Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

RULES OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION (AMENDMENT) 1992 NO.391

STATUTORY RULES 1992 No. 391

Amendment of the Rules of the Australian Industrial Relations Commission

(Issued by the Authority of the President of the Australian Industrial Relations Commission)

Section 48 of the Australian Industrial Relations Act 1988 (the Act) authorises the making of rules of the Australian Industrial Relations Commission (the Commission).

Under subsection 48(1) of the Act the President of the Commission by signed instrument, after consultation with members of the Commission, may make rules, not inconsistent with the Act, with respect to:

(a)       the practice and procedure to be followed in the Commission; or

(b)       the conduct of business in the Commission;

and in particular:

(c)       the manner in which, and the time within which, applications, submissions and objections may be made to the Commission; and

(d)       the manner in which applications, submissions and objections may be dealt with by the Commission.

A number of amendments are required to the Rules. Substantive amendments are necessary to reflect new provisions inserted in the Act by the Industrial Relations Legislation Amendment Act 1992. Other technical and drafting alterations are also necessary.

The President of the Commission, after consultation with members of the Commission, has made amendments to the Rules to the following effect:

Rule 1 provides for the amendment of the Rules.

Rule 2 inserts new rule 2A which defines, for the purposes of the Rules, "Act" as the Australian Industrial Relations Act 1988 and "Regulations" as the Industrial Relations Regulations.

Rule 3 amends rule 4 to reflect current drafting practice and insert a new subrule 4(1A) setting out the requirements for an application where there is no form provided within the Industrial Relations Regulations or otherwise in the Rules.

Rule 4 replaces subrule 7(1) to reflect current drafting practice and provides a procedure, in subrule 7(2), to be followed where the Commission acts of its own initiative under paragraph 134M(2)(a) of the Act.

Rule 5 replaces rule 8 and provides that where, in accordance with section 37, the President has assigned an industry to a panel or panels of members under section 37 of the Act, the assignment must be recorded in writing and kept by the Industrial Registrar. New subrule 8(2) provides that where the President has assigned a Presidential member to the Vice President's panel in accordance with section 38 of the Act, that assignment must be recorded in writing and kept by the Industrial Registrar.

Rule 6 makes a number of amendments to rule 10, including some minor amendments to reflect current drafting practice.

Subrule 6.2 amends paragraph 10(1)(a) of the Rules to reflect new paragraph 45(1)(ea) of the Act which provides for an appeal to a Full Bench against an opinion formed by a member of the Commission under section 127A of the Act.

Subrule 6.3 amends paragraph 10(1)(d) of the Rules to provide a procedure for an appeal, under section 45(1)(ea) of the Act, to a Full Bench against an opinion formed by a member of the Commission under section 127A of the Act.

Subrule 6.4 amends subrule 10(2) to specify that an application for an extension of time to institute an appeal must be dealt with by a Full Bench of the Commission. In addition, new subrule 10(2A) is inserted, requiring an application for an extension of time in which to institute an appeal to be made in accordance with the approved form. The approved form is Form R1A in the Schedule to the Rules.

Subrule 6.6 replaces subrule 10(4). Under this rule an appellant is required to serve a copy of a notice of appeal and other documents lodged in accordance with subrule (1) upon the other parties and interveners in the relevant proceedings. The notice of appeal must also be served on the Minister.

Subrule 6.7 amends subrule 10(5) to reflect an amendment made to subsection 45(4) of the Act which allows stay orders to be granted by either a Full Bench or a Presidential Member.

Subrule 6.9 amends paragraph 10(5)(c) of the Rules to reflect subsection 45(4) of the Act which provides for a stay order to be granted by either a Full Bench or Presidential Member.

Rule 7 amends rule 11 to reflect current drafting practice and to omit unnecessary words.

Rule 8 amends rule 12 to reflect current drafting practice and omit an unnecessary definition.

Rule 9 replaces rule 15 to reflect the repeal and substitution of section 118 of the Act and the insertion of new section 118A. Rule 15 requires an application for orders in relation to organisation coverage under section 118A of the Act to be made in accordance with the approved form. The approved form for this purpose is Form R3A in the Schedule to the Rules.

Rule 10 amends rule 16 to reflect current drafting practice and omit a number of superfluous words. In addition rule 16 is amended to require a Registrar, in all cases where a dispute is to be dealt with by a Full Bench, to give notice of hearing of a dispute to the Minister.

Rule 11 inserts rule 21A to provide a process for applications made under new section 127A of the Act. The rule requires an application for the review of a contract under that section to be made in accordance with the approved form (Form R5 found in the Schedule to the Rules) and to be accompanied where appropriate by a copy of the contract. In addition, where the applicant is an organisation or association and is acting on a member's behalf, a copy of the written consent given by the member authorising that body to so act must be lodged with the application.

Rule 12 replaces rule 22. With the repeal of section 112 of the Act, consent awards are made under the Commission's general powers contained in section 111. Rule 22 requires each party to a dispute seeking the making of an award by consent under paragraph 111(1)(b) of the Act to lodge with the Commission both a copy of the proposed award and a written statement indicating that the terms of the proposed award have been approved by the party.

Rule 13 replaces rule 23 to provide the procedure by which an application may be made for the certification of an agreement under subsection 134C(3) of the Act.

Subrule 23(1) requires an application for certification of an agreement under section 134C of the Act to be made in accordance with the approved form and to be accompanied by a copy of the memorandum of agreement signed by the parties to the agreement. The approved form for this purpose is Form R6 in the Schedule to the Rules.

Subrule 23(2) requires each party to an agreement to lodge with the application for certification a statutory declaration made by an authorised person. The terms of the statutory declaration are covered in new subrule 23(4).

Subrule 23(3) provides that where an agreement is one that applies only to a single business, part of a single business or a single place of work, the Registrar must provide the Minister with a copy of the application, memorandum of agreement and statutory declaration(s).

Subrule 23(4) requires the statutory declaration referred to in subrule 23(2), to indicate whether each of the requirements for certification contained in section 134E of the Act have been met.

Subrule 23(5) provides that, if the party filing the statutory declaration is not an organisation of employees, a statutory declaration filed in accordance with subrule 23(2) need not deal with the matters contained in paragraphs 134E(1)(c) or (d) of the Act.

Rule 14 inserts new rules 23A and 23B. New rule 23A provides that the written notice required of the Minister under subsection 134D(2) of the Act must particularise the grounds on which the certification of the agreement may seriously jeopardise the public interest. New rule 23B requires a notification of an extension of a certified agreement under section 134K of the Act to be in accordance with the approved form. The approved form is Form R6A in the Schedule to the Rules.

Rule 15 inserts new rule 24A which regulates the procedure for an application for the review of an agreement under paragraph 134M(2)(b) of the Act.

Rule 16 amends rule 25 to provide that the procedures of rule 10 are to be applied to an application for the review of an agreement by the Minister under section 134M of the Act. Those provisions of rule 10 which deal with time limits and applications for a stay orders do not apply to applications made under section 134M.

Rule 17 amends subrule 26(1) as a consequence of the inclusion in the Act of section 134M dealing with the variation or termination of certified agreements. Rule 26 is also amended to reflect current drafting practice and to omit unnecessary words.

Rule 18 inserts new rule 26A for the purposes of section 134N of the Act. The rule requires a notification made under subsection 134N(1) or 134N(2) to be in accordance with the approved form. The approved form is Form R7A, which is in the Schedule to the Rules.

Rule 19 amends rule 34 to increase to four the number of copies of an application for amalgamation of organisations required to be lodged in the Industrial Registry. The number of copies required is increased to facilitate the processing of these applications. Rule 34 is also amended to reflect current drafting practice.

Rule 20 amends paragraphs 36(2)(c) and 36(2)(d) of the Rules to make it clear that an address for service may only be lodged in respect. of a particular proceeding. Rule 36 is also amended to bring it into line with provisions for service of documents generally accepted in other jurisdictions.

Rule 21 amends rule 37 to reflect current drafting practice and to omit superfluous words.

Rule 22 makes a number of minor amendments to the Schedule of the Rules to clarify some matters and reflect current drafting style. A number of more substantive amendments are also made to the Forms set out in the Schedule as a consequence of amendments made to the Act.

Form R1 is a revised form for a notice of appeal under section 45 of the Act. The new form deals with the notice of appeal and an application for a stay order separately.

Form R1A is the form of an application for an extension of time in which to notify an appeal under section 45 of the Act.

Form R2 is replaced so as to deal separately with a notice of appeal under section 81 of the Act and an application for a stay order pending an appeal under that section.

Amendments are also made to Form R1 and Form R2 to reflect a recent amendment to the Act which allows an application for a stay order to be dealt with by either a Full Bench or a Presidential member.

Form R3A is the approved form under rule 15 which concerns the procedure for an application for an order dealing with organisation coverage under Section 118A of the Act

Form R5 is the approved form for an application to review a contract under section 127A of the Act.

Form R6 is the approved form under rule 23 which concerns the procedure for an application for certification of an agreement under section 134C of the Act.

Form R6A is the approved form under rule 23B which provides the procedure for a notification of an extension of a certified agreement in accordance with section 134K of the Act.

Form R7A is the approved form for an application by a party to an agreement for a review of the agreement under section 134M of the Act.

A party that does not wish to remain bound by a certified agreement may notify the Commission in accordance with rule 26A using the form set out in new Form R8A.

All parties to a certified agreement may, using new Form R8B, notify the Commission stating that they want the agreement terminated, in accordance with the procedure set out in rule 26A.

Forms 18 and 19 are amended by rule 22 to reflect an amendment to paragraph 33(1)(b) of the Industrial Relations Regulations.