Conciliation and ArbitrationNo. 101 of 1967

An Act to amend the Conciliation and Arbitration Act1904-1966 in relation to Industrial Matters affecting

Flight Crew Officers, and to alter the Title of that Act.

[Assented to 10 November 1967]

B E it enacted by the Queen's Most Excellent Majesty, the Senate, andthe House of Representatives of the Commonwealth of Australia,

as follows:-

1.-(1.) This Act may be cited as the Conciliation and Arbitration Act Shor tieand citation.

1967.

(2.) The Conciliation and Arbitration Act 1904-1966* is in this Actreferred to as the Principal Act.

(3.) The Principal Act, as amended by this Act, may be cited as theConciliation and Arbitration Act 1904-1967.

2.-(1.) Subject to this section, this Act shall come into operation on Commence-the day on which it receives the Royal Assent. ment.

(2.) Sections 4, 5 and 6 of this Act shall come into operation on a dateto be fixed by Proclamation.

3. The title of the Principal Act is repealed and the following title Title.

inserted in its stead:-

"An Act relating to the Prevention and Settlement of certain Indus-trial Disputes, and for other purposes.".

4. Section 3 of the Principal Act is amended by inserting before the Pam.

words and figures-

"Part IV.-The Commonwealth Court of Conciliation andArbitration (Sections 89-97)."

the words and figures-

"Part IIIA.-The Flight Crew Officers Industrial Tribunal (Sections88H-88zE).".

* Act No. 13, 1904, as amended by No. 28, 1909; No. 7, 1910; No. 6, 1911; Nos. 5 and 18. 1914; No. 35, 1915;No. 39, 1918; No. 31, 1920; No. 29, 1921; No. 22, 1926; No. 8, 1927; No. 18, 1928; No. 43, 1930; Nos. 45 and 54,1934; Nos. 14 and 30, 1946; Nos. 10 and 52, 1947; Nos. 65 and 77, 1948; Nos. 28 and 86, 1949; Nos. 51 and 80,1950; Nos. 18 and 58, 1951; No. 34, 1952; Nos. 17, 18 and 54, 1955: Nos. 44 and 103,1956; No. 30, 1958; No. 40,1959; Nos. 15, 17 and 110, 1960; No. 40, 1961; Nos. 99 and 115, 1964; Nos. 22 and 92, 1965; and Nos. 64 and93, 1966.

Conciliation and Arbitration

5. After PART III. of the Principal Act, the following Part is inserted:-

" PART IIIA.-THE FLIGHT CREW OFFICERS INDUSTRIAL TRIBUNAL.

Definitions. " 88H. In this Part, unless the contrary intention appears-

'declared body ' means a body in respect of which a declaration undersection eighty-eight z of this Act is in force;

' dispute' includes-

(a) a threatened, impending or probable dispute;

(b) a part of a dispute;(c) a dispute so far as it relates to a matter in dispute; or

(d) a question arising in relation to a dispute;

' employer' means a person (including an authority of the Common-wealth) carrying on a business in the course of which the personemploys flight crew officers, not being a business the principal placeof control of which is outside Australia;

' employment' means employment by an employer;

'flight crew officer' means a person who performs (whether with orwithout other duties) duties as a pilot, navigator or flight engineerof aircraft, and includes a person being trained for the performanceof such duties;

' inter-State industrial dispute 'means a dispute as to industrial mattersthat extends beyond the limits of any one State, but does notinclude such a dispute in so far as it is within the powers of theTribunal under paragraph (b) of sub-section (1.) of section eighty-eight u of this Act;

' industrial matters ' means all matters pertaining to the remunerationor other terms or conditions of service or employment of, or affectingor relating to work done or to be done by, flight crew officersemployed or to be employed by employers;

' industrial question' means a dispute or question as to industrialmatters, including an inter-State industrial dispute;

' pilot' includes a pilot in command, co-pilot or pilot of any otherdescription;

'the Tribunal' means The Flight Crew Officers Industrial Tribunalestablished by this Part.

Establishment "88j. For the purposes of this Part, there shall be a tribunal to be

of Tribunal. known as 'The Flight Crew Officers Industrial Tribunal', which shall be

constituted by a person appointed by the Governor-General.

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" 88K.-(l.) The person constituting the Tribunal holds office for such Tenur of

period, not exceeding five years, as is specified in the instrument of his office.

appointment, but is eligible for re-appointment.

" (2.) The person constituting the Tribunal shall perform the functionsof his office from time to time, as occasion requires.

" (3.) The person constituting the Tribunal is an employee for thepurposes of the Commonwealth Employees' Compensation Act 1930-1964.

"88L. The person constituting the Tribunal shall be paid- Remuneration

(a) such remuneration, whether by way of fees or otherwise, as isprescribed; and

(b) such allowances in respect of expenses as are prescribed.

"88M. The Minister may grant leave of absence to the person consti- Leave ofabsence.

tuting the Tribunal on such conditions, including conditions as to remun-eration, as the Minister thinks fit.

"88N. The person constituting the Tribunal shall, before proceeding oath oraffirmatioalto

to discharge the duties of his office, take, before a Judge of the Court, an office.oath or affirmation in accordance with the form in the Schedule to this Act.

" 88P. The person constituting the Tribunal has, in the performance Protection ofof his functions and duties, the same protection and immunity as a Judge Tribunal.

of the Court.

"8 8Q.-(l.) The provisions of section fourteen of this Act apply in Supension,Stt _removal and

relation to the suspension and removal from office of the person constitu- vacation of.office of

ting the Tribunal in like manner as they apply in relation to a Commis- peronconstituting

sioner. Tribunal.

" (2.) The provisions of section fifteen of this Act apply in relation tothe office of the person constituting the Tribunal in like manner as theyapply in relation to the office of a Commissioner, but as if paragraphs (a)and (d) were not included in that section.

"88R.--(1.) In relation to a particular industrial question, the Afpontment

Minister may, where- to ¢onstitutTn'bumal orparticular

(a) the person constituting the Tribunal is not available to deal with mater.that industrial question;

(b) there is a vacancy in the office of that person; or(c) the person constituting the Tribunal has requested the Minister

to make an appointment under this section in the interests of theexpeditious discharge of the business of the Tribunal,

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appoint a person to perform the functions of the Tribunal in relation tothat industrial question, and the person so appointed shall be deemed toconstitute the Tribunal in relation to that industrial question.

"(2.) Sub-section (3.) of section eighty-eight K, and sections eighty-eight L, eighty-eight M, eighty-eight N and eighty-eight v, of this Act applyin relation to a person appointed under this section in like manner as theyapply in relation to a person appointed under section eighty-eight J of thisAct to constitute the Tribunal.

" (3.) Anything done by the Tribunal as constituted by a personappointed under this section, or by a person so appointed in his capacityas a person so appointed, shall not be challenged or called in question onthe ground that-

(a) the occasion for the appointment had not arisen or had ceased; or

(b) the thing done related or extended to an industrial question otherthan that in relation to which the person was appointed.

Member of "88s. Notwithstanding anything contained in this Act, a person mayCommissionmay hod hold office at the one time as a member of the Commission and as a personoffice underthis Part. appointed under section eighty-eight i or eighty-eight R of this Act, and,

if a person so holds office-

(a) the holding by him of office under this Part, or his absence fromduty as a member of the Commission for the purpose ofperforming duties under this Part, does not affect his office as amember of the Commission; and

(b) sections eighty-eight L and eighty-eight M of this Act do not applyin relation to him.

Powers of the "88T.-(1.) Subject to this section, the powers and functions of theCommissionexcluded. Commission or a Commissioner, other than the powers of the Commission

under sections forty-five, sixty-two and sixty-six of this Act, are notapplicable in respect of industrial questions within the meaning of thisPart.

" (2.) The last preceding sub-section does not prevent-(a) the making of an award by the Commission as a result of a hearing

completed before the date of commencement of this section; or

(b) the hearing and determination by the Commission of an appeal inrespect of an award made before that date or made in accordancewith the last preceding paragraph.

"(3.) Where, in respect of an industrial question, a hearing ofproceedings before the Commission has been commenced, but not com-pleted, before the date of commencement of this Act, sub-section (.) of

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this section does not apply in relation to the proceedings, or any appeal orreference arising out of the proceedings, if the parties to the proceedingsrequest the Commission to continue the hearing.

" (4.) In proceedings before the Tribunal in relation to an industrialquestion, the Tribunal may have regard to any evidence given or argumentsadduced in proceedings before the Commission in relation to the industrialquestion that were not completed.

" (5.) The operation of an award of the Commission, or of amemorandum of agreement certified by the Commission, that is in forceimmediately before the date of commencement of this Part, or of anaward of the Commission made on or after that date in accordance withthis section, is subject to any award of the Tribunal or memorandum ofagreement certified under this Part.

"88u.- (L.) The Tribunal is empowered- Powers ofTribunal.

(a) to make all such suggestions and do all such things as appear toit to be right and proper to encourage and assist the preventionor settlement by amicable agreement of industrial questions towhich the powers of the Tribunal under the succeeding paragraphsof this sub-section extend;

(b) to consider and determine industrial questions in so far as theindustrial matters concerned relate to one or more of thefollowing:-

(i) employment of flight crew officers by the Australian NationalAirlines Commission;

(ii) employment of flight crew officers by Qantas AirwaysLimited;

(iii) trade and commerce with other countries or among theStates, trade and commerce between a State and a Territoryof the Commonwealth or trade and commerce in a Terri-tory of the Commonwealth; and

(c) to prevent or settle, by conciliation or arbitration, inter-Stateindustrial disputes.

"(2.) For the purposes of the last preceding sub-section but withoutlimiting the operation of that sub-section, an industrial matter shall bedeemed to relate to trade and commerce referred to in paragraph (b) ofthat sub-section in so far as the matter relates to employment of personsin or for, or for training in or for, the performance of duties as flight crewofficers in relation to aircraft engaged in, or the performance of duties thatinclude duties as flight crew officers in relation to aircraft engaged in, anysuch trade and commerce.

"88v.--(].) Subject to this Part, Division 1 of Part III. applies to and Applition

in relation to industrial questions to the extent to which they are within prorisionsof Act.

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the powers of the Tribunal, and to and in relation to awards of theTribunal as if, in that Division-

(a) references to industrial disputes were references to such industrialquestions;

(b) references to the Commission, except in sections forty-five,sixty-two, sixty-six and sixty-eight, were references to the Tribunal;

(c) references to a member of the Commission, a Commissioner orthe Commissioner (other than a reference to the Senior Com-missioner) were references to the person constituting the Tribunal;and

(d) in relation to such an industrial question other than an inter-State industrial dispute-

(i) references to the parties to an industrial dispute werereferences to the parties to proceedings before the Tribunalin relation to the industrial question, and included, insection thirty-one, all the persons and organizationsdirectly concerned in the industrial question;

(ii) references to preventing an industrial dispute werereferences to preventing the industrial question fromarising;

(iii) references to settling an industrial dispute or determiningan industrial dispute were references to determining,or otherwise settling, the industrial question; and

(iv) references to the hearing of an industrial dispute werereferences to the consideration of the industrial question;

(e) references to awards were references to awards of the Tribunal;and

(f) the reference in section sixty-six of this Act to proceedings underPart III. were a reference to proceedings under this Part.

"(2.) The last preceding sub-section does not apply in relation to thefollowing sections contained in Division 1 of Part III., namely, sectionstwenty-two to twenty-seven, sub-section (1.) of section twenty-eight,sections thirty-three to thirty-eight, sections forty-one A, forty-four A,

forty-nine, sixty-one, sixty-three, sixty-four, sixty-seven, sixty-nine andseventy.

"(3.) References to awards in provisions of this Act other thanDivision 1 of Part III. shall be read as including references to awards ofthe Tribunal.

"(4.) References to the Commission in the following sections of thisAct, namely, sections one hundred and seven, one hundred andnineteen, one hundred and eighty-two, one hundred and eighty-three,one hundred and eighty-four, one hundred and eighty-six, one hundredand eighty-seven, one hundred and ninety-three and one hundred andninety-eight shall be read as including references to the Tribunal.

Initiadon of " 88w. Subject to this Part, the Tribunal may exercise any of itspowers-

(a) of its own motion;

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(b) on the application of a person who, or an organization which, is aparty to, or directly concerned in, an industrial question; or

(c) on the application of the Minister.

" 88x. The Tribunal may, by order, specify the parties to proceedings par.before the Tribunal and may give leave to other persons to intervene inthe proceedings.

88Y.-(1.) Where- Represenationof persons

(a) in relation to proceedings before the Tribunal in respect of an hoionindustrial question it appears to the Tribunal that there are interest.

numerous flight crew officers who-(i) are affected by the industrial question;

(ii) are not members of an organization that is a party to theproceedings and can conveniently represent their interestsin the proceedings; and

(iii) have a like or common interest in the proceedings; and

(b) the Tribunal, after taking into account arrangements that haveexisted, whether in relation to the industrial question or not, forthe representation of, or the forwarding of the interests of, thoseflight crew officers and after consulting or hearing such persons asit thinks necessary, is of opinion that-

(i) it is necessary or desirable, in order to enable the proceed-ings to be dealt with expeditiously, to make an order underthis section; and

(ii) the order will allow a proper representation of, and pro-tection of the interests of, those flight crew officers,

the Tribunal may make an order appointing a specified person or specifiedpersons (who may be or include one or more of those flight crew officers) tobe a party or parties to the proceedings representing those flight crewofficers in the proceedings and, unless otherwise ordered by the Tribunal,a flight crew officer so represented is not a party to the proceedings.

" (2.) The Tribunal shall cause the publication or notification of theorder in a manner that is, in its opinion, reasonably sufficient to bring it tothe notice of the flight crew officers concerned.

" (3.) A flight crew officer who is or would be represented in accordancewith an order made, or proposed to be made, under this section may,subject to any direction of the Tribunal, apply to the Tribunal to be aparty to the proceedings and to be excluded from the operation of theorder and, if the Tribunal is satisfied that the interests of that flight crewofficer will not otherwise be adequately represented, the Tribunal shallorder accordingly, subject to such conditions, if any, as the Tribunaldetermines, being conditions that, in the opinion of the Tribunal-

(a) are necessary in the interests of the expeditious hearing of theproceedings; and

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(b) will not prejudice the proper and adequate presentation of mattersrelevant to the proceedings.

Declared "88z.-(1.) Where, in the opinion of the Minister, an association orbodies. other body, whether corporate or not, not being an organization, exists

or is carried on for the purpose, or for purposes that include the purpose,of furthering the interests, in relation to industrial matters, of flight crewofficers who are members of the body, the Minister may, by noticepublished in the Gazette, declare the body to be a body to which thissection applies.

" (2.) The following sections of this Act, namely sections eighty-eightw, eighty-eight ZA, eighty-eight ZB, eighty-eight ZE, one hundred and nine,one hundred and nine A, one hundred and ten, one hundred and eleven,one hundred and seventeen A, one hundred and nineteen, one hundredand thirty-eight and one hundred and eighty-eight, have effect as if adeclared body were an organization.

" (3.) A declared body, whether incorporated or not, is capable ofbeing a party to proceedings before the Tribunal.

" (4.) For the purpose of enforcing an order of the Court under thisAct against a declared body, process may be issued and executed againstany property of the declared body, or in which the declared body has, orany members of the declared body have in their capacity as such members,a beneficial interest, whether vested in trustees or howsoever otherwiseheld, as if the declared body were an incorporated company and theabsolute owner of the property or interest.

" (5.) The last preceding sub-section applies in relation to an order ofthe Court against a person in respect of anything done or omitted in hiscapacity as an officer of, or person acting on behalf of, a declared body asif the order were an order against the declared body.

" (6.) A reference in either of the last two preceding sub-sections toproperty, interests in property, members or officers of, or persons actingon behalf of, a declared body shall be read as including a reference toproperty, interests in property, members or officers of, or persons actingon behalf of, a branch or part of the declared body.

Conciliation " 88ZA.-(1.) Where an organization or a person directly concerned inCommittees. an industrial question requests the Tribunal to appoint a Conciliation Com-

mittee in relation to the industrial question and it appears to the Tribunalthat the appointment of such a Committee is practicable and is reasonablylikely to lead to a settlement of the industrial question, in whole or inpart, the Tribunal may, in respect of the industrial question, appoint aConciliation Committee consisting of-

(a) the person constituting the Tribunal, as Chairman;(b) such number of persons as the Tribunal determines, being persons

nominated by all or any employers concerned in the industrialquestion to be their representatives; and

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(c) persons, equal in number to the persons appointed upon nomina-tion in accordance with the last preceding paragraph, nominatedby all or any of the flight crew officers concerned in the industrialquestion to be their representatives.

"(2.) For the purposes of this section, persons nominated by anorganization of which any flight crew officers concerned in the industrialquestion are members, to be the representatives of those flight crew officersshall be deemed to have been so nominated by those flight crew officers, andshall be deemed also to represent the organization.

" (3.) The purpose of a Conciliation Committee is to endeavour, bydiscussion and negotiation, to formulate terms for a settlement of theindustrial question.

" (4.) If the members of a Conciliation Committee, other than theChairman, agree unanimously on terms for a settlement of the industrialquestion or a part of the industrial question, a memorandum of theagreement shall be made in writing and certified under the hand of theChairman to be a true memorandum of terms agreed on in accordancewith this sub-section.

" (5.) The Chairman may refuse to certify such a memorandum if heis of opinion that-

(a) the terms of settlement contain provisions which the Tribunalhas no power to include in an award; or

(b) it is not in the public interest that the memorandum should becertified.

"(6.) A memorandum certified under this section has the same effectas, and shall be deemed to be, an award of the Tribunal binding on thepersons and organizations who or which were represented by members ofthe Committee, the members from time to time of those organizations andany successor to, or any assignee or transmittee of, the business of sucha person.

" (7.) The certificate of the Chairman in respect of a memorandumunder this section shall specify, either individually or by reference toclasses, the persons who, and the organizations which, were representedby members of the Committee, and such a certificate is evidence that thosepersons and organizations were so represented and that the agreementwas arrived at, and the memorandum made, in accordance with thissection.

" (8.) Where the Chairman is satisfied that further proceedings of theCommittee are not likely to produce an agreement in accordance with thissection within a reasonable time, he may terminate the proceedings of theCommittee, and in that event the Tribunal may, having regard to thematters appearing from the proceedings of the Committee and after anyfurther proceedings before the Tribunal that the Tribunal thinks necessary,make an award in relation to the industrial question.

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"(9.) Nothing in this section excludes the operation of section thirty-one of this Act, as applied by this Part.

On whom "88zB.-(1.) An award of the Tribunal is binding on-awards

binding. (a) the organizations, persons, and persons included in classes ofpersons, specified by the Tribunal in the award, or to which or towhom the Tribunal declares the award to extend by a declarationmade after the making of the award;

(b) all members of organizations bound by the award; and

(c) where an employer is bound by the award-any successor to, orany assignee or transmittee of, the business of the employer,including a corporation that has acquired or taken over thebusiness of the employer.

"(2.) An award shall not be expressed to bind, or be declared to extendto, an organization or person, or persons included in a class of persons,other than-

(a) an organization which, or a person who, appeared or wasrepresented as a party to the proceedings in which the award orthe declaration was made, or was represented by such a party inaccordance with an order under section eighty-eight Y of this Act;

(b) an organization which, or a person who, was required, by noticegiven either personally or as directed by the Tribunal, to appearor be represented in proceedings referred to in the last precedingparagraph, whether the organization or person appeared or not; or

(c) an organization, person, or persons included in a class of personsas to which or to whom the Tribunal is satisfied that the interestsof that organization and of its members, the interests of thatperson, or the interests of persons included in that class of persons,as the case may be, in relation to the award, are substantially thesame as those of an organization or person referred to inparagraph (a) or (b) of this sub-section.

"(3.) Subject to the last preceding sub-section, a class of personsspecified in an award or declaration in accordance with sub-section (1.)of this section may be so specified as to include the persons who, fromtime to time, come within a specified description.

Relationship "88zc.-(1.) Subject to this section, the Tribunal or the personto other lawsof the constituting the Tribunal shall not make an award, or certify aCommonwealt, memorandum of an agreement, that is inconsistent with a law of the

Commonwealth, or any instrument made or issued under such a law,and nothing contained in, or done under, this Part restricts the powerconferred by a law of the Commonwealth to make or issue any instrumentor the operation of an instrument made or issued under such a power.

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" (2.) This section applies in relation to the Air Navigation Regulationsin their operation by virtue of the law of a State in like manner as it appliesin relation to those regulations in their operation as a law of the,Commonwealth.

" (3.) An award of the Tribunal, or a memorandum of agreement,certified by virtue of this Part, has effect notwithstanding section seventeen.of the Australian National Airlines Act 1945-1966 or the prescribedprovisions of any other Act, being provisions relating to the terms and,conditions of employment of persons employed by an authority of the-Commonwealth.

"88ZD. Notwithstanding anything contained in this Part, the Tribunal AppIaon of.or the person constituting the Tribunal- relation to

certain disputesextending

(a) shall not, in relation to an interstate industrial dispute, do any beyond

act or thing otherwise than by way of, or for the purposes of,

conciliation or arbitration for the prevention or settlement ofthe dispute; and

(b) may-

(i) adopt, or direct the adoption of, such procedures; and

(ii) make such orders with respect to the operation of anyaward, or of any memorandum having the force of anaward,

as are necessary to ensure the observance of the last precedingparagraph.

"88ZE.-(1.) In proceedings before the Tribunal, a party or Representation.

intervener-

(a) being an organization, may be represented by a member or officerof the organization; or

(b) not being an organization, may be represented-(i) by an employee of that party or intervener;

(ii) by a member or officer of an organization of which thatparty or intervener is a member; or

(iii) in such other manner as the Tribunal allows,

'but, subject to the next succeeding sub-section, a party or intervener shallnot be represented by counsel, solicitor or paid agent except by leave of-the Tribunal and with the consent of all parties.

" (2.) Where the Minister has been granted leave to intervene inproceedings before the Tribunal, he may be represented by counsel,

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solicitor or paid agent and, if the Minister is so represented, a party oranother intervener may, with the leave of the Tribunal, also be represented.by counsel, solicitor or paid agent.".

Hearing of 6. Section 109A of the Principal Act is amended-certainapplicationsnot to be (a) by omitting from paragraph (a) of sub-section (4.) the worckcommenced " and ""unless certain " andconditionsfulfilled. (b) by inserting after that paragraph the following paragraph:-

"(aa) in relation to an award made under Part liA. of this.Act-any reference to a Commissioner or to a presi-dential member of the Commission shall be read as areference to The Flight Crew Officers Industrial Tribunalestablished by that Part; and ".

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