference any other 770 Labour Relations 1987, No. 77 person whose attendance would in the mediator's opinion be likely to assist in securing a settlement of the dispute. Cf. 1973, No. 19, s. 122 250. Remuneration and travelling expenses in relation to conferences and inquiries-( 1) There shall be paid, out of money appropriated by Parliament for the purpose, to- (a) Any person (other than a mediator) chairing a Ministerial conference called under section 247 of this Act; or (b) Any person (other than a mediator) appointed to any committee of inquiry appointed under section 248 of this Act; or (c) Any person (other than a mediator) appointed under section 245 of this Act to inquire into tbe matter of a dispute,- remuneration by way of fees or allowances, and travelling allowances and expenses, in accordance with the Fees and Travelling Allowances Act 1951, and the provisions of that Act shall apply as if the person were a member of a statutory Board within the meaning of that Act. (2) There may be paid, out of money appropriated by Parliament for the purpose, to each party or to the representatives of each party, to the number determined by the Chief Mediator as being necessary to enable that party to be adequately represented, attending any Ministerial conference called under section 247 of this Act or any inquiry under section 245 or section 248 of this Act and to any person attending any conference pursuant to section 247 (3) of this Act travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951, and the provisions of that Act shall apply as if the parties or their representatives and those persons were members of a statutory Board within the meaning of that Act. C£ 1973, No. 19, ss. 122A, 125B (3); 1974, No. 89, s. 2; 1981, No. 131, s. 9
PART XI
INSTITUTIONS
Mediation Service 251. Mediation Service-( 1) There shall be a service to be known as the Mediation Service. 1987, No. 77 Labour Relatwru 771
(2) The service shall consist of mediators, who shall be appointed by the Governor·General on the recommendation of die Minister. (3) The persons appointed under subsection (2) of this section shall include a Chief Mediator. (4) The service shall operate independently of any Government department or Gov~rnment agency. (5) Mediators may exercise their functions in any part of New Zealand. (6) The Department of Labour shall furnish such secretarial, recording, and other services as may be necessary to enable the Mediation Service to exercise its functions and powers. Cf. 1973, No. 19, s. 64(1), (2), (7), (10) 252. Functions of Chief Mediator-The functions of the Chief Mediator shall be to administer the Mediation Service and to exercise the functions of a mediator and, in particular,- (a) To schedule conciliation councils in respect of disputes of interest submitted to the Chief Mediator under section 134 of this Act: (b) To assign mediators to exercise functions under this Act in respect of disputes of interest, disputes of rights, and personal grievances: (c) To arran~e (by delegation if necessary) for informal negotlations in accordance with section 147 (4) (a) of this Act in any case where a dispute of interest is referred under that section to the Chief Mediator: (d) To exercise such other functions as are conferred on the Chief Mediator by this Act or any other Act.
258. Functions of mediators-( 1) The general function of a mediator shall be to assist empfoyers and their representatives and workers and their representatives to achieve and maintain effective labour relations. (2) In addition to the general function specified in subsection (1) of this section, a mediator shall have the following particular functions and powers: (a) To chair conciliation councils, disputes committees, and grievance committees: (b) To deal with matters referred to the mediator by the Chief Mediator or the Commission or the Labour Court: 772 Labour Relations 1987, No. 77
(c) To offer his or her services to the parties to a dispute to assist them to solve the dispute and in this regard to make such inquiries as may be necessary: (d) To call conferences under section 249 of this Act: (e) To inquire into any dispute referred to the mediator in accordance with section 245 of this Act and to report to the Minister: (f) To chair Ministerial conferences called under section 247 of this Act: (g) To chair committees of inquiry appointed under section 248 of this Act or, if appointed as the sole member of such a committee, to act as the committee: (h) To exercise such other functions as are conferred on a mediator by this Act or any other Act. Cf. 1973, No. 19, s. 64 (3), (4)(c), (g) 254. Tenn of office-Except as otherwise provided in this Act,- (a) The Chief Mediator and every other mediator shall be appointed for a term of 5 years; and (b) The Chief Mediator and any mediator shall be eligible for reappointment from time to time. Cf. 1973, No. 19, s. 64 (8) 255. Vacation of office-(l) Any mediator may at any time be removed from office by the Governor-General for disability, bankruptcy, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General. (2) Any mediator may at any time resign by notice in writing addressed to the Minister of Labour. Cf. 1973, No. 19, s. 64 (8) 256. Retiring age-A person who has attained the age of 64 years shall be disqualified from being appointed as a mediator; but a mediator who attains the age of 64 years while holding office as a mediator shall be capable of continuing to hold office as a mediator until the expiration of the term for which that mediator was appointed. 257. Salaries and aIlowances-(l) There shall be paid, out of money appropriated by Parliament for the purpose, to the Chief Mediator and to the other mediators appointed under section 251 of this Act,- 1987, No. 77 Labour Relatiom 773
(a) Salaries at such rates or in accordance with such scale of rates as the Higher Salaries Commission from time to time determines; and (b) Such allowances as are from time to time determined by the Higher Salaries Commission. (2) Notwithstanding anything in subsection (1) of this section, there shall be paid to each mediator appointed under section 251 of this Act, in respect of time spent in travelling in the exercise of the mediator's nmctions, travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951, and the provisions of that Act shall apply accordingly as if the mediator were a member of a statutory Board and the travelling were in the service of a statutory Board. Cf. 1973, No. 19, s. 64 (11), (llA); 1985, No. 138, s. 5 258. Temporary mediators-(I) The Governor-General may from time to time, on the recommendation of the Minister, appoint one or more temporary mediators to hold office for such period as may be specified in the commission. (2) The period so specified shall not exceed 24 months; but any person appointed under this section may from time to time be reappointed. (3) A person so appointed shall have all the powers and nmctions of a mediator. (4) Section 256 of this Act relating to the retiring age of mediators shall not apply in relation to any temporary mediator. (5) Every person appointed as a temporary mediator under this section shall, during the term of that mediator's appointment, be paid on a per diem basis- (a) Such salary payable pursuant to section 257 of this Act to a mediator other than the Chief Mediator, as the Governor-General directs; and (b) The allowances to which that person would be entided if that person were appointed under section 251 of this Act. Cf. 1973, No. 19, s. 64 (9)
Arbitration Commission 259. Arbitration Commission-There is hereby established a commission to be called the Arbitration Commission. 774 Labour Relations 1987, No. 77
260. Jurisdiction of Commission-(I) The Commission shall have jurisdiction- (a) To register awards and agreements: (b) To hear and determine disputes of interest: (c) To assist parties to settle disputes of interest: (d) To handle matters referred to it by the Labour Court for settlement in connection with a strike in an essential industry: (e) To give advice to the Labour Court if requested to do so: (f) To exercise such other functions and powers as are conferred on it by this or any other Act. (2) In all matters before it the Commission shall have full and exclusive jurisdiction to determine them in such manner as it thinks fit, and to make decisions or orders not inconsistent with this or any other Act. (3) No decision or order of the Commission, and no proceeding before the Commission, shall be held bad for want of form, or be void or in any way vitiated by reason of any informality or error of form. 261. Membership of Commission-(I) The Commission shall consist of- (a) Three Commissioners, who shall be appointed by the Governor-General on the recommendation of the Minister; and (b) Two other persons appointed by the Chief Commissioner for the purposes of each matter before it from the panel of members established and maintained under section 268 of this Act, one being a person nominated as a panel member by an organisation of employers and one being a person nominated as a panel member by an organisation of workers. (2) One of the Commissioners appointed under subsection (1) (a) of this section shall be appointed as Chief Commissioner. (3) No person shall be deemed to be employed in the service of Her Majesty for the purposes of the State Services Act 1962 or the Government Superannuation Fund Act 1956 by reason of that person's appointment as a Commissioner or as a person appointed by the Chief Commissioner under subsection (I) (b) of this section. (4) The powers of the Commission shall not be affected by any vacancy in its membership. 1987, No. 77 Labour Relations 775
262. Term of office of Commissioners-(I) Except as otherwise provided in this Act, the Chief Commissioner and every other Commissioner shall be appointed for a tenn of 5 years; but shall be eligible for reappointment from time to time. (2) Where the tenn for which a Commissioner has been appointed expires, that Commissioner, unless sooner vacating or removed from office under section 263 of this Act, shall continue to hold office, by virtue of the appointment for the term that has expired, until- (a) That Commissioner is reappointed; or (b) A successor to that Commissioner is appointed. 268. Vacation ofoffice-(I) Any Commissioner may at any time be removed from office by the Governor-General for disability, bankruptcy, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General. (2) Any Commissioner may at any time resign the office of Commissioner by notice in writing addressed to the Minister of Labour. (3) Every Commissioner shall retire from office on attaining the age of 68 years. Cf. 1973, No. 19, s. 64 (8) 264. Deputies of Commissioners-(I) The Governor General may from time to time on the advice of the Minister appoint any person to be the deputy of any Commissioner (including the Chief Commissioner). (2) The deputy of any Commissioner shall have authority to act as a Commissioner in the event of the absence of the Commissioner from any meeting of the Commission and the deputy of the Chief Commissioner shall have authority to act as Chief Commissioner in the event of the absence of the Chief Commissioner from any meeting of the Commission. (3) Every such deputy shall hold office during the pleasure of the Governor-General. (4) No act done by any deputy appointed under this section in that capacity and no act done by the Commission while any such deputy is so acting, shall in any proceedings be questioned on the ground that the occasion for so acting had not arisen or had ceased. 265. Temporary Arbitration Commission-(l) The Governor-General may from time to time, wherever in the 776 Labour Relations 1987, No. 77 Governor·General's opinion it is expedient to do so, establish a temporary Arbitration Commission. (2) The temporary Arbitration Commission shall consist of (a) Three temporary Commissioners, who shall be appointed by the Governor·General on the recommendation of the Minister; and (b) Two other persons appointed by the temporary Chief Commissioner for the p~oses of each matter before it from the panel of members established and maintained under section 268 of this Act, one being a person nominated as a panel member by an organisation of employers and one being a person nominated as a panel member by an organisation of workers. (3) Every temporary Commissioner appointed under subsection (2) (a) of this section shall hold office for such period as is specified in the Commissioner's appointment, being a term not exceeding 2 years. (4) One of the temporary Commissioners appointed under subsection (2) (a) of this section shall be appointed as a temporary Chief Commissioner. (5) Sections 261 (3) and (4),263,264, and 267 of this Act shall apply, as far as they are applicable and with any necessary modifications, in respect of the temporary Arbitration Commission and the temporary Commissioners. 266. Powers and procedure of temporary Commission-( 1) Any temporary Arbitration Commission constituted under sectIon 265 of this Act may exercise any of the powers, fimctions, and duties of the Commission under this Act. (2) Sections 272 to 27 7 of this Act shall apply with all necessary modifications in relation to a temporary Arbitration Commission and the proceedings before it.
267. Salaries and allowances of Commissioners and deputies-( 1) There shall be paid on a per diem basis, out of money appropriated by Parliament for the purpose, to the Chief Commissioner and to the other Commissioners- (a) Salaries at such rates as the Higher Salaries Commission from time to time determines; and (b) Such allowances as are from time to time determined by the Higher Salaries Commission. 1987, No. 77 Labour Relations 777
(2) Every deputy appointed under section 264 of this Act shall be paid on a per diem basis such salary and allowances, not exceeding the salary and allowances payable for the time being under subsection (1) of this section to Commissioners other than the Chief Commissioner, as the Governor·General directs. (3) Notwithstanding anything in subsections (1) and (2) of this section, there shall be paid to each Commissioner and to each deputy of a Commissioner, in respect of time spent in travelling in the exercise of the Commissioner's functions, travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951, and the J;>rovisions of that Act shall apply accordingly as if the CommissIOner or deputy were a member of a statutory Board and the travelling were in the service of a statutory Board. 268. Panel of members-( 1) The Minister shall establish and maintain a panel of members. (2) The Minister may from time to time approve for inclusion on ~he panel of members any person who has been nornmated- (a) By the central organisation of employers; or (b) For the purpose of proceedings relating to the State services or State enterprises or both, by the State Services Co·ordinating Committee; or (c) By the central organisation of workers; or (d) For the purpose of proceedings relating to the State services or State enterprises or both, by the national organisation of employees that is most representative of persons employed in the State services and of persons employed by State enterprises; or (e) By any other organisation of workers or employers approved by the Minister for the purpose. (3) No person other than a person nominated under subsection (2) of this section shall be approved by the Minister for inclusion on the panel of members. (4) The name of a person shall be removed from the panel of members if- (a) The person dies or is, under the Insolvency Act 1967, adjudged bankrupt; or (b) The Minister directs that the name of the person be removed from the panel for disability, neglect of duty, or misconduct, proved to the satisfaction of the Minister; or 778 Labour Relations 1987, No. 77
(c) A period of 5 years has elapsed since the date on which the Minister last approved the inclusion of the person's name; or (d) The person requests by writing addressed to the Minister that that person's name be removed; or (e) The person attains the age of 68 years. 269. Remuneration and travelling allowances of panel members-There shall be paid out of money appropriated by Parliament for the purpose to the panel members remuneration by way of fees at such daily rate as is approved under the Fees and Travelling Allowances Act 1951 and travelling allowances and expenses in accordance with that Act, and the provisions of that Act shall apply accordingly. 270. Chief Executive Officer and officers of the Comrnission-( 1) There may from time to time be apf>ointed, under the State Services Act 1962, a Chief Executive Officer of the Commission, a Deputy Chief Executive Officer, and such other officers of the Commission as may be required. (2) The officers appointed under subsection (1) of this section sh3.U be or become officers of the Department of Labour. (3) The office of Chief Executive Officer of the Commission may be held either separately or in conjunction with the office of Registrar of the Labour Court; and the office of any other officer of the Commission may be held either separately or in conjunction with any other office of the Labour Court. 271. Seal of Commission-The Commission shall have a seal which shall be judicially noticed by all Courts and for all purposes. Procedure of Commission 272. Sittings and procedure of Comrnission-( 1) Sittings of the Commission shall be held at such times and places as are from time to time fixed by the Chief Commissioner or the Commission. (2) In the exercise of its jurisdiction the Commission shall act fairly and may, where necessary, conduct hearings of the parties, which hearings may be formal or informal. (3) The Commission may order the giving or production of and receive in evidence any statement, document, information, or matter which in its opinion may assist it to deal with matters before it, whether or not the same would be admissible in evidence in a Court of law. 1987, No. 77 Labour Relatioru 779
(4) Where the Commission holds a hearing, the Chief Executive Officer shall, on the application of any of the parties, issue a summons to any person to appear and give evidence before the Commission. (5) The Commission shall, within the scope of its jurisdiction, be deemed to be a Commission of Inquiry under the Commissions of Inquiry Act 1908, and, subject to the provisions of this Act, all the provisions of that Act, except sections 2, 4A, and 10 to 12, shall apply accordingly, so far as they are applicable. (6) No costs shall be allowed on account of the appearance of barristers, solicitors, or agents in any proceedings before the Commission. (7) Subject to the provisions of this Act, the Commission may regulate its procedure in such manner as it thinks fit. 278. Evidence in proceedings-In any proceedings the Commission may, if it thinks fit, dispense with any evidence on any matters on which all parties to the proceedings have agreed in writing. 274. Appearance of parties-(I) Any party to any proceedings before the Commission may- (a) Appear personally; or (b) Be represented by an agent; or (c) With the consent of all parties, be represented by a barrister or solicitor who holds a practising certificate for the time being in force under the Law Practitioners Act 1982,- and may produce before the Commission such witnesses, books, and documents as the party thinks proper. (2) In any proceedings the Commission may allow to appear or to be represented any person who applies to the Commission for leave to appear or De represented to be heard; and the Commission may order any other person so to appear or be represented. (3) Any person appearing or represented in any proceedings pursuant to leave granted or an order made under subsection (2) of this section shall be deemed to be a party to the proceedings. 275. Power to proceed if any party fails to attend-If, without good cause shown, any party to proceedings before the Commission fails to attend or be represented, the Commission 780 Labour Relations 1987, No. 77
may proceed and act as fully in the matter before it as if that party had duly attended or been represented. 276. Q.uorum and decision of Commission-( 1) Subject to the provisions of this Act, the presence of 3 Commissioners and 2 panel members shall constitute a sitting of the Commission. (2) The decision of a majority of the members present at a sitting of the Commission shall be the decision of the Commission. (3) Every decision of the Commission shall be signed by the Chief Commissioner, and be issued by the Chief Commissioner or any other member of the Commission or by the Chief Executive Officer of the Commission. (4) References in this Act to a Commissioner include references to a deputy appointed and acting pursuant to section 264 of this Act. 277. Commission may refer question of law to Labour Court-( 1) The Commission may in any matter before it state a case for the opinion of the Labour Court on any question of law arising in the matter. (2) The question shall be in the form of a special case either drawn up by the parties, or, if the parties do not agree, to be drawn up and settled by the Commission. (3) The decision of the Labour Court on the question shall be final and binding on all parties to the matter and on the Commission.
Labour Court 278. Labour Court-There is hereby established a Court of record, to be called the Labour Court, which, in addition to the jurisdiction and powers specially conferred on it by this Act or any other Act, shall have all the powers inherent in a Court of record. Cf. 1973, No. 19, s.32; 1977, No. 108, s. 3
Jurisdiction of Labour Court 279. Jurisdiction of Labour Court-( 1) The Labour Court shall have jurisdiction- (a) To hear and determine appeals from certain decisions of the Registrar of Unions: (b) To hear and determine, in relation to unions, questions relating to disputed elections or disputed ballots or to 1987, No. 77 Labour Relations 781
the alleged failure of a union to fulfil its obligations under any provision of this Act: (c) To hear and determine demarcation disputes: (d) To hear and determine applications for exemption from awards: (e) To hear and determine whether a matter is a new matter for the purpose of allowing negotiations for amending or replacing an award or agreement: (f) To hear and determine any question in relation to the validity of any award or agreement: (g) To hear and determine any question connected with the construction of any awara or agreement or this Act or any Act conferring functions and powers upon the Labour Court and this paragraph shall confer on the Labour Court authority to determine conclusively any such question for the purposes of any case properly brought before the Labour Court, notwithstanding that the question concerns the meaning of the Act under which the Labour Court is constituted or under which it operates in a particular case: (h) To hear and determine references and appeals from disputes committees: (i) To hear and determine personal grievances: mTo deal with all actions for the recovery of wages or recovery of penalties under this Act: (k) In any proceedings under this Act, to make an order determining tIie rights of the parties under any award or agreement or other order of the Labour Court: (1) To order compliance with any provision of this Act or of any award or agreement or of any rule of a union or with any order, determination, direction, or requirement made or given under this Act by the Court or by the Commission or by a Commissioner or a disputes committee or a grievance committee or the Registrar of Unions proved to the satisfaction of the Court to have been broken or not observed: (m) In the case of a strike or lockout in an essential service, to exercise the functions conferred on it by section 246 of this Act: (n) To hear and determine any proceedings founded on tort and of a kind specified in section 242 of this Act: (0) To hear and determine any application for an injunction of a type specified in section 243 of this Act: (p) To hear and determine any application for review in relation to the exercise, refusal to exercise, or 782 Labour Relations 1987, No. 77
proposed or purported exercise of a statutory power or a statutory power of decision that is conferred by this Act or is that of a body constituted under this Act or of a statutory officer appointed under this Act: (q) To exercise such other functions and powers as are conferred on it by this or any other Act. (2) If any question arises as to whether a dispute is one of interest or of rights, the question shall be detennined by the Labour Court. (3) The Labour Court may direct the Commission to consider any matter or question (including a question to which subsection (2) of this section applies) and to give to the Labour Court the Commission's advice in relation to that matter. (4) In all matters before it (other than any matter before it under section 242 or section 243 or section 280 of this Act) the Labour Court shall have full and exclusive jurisdiction to detennine them in such manner and to make such decisions or orders, not inconsistent with this or any other Act or with any award or agreement, as in equity and good conscience it thinks fit. (5) No decision or order of the Labour Court, and no proceedings before the Labour Court, shall be held bad for want of form, or be void or in any way vitiated by reason of any informality or error of form. (6) Except on the ground of lack ofjurisdiction or as provided in section 309 or section 310 or section 311 or section 312 of this Act, no decision, order, or proceedings of the Labour Court shall be removable to any Court by certiorari or otherwise or be liable to be challenged, appealed against, reviewed, quashed, or called in question in any Court. (7) For the purposes of subsection (6) of this section, the Labour Court suffers from lack of jurisdiction only where- (a) In the narrow and original sense of the term jurisdiction, it has no entitlement to enter upon the inquiry in question; or (b) The decision or order is outside the classes of decisions or orders which the Labour Court is authorised to make; or (c) The Labour Court acts in bad faith. 280. Jurisdiction of Labour Court in respect of applications for review-(I) If any person wishes to apply for review under Part I of the Judicature Amendment Act 1972, or bring proceedings seeking a writ or order of, or in the nature 1987, No. 77 Labour Relations 783 of, mandamus, prohibition, or certiorari, or a declaration or injunction, in relation to the exercise, refusal, or proposed or purported exercise by- (a) The Commission; or (b) The Registrar of Unions; or (c) The Minister; or (d) The Union Membership Exemption Tribunal; or (e) A disputes committee; or (f) A grievance committee; or (g) A mediator; or (h) A union, employers organisation, or association; or (i) Any officer of a union or of an employers organisation or of an association; or mAn employer; or (k) Any other person or body,- of a statutory power or statutory power of decision (as defined in section 3 of the Judicature Amendment Act 1972) conferred by or under this Act or, in the case of a union or employers organisation or association, by or under this Act or by or under the constitution or other instrument of incorporation, rules, or bylaws of the union or organisation or association, the provisions of subsections (3) to (6) of this section shall apply. (2) If any person wishes to apply for review under Part I of the Judicature Amendment Act 1972, or bring proceedings seeking a writ or order of, or in the nature of, mandamus, prohibition, or certiorari, or a declaration or injunction, in relation to the exercise, refusal, or proposed or purported exercise by- (a) The Commission; or (b) The Minister of State Services; or (c) The Union Membership Exemption Tribunal; or (d) A mediator; or (e) A service organisation within the meaning of the State Services Conditions of Employment Act 197 7; or (f) Any officer of a service organisation within the meaning of the State Services Conditions of Employment Act 1977; or (g) An employer; or (h) An employing authority within the meaning of the State Services Conditions of Employment Act 197 7; or (i) Any other person or body,- of a statutory power or statutory power of decision (as defined in section 3 of the Judicature Amendment Act 1972) conferred by or under the State Services Conditions of Employment Act 784 Labour Relations 1987, No. 77
1977, the provisions of subsections (3) to (6) of this section shall apply. (3) Notwithstanding anything in any other Act or rule of law, every application or proceedings referred to in subsection (1) or subsectIOn (2) of this section shall be made to or brought in the Labour Court. (4) Where a right of appeal is conferred on any person under this Act or the State Services Conditions of Employment Act 1977 in respect of any matter, that person shall not make an application under subsection (1) or subsection (2) of this section in respect of that matter unless any appeal brought by that person in the exercise of that right of appeal has first been detennined. (5) A Judge may at any time and after hearing such persons, if any, as the Judge thinks fit, give such directions prescribing the procedure to be followed in any particular case under this section as the Judge deems expedient having regard to the exigencies of the case and the interests of justice. (6) The jurisdiction conferred on the Labour Court by this section shall be exercised by a Judge alone. 281. Power in respect of contempt of Court-(I) If any person- (a) Assaults, threatens, intimidates, or wilfully insults any person, being aJudge, or any Registrar, or any officer of the Court, or any panel member, or any witness, during that person's sitting or attendance in Court, or in going to or returning from the Court; or (b) Wilfully interrupts or obstructs the proceedings of the Court or otherwise misbehaves in Court; or (c) Wilfully and without lawful excuse disobeys any order or direction of the Court in the course of the hearing of any proceedings- any constable or officer of the Court, with or without the assistance of any other person, may, by order of the Judge, take the offender into custody and detain the offender until the rising of the Court. (2) In any such case as aforesaid, the Judge, if the Judge thiiiks fit, may sentence the offender to imprisonment for any period not exceeding 3 months, or sentence the offender to pay a fine not exceeding $1,000 for every such offence; and in default of payment of any such fine may direct that the offender be imprisoned for any period not exceeding 3 months, unless the fine is sooner paid. 1987, No. 77 Labour Relations 785
(3) A certificate under the hand of the Registrar of any judgment given or order made under this section may be filed in any District Court, and shall then be enforceable in the same manner as a judgment given or order made by the last mentioned Court. 282. Power of Court to award interest on arrears of wages-( 1) Subject to subsection (2) of this section, in any proceedings for the recovery of wages or other money under section 198 of this Act, the Labour Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate, not exceeding the prescribed rate, as it thinks fit on the whole or any part of the wages or other money for the whole or any part of the period between the date when the cause of action arose and the date of payment in accordance with the judgment. (2) Subsection (1) of this section shall not authorise the giving of interest upon interest. (3) In this section the term "the prescribed rate~' means the rate of 11 percent per annum, or such other rate as may from time to time be prescribed for the purposes of this section by the Governor·General by Order in Council. 288. Power to award costs-The Labour Court in any proceedings may order any party to pay to any other party such costs and expenses (including expenses of witnesses) as it thinks reasonable, and may apportion any such costs between the parties or any of them as It thinks fit, and may at any time vary or alter any such order in such manner as it thinks reasonable. Cf. 1973, No. 19, s. 60; 1977, No. 108, s. 3 284. Power to prohibit publication-In any proceedings the Labour Court may order that any part of any evidence given or the name of any witness not be published, and any such order may be subject to such conditions as the Court thinks fit.
Constitution of Labour Court 285. Constitution of Labour Court-(I) Subject to the provisions of this Part of this Act, the Labour Court shall consist of- (a) One Judge who shall be called the Chief Judge of the Labour Court: 786 Labour Relations 1987, No. 77
(b) At least 2 other Judges who shall be called Judges of the Labour Court: (c) Where any 2 panel members are appointed by a Judge to sit as members of the Labour Court for the purposes of any proceedings, those 2 panel members. (2) Where any provision of this Act requires 2 panel members to sit as members of the Labour Court, those panel members shall be appointed by a Judge for the purposes of each matter before the Court from the panel of members established and maintained under section 268 of this Act, one being a person nominated as a panel member by an organisation of employers and one being a person nominated as a panel member by an organisation of workers. Cf. 1973, No. 19, s. 33 (1); 1977, No. 108, s. 3 286. Registrar and officen of Labour Court-( 1) There may from time to time be appointed under the State Services Act 1962 a Registrar of the Labour Court, one or more Deputy Registrars of the Labour Court, and one or more Assistant Registrars of the Labour Court, and such other officers of the Labour Court as may be required. (2) The officers appointed under subsection (1) of this section shciU be or become officers of the Department of Labour. Cf. 1973, No. 19, s. 35; 1977, No. 108, s. 3; 1982, No. 131, s. 3 (1) 287. Seal of Court-The Labour Court shall have a seal, which shall be judicially noticed by all Courts and for all purposes. Cf. 1973, No. 19, s. 36; 1977, No. 108, s. 3
Judges of the Court 288. Appointment ofJudges-( 1) Subject to the provisions of this section, the Judges of the Labour Court shall be appointed from time to time by the Governor·General. (2) No person other than a barrister or solicitor of not less than 7 years' standing of the High Court shall be appointed a Judge of the Labour Court. (3) The commissions of the Chief Judge and other Judges of the Labour Court shall continue in full force during good behaviour, notwithstanding the demise of Her Majesty. (4) It shall be lawful for Her Majesty, upon the address of the House of Representatives, to remove any Judge from office and 1987, No. 77 Labour Relatwrn 787 to revoke the Judge's commission, and for the Governor· General to suspend any Judge upon a like address. (5) It shall be lawful for the Governor-General in Council, at any time while Parliament is not in session, to suspend any Judge from office, and that suspension, unless previously revoked, shall continue in force until the end of the next ensuing session, and no longer. (6) Every Judge shall retire from office on attaining the age of 68 years. (7) Subject to the provisions of this section, the Judges of the Labour Court other than the Chief Judge shall have seniority among themselves according to the aates of their appointments as Judges of the Labour Court. If 2 or more of them are both appointed on the same day, they shall have seniority according to the precedence assigned to them by the Governor-General or, failing any such assignment, according to the order in which they take the Judicial Oath: Provided that every permanent Judge shall have seniority over every temporary Judge. (8) The jurisdiction of the Labour Court shall not be affected by any vacancy in the number of Judges of the Labour Court. Cf. 1973, No. 19, s. 37; 1977, No. 108, s. 3; 1980, No. 116, s. 2 (1)
289. Senior Judge to act as Chief Judge in certain circumstances-( 1) While any vacancy exists in the office of Chief Judge, or during any absence from New Zealand of the Chief Judge, the senior Judge of the Labour Court in New Zealand shall have authority to act as Chief Judge and to execute the duties of that office and to exercise all powers that may be lawfully exercised by the Chief Judge. (2) Whenever by reason of illness or any cause other than absence from New Zealand the Chief Judge is prevented from exercising the duties of the office, the Governor-General may authorise the senior Judge of the Court to act as Chief Judge until the Chief Judge resumes those duties, and during that period to execute the duties of that office and to exercise all powers that may be lawfully exercised by the Chief Judge. Cf. 1973, No. 19, s. 38; 1977, No. 308, s. 3; 1978, No. 40, s. 2 (2)
290. Salaries and allowances of Judges-( 1) There shall be paid to each Judge of the Labour Court, out of the 788 Labour Relations 1987, No. 77
Consolidated Account, without further appropriation than this section,- (a) A salary at such rate as the Higher Salaries Commission from time to time determines; and (b) Such allowances as are from time to time determined by the Higher Salaries Commission; and (c) Such additional allowances, being travelling allowances or other incidental or minor allowances, as may be determined from time to time by the Governor· General. (2) In the case of the Chief Judge, the rate of salary and the allowances determined may be higher than those for the other Judges. (3) The salary of a Judge shall not be diminished during the continuance of the Judge s appointment. (4) Subject to the Higher Salaries Commission Act 1977, any determination made under subsection (1) of this section, and any provision of any such determination, may be made so as to come into force on a date to be specified in that behalf in the determination, being the date of the making of the determination or any other date, whether before or after the date of the making of the determination or the date of the commencement of this section. (5) Every such determination, and every provision of any such determination, in respect of which no date is specified as aforesaid shall come into force on the date of the making of the determination. Cf. 1973, No. 19, s. 39; 1985, No. 138, s. 2 291. Appointment of temporary Judges-(I) The Governor·General may from time to time, whenever in the Governor·General's opinion it is necessary or expedient to make a temporary appointment, appoint one or more temporary Judges of the Labour Court to hold office for such period as is specified in the commission. (2) The period so specified shall not exceed 2 years or, in the case of a person who has attained the age of 68 years, 12 months; but any person appointed under this section may from time to time be reappointed. (3) No person shall be appointed as aJudge under this section unless that person is eligible for appointment as a Judge pursuant to section 288 of this Act, save that, subject to subsection (2) of this section, a person otherwise qualified who has attained the age of 68 years (including a Judge who has 1987, No. 77 Labour Relations 789
retired after attaining that age) may be appointed as a Judge under this section. (4) The power conferred by this section may be exercised at any time, notwithstanding that there may be one or more persons holding the office ofJudge, whether under section 288 of this Act or tbis section. (5) Every Judge appointed under this section shall be paid (a) Such salary, not exceeding the salary payable for the time being to Judges other than the Chief Judge, as the Governor-General in Council directs; and (b) The allowances to which thejudge would be entitled if the Judge were appointe under section 288 of this Act. (6) Nothing in the Higher Salaries Commission Act 1977 limits the provisions of subsection (5) of this section. Cf. 1973, No. 19, s. 40; 1981, No. 131, s. 4; 1985, No. 138, s. 3 Procedure of Court 292. Court may delegate certain functions to a District Court Judge-( 1) Subject to the provisions of this section, the Labour Court may, in respect of any action for the recovery of wages or any action for the recovery of a penalty, by order under the seal of the Labour Court or in such other manner as the Labour Court thinks fit, delegate to any District Court Judge named by it any of its powers or functions under this or any other Act to deal with that action. (2) Any order made by the Labour Court for the purposes of this section may be at any time in like manner varied or revoked. (3) A delegation of any power or function under this section shall not deprive the Labour Court of power to itself exercise that power or function. (4) Where any judgment, order, or other instrument is made by a District Court Judge, it shall be signed by the District Court Judge with the addition of the words "Acting as a duly appointed delegate of the Labour Court" or words to that effect, and shall be filed with the Registrar of the Labour Court; and notice of its making shall forthwith be given to the parties and to such other persons, and in such manner, as may be prescribed. (5) If an appeal is not lodged under subsection (6) of this section within the prescribed time, or if any such appeal is withdrawn or dismissed, the judgment, order, or other 790 Labour Relations 1987, No. 77 instrument shall be sealed with the seal of the Labour Court and shall be deemed to have been made by the Labour Court on the day after the expiration of the time so prescribed, and that day shall be deemed to be its date. (6) Any person who is directly affected by any decision of a delegate of the Labour Court acting under the authority of this section may, within such time and in such manner as may be prescribed, appeal to the Labour Court; and in any such case the Labour Court may deal with the matter in all respects as if an order of delegation in respect of it had not been made. Cr. 1973, No. 19, s. 49; 1983, No. 16, s. 58
298. Court may dismiss frivolous cases-The Labour Court may at any time dismiss any matter before it which it thinks frivolous or trivial; and in any such case the order of the Labour Court may be limited to an order on the party bringing the matter before the Labour Court for payment of costs and expenses. Cf. 1973, No. 19, s. 50; 1977, No. 108, s. 3
294. Statement of case for Court of Appeal-In any matter before the Labour Court the Judge may of the Judge s own motion, or on the application of any party, state a case for the Court of Appeal on any question of law arising in the matter, excluding any question as to the construction of any award or agreement. Cr. 1973, No. 19, s. 51; 1977, No. 108, s. 3
295. Sittings of Court-( 1) Except as provided in sections 108 (6) and 217 (2) of this Act, or as provided by the provisions of any other Act conferring jurisdiction on the Labour Court, the jurisdiction of the Labour Court shall be exercised by a Judge sitting alone. (2) The 3 members to constitute the Labour Court for the purposes of any sitting under section 108 (6) or section 217 (2) of this Act shall be appointed by a Judge and shall comprise (a) As presiding member, the ChiefJudge or any other Judge; and (b) Two panel members appointed in accordance with section 285 (2) of this Act. (3) Sittings of the Labour Court shall be held at such times and places as are from time to time fixed by a Judge. 1987, No. 77 Labour Relations 791
- (4) Sittings may be fixed either for a particular case or generally for a class of cases then before the Labour Court and ripe for hearing. (5) The Labour Court may be adjourned from time to time and from place to place in the following marmer: (a) By the Court or the Judge at any sitting, or if the Judge is absent from the sitting, then by any other member present, or if no member is present, then by the Registrar of the Court; and (b) By the Judge at any time before the time fixed for the sitting. Cf. 1973, No. 19, s. 52 (1)-(2); 1977, No. 108, s. 3 296. Urgency-Where proceedings are brought before the Labour Court under section 154 or section 180 or section 207 or section 242 or section 243 of this Act and any party to the proceedings applies to the Court to accord urgency to the hearing of the proceedings, a Judge of the Labour Court shall consider that application and may, if satisfied that it is necessary and just to do so, order that the proceedings be heard by the Court as soon as practicable. 297. Full Court-(I) The Chief Judge may direct in relation to any proceedings that the Labour Court shall sit as a full Court for the hearing of those proceedings. (2) Where, in relation to the proceedings, the Labour Court woUld otherwise comprise 3 members in accordance with section 295 (2) of this Act, the full Court shall comprise- (a) As presiding member, the Chief Judge or a Judge nominated by the Chief Judge: (b) Two other Judges nominated by the Chief Judge: (c) Two panel members. (3) Where, in relation to the proceedings, the Labour Court woUld otherwise comprise a single Judge, the full Court shall comprise- (a) As presiding member, the Chief Judge or a Judge nominated by the Chief Judge: (b) Two other Judges nominated by the Chief Judge. Cf. 1973, No. 19, s. 52A; 1977, No. 108, s. 3; 1979, No. 13, s. 10 (1) 298. Q,uorum and decision of Court-(I) Where, in relation to any proceedings, the Labour Court is required to consist of one Judge and 2 panel members, the presence of at 792 Labour Relatioru 1987, No. 77 least one Judge and at least one panel member shall be necessary to constitute a sitting of the Court for the purposes of those proceedings, except as otherwise expressly provided. (2) The decision of a majority of the members present at the sitting of the Court, or, if the members present are equally divided in opinion, the decision of the Judge, shall be the decision of the Court. (3) If more than one Judge is present at a sitting of the Court at which the members present are equally divided in opinion, the decision of the Court, for the furposes of subsection (2) of this section, shall be the decision 0 the ChiefJudge if the Chief Judge is f>resent or, if the Chief Judge is not present, the decision of the most senior of the Judges present. (4) The decision of the Labour Court in every case shall be signed by a Judge, and may be issued by a Judge or by any other member of the Labour Court or by the Registrar of the Labour Court. Cf. 1973, No. 19, s. 53; 1977, No. 108, s. 3 299. Appearance of parties-( 1) Any party to any proceedings before the Labour Court may- (a) Appear personally; or (b) Be represented by an agent; or (c) Be represented by a barrister or solicitor- and may troduce before the Labour Court such witnesses, books, an documents as the party thinks proper. (2) In any proceedings the Labour Court may allow to appear or to be represented any person who applies to the Labour Court for leave to appear or be represented and who, in the opinion of the Labour Court, is justfy entided to be heard; and the Labour Court may order any other person so to appear or be represented. (3) Any person appearing or represented in any proceedings pursuant to leave granted or an order made under subsection (2) of this section shall be deemed to be a party to the proceedings. Cf. 1973, No. 19, s.54; 1977, No. 108, s. 3 800. Power to proceed if any party fails to attend-If, without good cause shown, any party to proceedings before the Labour Court fails to attend or be represented, the Labour Court may proceed and act as fully in the matter before it as if that party had duly attended or been represented. Cf. 1973, No. 19, s. 55; 1977, No. 108, s. 3 1987, No. 77 Labour Relatioru 793
801. Withdrawal of reference-Where any dispute or matter has been referred to the Labour Court for settlement or detennination, the reference may at any time be withdrawn by the applicant. C£ 1973, No. 19, s. 55; 1977, No. 108, s. 3
802. Rehearing-(I) The Labour Court shall in every proceeding, on the application of an original party to the proceeding, have the power to order a rehearing to be had upon such terms as it thinks reasonable, and in the meantime to stay proceedings: Provided that a rehearing shall not be granted on an application made more than 14 days after the judgment or order, unless the Labour Court is satisfied that the application could not reasonably be made sooner. (2) The application shall be served on the opposite party not less than 7 clear days before the day fixed for hearing, and shall state the grounds thereof, which shall be verified by affidavit. (3) The application shall not operate as a stay of proceedings unless the Labour Court so orders. (4) The rehearing need not take place before the member or members of the Labour Court by whom the proceedings were originally heard.
808. Evidence-( 1) In any proceedings, other than proceedings of the type described in section 242 or section 243 or section 280 of this Act, the Labour Court may accept, admit, and call for such evidence as in equity and good conscience it thinks fit, whether strictly legal evidence or not. (2) Without prejudice to subsection (1) of this section, the following provisions shall apply with respect to evidence in any proceedings before the Laoour Court: (a) On the application of any of the parties, the Registrar of the Labour Court shall issue a summons to any person to appear and give evidence before the Labour Court: (b) The summons shall be in the prescribed form, and may require the person to produce before the Labour Court any books, papers, or other documents in that person's possession or under that person's control in any way relating to the proceedings: 794 Labour Relations 1987, No. 77
(c) All documents produced before the Labour Court, whether produced voluntarily or pursuant to a summons, may be inspected by the Labour Court, and also by such of the parties as the Labour Court allows; but the information obtained therefrom shall not, unless the Court in its discretion so directs, be made public, and such parts of the documents as, in the opinion of the Labour Court, do not relate to the matter at issue may be sealed up: (d) Every person attending the Labour Court on a summons, and every other person giving evidence before the Labour Court, shall be entided as against the party calling that person to a sum for that person s expenses and loss of time according to the scale for the time being in force with respect to witnesses under the District Courts Act 1947: Provided that the Labour Court may disallow the whole or any part of that sum: (e) Any person present in Court who is required to give evidence but refuses to be sworn or to give evidence shall be liable on conviction by the Labour Court to a fine not exceeding $500: (f) For the purpose of obtaining the evidence of witnesses at a distance the Labour Court, or, while the Labour Court is not sitting, the Judge, shall have all the powers and functions of a District Court Judge under the District Courts Act 1947, and the provisions of that Act relating to the taking of evidence at a distance shall, with the necessary modifications, apply in like manner as if the Labour Court were a District Court; but evidence may be taken at a distance by a Registrar of the District Court: (g) The Labour Court may take evidence on oath, and for that purpose any member, the Registrar of the Labour Court, or any other person acting under the express or implied direction of the Labour Court, may administer an oath: (h) On any indictment for perjury it shall be sufficient to prove that the oath was administered as aforesaid: (i) Any party to the proceedings shall be competent and may be compelled to give evidence as a witness: 0) The Labour Court in its discretion may order that all or any part of its proceedings may be taken down in shorthand or recorded in any other manner. 1987, No. 77 Labour Relations 795
(3) In any proceedings the Labour Court may, if it thinks fit, dispense with any evidence on any matters on which all parties to the proceedings have agreed in writing. Cf. 1973, No. 19, s. 57 (1), (2) (a)-(d), (f)-(k), (3); 1977, No. 108, s. 3; 1979, No. 125, s. 2 (3)
304. Proceedings to continue on change in Court Where any change takes place in the members constituting the Labour Court, any proceedings or inquiry then in progress shall not abate or be affected, but shall continue and be dealt with by the Labour Court as if no such change had taken place; but the Labour Court may require evidence to be retaken where necessary. Cf. 1973, No. 19, s. 58; 1977, No. 108, s. 3
305. Proceedings not to abate by reason of death Proceedings before the Labour Court shall not abate by reason of the seat of any member of the Labour Court being vacant for any cause whatever, or of the death of any party to the proceedings; and in the latter case the legal personal representative of the deceased party shall be substituted in the deceased party's stead. Cf. 1973, No. 19, s. 59; 1977, No. 108, s. 3
306. Service of process on Sundays void-( 1) Subject to any regulations made under this Act, no person shall serve or cause to be served on Sunday any order or otherlrocess of the Labour Court; and any such service shall be voi to all intents and purposes whatsoever. (2) Nothing in subsection (1) of this section shall apply to the service of any summons to a witness or of any interlocutory injunction. Cf. 1973, No. 19, s. 61; 1977, No. 108, s. 3
307. Court may make rules-( 1) The Labour Court may from time to time make rules (not inconsistent with this Act or with any regulations made under this Act) for the purpose of regulating the practice and procedure of the Labour Court and the proceedings of parties. (2) To the extent that the Labour Court does not make rules under subsection (1) of this section regulating the practice and procedure of the Court under section 242 and section 243 and section 280 of this Act, proceedings in the Labour Court under those sections shall be regulated by the rules applicable to
B-7 796 Labour Relations 1987, No. 77 proceedings founded on tort, injunctions, and judicial review in the High Court, as far as they are applicable and with all necessary modifications. C£ 1973, No. 19, s. 62; 1977, No. 108, s. 3 Review of Proceedings S08. Review of proceedings before Labour Court (1) If, in relation to any proceedings before the Labour Court, any person wishes to apply for a review under Part I of the Judicature Amendment Act 1972 or bring proceedings seeking a writ or order of, or in the nature of, mandamus, prohibition, or certiorari, or a declaration or an injunction, the provisions of subsections (2) to (4) of this section shall apply. (2) Notwithstanding anything in any other Act or rule of law, every application or proceedings referred to in subsection (1) of this section shall be made to or brought in the Court of Appeal. (3) The Court of Appeal or a Judge thereof may at any time and after hearing such persons, if any, as it or the Judge thinks fit, give such directions prescribing the procedure to be followed in any particular case under this section as it or the Judge deems expedient having regard to the exigencies of the case and the interests of justice. (4) The decision of the Court of Appeal on any such matter shall be final and conclusive, and there shall be no right of review of or appeal against the Court's decision.
Appeals S09. Appeals to Court of Appeal in respect of proceedings founded on tort-Any party to any proceedings before the Labour Court under section 242 of this Act may appeal to the Court of Appeal against any interlocutory or final order of the Labour Court in the proceedings; and section 66 of the Judicature Act 1908 shall apply to any such appeal. SlO. Appeal to Court of Appeal against order or sentence in respect of contempt of Court-Any person against whom an order (other than an order to the effect only that a person be taken into custody until the rising of the Court) has been made under section 207 or section 281 of this Act or section llA (7) of the Minimum Wage Act 1983 may appeal to the Court of Appeal against the order as if that person was a defendant who bad been convicted on an information and sentenced by the High Court. 1987, No. 77 Labour Relatums 797
311. Appeal to Court of Appeal in respect of order on application for review-Any party to an application for review or other proceeding under section 280 of this Act who is dissatisfied with any final or interlocutory order in respect of the application may appeal to the Court of Appeal; and section 66 of the Judicature Act 1908 shall apply to any such appeal. 312. Appeals to Court of Appeal on question of law (1) Where any party to any proceedings under this Act is dissatisfied with any decision of the Labour Court (other than a decision on the construction of any award or agreement, or a decision made by a delegate of the Labour Court acting under the authority of section 292 of this Act and deemed to be made by the Labour Court under subsection (5) of that section) as being erroneous in point of law, that party may appeal to the Court of Appeal by way of case stated for the opinion of that Court on a question of law only. (2) The provisions of Part IV of the Summary Proceedings Act 1957 (except sections 113 to 122, 124 to 128, 130 to 132, and 136 to 144), so far as they relate to appeals by way of case stated on questions of law only, shall apply, so far as they are applicable and with the necessary modifications, to every appeal under this section. In the application of those provisions, tliey shall be read as if- (a) Every reference to a District Court were a reference to the Labour Court: (b) Every reference to a District Court Judge or Justice or Justices were a reference to a Judge of the Labour Court: (c) Every reference to the Registrar of the District Court were a reference to the Registrar of the Labour Court: (d) Every reference to the High Court or to the Registrar of the High Court were a reference to the Court of Appeal or, as the case may be, to the Registrar of the Court of Appeal: (e) Every reference to the respondent were a reference to each of the other parties to the proceedings before the Labour Court other than the appellant. (3) Every such appeal shall be made by giving notice of appeal within 28 days after the date of the issue of the decision to which the appeal relates. (4) In its determination of any appeal, the Court of Appeal may confirm, modify, or reverse the decision appealed against or any part of that decision. 798 Labour Relations 1987, No. 77
(5) Notice of appeal shall not operate as a stay of proceedings in respect of the decision to which the appeal relates unless the Labour Court or the Court of Appeal so orders. (6) The determination of the Court of Appeal on any appeal under this section shall be final and conclusive. C£ 1973, No. 19, s. 62A (1)-(3), (5)-(7); 1977, No. 108, s. 3 313. Court of Appeal may refer appeals back for reconsideration-(I) Notwithstanding anytbing in section 312 of this Act, the Court of Appeal may in any case, instead of determining any appeal under that section, direct the Labour Court to reconsider, either generally or in respect of any specified matters, the whole or any specified part of the matter to which the appeal relates. (2) In giving any direction under this section, the Court of Appeal shall- (a) Advise the Labour Court of its reasons for so doing; and (b) Give the Labour Court such directions as it thinks just as to the rehearing or reconsideration or otherwise of the whole or any part of the matter that is referred back for reconsideration. (3) In reconsidering the matter so referred back, the Labour Court shall have regard to the Court of Appeal's reasons for giving a direction under subsection (1) of this section and to the Court of Appeal's directions under subsection (2) of this section. C£ 1973, No. 19, s. 62B; 1977, No. 108, s. 3 Special Provision in Respect of Reviews and Appeals 314. Obligation to have regard to special jurisdiction of Labour Court-In determining any appeal under section 309 of this Act or in exercising its jurisdiction under section 311 or section 312 of this Act in respect of any application or proceedings, the Court of Appeal shall have regard to the special jurisdiction and powers of the Labour Court and, in particular, to the provisions of sections 279 (4),303 (1), 315, and 31 7 of this Act. C£ 1973, No. 19, s. 62.\ (4); 1977, No. 108, s. 3 Miscellaneous Provisions 315. Validation of informal proceedings, etc.-(I) If anything which is required or authorised to be done by this Act is not done within the time limited for the doing of it, or is done informally, the Commission if the matter is within its jurisdiction, or the Labour Court if the matter is within its 1987, No. 77 Labour Relations 799 jurisdiction, may, in its discretion, on the application of any person interested, make an order extending the time within which the thing may be done, or validating the thing so informally done. (2) Nothing in this section shall apply so as to authorise the Labour Court to make any such order in respect of judicial proceedings then already instituted in any court other than the Labour Court.
S 16. Documents under seal and certain signatures to be judicially noticed-( 1) Every document bearing the seal of the Commission or the Labour Court shall be received in evidence without further proof, and the signature of a Commissioner or the Chief Executive Officer or a Judge of the Labour Court, or a mediator, or the Registrar of Unions, or the Registrar of the Labour Court, shall be judicially noticed in or before any Court or before any person or officer acting judicially or under any power or authority conferred by this Act, if the signature is attached to some order, certificate, or other official document made or purporting to be made under this Act or under any Act or provision of an Act repealed by this Act. (2) No proof shall be required of the handwriting or official position of any person acting in pursuance of this section. C£ 1973, No. 19, s. 227; 1977, No. 108, s. 6 (1)
S17. Powers of Commission or Court as to joinder, waiver, and extension of time-(l) In order to enable the Commission or the Labour Court the more effectually to dispose of any matter before it according to the substantial merits and equities of the case, it may, at any stage of the proceedings, of its own motion or on the application of any of the parties, and upon such terms as it thinkS fit, by order,- (a) Direct parties to be joined or struck out; and (b) Amend or waive any error or defect in the proceedings; and (c) Extend the time within which anything is to or may be done; and (d) Generally give such directions as are deemed necessary or expedient in the circumstances. (2) The powers conferred by this section on the Commission may, when the Commission is not sitting, be exercised by the Chief Commissioner. 800 Labour Relatiom 1987, No. 77
(3) The powers conferred by this section on the Labour Court may, when the Labour Court is not sitting, be exercised by a Judge. Cf. 1973, No. 19, s. 229; 1977, No. 108, s. 6 (1)
PART XII
ADMINISTRATION 818. Act to be administered by Department of Labour-This Act shall be administered by the Department of Labour established under the Labour Department Act 1954. Cf. 1973, No, 19, s. 3 819. Labour districts-For the purposes of this Act, New Zealand is hereby divided into the labour districts named and described in the Ninth Schedule to this Act. Cf. 1973, No. 19, s. 7 820. Alteration ofboundaries-(l) The Governor-General may from time to time, by Order in Council,- (a) Alter the name of any labour district: (b) Alter the boundaries of any 2 or more districts: (c) Merge any district in any other district: (d) Abolish any district or districts, and declare the area comprised therein to be a new district or districts with such name or names and such boundaries as the Governor-General thinks fit. (2) If a labour district is constituted by reference to the limits or boundaries of any other portion of New Zealand defined or constituted under any other Act, then, in the case of the alteration of those limits or boundaries, the alteration shall take effect in respect of the labour district without any further proceedings, unless the Governor-General in Council otherwise determines. Cf. 1973, No. 19, s. 8 821. Awards and agreements to continue in force when boundaries changed-Whenever the boundaries of a labour district are changed under section 320 of this Act, no award or agreement then in force shall be affected by the change so long as the award or agreement continues in force. Cf. 1973, No. 19, s. 9 1987, No. 77 Labour Relations 801 PART XIII
MISCELLANEOUS PROVISIONS 822. Register of accidents-Every employer bound by an award or agreement shall keep a register, in the prescribed form, and shall enter in or attach to the register the prescribed particulars relating to every accident which occurs to any worker and of which the employer has knowledge and shall make that register available for inspection and copying by an Inspector. Cf. 1973, No. 19, s. 220 828. Record of work stoppages-Every employer shall keep a record, in the prescribed form, of strikes and lockouts occurring in respect of that employer's workers and shall make that record available for inspection and copying by an Inspector or an employee of the Department of Labour designated in writing by an Inspector. 824. Regulations-The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes: (a) Prescribing the forms for the purposes of this Act: (b) Prescribing the duties of the Registrar, and of any other officers or persons acting in execution of this Act: (c) Prescribing any act or thing necessary to supplement or render more effectual the provisions of this Act as to the conduct of proceedings before the Commission or the Court, or the transfer of any such proceedings from one of those bodies to the other: (d) Prescribing the procedure in relation to proceedings under this Act, whether before the Union Membership Exemption Tribunal, the Commission, or the Court, and in relation to appeals to the Court: (e) Prescribing charges or scales of charges in respect of services carried out by mediators: (f) Prescribing charges or fees in relation to the functions of the Commission or the Labour Court: (g) Providing for such matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for its due administration. Cr. 1973, No. 19, s. 232; 1977, No. 108, s. 6 (1) 802 Labour Relations 1987, No. 77
PART XIV
AMENDMENTS TO OTHER Acrs Amendment to Accident Compensation Act 1982 325. Staff not in service of Crown-Section 15 of the Accident Compensation Act 1982 is hereby amended by repealing subsection (3) (as amended by section 2 of the Accident Compensation Amendment Act 1985), and substituting the following subsections: "(3) For the purposes of the application of the State Services Conditions of Employment Act 1977, the Managing Director shall be the employing authority. "(4) Subject to the State Services Conditions of Employment Act 1977, nothing in the Labour Relations Act 1987 shall apply to the Corporation or employees of the Corporation."
Amendments to Apprenticeship Act 1983 326. Labour Court to act as controlling authority Section 4 of the Apprenticeship Act 1983 is hereby amended by adding the following subsection: "(7) In exercising its jurisdiction under this Act the Labour Court shall be constituted as follows: "(a) In actions under section 23 or section 52 of this Act for recovery of wages or money due under a contract, as a Judge sitting alone: "(b) In any other proceedings under this Act, as a Judge sitting with two panel members appointed by the Judge from the panel of members established under section 268 of the Labour Relations Act 1987, one being a person nominated as a panel member by an organisation of employers and one being a person nominated as a panel member by an organisation of workers." 327. Arbitration Commission may make apprenticeship orders-The Apprenticeship Act 1983 is hereby amended by omitting the word "Court" wherever it appears in sections 32 (2) (c), 32 (5), and 33, and substituting in each case the words "Arbitration Commission". 328. Breaches of Act, recovery of money, etc.-Section 52 of the Apprenticeship Act 1983 is hereby amended by repe~g subsections (2) and (3), and substituting the following subsectIOns: 1987, No. 77 Labour Relations 803
"(2) Proceedings for a breach of this Act shall be taken in the same manner as proceedings for a breach of the Labour Relations Act 1987; and the rrovisions of sections 200, 201 (2) and (3), 203, 204, and 205 0 that Act shall, as far as they are applicable and with the necessary modifications, apply accordingly. "(3) Without affecting other remedies for the recovery of money payable under a contract, proceedings for the recovery of any such money may be taken under section 198 of the Labour Relations Act 1987 by an Inspector or a District Commissioner; and sections 199, 205, 207, and 208 of that Act, along with any other provisions of that Act relating to the recovery of money shall, so far as they are applicable and with the necessary modifications, apply accordingly." Amendments to Broadcasting Act 1976 829. Symphony Orchestra-(I) Section 27 (4) of the Broadcasting Act 1976 (as amended by section 83 (1) of the State Services Conditions of Emplorn;ent Act 1977) is hereby amended by omitting the words 'Public Sector Tribunal for determination under Part V of the State Services Conditions of Employment Act 1977", and substituting the words "Arbitration Commission for determination". (2) The State Services Conditions of Employment Act 1977 is hereby consequentially amended by repealing so much of the Second Schedule as relates to the Broadcasting Act 1976. 880. Application of State Services Conditions of Employment Act 1977-Section 40 of the Broadcasting Act 1976 is hereby amended by repealing subsection (2), and substituting the following subsection: "(2) For the purposes of the application of the State Services Conditions of Employment Act 1977, the Corporation shall be the employing authority." 881. Labour Relations Act 1987 not to apply-The Broadcasting Act 1976 is hereby amended by repealing section 41, and substituting the following section: "41. Subject to the State Services Conditions of Employment Act 1977, nothing in the Labour Relations Act 1987 snall apply to the Corporation or employees of the Corporation." Amendments to Coal Mines Act 1979 882. Interpretation-(I) Section 2 (1) of the Coal Mines Act 1979 (as amended by section 2 of the Coal Mines Amendment 804 Labour Relatiom 1987, No. 77
Act 1985) is hereby amended by repealing the definitions of the tenns "authorised representative", "union membership clause", and "Union Membership Exemption Tribunal". (2) Section 2 of the Coal Mines Act 1979 is hereby further amended by repealing subsections (lA) and (lB) (as inserted by section 2 (4) of the Coal Mines Amendment Act 1985). 888. Repeals-The following enactments are hereby repealed, namely: (a) Sections 118 to 118s of the Coal Mines Act 1979: (b) Part IX of the Coal Mines Act 1979: (c) The Coal Mines Amendment Act 1985: (d) Section 18 of the State Services Conditions of Employment Amendment Act 1987. 884. Revocation-The Coal Mines (Union Membership) Regulations 1985 (S.R. 1985/157) are hereby revoked.
Amendment to Factories and Commercial Premises Act 1981 885. Wages and tiDle record-Section 15 of the Factories and Commercial Premises Act 1981 is hereby amended by repe~g subsection (1 ), and substituting the following subsection: "(1) The occupier of an undertaking shall keep a record (called the wages and time record) showing, in the case of each worker,- "(a) The name of the worker: "(b) The worker's age, if under 20 years of age: "(c) The worker's postal address: "(d) The kind of work on which the worker is usually employed: "(e) The award or agreement (if any) under which the worker is employed: "(f) The classification or designation of the worker under the award or agreement (if any) according to which the worker is paid: "(g) The hours between which the worker is employed on each day, and the days of the worker's employment during each week: "(h) The wages paid to the worker each week, and the method of calculation: "(i) Such other particulars as are prescribed." 1987, No. 77 Labour Relations 805
Amendment to Harbours Act 1950 336. Appeals and Appeal Board-Section 45 of the Harbours Act 1950 is hereby amended by repealing subsection (8), and substituting the following subsection: "(8) Nothing in this section shall apply to any employee of a Harbour Board who is bound by an award or agreement registered under the Labour Relations Act 1987 (other than an award or agreement deemed to be registered under that Act)."
Amendments to Health Service Personnel Act 1983 337. Interpretation-Section 2 of the Health Service Personnel Act 1983 is hereby amended by repealing the definitions of the terms "occupational class' and "part·time employee", and substituting the following definitions: " 'Occupational class' ,- "(a) In relation to employees of the Health Service whose remuneration is detennined in accordance with the State Services Conditions of Employment Act 1977, means a class or group of employees prescribed under that Act by determination by the Commission or by Tribunal order as an occupational class: "(b) In relation to employees of area health boards and hospital boards whose remuneration is determined in accordance with an award or agreement registered under the Labour Relations Act 1987, means, except as provided in the award or agreement, a class or category of employees covered by any such award or agreement: "(c) In relation to medical practitioners employed as medical officers in the Health Service, means all such persons, other than resident medical officers: "(d) In relation to dentists employed as dental officers in the Health Service, means all such persons, other than junior dental officers: "'Part·time employee' means, except as provided in any award or agreement, an employee, other than a casual employee, who works on a regular basis but !ess than the ordinary or normal hours prescribed m- "(a) The Health Service determination applicable to the relevant occupational class; or "(b) The award or agreement applicable to the relevant occupational class:". 806 Labour Relations 1987, No. 77
338. Part III not to apply to certain employees-The Health Service Personnel Act 1983 is hereby amended by inserting in Part Ill, after section 44, the following section: "44A. Nothing in this Part of this Act shall apply to any employee or group of employees employed in the Health Service who is or are bound by an award or agreement registered under the Labour Relations Act 1987 (other than an award or agreement deemed to be registered under that Act)." Amendments to Human Rights Commission Act 1977 339. Industrial unions and professional and trade associations-( 1) Section 68 (3) of the Human Rights Commission Act 1977 is hereby amended by inserting, before the words "This section", the words "Subject to subsection (4) of this section,". (2) Section 68 of the Human Rights Commission Act 1977 is hereby further amended by adding the following subsection: "(4) Nothing in subsection (1) (a) or subsection (2) of this section shall apply in respect ot any organisation which is registered as a union or an employers organisation under the Labour Relations Act 1987." 340. Jurisdiction of Labour Court-Section 71 of the Human Rights Commission Act 1977 (as substituted by section 17 of the Human Rights Commission Amendment Act 1983) is hereby amended by repealing subsection (1), and substituting the following subsection: "( 1) The Labour Court shall have jurisdiction to hear and determine any proceedings taken under section 70 of this Act and the provisions of the Labour Relations Act 1987 shall have effect accordingly, with the necessary modifications, notwithstanding that the organisation in respect of which the complaint is made is not registered, or is not eligible to register, under that Act." Amendments to Judicature Amendment Act 1972 341. Interpretation-Section 3 of the Judicature Amendment Act 1972 (as amended by section 6 (2) of the Industrial Relations Amendment Act 1977) is hereby amended by omitting from the definition of the term "person" the words "the Arbitration Court". 342. Jurisdiction of Labour Court-The Judicature Amendment Act 1972 is hereby amended by inserting, after section 3, the following section: 1987, No. 77 Labour Relations 807
"3A. This Part of this Act shall be subject to the provisions of the Labour Relations Act 1987 relating to the jurisdiction of the Labour Court in respect of applications for review or proceedings for a writ or order of, or in the nature of, mandamus, prohibition, certiorari, or for a declaration or injunction against any body constituted by, or any person acting pursuant to, the Labour Relations Act 1987."
Amendments to Labour Department Act 1954 343. Duties of Department-Section 9 (b) of the Labour Department Act 1954 is hereby amended by omitting the words "under any award or collective agreement, or". 344. First Schedule amended-( 1) The First Schedule to the Labour Department Act 1954 (as substituted by section 2 (2) of the Labour Department Amendment Act 1979) is hereby amended by omitting the items relating to the Aircrew Industrial Tribunal Act 1971, the Fishing Industry (Union Coverage) Act 1979, the Waterfront Industry Act 1976, and the Industrial Relations Act 1973. (2) The said First Schedule is hereby further amended by inserting, in their appropriate alphabetical order, the following items: "The Labour Relations Act 1987. "The Waterfront Industry Corrunission Act 1976."
Amendments to Parliamentary Service Act 1985 345. Application of State Services Conditions of Employment Act 1977-Section 46 (2)(a) of the Parliamentary Service Act 1985 is hereby repealed. 346. Labour Relations Act 1987 not to apply-The Parliamentary Service Act 1985 is hereby amended by repe.aling section 47, and substituting the following section: "47. Subject to the State Services Conditions of Employment Act 1977, nothing in the Labour Relations Act 1987 shall apply to the Parliamentary Service or to employees in the Paliamentary Service or to the Clerk of the House of Representatives or to officers of the House of Representatives appointed pursuant to section 26 of this Act."
Amendments to Police Act 1958 347. Interpretation-(I) Section 2 of the Police Act 1958 is hereby amended by repealiD.g the definition of the term "Public 808 Labour Relations 1987, No. 77
Sector Tribunal" (as inserted by section 2 (3) of the Police Amendment Act 1978). (2) Section 2 of the Police Act 1958 is hereby further amended by repealing the definition of the term "Tribunal" (as inserted by section 2 of the Police Amendment Act 1965), and substituting the following definition: " 'Tribunal' means the Arbitration Commission established under the Labour Relations Act 1987:". (3) The following enactments are hereby consequentially repealed, namely: (a) Section 2 of the Police Amendment Act 1965: (b) Section 2 (3) of the Police Amendment Act 1978. 848. Abolition of Police Staff Tribunal-( 1) The Police Act 1958 is hereby amended by repealing sections 67, 68, 68A, 69, 70, and 81. (2) The following enactments are hereby consequentially repealed, namely: (a) Sections 3 (2) and 4 of the Police Amendment Act 1969: (b) Sections 14 and 15 of the Police Amendment Act 1978. 849. Transitional provisions-(I) All applications and other matters which before the commencement of this Act have been made or referred to the Police Staff Tribunal, and which have not been determined or completed before the commencement of this Act may be determined and completed before the Arbitration Commission. (2) Every order of the Police Staff Tribunal in force immediately before the commencement of this section shall, as from the commencement of this section, and while the order continues in force, be deemed to be an order of the Arbitration Conunission under this Act.
Amendments to Shipping and Seamen Act 1952 850. Abolition of provision for settlement of questions by Superintendent-(I) The Shipping and Seamen Act 1952 is hereby amended by repealing section 151A and the heading above that section (as substituted by section 8 (1) of the Shipping and Seamen Amendment Act 1971). (2) Section 8 of the Shipping and Seamen Amendment Act 1971 is hereby consequentially repealed. 1987, No. 77 Labour Relations 809
851. Abolition of Shipping Industry Tribunal-( 1) The Shipping and Seamen Act 1952 is hereby amended by repealing sections 151B, 151c, 151D, 151E, 151F, 151c, 151H, 1511, 151J, and 151K and the heading above those sections. (2) The following enactments are hereby consequentially repealed, namely: (a) Section 9 of the Shipping and Seamen Amendment Act 1971: (b) Section 5 of the Shipping and Seamen Amendment Act 1972: (c) Sections 3 to 7 of the Shipping and Seamen Amendment Act 1975.
Amendment to Tramways Amendment Act 1910 852. Appeal Board-Section 6 of the Tramways Amendment Act 1910 is hereby amended by repealing subsection (4) (as added by section 74 of the Statutes Amendment Act 1946), and substituting the following subsection: "(4) For the purposes of this section, and of any regulations under this Act refating to the Appeal Board, the expressions 'employee of the tramway' and 'tramway employee'- "(a) Include every person who is employed in, or in connection with, the public transport undertaking of the promoters of any tramway, notwithstanding that that person's employment may be in respect of a vehicle or type of vehicle that is not a tramway carriage within the meaning of the principal Act or of this Act; but "(b) Does not include any person who is bound by an award or agreement registered under the Labour Relations Act 1987 (other than an award or agreement deemed to be registered under that Act)."
Amendments to Union Representatives Education Leave Act 1986 858. Interpretation-Section 2 of the Union Representatives Education Leave Act 1986 is hereby amended by repealing the definition of the term "union", and substituting the following definition: " 'Union' means- "(a) A union registered under the Labour Relations Act 1987: "(b) A society of workers: "(c) A service organisation:". 810 Labour Relaticns 1987, No. 77
854. Disputes-The Union Representatives Education Leave Act 1986 is hereby amended by repealing section 28, and substituting the following section: "28. (1) Where a dispute arises between an employer and a union in relation to- "(a) The grantin~ of paid education leave to any member of that uruon; or "(b) The deferral of the granting of paid education leave to an authorised union representative; or "(c) The payment of wages to an authorised union representative in respect of any day on which that authorised union representative is on paid education leave; or "(d) The failure of an authorised union representative to attend an approved union education course in respect of which that authorised union representative has been granted paid education leave,- the dispute shall be settled in accordance with the disputes provisions applicable in respect of disputes on the mterpretation of the relevant award, agreement, order, determination, or other instrument or, if there are no such provisions, the provisions of the Sixth Schedule to the Labour Relations Act 1987 (which Schedule shall apply with all necessary modifications). "(2) Where, by virtue of subsection (I) of this section, the Sixth Schedule to the Labour Relations Act 1987 applies in respect of any dispute and any party to the dispute appeals under clause 6 of that Schedule against a decision of the committee constituted under that Schedule, or any part of that decision, the decision to which the appeal relates shall remain in full force pending the determination of the appeal. "(3) In this section 'union' means- "(a) A union registered under the Labour Relations Act 1987: "(b) A service organisation." 855. Undue inftuence-(I) Section 29 of the Union Representatives Education Leave Act 1986 is hereby amended by repealing subsections (6) and (7), and substituting the following subsections: "(6) A penalty recoverable under this section shall be recoverable in the same manner as a penalty for a breach of the Labour Relations Act 1987; and sections 200, 201 (2) and 1987, No. 77 Labour Relations 811
(3), 203, 204, and 205 of that Act shall, with all necessary modifications, apply accordingly. "(7) An action for the recovery of a penalty may be brought in respect of an alleged contravention of subsection (1) of this section only by- "(a) The person or employee in relation to whom the contravention is alleged to have taken place; or "(b) Any union to which that person or employee belongs, being- "(i) A union registered under the Labour Relations Act 1987; or "(ii) A service organisation." (2) Section 29 of the Union Representatives Education Leave Act 1986 is hereby further amended by repealing subsection (9), and substituting the following subsection: "(9) The Labour Court may delegate to any District Court Judge named by it its powers and functions under this section and the provisions of section 292 of the Labour Relations Act 1987 (except those of subsection (6)) shall, with all necessary modifications, apply accordingly." 856. Jurisdiction of Public Sector Tribunal in respect of penalties for undue in8uence-(I) Section 30 of the Union Representatives Education Leave Act 1986 is hereby amended by repealing subsection (3), and substituting the following subsection: "(3) A penalty recoverable under this section shall be recoverabfe in the same manner as a penalty for a breach of the Labour Relations Act 1987; and sections 200, 201 (2) and (3), 203, 204, and 205 of that Act shall, with all necessary modifications, apply accordingly." (2) Section 30 of the Union Representatives Education Leave Act 1986 is hereby further amended by omitting from subsection (6) the expression "section 49 of the Industrial Relations Act 1973", and substituting the expression "section 292 of the Labour Relations Act 1987". 857. Dismissal and other prejudicial acts in respect of employees-( 1) Section 31 of the Union Representatives Education Leave Act 1986 is hereby amended by repealing subsections (5) to (7), and substituting the following subsections: "(5) If proceedings have been taken under the procedure set out in the Seventh Schedule to the Labour Relations Act 1987 (or any alternative procedures contained in an award or 812 Labour Relations 1987, No. 77 agreement under that Act) in relation to any case to which this section also applies, proceedings may not be taken under this section in respect of that case. "(6) If a penalty is imposed as a result of proceedings taken under this section in relation to any case to which the procedures set out in the Seventh Schedule to the Labour Relations Act 1987 (or any alternative procedures contained in any award or agreement under that Act) also apply, proceedings may not be taken under those procedures in respect of that case. "(7) If- "(a) Proceedings have been taken and determined under this section in relation to any case to which the procedures set out in the Seventh Schedule to the Labour Relations Act 1987 (or any alternative procedures contained in any award or agreement under that Act) also apply; and "(b) A penalty has not been imposed in that case as a result of the proceedings taken under this section, proceedings may be taken under the procedures in that Schedule (or the procedures alternatively provided) in respect of that case, but the grounds for those additional proceedings shall not relate to matters arising out of this Act." (2) Section 31 of the Union Representatives Education Leave Act 1986 is hereby further amended by repealing subsection (9), and substituting the following subsection: "(9) In this section 'union' means a union registered under the Labour Relations Act 1987."
PART XV
REPEALS, REVOCATIONS, AND TRANSITIONAL PROVISIONS 858. Repeals and revocations-(I) The enactments specified in the Tenth Schedule to this Act are hereby repealed. (2) The regulations, orders, and notices specified in the Eleventh Schedule to this Act are hereby revoked. 859. Consequential amendments in relation to repeal of Industrial Relations Act 1978-Unless in any case the context otherwise requires, and subject to the provisions of this Part of this Act, in any other enactment or in any regulations, order, notice, award, agreement, instrument, or other document- (a) Every reference to the Industrial Relations Act 1973 shall be read as a reference to this Act and every reference 1987, No. 77 Labour Relatwns 813
to a provision in the Industrial Relations Act 1973 shall be read as a reference to the corresponding provision in this Act: (b) Every reference to the Industrial Relations Amendment Act 1984 shall be read as a reference to this Act: (c) Every reference to the Industrial Relations Amendment Act 1985 shall be read as a reference to this Act: (d) Every reference to the Industrial Relations Amendment Act (No. 2) 1985 shall be read as a reference to this Act: (e) Every reference to a collective agreement shall be read as a reference to an agreement: (f) Every reference to the Arbitration Court or to a Judge or Registrar of that Court, shall be read as a reference to the Arbitration Commission, or, as the case may require, to the Chief Commissioner or Chief Executive Officer of the Commission, if the matter to which the reference relates is, or is in the nature of, a dispute of interest as defined by this Act, and in all other cases, as a reference to the Labour Court, or, as the case may require, to a Judge or Registrar of that Court: (g) Every reference to a conciliator within the meaning of the Industrial Relations Act 1973 shall be read as a reference to a mediator: (h) Every reference to the Registrar of Industrial Unions shall be read as a reference to the Registrar of Unions appointed under section 4 of this Act: (i) Every reference to an Inspector of Awards and Agreements shall be read as a reference to an Inspector. 860. Existing appointments-( 1) The person who immediately before the commencement of this Act held office as the Chief Judge of the Arbitration Court constituted under the Industrial Relations Act 1973 shall, without further appointment, be deemed as from the commencement of this Act to have been duly appointed as the Chief Judge of the Labour Court under this Act. (2) The persons who immediately before the commencement of this Act held office as Judges (other than temporary Judges) of the Arbitration Court constituted under the Industrial Relations Act 1973 shall, without further appointment, be deemed as from the commencement of this Act to have been appointed as Judges of the Labour Court under this Act. 814 Labour Relations 1987, No. 77
(3) Notwithstanding section 288 (6) of this Act, any Judge of the Arbitration Court (other than a temporary Judge) who held office immediately before the commencement of this Act and before the 1st day of May 1981 under the Industrial Relations Act 1973 may, at his optIon, continue in office until he attains the age of 72 years. (4) The persons who immediately before the commencement of this Act held office as temporary Judges of the Arbitration Court constituted under the Industrial Relations Act 1973 shall, without further appointment, be deemed as from the commencement of this Act to have been appointed as temporary Judges of the Labour Court under this Act and their current term of appoint~ent shall not be thereby affected. (5) The persons who immediately before the commencement of this Act held office as conciliators of the Industrial Conciliation Service constituted under section 63 of the Industrial Relations Act 1973 or as mediators of the Industrial Mediation Service constituted under section 64 of that Act shall, without further appointment, be deemed to have been appointed as mediators of the Mediation Service under this Act, and their current term of appointment or eligibility for reappointment shall not be thereby affected. (6) Notwithstanding section 256 of this Act, any person to whom subsection (5) of this section applies may be reappointed as a mediator at any time before that person attains the age of 65 years, but any person so reappointed or so deemed to be appointed shall vacate office on attaining the age of 68 years. (7) The persons who immediately before the commencement of this Act held office as the Chairman and Deputy Chairman of the Union Membership Exemption Tribunal constituted under section 105 of the Industrial Relations Act 1973 shall, without further appointment, be deemed as from the commencement of this Act to have been appointed as Presiding Officer and Deputy Presiding Officer, as the case may be, of the Union Membership Exemption Tribunal under this Act, and their current term of appointment or eligibility for reappointment shall not be thereby affected. (8) The persons who immediately before the commencement of this Act held office as members and deputy members of the Union Membership Exemption Tribunal constituted under section 105 of the Industrial Relations Act 1973 shall, without further appointment, be deemed as from the commencement of this Act to have been appointed as members and deputy members, as the case may be, of the Union Membership 1987, No. 77 Labour Relations 815
Exemption Tribunal under this Act, and their current term of appointment or eligibility for reappointment shall not be thereby affected. (9) The persons who immediately before the commencement of this Act held office as the Registrar or Deputy Registrar of the Arbitration Court shall, without further appointment, be deemed as from the commencement of this Act to have been appointed as the Registrar or a Deputy Registrar, as the case may be, of the Labour Court under this Act. (10) The persons who immediately before the commencement of this Act held office as the Registrar or Deputy Registrar of Industrial Unions under the Industrial Relations Act 1973 shall, without further appointment, be deemed as from the commencement of this Act to have been appointed as the Registrar or Deputy Registrar of Unions, as the case may be, under this Act. 861. Existing proceedings-( 1) This section shall be read subject to the provisions of section 363 of this Act. (2) Subject to subsection (4) of this section, all applications, actions, appeals, proceedings, and other matters under any Act which before the commencement of this Act have been made or referred to the Arbitration Court constituted under the Industrial Relations Act 1973 and which have not been determined or completed before the commencement of this Act shall be determined or completed by a Judge of the Labour Court under this Act sitting (except in any action brought under the Agricultural Workers Act 1977 or under section 201 of the Industrial Relations Act 1973) with 2 nominated members of the Arbitration Court appointed under section 41 of the Industrial Relations Act 1973 as if this Act had not been passed. (3) The reference in subsection (2) of this section to nominated members of the Arbitration Court includes a reference to temporary nominated members appointed under section 41 A of the Industrial Relations Act 1973 and acting nominated members appointed under section 42 of that Act and, where no such nominated members exist or are available, includes a reference to members of the panel established under section 268 of this Act. (4) Where any application, action, proceedings, or other matter made or referred to the Arbitration Court before the commencement of this Act has not been completed or determined and is one relating to a dispute of interest within the meaning of the Industrial Relations Act 1973 (other than a 816 Labour Relations 1987, No. 77 matter giving rise to a question of law) the application, action, proceedings, or matter shall be determined or completed by the Arbitration Commission under this Act as if it had, in respect of that matter, the jurisdiction and powers which the Arbitration Court had in respect of that matter under the Industrial Relations Act 1973. (5) All applications, actions, appeals, proceedings, and other matters under any Act which before the commencement of this Act have been made or referred to the Union Membership Exemption Tribunal constituted under the Industrial Relations Act 1973 and which have not been determined or completed before the commencement of this Act shall be determined or completed by the Union Membership Exemption Tribunal under this Act. (6) Subject to subsection (7) of this section, all matters which before the commencement of this Act were before the Registrar of Industrial Unions and which have not been completed or determined shall be dealt with as if they had been put before the Registrar of Unions under this Act and the appropriate provisions of this Act shall apply accordingly. (7) Where any matter relating to an election or a ballot, or any application for an inquiry into an election, was before the Registrar of Industrial Unions before the commencement of this Act and has not been completed or determined, that matter shall be dealt with by the Registrar of Unions as if that Registrar were still the Registrar of Industrial Unions and as if this Act had not been passed. (8) If, at the commencement of this Act, a Tripartite Wage Conference has begun under section 16A of the Industrial Relations Act 1973 that Conference shall continue as if this Act had not been passed. (9) All applications, actions, appeals, proceedings, and other matters wruch before the commencement of this Act have been made or referred to- (a) The Agricultural Tribunal established by section 17 of the Agricultural Workers Act 1977: (b) The Aircrew Industrial Tribunal established by section 6 of the Aircrew Industrial Tribunal Act 1971: (c) The Coal Mines Council continued by section 240 of the Coal Mines Act 1979: (d) An Appeal Board set up under section 45 of the Harbours Act 1950: (e) The Health Service Appeal Board established by section 30 of the Health Service Personnel Act 1983, by any 1987, No. 77 Labour Relations 817
Health Service employee who was covered by an award or collective agreement made under the Industrial Relations Act 1973: (f) The Shipping Industry Tribunal established by section 151B of the Shipping and Seamen Act 1952: (g) An Appeal Board set up under section 6 of the Tramways Amendment Act 1910: (h) The Waterfront Industry Tribunal established by section 5 of the Waterfront Industry Act 1976,- and which have not been determined or completed before the commencement of this Act shall be determined or completed by the appropriate body as if this Act had not been passed, but for the purposes of determining the constitution of any such body a reference to a Judge of the Arbitration Court shall be read as a reference to a Judge of the Labour Court. (10) All matters which before the commencement of this Act were before any Port Conciliation Committee established under section 41 of the Waterfront Industry Act 1976 and which have not been completed or determined shall be dealt with by that Committee as if this Act had not been passed and any appeal from such a decision of any such Committee shall proceed to be determined by the Waterfront Industry Tribunal as if this Act had not been passed, and for that purpose a reference to a Judge of the Arbitration Court shall be read as a reference to a Judge of the Labour Court. (11) All matters which before the commencement of this Act were before a Superintendent of Mercantile Marine under section 151A of the Shipping and Seamen Act 1952 and which have not been determined or completed shall be dealt with by that Superintendent as if this Act had not been passed. (12) Subject to subsection (9) of this section, where, before the 1st day of May 1987 proceedings have begun (but have not been settled before the commencement of this Act) pursuant to any of the provisions repealed by this Act to settle a dispute of interest (or a dispute in the nature of a dispute of interest), thoselroceedings shall continue as if this Act had not been passe , and section 364 of this Act shall apply to any mstrument that is made to settle that dispute as if the instrument were in force immediately before the commencement of this Act. (13) Subsection (12) of this section shall not apply to any proceedings under section 65 or section 66 of the Industrial Relations Act 1973 or under section 33 of the Waterfront Industry Act 1976, and where such proceedings have not been 818 Labour Relations 1987, No. 77 setded before the commencement of this Act they shall cease at that date. (14) Subject to subsection (9) of this section, where, before the commencement of this Act, but on or after the 1st day of May 1987, proceedings have begun (but have not been setded) pursuant to any of the provisions repealed by this Act to setde a dispute of interest (or a dispute in the nature of a dispute of interest), those proceedings shall cease at the commencement of this Act and thereafter any proceedings to setde the dispute shall be conducted in accordance with this Act. (15) Where, before the commencement of this Act, any proceedings have begun (but have not been completed) before a disputes committee or similar body pursuant to any of the provisions repealed by this Act to settle a dispute of rights (or a dispute in the nature of a dispute of rights), those proceedings (including the proceedings on any subsequent reference or appeal to the Court (which shall be the Arbitration Court)) shall be completed or determined as if this Act had not been passed. (16) Where, before the date of commencement of this Act, any personal grievance has been referred to a grievance committee under the provisions of any award or collective agreement and that committee has not as at that date resolved the grievance, the committee shall proceed to hear and resolve the grievance as if this Act had not been passed as shall the Arbitration Court on any reference in relation to such a grievance.
862. Existing causes of action-( 1) Subject to the applicable periods of limitation, the repeal by this Act of any existing Act or provision shall not extinguish any existing cause of action. (2) Subject to subsection (3) of this section, where any cause of action has arisen before the date of commencement of this Act under any of the provisions repealed by this Act and at that date no proceedings have been initiated in respect of that cause of action under those provisions, those provisions shall continue to apply to any proceedings commenced in respect of any such cause of action as if this Act had not been passed, and section 361 of this Act shall apply to any such proceedings as if those proceedings had commenced before the date of commencement of this Act. (3) Section 365 (2) of this Act, and not subsection (2) of this section, shall apply to any cause of action for arrears of wages 1987, No. 77 Labour Relations 819 or other money payable by an employer to a worker that arose before the date of commencement of this Act. 868. Appropriate bodies-( 1) Subject to subsection (4) of this section, wbere any question arises under section 361 or section 362 of this Act as to the appro{'riate body or as to the constitution of the body (inclucfuig m a case where it is impossible to reconstitute the disestablished body) to hear, determine, or complete any matter, the ChiefJudge or a Judge of the Labour Court shall have full and exclusive jurisdiction to finally determine both the body and the constitution of it which is appropriate for the hearing, determination, or completion of the proceedings. (2) In any case of a type referred to in section 361 or section 362 of this Act, where the appropriate body cannot be constituted the Chief Judge or a Judge of the Labour Court shall determine which institution under this Act shall have jurisdiction to hear, determine, or complete the matter. (3) It shall be competent for any Court, body, or person referred to in section 361 of this Act, when hearing, determining, or completing any matter in accordance with that section or with section 362 of this Act, to decide that the hearing, determination, or completion of the matter as if this Act had not been passed would, because of the passing of this Act, be without any practical effect or woUld in all the circumstances not be in the best interests of the parties, and in any such case the Court, body, or person, as the case may be, may dismiss the matter, or make such order as in the circumstances the Court, body, or person thinks fit. (4) Notwithstanding the foregoing provisions of this section and the provisions of subsections (2) and (3) and (5) to (16) of section 361 of this Act, but subject to section 361 (4) of this Act and subsection (5) of this section, on and after the 1st day of October 1987 the Labour Court shall have full and exclusive jurisdiction to hear and determine any action that would otherwise have been heard and determined by a body that is disestablished by the provisions of this Act, and for that purpose the Chief Judge or a Judge shall determine the constitution of the Court whiCh is appropriate for the proceedings, but the Labour Court shall hear and determine the proceedings as if this Act had not been passed. (5) On and from the 1st day of October 1987 the Arbitration Commission shall have full and exclusive jurisdiction to hear and determine any proceedings to setde a dispute of interest 820 Labour Relations 1987, No. 77
(or a dispute in the nature of a dispute of interest) that would otherwise have been heard and detennmed by a body that is disestablished by the provisions of this Act, and for that purpose the Arbitration Commission shall hear and determine the proceedings as if this Act had not been passed. 864. Existing instruments-(I) Every award of the Arbitration Court under the Industrial Relations Act 1973 (including a collective agreement deemed to be an award by section 82 of that Act) that is in force immediately before the commencement of this Act shall, as from the commencement of this Act and while it continues in force in accordance with this Act, be deemed to be an award registered by the Arbitration Commission under this Act. (2) Where before the date of commencement of this Act a dispute of interest is settled under section 82 of the Industrial Relations Act 1973 but is not registered by the Arbitration Court under that Act before that date, that settlement may be registered by the Arbitration Commission under this Act as an award and shall take effect and continue in force in accordance with this Act. (3) Every voluntary collective agreement registered under section 65 or section 66 of the Industrial Relations Act 1973 that is in force immediately before the commencement of this Act shall, as from the commencement of this Act, continue in force according to its tenor and shall be enforceable -as if it were registered as an award or agreement under this Act, until there is registered under this Act an award or agreement which applies to employers and workers covered by the voluntary collective agreement at which time the agreement shall expire. (4) Where before the commencement of this Act a voluntary collective agreement is settled under section 65 or section 66 of the Industrial Relations Act 1973 but is not registered with the Arbitration Court under that Act, that agreement may be registered with the Arbitration Commission and for the purposes of subsection (3) of this section that agreement shall be deemed to have been in force immediately before the commencement of this Act and that subsection shall apply accordingly. (5) Every voluntary agreement filed with the Registrar of the Arbitration Court under section 141 of the Industrial Relations Act 1973 that is in force (whether filed with the Arbitration Court or not) immediately before the commencement of this Act shall continue in force until it expires, and for that purpose 1987, No. 77 Labour Relations 821
Part X of that Act (and such other Parts of that Act as are referred to in that Part) shall be regarded as continuing in full force. (6) Every award made by the Agricultural Tribunal under section 32 (2) of the Agricultural Workers Act 1977 and every agreement deemed to be an award by section 34 (2) of that Act that is in force immediately before the commencement of this Act shall, as from the commencement of this Act and while it continues in force in accordance with this Act, be deemed to be an award registered by the Arbitration Commission under this Act. (7) Notwithstanding section 171 (3) of this Act, the following awards under the Agricultural Workers Act 1977 (or any award subsequent to them and coming into force before the commencement of this Act), namely,- (a) The "Agricultural Workers' Farms and Stations (Dairy Farms) Award" dated the 8th day of July 1986; and (b) The "Agricultural Workers' Farms, and Stations (Meat (other than Sheep Meat) Grain, Seed or Herbage) Award" dated the 6th day of December 1985; and (c) The "Agricultural Workers' Farms and Stations (Sheep Meat and Wool) Award" dated the 6th day of December 1985,- shall continue in force for a period of one year from the commencement of this Act uriless earlier superseded by an award or agreement under this Act. (8) Every award within the meaning of the Aircrew Industrial Tribunal Act 1971 that is in force immediately before the commencement of this Act shall, as from the commencement of this Act and while it continues in force in accordance with this Act, be deemed to be an award registered by the Arbitration Commission under this Act. (9) Every principal order made under section 15 or section 1 7 of the Waterfront Industry Act 1976 that is in force immediately before the commencement of this Act shall, as from the commencement of this Act and while it continues in force in accordance with this Act, be deemed to be an award registered by the Arbitration Commission under this Act. (10) Every agreement to which section 33 of the Waterfront Industry Act 1976 applies that is in force immediately before the commencement of this Act shall, as from the commencement of this Act, continue in force according to its tenor and shall be enforceable as if it were registered as an award or agreement under this Act, until there is registered 822 Labour Relations 1987, No. 77 under this Act an award or agreement which applies to employers and workers covered by the agreement under section 33, at which time the agreement shall expire. (11) Where before the commencement of this Act an agreement is reached under section 33 of the Waterfront Industry Act 1976 but is not filed with the Waterfront Industry Tribunal, or no application is made to the Tribunal for an order giving effect to the agreement, under that Act before that commencement, that agreement may be filed with the Arbitration Commission and for the purposes of subsection (10) of this section that agreement shall be deemed to have been in force immediately before the commencement of this Act and that subsection shall apply accordingly. (12) Every industrial agreement under section 118 of the Coal Mines Act 1979 that is in force immediately before the commencement of this Act shall, as from that commencement be deemed to be an award registered by the Arbitration Commission under this Act, and, notwithstanding section 171 (3) of this Act, shall continue in force for a period of 1 year from that commencement unless earlier superseded by an award or agreement under this Act. 865. Enforcement of existing instruments-( 1) Where (a) Any voluntary agreement is continued in force by section 364 (5) of this Act or any instrument is deemed by subsection (6) or subsection (12) of section 364 of this Act to be an award or agreement registered by the Arbitration Commission under this Act; and (b) No union registered or deemed to be registered under this Act is a party to that award or agreement,- any society of workers that was an original party to the instrument may enforce that award or agreement under this Act and the provisions of this Act shall apply accordingly with the necessary modifications. (2) Where there has been default in payment of wages or other money to a worker whose position or employment is or was subject to an award or agreement or collective agreement or where any payment of any such wages or other money has been made at a rate lower than that fixed by the award or agreement or otherwise legally payable to the worker, any action to recover such wages or other money- (a) If it relates to periods (whether continuous or contiguous or not) both before and after the commencement of this Act, shall be brought under section 198 of this 1987, No. 77 Labour Relations 823
Act at the suit of the union which has coverage of that worker: (b) If it relates solely to a period or periods (whether continuous or not) before the commencement of this Act, shall be brought under section 198 of this Act at the suit of an Inspector or at the suit of the union which has coverage of that worker. (3) Every Inspector of Factories appointed under the Factories and Commercial Premises Act 1981 shall continue after the commencement of this Act to have the powers conferred on Inspectors of Awards and Agreements by section 6 (4) of the Industrial Relations Act 1973 to the extent that those powers are necessary to investigate, initiate, or complete any cause of action under section 158 of the Industrial Relations Act 1973 or under section 198 of this Act in accordance with subsection (2) (b) of this section.
866. Existing bodies-( 1) Notwithstanding the repeal by this Act of certain sections of the Waterfront Industry Act 1976, every Port Conciliation Committee established under section 41 of that Act may continue to exercise such of its powers and functions (and continue to attract the same rights) as are necessary to give full effect and meaning to the provisions of any principal order or agreement under that Act which is deemed to be an award registered by the Arbitration Commission by virtue of this Act, until the award is no longer in force. (2) Notwithstanding the repeal by this Act of sections 118 and 239 to 247 of the Coal Mines Act 1979, the Coal Mines Council continued by section 240 of that Act may continue to exercise such of its powers and functions as are necessary to give full effect and meaning to the provisions of any industrial agreement under that Act which is deemed by section 364 (12) of this Act to be an award registered under this Act until the award is no longer in force. (3) Notwithstanding the repeal by this Act of section 151A of the Shipping and Seamen Act 1952, any Superintendent of Mercantile Marine under section 10 of that Act may continue to exercise such of the powers and functions of that office as are necessary to settle questions of the type contemplated by that section for which this Act provides no immediate settlement procedure, until an applicable award or agreement is registered under this Act. 824 Labour Relations 1987, No. 77
(4) Notwithstanding section 25A (2) of the Acts Interpretation Act 1924, any nominated member, or acting or temporary nominated member, of the Arbitration Court under the Industrial Relations Act 1973 may continue in office until the 31st day of December 1987 for the purpose of joining in the giving of judgment in, or the determming of, any proceedings heard by the Court when that person was a member, that hearing having been completed by the Court in accordance with the Industrial Relations Act 1973 or with this Part of this Act before the 1st day of October 1987.
S67. Unions-Every union of workers that immediately before the commencement of this Act was registered (other than those deemed to be registered by section 216) under the Industrial Relations Act 1973 as an industrial union of workers shall as from the commencement of this Act be deemed to be registered as a union of workers under this Act, notwithstanding that it may have fewer than 1,000 financial members, and section 30 of this Act shall apply to each such union accordingly.
368. Employers organisationS-Every union of employers that immediately before the commencement of this Act was registered or deemed to be registered under the Industrial Relations Act 1973 as an industrial union of employers shall as from the commencement of this Act be deemed to be registered as an employers organisation under this Act.
369. Associations-Every association that immediately before the commencement of this Act was registered or deemed to be registered as an industrial association of employers or workers under the Industrial Relations Act 1973 shall as from the commencement of this Act be deemed to be registered as an association under this Act.
370. Union rules-(I) Every union that is deemed to be registered under this Act by section 367 of this Act and every employers organisation that is deemed to be registered under this Act by section 368 of this Act shall, within the period of 12 months commencing with the commencement of this Act, amend its rules so as to ensure that they comply with the requirements as to rules of unions and employers organisations contained in this Act, and any amendment made to the rules after the date of commencement of this Act shall so comply. 1987, No. 77 Labour Relations 825
(2) If at the end of the period of 12 months referred to in subsection (1) of this section, the Registrar of Unions is satisfied that any rule or rules of any union or employers organisation do not comply with the requirements of this Act, the Registrar may amend the rule or rules so as to ensure that it or they comply with those requirements, but any union or organisation affected by such an amendment may appeal to the Labour Court against the Registrar's decision to amend or against any part of that decision. (3) Nothing in this section affects the immediate application of those sections of this Act which deem certain rules to be included in the rules of unions and employers organisations. (4) The repeal of the Fishing Industry (Union Coverage) Act 1979 by this Act shall not affect the union coverage that prevailed in the fishing industry immediately before the commencement of this Act, but nothing in this subsection shall prevent any registered union from gaining coverage of workers m that industry in accordance with the provisions of this Act. (5) As at the date of commencement of this Act, the membership rules of registered unions shall be deemed to be amended to the extent necessary to ensure that no registered union has at that date coverage of those workers who immediately before that date were covered by the following unregistered organisations, namely: (a) Denniston Miners Union: (b) Heaphy Miners Union: (c) Inangahua Miners Union: (d) Moody Creek Miners Union: (e) Nightcaps Miners Union: (f) Ngakawau Miners Union: (g) Rotowaro Opencast Union: (h) Waikato Miners Union: (i) Waipuna Opencast Union. (6) Nothing in subsection (5) of this section shall prevent any registered union from gaining coverage of those workers in accordance with the provisions of this Act. (7) The Registrar of Unions shall not exercise the power conferred by section 40 (2) of this Act in respect of any union rules that are in force at the date of commencement of this Act until a period of 1 year from that date. S7!. Union membership-(I) Where at the commence· ment of this Act any award or agreement contains a union membership clause (within the meaning of section 98 of the 826 Labour Relatioru 1987, No. 77
Industrial Relations Act 1973), that clause shall continue to have effect according to its tenor, notwithstanding the provi· sions of this Act relating to the insertion of union membership clauses in awards or agreements. (2) Where a certificate relating to the result of a union membership ballot has been issued by the Registrar of Industrial Unions under Part VI of the Industrial Relations Act 1973 or under Part 11 of the Agricultural Workers Act 197 7 or under the Aircrew Industrial Tribunal Act 1971 or under the Waterfront Industry Act 1976 or under the Coal Mines Act 1979, at any time after the 1st day ofJuly 1985, that certificate shall have effect for a period of 3 years from its date and- (a) If the certificate relates to a ballot that resulted in a union membership clause remaining or being inserted in any awards or collective agreements or other instruments, the union in respect of whose members the ballot was held may during those 3 years rely on the result of that ballot as requiring insertion of a union membership clause in any award or agreement binding that union under this Act; and (b) If the certificate relates to a ballot that resulted in no union membership clause being inserted in any awards or colfective agreements, or other instruments, the union in respect of whose members the ballot was held shall not during those 3 years be a party to an award or agreement that contains a union membership clause. (3) For the purposes of this section the expression "union membership clause" includes a "workers' organisation membership clause" within the meaning of section 2 of the Agricultural Workers Act 1977. (4) Every certificate of exemption from union membership issued by the Secretary of the Union Membership Exemption Tribunal under section 1120 of the Industrial Relations Act 1973 shall continue to have effect according to its tenor notwithstanding the repeal of that Act.
872. Ministerial powers-(I) Where the Minister has, before the date of commencement of this Act, called a compulsory conference under section 120 of the Industrial Relations Act 1973 and that conference has not been completed as at that date, the conference may continue as if this Act had not been passed. 1987, No. 77 Labour Relations 827
(2) W here the Minister has, before the date of commencement of this Act, appointed a committee of inquiry under section 121 of the Industrial Relations Act 1973 and that committee has not as at that date reported the results of its inquiry and its findings to the Minister, the committee may continue its inquiry as if this Act had not been passed. (3) Where the Minister has, before the date of commencement of this Act, requested a conciliator or mediator or other person to inquire into a dispute pursuant to section 125B of the Industrial Relations Act 1973 and the inquiry has not been completed as at that date, the person requested shall continue the inquiry as if this Act had not been passed. 878. Under-rate workers' pennits-Every permit to which section 113 of the Industrial Relations Act 1973 applies which was in force immediately before the commencement of this Act shall continue to have effect according to its tenor.
8-8 828 Labour Relations 1987, No. 77
SCHEDULES
Sec;tion 37 (2) FIRST SCHEDULE MAlTERS TO BE PROVIDED FOR IN RULES OF EACH UNION 1. NaJIle-The name of the union. 2. Membership rule-A description, as precise as possible, of- (a) The work to be included within the membership coverage of the union; and (b) The categories of workers who are to be eligible for membership of the union and the area or locality concerned. S. Admission to membership-Without limiting the discretion of a union to admit any person to membership and subject to clause 8 of this Schedule, the right of admission to membership of the union of any adult person who is working or is intending to work, within the area or locality specified in the membership rule, on work that places that worker within the category of workers specified in the membership rule. 4. Financial members-A definition of the term "financial member". 5. Register of members-A register of members containing, in respect of each financial member, the following information: (a) The member's full name: (b) The address of the member's workplace: (c) The member's occupation: (d) The award or agreement applicable to the member (if any): (e) The date on which the member joined the union. 6. Members outside scope of membership rule-The mode in which and the terms on which a person shall cease to be a member because that person is no longer within the scope of the membership rule. 7. Notice of discontinuance of membership-The mode in which and the terms on which persons shall cease to be members, so that no person shall be required to give more than 2 weeks' notice of the person's intention to discontinue membership and so that the resignation of a member shall not be effective, except by leave of the committee of management, until the member has paid all fees, subscriptions, fines, and levies payable by the member under the rules, and shall not exempt the member from liability in respect of any act or omission while the person was a member. 8. Expulsion-(1) The expelling of any members who are in arrear, for a period to be specified in the rules, in payment of any fee, subscription, fine, or levy payable under the rules, but so that this shall not free any such person from liability for the arrears due. (2) The other cases that constitute reasonable cause for expelling members from the union. 9. Election of oflicers-( 1) The election of a committee of management, a president, a secretary, and any other officers of the union 1987, No. 77 Labour Relations 829
FIRST SCHEDULE-continued or of any branch of it who are to have voting rights, and delegates to conferences of the union, and the removal of any of them, and the filling of vacancies. (2) The election, the removal, and the filling of vacancies to be done by secret postal ballot of the financial members of the union or branch, or by such other secret ballot or other means as may be approved by the Registrar as being sufficiently democratic (whether in relation to the method of constitution of the body to determine the matter (if applicable) or as to the method of determining the matter or both), having regard to the form of government of the union and any other relevant considerations. 10. Notice to members in resfect of election of officers-In the case of any ballot for the election 0 officers of the union or branch (other than a postal ballot), the giving of reasonable notice to each fmancial member of the union or branch (which notice may be given by individual notice or by appropriate advertising). The notice shall give both notice of the proposed ballot and details of the proposed election. 11. Eligibility for election as an officer-( 1) Subject to any provision of the rules that provides for any person to cease to be eligible for election as an officer of the union on attaining an age specified in the rules, for any person, whether a member of the union or not, to be eligible for election as an officer of the union. (2) Notwithstanding subclause (1) of this clause, a procedure to enable the union to remove from office any officer for disability, bankruptcy, or misappropriation of union funds. 12. Term of office of officers-Each officer of the union to hold office for a term to be specified in the rules in relation to the office, which term shall not, in relation to any office, exceed 5 years from the date of the ballot. 15. Powers and duties of cOlDDlittee and officers-( 1) The powers and duties of the committee of management and of the president and secretary and of any other officers. (2) The carrying on by the committee of management of its powers and functions, which shall include- (a) Deciding fmancial matters; and (b) Directing the policy of the union; and (c) Taking disciplinary action against members of the union. (3) The right to vote at meetings of the committee of management, which right shall be confined to elected officers of the union. 14. General and special meetings-The manner of calling general or special meetings of the union and of any branches, which manner shall include provision for any members (numbering not less than 10) of the union or branch to call, at their own expense, such a general or special meeting. 15. Notice of general and special meeting-The giving of reasonable notice of general or special meetings of the union to each fmancial 830 Labour Relations 1987, No. 77
FIRST SCHEDULE-continued member of the union (which notice may be given by individual notice or by appropriate advertising). 16. Ballots-The manner of conducting a ballot (other than an election or a union membership ballot) at a meeting of the union and the procedures to be followed at any such meeting in relation to any such ballot. 17. Procedures in respect of disputed ballots-The procedures to be adopted by the members of the union where the result of a ballot (other than a ballot required by any provision of this Act) is disputed. 18. Q.uorum-The quorum at any general or special meeting of the union, the powers of a general or special meeting of the union, and the manner of voting. 19. Supply of rules to new members-The supplying of a copy of the rules of the union as for the time being amended to any person who joins the union, which copy shall be supplied by the union forthwith and without charge. 20. Supply of amendments to rules to financial members-The supplying of a copy of any amendment made by the union to its rules to each financial member of the union, which copy shall be supplied by the union without charge within 30 days after the day on which the amendment is made. 21. Supply of annual report to financial members-The supplying of one copy of the union's annual report to each financial member of the union who requests a copy of it. 22. Supply of annual accounts and auditor's certificate-The supplying of one copy of the latest income and expenditure account and balance sheet, together with the auditor's report on the accounts, to each financial member of the union who requests a copy of that account and balance sheet. 221. Supply of copies of resolutions-The supplying of one copy of any resolution passed at any general or special meeting of the union or at any meeting of the committee of management of the union to each financial member who requests a copy of that resolution. 24. Seal-The custody and use of the seal, including power to alter or renew it. 25. Execution of instruments-The mode in which agreements and any other legal documents shall be made and executed on behalf of the union, and the manner in which the union shall be represented in any formal proceedings. 26. Audit-An annual or more frequent periodical audit of the accounts in accordance with the provisions of this Act. 27. Inspection of accounting records and registers-The inspection of the accounting records and of the register of officers and of the register 1987, No. 77 Labour Relations 831
FIRST SCHEDULE-continued of members by every member or previous member having an interest in the funds. 28. Cancellation of registration-Subject to audit in accordance with this Act, the disposal of the property of the union upon cancellation of registration. 29. Restriction on voluntary cancellation of registration of union-A procedure requiring the union not to apply to the Registrar of Unions for the voluntary cancellation of the registration of the union unless- (a) The union has first sent to each financial member of the union written notice of its intention to make the application; and (b) No objections are received or a majority of the financial members of the union support the application. 50. Other matters required to be included-Any matter that is for the time being deemed or required by this Act or any other Act to be included in the rules. 51. Power to amend or repeal-The procedure for the amendment or repeal of the rules which must include provisions for a ballot or a conference of delegates, but so that the requirements of this Act shall always be provided for. st. Other matters-Any other matter not contrary to law.
SECOND SCHEDULE Section 37 (3) MATTERS TO BE PROVIDED FOR IN RULES OF EACH EMPLOYERS ORGANISATION 1. N ame-The name of the employers organisation. 2. Membership rule-A description of the categories of employers who are to be eligible for membersbip of the employers organisation and the area or locality concerned. S. Admission to membership-The modes in which persons become members of the employers organisation. 4. Cessation of membership-The modes in which persons cease to be members of the employers organisation. 5. Election or appointment of officers-'f.he election or the appointment of a committee of management, a president, a secretary, and any other officers of the employers organisation or of any branch of it, and delegates to conferences of the employers organisation, and the removal of any of them, and the filling of vacancies. 6. Powers and duties of committee and officers-The powers and duties of the committee and of the president and secretary and of any other officers. 832 Labour Relations 1987, No. 77
SECOND SCHEDULE-continued 7. General and special meetings-The marmer of calling general or special meetings of the employers organisation and of any branches, the quorum at any such meeting, its powers, and the marmer of voting. 8. Seal-The custody and use of the seal, including power to alter or renew it. 9. Execution of instruments-The mode in which agreements and any other legal documents shall be made and executed on behalf of the employers organisation, and the marmer in which the employers organisation shall be represented in any formal proceedings. 10. Audit-An armual or more frequent periodical audit of the accounts in accordance with the provisions of this Act. 11. Impection of accounting records and registers-The inspection of the accounting records by every member or previous member having an interest in the funds. 12. Cancellation of registration-Subject to audit in accordance with this Act, the disposal of the property of the employers organisation upon cancellation of registration. 18. Other matters required to be included-Any matter that is for the time being deemed or required by this Act or any other Act to be included in the rules. 14. Power to amend or repeal-The procedure for the amendment or repeal of the rules, but so that the requirements of this Act shall always be provided for. 15. Other matters-Any other matter not contrary to law.
Section 55 THIRD SCHEDULE PROCEDURE IN RELATION TO SPECIAL VOTING 1. Special voting-(I) Any person eligible to vote in a secret ballot of all persons eligible to vote who are present at a special meeting called for the purpose by the committee of management of a union (being a ballot required by this Act and conducted pursuant to the rules of the union or in accordance with this Act) may apply to the Returning Officer in the prescribed form for a special vote. (2) The application shall be made at least 14 days before the day of the special meetmg at which the ballot is to be held. 2. Cireumstances in which ballot paper for special votes must be issued-The Returning Officer shall issue a ballot paper to the applicant if the applicant- (a) Is wholly or partially blind; or (b) Is unable to read or write (whether because of physical handicap or otherwise); or (c) Has severe difficulty in reading or writing; or 1987, No. 77 Labour RelatioTIJ 833
THIRD SCHEDULE-continued (d) Is so ill or so infirm that attendance to vote at the meeting is precluded; or (e) Is a woman and is unable to attend to vote at the meeting by reason of pregnancy or recent childbirth. s. Circumstances in which ballot paper for special votes may be issued-The Returning Officer may issue a ballot paper to the applicant if- (a) The applicant has a religious objection to voting on the day of the week on which the meeting is to be held; or (b) The employer of the applicant requires the applicant to work during the bours when the special meeting is to be held; or (c) The Returning Officer is satisfied that on any other grounds attendance to vote at the special meeting will cause the applicant hardship or undue inconvenience. 4. Circumstances in which application for special vote may be refused-The Returning Officer may refuse an application on any of the grounds specified in clause 3 of this Schedule if more than one special meeting is to be held to vote on the ballot and there is another meeting the applicant could reasonably attend. 6. Time for issue and return of ballot paper-Every ballotJaper issued to an applicant so that the applicant may exercise a speci vote shall be issued at least 7 clear days before the day of the meeting, and the Returning Officer shall, at the time of the issue of the vote, inform the applicant of the time by which it must be returned, which time shall be no later than noon on the day of the special meeting or of the last special meeting in the case of a series of special meetings.
FOURTH SCHEDULE Section 63 (2) (b) OBUGATORY RULES CONCERNING UNION MEMBERSHIP CLAUSES I. Type of ballot in relation to insertion of union membership clause-( 1) Where the union decides to conduct a ballot for the purpose of determining whether a union membership clause is to be inserted in an award or agreement, the committee of management- (a) Shall decide which type of ballot is to be conducted; and (b) Shall ensure that written notice of both the intention to conduct the ballot and the type of ballot is given or posted to all adult workers who are members of the union and who would, if not already members of the union and if requested by the union, be required to become members of the union if the union membership clause were inserted in the award or agreement; and (c) Shall appoint a Returning Officer and such other officials as are required for the purposes of the ballot. (2) The ballot shall be either- (a) A secret ballot of all persons eligible to vote who are present' at a special meeting or at a series of special meetings called for the purpose by the committee of management of the union; or (b) A secret postal ballot of the persons eligible to vote. 834 Labour Relations 1987, No. 77
FOURTH SCHEDULE-continued (3) The persons eligible to vote in the ballot shall be the adult workers who will, if the union membership clause is inserted in the award or agreement and if the union so requests, be required to become or remain members of the union. 2. Steps to be taken before ballot-( 1) In the case of a postal ballot, the Returning Officer shall send to every person eligible to vote in the ballot- (a) A ballot paper; and (b) Written voting and mailing instructions, including reference to special voting procedures; and (c) Written notice of the date and time by which ballot papers must be received by the Returning Officer. (2) In the case of a meetings-based ballot, the Returning Officer shall send to every person eligible to vote in the ballot- (a) Written voting instructions, including reference to special voting procedures; and (b) Written notice of the venue, date, and time of the special meeting or series of special meetings. (3) The Returning Officer shall comply with subclause (1) or subclause (2) of this rule, as the case may be, in reasonable time before the date by which ballot papers must be received by the Returning Officer or before the date of the first of the special meetings. (4) Nothing in this rule prevents the Returning Officer issuing a ballot paper to any person who loses or destroys a ballot paper. S. Conduct of ballot-Every union membership ballot shall be supervised by the Registrar of Unions, or by some person being an employee of the Department of Labour designated by the Registrar in that behalf. 4. Roll-The union shall at its own expense supply the Registrar of Unions with a roll (being a roll which in the opinion of the Registrar, having regard to the circumstances, is reasonably complete) containing the correct names of the persons entitled to vote, and, in the case of such of those persons as are not members of the union, their postal addresses. 5. Obligation to give notice of ballot to workers within award coverage-The Returning Officer shall take all reasonably practicable steps (which steps shall include newspaper advertising) to ensure that all of the workers who are not members of the union but who are covered by the award or agreement are notified at least 14 days before the date of the ballot of- (a) The type of ballot; and (b) The fact, date, and, where appropriate, venue of the ballot; and (c) The procedure by which they may obtain an entitlement to vote in the ballot. 6. Right to make application for authority to vote-Every worker who is not a member of the union but who is covered by the award or agreement and wishes to vote in the ballot shall submit to the Returning Officer an application for authority to vote, which application shall be in 1987, No. 77 Labour Relations 835
FOURTH SCHEDULE-continued the form prescribed under the Labour Relations Act 1987 and shall specify- (a) The worker's full name and address; and (b) The full name and address of the worker's employer; and (c) The work the worker performs for the worker's employer; and (d) The activity carried on by the worker's employer. 7. Returning Officer's obligation to give notice of eligibility to applicant-Where the Returning Officer receives before the ballot an application for authority to vote, the Returning Officer shall inform the applicant, before the ballot, whether or not in the Returning Officer's opmion the applicant is entided to vote in the ballot. 8. Returning Officer's obligation to give reasons-Where the Returning Officer informs any applicant that the applicant is not entitled to vote in the ballot, the Retummg Officer shall at tbe same time inform the applicant of the reasons for the Returning Officer's opinion. 9. Directions to Returning Officer and other officials-The Returning Officer and other officials shall comply with any directions given to them by the Registrar of Unions or the person, being an employee of the Department of Labour, designated by the Registrar of Unions to supervise the ballot.
FIFTH SCHEDULE Sections 103 (3), 104 CONDUcr OF UNION COVERAGE BAlLOTS 1. Roll-The roll of persons eligible to vote in a union coverage ballot shall be compiled by the Registrar of Unions or designated person. 2. Union's list of persons eligible to vote-( 1) The union making the application under section 103 of this Act shall at its own expense, in response to a written request from the Registrar of Unions or designated person, and by such date (being not more than 2 months after the date on which the request is given to the union or group) as specified by the Registrar of Unions or designated person in that request, provide a list containing as far as is reasonably practicable the correct names and postal addresses of all persons who are eligible to vote. (2) Any such application shall lapse if such a list is not provided in the 2· month period. s. Checking of lists-For the purpose of checking any such list or of ascertaining any other persons entitled to vote, the Registrar of Unions or designated person may, at any reasonable time during ordinary working hours,- (a) Require a union or any officer of a union or an employer to produce for inspection any registers, records, accounts, books, or papers that are kept by the union or employer; and (b) Inspect and make records or take copies of any such registers, records, accounts, books, or papers; and 836 Labour Relations 1987, No. 77
FIFTH SCHEDULE-continued (c) For the purposes of making copies thereof, if no copies can be obtained on the premises, take possession of and remove from the premises where they are kept, for such period of time as is reasonable in the circumstances, any such registers, records, accounts, books, or papers. 4. Provisional roll-The Registrar of Unions or designated person shall compile a provisional roll and for that purpose may adopt the list supplied by the union with such amendments (if any) as the Registrar of Unions or designated person thinks fit. 5. Advertising-For the purpose of ensuring the completeness of the roll the Registrar of Unions or designated person may, in the Registrar's or designated person's discretion, advertise tbat the roll is being compiled. 6. Inspection of provisional roll-(I) The provisional roll shall be available for inspection at such convenient places as the Registrar of Unions or designated person directs for at least 10 working days. (2) AnYlerson may inspect the provisional roll at any time between 9 a.m. an 4 p.m. on any working day on which the provisional roll is available for inspection. (3) The Registrar of Unions or designated person shall give notice to each union affected by the ballot unaer section 104 of this Act of the working days on which, and the places at which, the provisional roll is to be open for inspection. 7. Closing of roll-When the period during which the provisional roll is available for inspection has ended and tlie Registrar of Unions or designated person is of the opinion, having regard to the circumstances, that the roll is reasonably complete, the Registrar of Unions or designated person shall declare it closed and it shall then be used for the purposes of the ballot. 8. Type of ballot- (1) Every union coverage ballot shall be either- (a) A secret ballot of all persons eligible to vote who are present at a special meeting or at a series of special meetings called for the purpose; or (b) A secret postal ballot of the persons eligible to vote. (2) The persons eligible to vote shall be the members of the union who are within the category or categories of workers to which the application under section 103 (1) of this Act relates. 9. Steps to be taken before ballot-(I) In the case of a postal ballot, the RegIStrar of Unions or designated person shall send to every person eligible to vote in the ballot- (a) A ballot paper; and (b) Written votin~ and mailing instructions, including reference to special votmg procedures; and (c) Written notice of the date and time by which ballot papers must be received by the Registrar or designated person. (2) In the case of a meetings· based ballot, the Registrar of Unions or designated person shall send to every person eligible to vote in the ballot- 1987, No. 77 Labour Relations 837
FIFTH SCHEDULE-continued (a) Written voting instructions, including reference to special voting procedures; and (b) Written notice of the venue, date, and time of the special meeting or series of special meetings. (3) The Registrar or designated person shall comply with subclause (1) or subclause (2) of this clause, as the case may be, in reasonable time before the date by which ballot papers must be received by the Registrar or designated person or before the date of the first of the special meetings. (4) Nothing in this rule prevents the Registrar or designated person issuing a balfot paper to any person who loses or destroys a ballot paper. 10. Power to detennine procedure-Subject to this Act and to any regulations made under this Act, every union coverage ballot shall be conducted in such manner as the Registrar of Unions or designated person thinks fit. 11. Certificate of result-( 1) The Registrar of Unions or designated person shall, at the conclusion of the union coverage ballot, issue a certificate showing the result of the ballot, which certificate shall show in relation to each union,- (a) The number of votes in favour of the proposal: (b) The number of votes against the proposal: (c) The number of informal votes. (2) The Registrar of Unions- (a) Shall give one copy of the certificate to each union affected by the application; and (b) Shall make a copy of that certificate available for inspection by each voter or other person having a direct interest in the result of the ballot. (3) The certificate issued under subclause (1) of this clause shall be conclusive evidence of the result of the ballot. 12. Retention of ballot papers, etc.-The Registrar of Unions shall retain all ballot papers, envelopes, lists, and other documents used in connection with or relating to the union coverage ballot for at least one year from the date on which voting in the ballot closed and, if an inquiry is required into the ballot, for at least 1 month after the inquiry is determined. 15. Expenses-The expenses incurred by the Registrar of Unions or designated person in connection with the conduct of the ballot (including those incurred in connection with the compilation of the roll) shall be paid by the union that made the application under section 103 of this Act. H. Prevention of irregularities-Notwithstanding anything in the rules of the union, the Registrar of Unions may take such action and give such directions as the Registrar of Unions considers necessary to prevent the occurrence of any irregularity in or in connection with the ballot. 15. Meaning of "designated person"-In this Schedule the term "designated person" means any person designated under section 104 of this Act to conduct a union coverage ballot on behalf of the Registrar of Unions. 838 Labour Relatwns 1987, No. 77
Section 187 (1) SIXTH SCHEDULE CLAUSES TO BE INSERTED IN AWARDS AND AGREEMENTS IN RELATION TO DISPUTES OF RIGHTS Procedure in Relatwn to Disputes of Rights 1. Application of procedure-The procedure set out in clauses .... to .. .. of this award (or agreement) shall apply to a dispute of rights between any or all of the parties bound by this award (or agreement).
2. Persons who may invoke procedure-Either the worker's union or the employers organisation or the employer or employers who are parties to any such dispute may invoke the procedure.
S. Disputes committee-The person or persons who invoke the procedure shall refer the dispute to a committee consisting of an equal number of representatives aPl>ointed respectively by each of the 2 parties to the dispute, together Wlth an independent person to chair the committee.
4. Person in the chair-The committee shall be chaired by- (a) A person (who may be a mediator) mutually agreed upon by the parties; or (b) If there is no such agreement, a mediator or a person appointed by a mediator.
6. Decisions of disputes committee-( 1) A decision reached by a majority of the committee (not including the person chairing the committee) shall be the decision of the committee; but if those members of the committee are equally divided in opinion, the person chairing the committee may either- (a) Make a decision, which shall then be the decision of the committee; or (b) Refer the dispute forthwith to the Labour Court to be heard and determined. (2) The person chairing the committee shall record the decision of the committee in writing. (3) The person chairing the committee shall give a copy of the committee's decision to each of the following persons: (a) The parties to the dispute: (b) The Chief Mediator: (c) The central organisations: (d) The Secretary of Labour. (4) Subject to the right of appeal conferred by clause 6, the decision of the committee shall be binding on the parties to the dispute.
6. Limited right of appeal-( 1) Where the decision of the committee is a decision made by the person chairing the committee, any party may appeal to the Labour Court against that decision or any part of it by lodging with the Registrar of the Labour Court, within 14 days after the 1987, No. 77 Labour Relations 839
SIXTH SCHEDULE-continued date on which the decision is made known to the appellant, a written notice of appeal. (2) Either before or immediately after the lodging of the notice of appeal, the appellant shall give a copy of the notice of appeal to every oilier party to the appeal and to the person who chaired the committee. (3) Every notice of appeal shall specify the decision or the part of the decision to which the appeal relates.
SEVENTH SCHEDULE Section 215 (1) CLAUSES TO BE INSERTED IN AWARDS AND AGREEMENTS IN RELATION TO SElTLEMENT OF PERsoNAL GRIEVANCES 1. Settlement of personal grievances-A personal grievance of any worker bound by this award (or agreement) shall be settled in accordance with the procedure set out in clauses ... to ... of this award (or agreement). 2. Submission of grievance to employer-(I) Any worker who considers that he or she has grounds for a personal grievance may submit the grievance to the employer or a representative of the employer. (2) The grievance shall be so submitted as soon as practicable after the grievance has arisen so as to enable the employer to remedy the grievance rapidly and as near as possible to the point of origin. s. Notice to union-Where- (a) The grievance so submitted is not remedied by the employer; or (b) The grievance is of such a nature that direct discussion between the worker and the employer or a representative of the employer is regarded by the worker as inappropriate,- the worker may request the union to pursue resolution of the grievance. 4. Discussion between union and employer-Where the union considers that the personal grievance has substance, it shall forthwith take the matter up with the employer or a representative of the employer with a view to reaching a settlement of the grievance. 5. Union's written statement-If the grievance is not settled in discussion between the union and the employer, the union shall promptly give to the employer a written statement setting out- (a) The nature of the grievance; and (b) The facts giving rise to the grievance; and (c) The remedy sought. 6. Employer'S response-If the employer is not prepared to grant the remedy sought, and the parties have not otherwise settled the grievance, the employer shall, not later than the 14th day after the day on which the employer receives the union's written statement, give to the union a written response setting out- (a) The employer's view of the facts; and (b) The reasons why the employer is not prepared to grant the remedy sought. 840 Labour Relations 1987, No. 77
SEVENTH SCHEDULE-continued 7. Grievance conunittee-(l) If the union is not satisfied with the employer's written response, it may call for the setting up of a grievance committee. (2) The method of setting up the grievance committee shall be decided by the parties. (3) Where both parties are willing to participate in the setting up of the grievance committee, it shall consist of- (a) An equal number of representatives (not exceeding 3) nominated respectively by the union and the employer; and (b) A person to chair the committee, who shall be either a person mutually agreed on by the parties or a mediator or other person appointed by a mediator. (4) Where the employer fails to appoint any representative or acts in such a way that the grievance committee cannot be established in accordance with subclause (3) of this clause, the grievance committee shall consist of- (a) A representative or representatives (not exceeding 3) nominated by the union; and (b) A person to chair the committee, who shall be either a mediator or a person appointed by a mediator. 8. Written evidence-When a grievance committee has been set up, the union shall ensure that copies of the union's written statement and tlie employer's written response (if any) are placed before the committee. 9. Role of conunittee-( 1) The grievance committee shall proceed to hear and determine the grievance and, in doing so, shall consider (a) The union's written statement (if any); and (b) The employer's written response (if any); and (c) Any evidence given by or on behalf of the parties or the worker. (2) The grievance committee may at any stage during the hearing of a grievance call for independent expert advice (including, where appropriate, advice from the Human Rights Commission) on any matter raised before it but in such a case the committee shall ensure that the parties hear or are informed of that advice and are each given an opportunity to respond to it. 10. R.epresentation-The employer may be assisted or represented before the grievance committee by an employers organisation. 11. Method of decision-( 1) A decision reached by a majority of the grievance committee (not including the person chairing the committee) shall be the decision of the committee; but if the members of the committee (other than the person chairing the committee) are equally divided in opinion, the person chairing the committee may either- (a) Make a decision, which shall then be the decision of the committee; or (b) Refer the grievance forthwith to the Labour Court for settlement. 12. R.ecord of proceedings-( 1) The person chairing the grievance committee shall record in writing- (a) Where the committee has made a decision, the decision of the committee; or 1987, No. 77 Labour Relatwns 841
SEVENTH SCHEDULE-continued (b) Where the grievance has been referred to the Labour Court, a report of the proceedings of the committee. (2) Every such written decision and written report shall set out (a) The facts of the grievance: (b) The issues involved in it: (c) Where appropriate, the actual decision of the committee. 13. Copies of decision-(I) The person chairing the committee shall give a copy of the committee's written decision to (a) The parties: (b) The worker: (c) The Chief Mediator: (d) The central organisations: (e) The Secretary of Labour. (2) The person chairing the committee may, before giving a copy of the committee's decision to any person under subclause (1) of this clause, make such deletions or alterations to the copy as the person chairing the committee considers necessary to protect the privacy of any person. 14. Effect of decision-Subject to the exercise of any right of appeal, the decision of the grievance committee shall be binding on the parties and the worker. 15. Right of appeal-(I) Subject to the provisions of the next succeeding clause, where the decision of the grievance committee is a decision of the person chairing the committee, any party may appeal to the Labour Court against that decision or any part of it by lodging with the Registrar of that Court, within 14 days after the date on which the decision is made known to the appellant, a written notice of appeal. (2) Either before or immediately after the lodging of the notice of appeal, the appellant shall give a copy of the notice of appeal to the other party, to the worker, and to the person who chaired the committee. (3) Every notice of appeal shall specify the decision or the part of the decision to which the appeal relates. 16. Restriction on right of appeal-(I) Where- (a) The union or the employer has failed to comply in any material respect with the procedure applicable under these clauses in respect of the settlement of the personal grievance; or (b) The employer has failed to comply with a request under section 225 of the Labour Relations Act 1987 for the written reasons for the worker's dismissal,- the union or employer at fault may appeal against the decision of the grievance committee only with the leave of the Labour Court. (2) Leave to appeal may be given subject to such conditions as the Labour Court thiriks fit. 17. Record for Labour Court-Where a personal grievance is placed before the Labour Court, whether by a reference or on appeal, the person who chaired the grievance committee shall, as soon as practicable, lodge with the Registrar of the Labour Court- (a) A copy of the union's original written statement and of the employer's written response (if any); and 842 Labour Relations 1987, No. 77
SEVENTH SCHEDULE-continued (b) A copy of the record of proceedings, being either- (i) A copy of the written decision of the committee; or (ii) A copy of the written report of the committee's proceedings. (2) In any case the Labour Court may at any time direct the person who chaired the committee to lodge with the Labour Court a report in addition to the written record of proceedings. (3) A copy of every record or report lodged with the Labour Court under this clause shall be supplied forthwith by the person who chaired the committee to the parties and the worker.
18. Decision of Labour Court-Subject to section 312 of the Labour Relations Act 1987, the decision of the Labour Court on any personal grievance placed before it under this procedure shall be final and conclusive.
Section 235 EIGHTH SCHEDULE EsSENTIAL SERVICES Part A 1. The production, processing, or supply of manufactured gas or natural gas (including liquefied natural gas). 2. The production, processing, distribution, or sale of petroleum, whether refined or not. 3. The production or supply of electricity. 4. The supply of water to the inhabitants of any borough or other place. 5. The disposal of sewage. 6. The work of any fire brigade within the meaning of the Fire Service Act 1975 (but excluding the work performed by members of volunteer fire brigades). 7. The provision of all necessary services in connection with the arrival, berthing, and departure of ships at any port. 8. The operation of any service for the carriage of passengers or goods by water between the North Island and South Island. 9. The operation of any air transport service, being any service by aircraft for the public carriage of passengers or goods for hire or reward (but excluding an air topdressing service). 10. The operation of any ambUlance service for sick or injured persons. 11. The operation of a hospital within the meaning of the Hospitals Act 1957 (mcluding a licensed hospital within the meaning of Part V of that Act) or of a psychiatric hospital within the meaning of the Mental Health Act 1969 or of any service necessary for the operation of such a hospital or psychiatric hospital. 12. The manufacture or supply of surgical and dialysis solutions. 13. The manufacture or supply of any medicine which is specified in the direction known as the Drug Tariff (given pursuant to section 99 of th(! Social Security Act 1964) and which is described in that Tariff as being available only on the prescription of a practitioner. 14. The operation of any welfare institution or prison. 1987, No. 77 Labour Relations 843
EIGHTH SCHEDULE-continued 15. The production of butter or cheese or of any other product of milk or cream and the processing, distribution, or sale of milk, cream, butter, or cheese or of any other product of milk or cream. Part B The slaughtering of meat for the domestic or export market.
NINTH SCHEDULE Section 319 LABOUR DISTRICTS The Northern Labour District ALL that area bounded by a line commencing at a point in the middle of the mouth of the Monu River; thence proceeding northerly, north westerly, easterly, and south· easterly generally along the sea coast, crossing the mouths of all harbours and inlets, to the thirty·ninth parallel of south latitude; thence westerly along the thirty·ninth parallel of south latitude to its intersection with the middle of the Wanganui River; thence north-easterly along a right line to the source of the Monu River; thence down the middle of the Monu River to its mouth, being the point of commencement; including all adjacent islands. The Taranaki Labour District All that area bounded by a line commencing at a point in the middle of the mouth of the Monu River; thence proceeding up the middle of the Monu River to its source; thence south-westerly along a right line to the intersection of the middle of the Wanganui River with the thirty-ninth parallel of south latitude; thence down the middle of the Wanganui River to its confluence with the Pakikau Stream (formerly known as Kowere or Kowhere) at the eastern boundary of Block VIII, Omara Survey District; thence south-westerly along a right line to the middle of the mouth of the Patea River; thence north· westerly and north-easterly generally along the sea coast to the middle of the mouth of the Monu River, the point of commencement. The Wellington Labour District All that area bounded by a line commencing at the intersection of the middle of the Wanganui river with the thirty-ninth parallel of south latitude; thence proceeding easterly along that parallel of latitude to its intersection with the sea coast; thence south-westerly, westerly, and northerly generally along the sea coast, crossing the mouths of all harbours and inlets, to the middle of the mouth of the Patea River; thence north easterly along a right line to the confluence of the Pakikau Stream (formerly known as Kowere or Kowhere) with the Wanganui River; thence up the middle of the Wanganui River to its intersection with the thirty Il1Ilth parallel of south latitude, being the point of commencement; including all adjacent islands. The Nel50n Labour District All that area bounded by a line commencing at Cape Farewell and proceeding south·easterly and north-easterly generally along the sea coast 844 Labour Relations 1987, No. 77
NINTH SCHEDULE-continued to Pelorus Sound; thence along the generally north·western shore of Pelorus Sound and the shore ofElaine Bay in Tennyson Inlet to Red Point; thence south·westerly to and along the leading ridge to Boundary Trig, and along the summit of the range through Mount McLaren, McLaren Peak, Editor Hill, Elliott Peak., Castor Peaks, Mount Duppa, Saddle Hill, Maungatapu, Mount Stewart, Slaty Peak, Old Man Peak., Mount Rintoul, Bishops Cap, Ward Pass, Chrome Peak, and Top House Saddle to and along the summits of Saint Arnaud Range and Spenser Mountains to Mount Humboldt; thence north-westerly along a right line to the confluence of Eight Mile or Boundary Creek with the Buller River; thence northerly to and along the leading ridge to Bald Hill; thence north-easterly generally along the summits of the Lyell, Marine, and Tasman Ranges through Wangapeka Saddle and Mount Luna to Mount Arthur; thence north-westerly along the summit of the Tasman Range through Pyramid and Gordon peaks, Mount Peel, and Aoere Peak to Mount Domett and along the northern watershed or Kohaihai River to Mount Barr; thence south-westerly generally along the western watershed of Kohaihai River and a leading ridge to Kohaihai Bluff; thence north-easterly along the sea coast to Cape Farewell, being the point of commencement; including D'UrviIle Island and its adjacent islands, Stephens Island, Trio Islands, Maud Island, Tawhitinui Island, and all other adjacent islands. The Marlborough Labour District All that area bounded by a line commencing at Red Point at the southern extremity of Elaine Bay in Tennyson Inlet; thence proceeding in a generally easterly and southerly direction along the sea coast to the mouth of the Clarence River; thence up the middle of the Clarence River to Lake Tennyson; thence north·westerly along a right line to Mount Humboldt, being a point on the boundary of the Nelson Industrial District hereinbefore described; thence north-easterly along the boundary of that district to Red Point, being the point of commencement; including Tarakaipa Island, Chetwode Islands, Forsyth Island, Motuara, Long Island, Oruawairau Island, Arapawa Island, the Brothers, and all other adjacent islands. The We5tland Labour District All that area bounded by a line commencing at Kohaihai Bluff in Block XIII, Whakapo Survey District, being a point on the boundary of the Nelson Industrial District, hereinbefore described; thence proceeding generally easterly and southerly along the boundary of the district to Mount Humboldt; then south-westerly along the summits of the Spenser Mountains and the Southern Alps to Mount Aspiring; thence westerly along a right line to the mouth of the Awarua River; thence north-easterly along the sea coast to Kahaihai Bluff, being the point of commencement. The Canterbury Labour District All that area bounded by a line commencing at the summit of Mount Humboldt in the Spenser Mountains, thence proceeding south-easterly along a right line to the middle of the outlet of Lake Tennyson; thence down the middle of the Clarence River to its mouth; thence south-westerly generally along the sea coast, crossing the mouths of all harbours and inlets, to the mouth of the Waitaki River; thence up the middle of the 1987, No. 77 Labour Relations 845
NINTH SCHEDULE-continued Waitaki River to its source at Lake Ohau; thence westerly along a right line to the summit of Mount Aspiring; thence north· easterly generally along the summits of the Southern Alps and Spenser Mountains to Mount Humboldt, being the point of commencement; including all adjacent islands and the Chatham Islands.
The Otago and Southland Labour District All that area bounded by a line commencing at the mouth of the Awarua River; thence proceeding easterly along a right line to the summit of Mount Aspiring and a right line to the outlet of Lake Ohau; thence down the middle of the Waitaki River to its mouth; thence south·westerly, westerly, and north· easterly generally along the sea coast, crossing the mouths of all harbours and inlets, to the mouth of the Awarua River, the point of commencement; including all adjacent and outlying islands and Stewart Island.
TENTH SCHEDULE Section 358 (1) ENACfMENTS REPEALED 1971, No. 5-The Aircrew Industrial Tribunal Act 1971. 1973, No. 19-The Industrial Relations Act 1973. (R.S. Vol. 14, p. 221.) 1974, No. 89-The Industrial Relations Amendment Act 1974. (R.S. Vol. 14, p. 384.) 1975, No. 80-The Industrial Relations Amendment Act 1975. (R.S. Vol. 14, p. 384.) 1976, No. 7-The Industrial Relations Amendment Act 1976. (R.S. Vol. 14, p. 385.) 1976, No. 63-The Industrial Relations Amendment Act (No. 2) 1976. (R.S. Vol. 14, p. 385.) 1977, No. 107-The Aircrew Industrial Tribunal Amendment Act 1977. 1977, No. 108-The Industrial Relations Amendment Act 1977. (R.S. Vol. 14, p. 389.) 1978, No. 40-The Industrial Relations Amendment Act 1978. (R.S. Vol. 14, p. 398.) 1978, No. 42-The Aircrew Industrial Tribunal Amendment Act 1978. 1979, No. 32-The Aircrew Industrial Tribunal Amendment Act 1979. 1979, No. 61-The Fishing Industry (Union Coverage) Act 1979. 1979, No. 141-The Industrial Relations Amendment Act 1979. (R.S. Vol. 14, p. 399.) 1980, No. 116-The Industrial Relations Amendment Act 1980. (R.S. Vol. 14, p. 400.) 1981, No. 131-The Industrial Relations Amendment Act 1981. (R.S. Vol. 14, p. 401.) 1982, No. 136-The Aircrew Industrial Tribunal Amendment Act 1982. 1982, No. 180-The Industrial Relations Amendmentt Act 1982. (R.S. Vol. 14, p. 403.) 1983, No. 105-The Industrial Relations Amendment Act 1983. (R.S. Vol. 14, p. 404.) 1983, No. 107-The Aircrew Industrial Tribunal Amendment Act 1983. 1984, No. 2-The Whangarei Refinery Expansion Project Disputes Act 1984. 846 Labour Relations 1987, No. 77
TENTH SCHEDULE-continued 1984, No. 12-The Industrial Relations Amendment Act 1984. 1984, No. 14-The Aircrew Industrial Tribunal Amendment Act 1984. 1985, No. 101-The Industrial Relations Amendment Act 1985. 1985, No. 108-The Aircrew Industrial Tribunal Amendment Act 1985. 1985, No. 138-The Industrial Relations Amendment Act (No. 2) 1985.
Section 358 (2) ELEVENTH SCHEDULE REGULATIONS, ORDERS, AND NOTICES REVOKED
Statutory Title Regulations seruil Number
The Industrial Districts Notice 1954 1954/221 The Industrial Districts Notice 1954, Amendment No. 1 1970/196 The Industrial Relations Act Commencement Order 1974 1974/50 The Industrial Relations Regulations 1974 .. 1974/51 The Industrial Relations Regulations 1974, Amendment No. 1 1978/150 The Aircrew Industrial Tribunal Amendment Act Commencement Order 1978 1978/166 The Industrial Relations Regulations 1974, Amendment No. 2 1982/268 The Aircrew Officers (Union Membership) Regulations 1985 1985/156 The Industrial Relations Regulations 1974, Amendment No. 4 1985/162 The Industrial Relations (Related Industries) Notice 1985 1985/179 The Industrial Relations Regulations 1974, Amendment No. 5 1985/309
This Act is administered in the Department of Labour.