Referral of discriminatory industrial instruments to the Fair Work Commission
46PW Referral of discriminatory industrial instruments to the Fair Work Commission
A complaint in writing alleging that a person has done a discriminatory act under an industrial instrument may be lodged with the Commission by:
a person aggrieved by the act, on that person’s own behalf or on behalf of that person and one or more other persons aggrieved by the act; or
2 or more persons aggrieved by the act, on their own behalf or on behalf of themselves and one or more other persons aggrieved by the act; or
a person or persons who are in a class of persons aggrieved by the act, on behalf of all the persons in the class; or
a trade union, on behalf of one or more of its members aggrieved by the act or on behalf of a class of its members aggrieved by the act.
If the Commission receives a complaint under this section, the Commission must notify the President accordingly.
If it appears to the President that the act is a discriminatory act, the President must refer the industrial instrument to the Fair Work Commission. However, the President need not refer the industrial instrument if the President is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance.
If the President decides not to refer the industrial instrument, the President must give notice in writing of that decision to the complainant or each of the complainants, together with notice of the reasons for the decision.
If the President refers the industrial instrument to the Fair Work Commission, the President must give notice in writing of the outcome of the referral to the complainant or each of the complainants.
The President may obtain documents or information under section 46PI for the purposes of this section.
In this section:
discriminatory act under an industrial instrument means an act that would be unlawful under:
Part 4 of the Age Discrimination Act 2004; or
Part 2 of the Disability Discrimination Act 1992; or
Part II of the Sex Discrimination Act 1984;
but for the fact that the act was done in direct compliance with an industrial instrument.
industrial instrument means:
a fair work instrument (within the meaning of the Fair Work Act 2009); or
a transitional instrument, or a Division 2B State instrument, (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009).
For the purposes of the definition of discriminatory act under an industrial instrument in subsection (7), the fact that an act is done in direct compliance with the industrial instrument does not of itself mean that the act is reasonable.
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