Version No. 032 Discharged Servicemen's Preference Act 1943 Act No. 4989/1943




Yüklə 87.42 Kb.
tarix17.04.2016
ölçüsü87.42 Kb.


Version No. 032

Discharged Servicemen's Preference Act 1943

Act No. 4989/1943

Version incorporating amendments as at 20 December 2001


table of provisions

Section Page



1. Short title and commencement 1

2. Definitions 1

18. Transitional provisions 24

3. As to operation of this Act 8

4. Application of certain provisions of this Act to Crown 8

Discharged Servicemen's Employment Board 9

6. Functions of Board 10



Re-instatement of Discharged Servicemen in Employment 11

7. Re-instatement of discharged servicemen in employment 11



Appointment and Promotion of Discharged Servicemen 13

8. Limitation of operation of two succeeding sections 13

9. Preference to discharged servicemen in filling positions after public advertisement 14

10. Preference to discharged servicemen in promotions after invitation 15

11. As to what constitutes failure to give preference 15

12. Discharged servicemen not to be dismissed without reasonable cause 16



General 16

13. Offences 17

14. Penalties and expenses 17

15. Authority to prosecute 18

16. Power to court to declare position vacant on certain convictions 18

17. Appeal 19

18. Regulations 19

═══════════════ 19



ENDNOTES 20

1.General Information 20

2.Table of Amendments 21

3.Explanatory Details 23


Version No. 032

Discharged Servicemen's Preference Act 1943

Act No. 4989/1943

Version incorporating amendments as at 20 December 2001


An Act Relating to Preference in Employment for Discharged Members of the Defence Forces and for other purposes.


BE IT ENACTED by the King's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

1. Short title and commencement

(1) This Act may be cited as the Discharged Servicemen's Preference Act 1943.

(2) This Act shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.

2. Definitions

(1) In this Act unless inconsistent with the context or subject-matter—



"appointment" means appointment by an employer of a person not in his employment to a position in his employment, and "appoint", and the derivatives thereof, have corresponding interpretations;

S. 2(1) def. of "Board" substituted by No. 1/1995
s. 17(a).


1"Board" means the Defence Reserves Re Employment Board established by the Defence Reserves Re-Employment Act 1995;

"casual or temporary employment" means employment in any position the duties of which are not likely to continue for more than thirty days;

S. 2(1) def. of "discharged serviceman" amended by No. 7788
s. 2(a).


"discharged serviceman" means—

(a) any person who—

(i) in Victoria, or while domiciled in Victoria, was appointed enlisted or enrolled for continuous full-time service during the war which commenced in the year One thousand nine hundred and fourteen; or

(ii) being domiciled in Victoria at the commencement of this Act had been appointed enlisted or enrolled for continuous full-time service during the war which commenced in the year One thousand nine hundred and fourteen; or



s. 2

(b) any person who in Victoria, or while domiciled in Victoria, was appointed enlisted enrolled or called up for continuous full-time service during the war which commenced in the year One thousand nine hundred and thirty-nine, the United Nations operations in Korea which commenced in the year One thousand nine hundred and fifty, the operations in Malaya (including Singapore) which commenced in the year One thousand nine hundred and fifty, the operations in Vietnam which commenced in the year One thousand nine hundred and sixty-two or the operations in Sabah, Sarawak and Brunei which commenced in the year One thousand nine hundred and sixty-two—

and who served in a prescribed theatre of war as a member of the naval military or air forces of His Majesty or the Commonwealth or any of His Majesty's Dominions or any of the women's services or bodies auxiliary to any of those forces and who has completed his war service and who provides evidence of such matters in the prescribed manner;



S. 2(1) def. of "domestic partner" inserted by No. 72/2001 s. 3(Sch. item 6.1).

"domestic partner" of a person means an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

(a) for fee or reward; or



s. 2

(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);

"employment" includes employment in any position in any profession calling business trade or industry whether at a salary wage piece-rate or commission or other form of remuneration, and "employ", and the derivatives thereof, have corresponding interpretations;

"employer" includes any person company or public corporation or any member of any partnership who or which employs or seeks to employ any person; and also includes any member director manager secretary or other officer of or employed by any such person company corporation or partnership who has the duty of employing any persons on behalf thereof; and, where the context so requires, includes any successor or predecessor of an employer in the same profession calling business trade or industry;

"promotion" means promotion by an employer of a person already in his employment to a position of higher remuneration or more favourable conditions, but does not include an increase of remuneration where there is no alteration of position, and "promote", and the derivatives thereof, have corresponding interpretations;

"public advertisement" means advertisement in a newspaper circulating in the locality in question, or such other form of public advertisement as is prescribed in respect of any particular profession calling business trade or industry;

S. 2(1) def. of "public corporation" amended by No. 12/1989
s. 4(1)(Sch. 2 item 25.1).


"public corporation" means any corporation board commission trust or other body corporate or unincorporate established or constituted by or under any Act for any public purpose and includes any municipal council;

s. 2

"prescribed" means prescribed by this Act or by the regulations;

"regulations" means regulations made under this Act;

S. 2(1) def. of "spouse" inserted by No. 72/2001 s. 3(Sch. item 6.1).

"spouse" of a person means a person to whom the person is married;



S. 2(1) def. of "suitable and competent" amended by No. 46/1987
s. 6.


"suitable and competent", in respect of any applicant for employment in any position, means—

(a) of good character;

(b) of a suitable age;

(c) having the necessary professional or technical qualifications;

(d) having had reasonable experience in the same or a similar kind of employment and possessing a satisfactory degree of competence; and


s. 2

(e) (where the nature of the employment is such as necessarily to require special characteristics) having those characteristics;

S. 2(1) def. of "war service" amended by No. 7788 s. 2(b).

"war service" means the service of any person during either of the wars or any of the operations referred to in the interpretation of "discharged serviceman" as a member of any of the forces services or bodies referred to in the said interpretation.

S. 2(1A) inserted by No. 72/2001 s. 3(Sch. item 6.2).

(1A) For the purposes of the definition of "domestic partner" in sub-section (1)—

(a) in determining whether persons are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 275(2) of the Property Law Act 1958 as may be relevant in a particular case;

(b) a person is not a domestic partner of another person only because they are co-tenants.

(2) Where the duties of any position are such as to be likely to continue for more than thirty days employment in that position shall not be deemed casual or temporary employment notwithstanding that the employment given or offered is expressed to be for any shorter period or from day to day or week to week or otherwise.

(3) For the purposes of this Act, where any person has been employed under the Public Service Acts or the Railways Acts or otherwise by or under the Crown in right of the State of Victoria as a temporary employé or supernumerary from any date prior to the third day of September One thousand nine hundred and thirty-nine—


s. 2

(a) the appointment of that person to a permanent office or position under either of the said Acts or under the Crown shall, notwithstanding that such appointment may be made after public advertisement, be deemed to be a promotion and not an appointment;

(b) the provisions of section nine of this Act shall not apply thereto; and

(c) for the purposes of section ten of this Act any such temporary employé or supernumerary shall be deemed to be a person already in the relevant employment, and any such advertisement, so far as it affects any such temporary employé or supernumerary, shall be deemed to be an invitation of applications only from persons in the relevant employment.

3. As to operation of this Act



s. 3

(1) The provisions of this Act shall take effect notwithstanding anything to the contrary in any Act or enactment or in any regulation by-law or determination thereunder or in any contract or agreement, and no person shall be deemed guilty of any offence or be liable for any breach of contract or agreement by reason only of compliance with the provisions of this Act.

(2) Where under any other Act or enactment or regulation any privilege or immunity relating to employment (not being a direct preference or priority over other persons in respect of appointment or promotion) is conferred on any person by reason of his being a "discharged soldier" or "person who enlisted with an Expeditionary Force" or of his having rendered war service in relation to the war which commenced in the year One thousand nine hundred and fourteen, such privilege or immunity shall extend and apply to and with respect to any discharged serviceman within the meaning of this Act.

(3) Nothing in this Act shall be construed as preventing or affecting the appointment or promotion to any position during his absence on war service of any person who on the completion of his war service would become a discharged serviceman within the meaning of this Act.

4. Application of certain provisions of this Act to Crown

(1) The provisions of section seven and sections nine to twelve of this Act shall be observed in respect of employment by or under the Crown in right of the State of Victoria as if the Crown were an employer within the meaning of this Act.

(2) Where the Governor in Council is satisfied upon a report in writing of the Board that a contravention of or failure to comply with any of the said provisions has occurred or is likely to occur in relation to any employment by or under the Crown in right of the State of Victoria, the Governor in Council may by Order, notwithstanding anything in any Act, make or cancel any appointment or promotion or direct the making or cancellation of any appointment or promotion or do any other act matter or thing which appears to the Governor in Council to be necessary or expedient in order to give full effect to the said provisions or any of them.

(3) Sections seventy-two and seventy-five of the Public Service Act 1928 as amended by any Act and section one hundred and forty-three of the Railways Act 1928 are hereby repealed.

Discharged Servicemen's Employment Board



S. 5
amended by No. 7991
s. 2(a)(b), repealed by No. 1/1995
s. 17(b).


* * * * *


S. 5A
inserted by No. 7991 s. 3, repealed by No. 1/1995
s. 17(b).


* * * * *

6. Functions of Board



s. 6

S. 6(1) amended by No. 1/1995
s. 17(c).


(1) 2The functions of the Board under this Act and the regulations shall be—

(a) to assist discharged servicemen to obtain employment;

(b) to inquire into and to recommend to the Minister means for the furtherance of the objects of this Act;

(c) to obtain information as to opportunities of employment for discharged servicemen in Victoria and so far as possible to keep a record of the incidence of unemployment among discharged servicemen in Victoria;

(d) to examine allegations of contraventions of and failure to comply with the provisions of this Act;

(e) with the consent of the Minister, to publish from time to time in any prescribed manner information for the guidance of employers in relation to their rights obligations and liabilities under this Act;

(f) to recommend to the Minister that authority be granted for the institution of proceedings for any contravention of or failure to comply with the provisions of this Act, and to report to the Minister any such contravention or failure which has occurred or is likely to occur in relation to employment by or under the Crown in right of the State of Victoria; and


s. 6

(g) to carry out such other functions as are conferred on it by this Act or the regulations.

S. 6(2) repealed by No. 1/1995
s. 17(d).


* * * * *

(3) Before recommending to the Minister that authority be granted for the institution of proceedings for an offence against this Act the Board shall give to the employer concerned a reasonable opportunity to submit to the Board such considerations as the employer thinks fit.



S. 6(4) repealed by No. 1/1995
s. 17(d).


* * * * *

Re-instatement of Discharged Servicemen in Employment

7. Re-instatement of discharged servicemen in employment



s. 7

(1) Where any discharged serviceman, within two months after the completion of his war service, applies for reinstatement in employment by the employer by whom he was employed for any period of not less than thirty days immediately prior to the date upon which he volunteered for war service or received a notice requiring him to perform war service (as the case may be), the employer shall, immediately after the receipt of the application, re-instate him in his employment in a position and under conditions not less favorable to him than those which would have been applicable to him had he remained in the employment of that employer (including any increase of remuneration to which he would have become entitled had he remained in such employment).

(2) In any proceedings for a contravention of or failure to comply with the provisions of the last preceding sub-section it shall be a defence for the employer to prove—

(a) that the discharged serviceman is of bad character;

(b) that, having been offered re-instatement, he failed without reasonable excuse to present himself for employment at the time and place notified to him by the employer;

(c) that by reason of a change of circumstances (other than the employment of some other person to replace him)—

(i) it was not reasonably practicable to re instate him; or

(ii) his re-instatement in a position and under conditions not less favorable to him than those which would have been applicable to him had he remained in the employment of the employer was impracticable and that the employer had offered to re-instate him in the most favorable position and under the most favorable conditions reasonably practicable; or

(d) that he had been employed to take the place of an employé who had volunteered or been called up for war service and that that employé had been re-instated in his employment.



s. 7

(3) Where an employer has re-instated a discharged serviceman pursuant to this section, he shall not without reasonable cause terminate that employment or vary it by employing him in a position or under conditions less favorable than those of the employment to which he was so re instated.

(4) In any proceedings for a contravention of the last preceding sub-section the onus of proving reasonable cause shall lie on the employer.


Appointment and Promotion of Discharged Servicemen

8. Limitation of operation of two succeeding sections



s. 8

The provisions of the next two succeeding sections shall not apply—

(a) in respect of any employer who employs not more than one employé immediately prior to the appointment or promotion in question; or

(b) in respect of the appointment or promotion by any employer (being a natural person or one of the members of a partnership conducting any profession calling business trade or industry on his or its own account)—


S. 8(b)(i) amended by No. 72/2001 s. 3(Sch. item 6.3).

(i) of the spouse, domestic partner, father mother brother sister son or daughter of such employer; or


S. 8(b)(ii) amended by No. 9902
s. 2(1)(Sch. item 70).


(ii) of the adopted child or adopter (within the meaning of the Adoption of Children Act 1964, of such employer.
9. Preference to discharged servicemen in filling positions after public advertisement

(1) Where any employer by public advertisement invites applications for appointment to any position in his employment (other than casual or temporary employment) he shall in making any appointment or promotion to that position give preference to a suitable and competent discharged serviceman who applies for that employment within the time and in the manner specified in that advertisement.


(2) Where any employer, not having previously invited applications by public advertisement, appoints any person (other than a discharged serviceman) to any position in his employment (other than casual or temporary employment), the appointment of that person to that position shall be deemed provisional, and within the period of seven clear days after such appointment any discharged serviceman may apply in writing to the employer for appointment or (where the case so requires) promotion to that position, and the employer shall in filling such position whether by appointment or promotion give preference to a suitable and competent discharged serviceman who so applies.

10. Preference to discharged servicemen in promotions after invitation



s. 10

(1) Where any employer invites applications for any position in his employment only from persons in his employment, he shall in making any promotion to that position give preference to a suitable and competent discharged serviceman in his employment who applies for that promotion within the time and in the manner specified in the invitation.

(2) Where any employer, not having previously invited applications as provided in the last preceding sub-section, promotes any person in his employment (not being a discharged serviceman) to any position, the promotion of that person to that position shall be deemed provisional, and within the period of seven clear days after such promotion any discharged serviceman in his employment may apply in writing to the employer for promotion to that position, and the employer shall in making any promotion to that position give preference to a suitable and competent discharged serviceman who so applies.

(3) The provisions of the last preceding sub-section shall not apply in the case of a promotion made in accordance with the last preceding section.

11. As to what constitutes failure to give preference



s. 11

For the purposes of the provisions of section 9 or section 10—

(a) the appointment or promotion by an employer to a position in his employment of a person other than a discharged serviceman to whom such employer is by the provisions of this Act required to give preference; or

(b) (where an appointment or promotion is deemed provisional under section 9 or section 10) the failure of an employer to make a final appointment or promotion within a reasonable time after the end of the period of seven clear days referred to in the relevant section—

shall be deemed to be a failure to give preference under the relevant section.

12. Discharged servicemen not to be dismissed without reasonable cause

(1) No employer shall dismiss from his employment or dispense with the services of any discharged serviceman without reasonable cause.

(2) In any proceedings for a contravention of this section the onus of proving reasonable cause shall lie on the employer.
General

13. Offences



s. 13

S. 13(1) amended by No. 9554 s. 2(2)(Sch. 2 item 65).

(1) Any employer who contravenes or fails to comply with any of the provisions of this Act shall be guilty of an offence against this Act and liable to a penalty of not more than 5 penalty units.

S. 13(2) amended by No. 9554 s. 2(2)(Sch. 2 item 65).

(2) Any person who incites or attempts to persuade or coerce any employer to contravene or fail to comply with any of the provisions of this Act shall be guilty of an offence against this Act and liable to a penalty of not more than 5 penalty units.

S. 13(3) amended by No. 9554 s. 2(2)(Sch. 2 item 65).

(3) Any person who for any purpose connected with the operation of this Act falsely pretends to be or knowingly provides offers or utters any false evidence of his being a discharged serviceman shall, without prejudice to proceedings for any other offence for which he may be liable, be guilty of an offence against this Act and liable to a penalty of not more than 5 penalty units or in the case of a first offence to imprisonment for a term of not more than one month or in the case of any subsequent offence to imprisonment for a term of not more than six months.

14. Penalties and expenses

All penalties recovered under this Act shall be paid into the consolidated revenue and all expenses connected with the administration of this Act (including, where the Minister so certifies, the costs and expenses of any proceedings for an offence against this Act) shall be paid out of the consolidated revenue (which is hereby to the necessary extent appropriated accordingly).

15. Authority to prosecute



s. 15

S. 15(1) amended by Nos 9019
s. 2(1)(Sch. item 53), 16/1986 s. 30, repealed by No. 57/1989
s. 3(Sch. item 55.1).


* * * * *

(2) No proceedings for any offence against this Act shall be instituted without the authority of the Minister.

(3) A certificate in that behalf signed by the Minister shall be conclusive evidence of the grant of the authority for the institution of any such proceedings.

16. Power to court to declare position vacant on certain convictions

Upon any conviction of an employer for an offence against this Act relating to the appointment or promotion of any person to a position in his employment, the court may in its discretion, in addition to any other penalty imposed, make an order declaring the position in question vacant, and thereupon the provisions of this Act shall apply to and with respect to the filling of the vacancy so created, but without prejudice to the right of the person previously occupying such position to be an applicant for re employment therein.


S. 17 amended by Nos 9019 s. 2(1)(Sch. item 54), 57/1989
s. 3(Sch. item 55.2).


17. Appeal

Any person convicted of an offence against this Act, notwithstanding that the penalty imposed does not exceed $10, may pursuant to the provisions of the Magistrates' Court Act 1989 as amended by any Act appeal to the County Court against such conviction or against any order made under the last preceding section, and the Magistrates' Court may, if it thinks fit, defer the operation of any such order pending the appeal.

18. Regulations


s. 18

(1) The Governor in Council may make regulations for or with respect to prescribing any matter or thing required or authorized to be prescribed or necessary or expedient to be prescribed for the purposes of this Act.

S. 18(2) repealed by No. 6886 s. 3.

* * * * *
═══════════════

ENDNOTES




  1. Endnotes
    General Information

The Discharged Servicemen's Preference Act 1943 was assented to on 23 December 1943 and came into operation on 21 March 1944: Government Gazette 21 March 1944 page 905.

  1. Table of Amendments


Endnotes
This Version incorporates amendments made to the Discharged Servicemen's Preference Act 1943 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––



Subordinate Legislation Act 1962, No. 6886/1962

Assent Date:

8.5.62

Commencement Date:

1.8.62: Government Gazette 4.7.62 p. 2314

Current State:

All of Act in operation

Discharged Servicemen's Preference (Amendment) Act 1969, No. 7788/1969

Assent Date:

1.4.69

Commencement Date:

1.4.69

Current State:

All of Act in operation

Discharged Servicemen's Preference (Amendment) Act 1970, No. 7991/1970

Assent Date:

27.10.70

Commencement Date:

27.10.70

Current State:

All of Act in operation

Statute Law Revision Act 1977, No. 9019/1977

Assent Date:

17.5.77

Commencement Date:

17.5.77: subject to s. 2(1)

Current State:

All of Act in operation

Penalties and Sentences Act 1981, No. 9554/1981

Assent Date:

19.5.81

Commencement Date:

S. 2(2)(Sch. 2 item 65) on 1.9.81: Government Gazette 26.8.81 p. 2799

Current State:

This information relates only to the provision/s amending the Discharged Servicemen's Preference Act 1943

Statute Law Revision Act 1983, No. 9902/1983

Assent Date:

15.6.83

Commencement Date:

15.6.83: subject to s. 2(2)

Current State:

All of Act in operation

Courts Amendment Act 1986, No. 16/1986

Assent Date:

22.4.86

Commencement Date:

S. 30 on 1.7.86: Government Gazette 25.6.86 p. 2180

Current State:

This information relates only to the provision/s amending the Discharged Servicemen's Preference Act 1943

Equal Opportunity (Amendment) Act 1987, No. 46/1987

Assent Date:

25.8.87

Commencement Date:

1.12.87: Government Gazette 21.10.87 p. 2777

Current State:

All of Act in operation



Local Government (Consequential Provisions) Act 1989, No. 12/1989

Assent Date:

9.5.89

Commencement Date:

S. 4(1)(Sch. 2 item 25.1) on 1.11.89: Government Gazette 1.11.89 p. 2798

Current State:

This information relates only to the provision/s amending the Discharged Servicemen's Preference Act 1943

Magistrates' Court (Consequential Amendments) Act 1989, No. 57/1989

Assent Date:

14.6.89

Commencement Date:

S. 3(Sch. items 55.1, 55.2) on 1.9.90: Government Gazette 25.7.90 p. 2217

Current State:

This information relates only to the provision/s amending the Discharged Servicemen's Preference Act 1943

Defence Reserves Re-Employment Act 1995, No. 1/1995

Endnotes




Assent Date:

15.3.95

Commencement Date:

Ss 1, 2 on 15.3.95: s. 2(1); rest of Act on 27.7.95: Government Gazette 27.7.95 p. 1880

Current State:

All of Act in operation

Statute Law Further Amendment (Relationships) Act 2001, No. 72/2001

Assent Date:

7.11.01

Commencement Date:

S. 3(Sch. item 6) on 20.12.01: Government Gazette 20.12.01 p. 3127

Current State:

This information relates only to the provision/s amending the Discharged Servicemen's Preference Act 1943

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

  1. Explanatory Details


Endnotes



1 S. 2(1) def. of "Board": Section 18 of the Defence Reserves Re Employment Act 1995, No. 1/1995 reads as follows:

18. Transitional provisions

(1) In this section "former Board" means the Discharged Servicemen's Employment Board established under the Discharged Servicemen's Preference Act 1943.

(2) The former Board is abolished and its members go out of office.

(3) All rights, property and assets that, immediately before the commencement of sub-section (2), were vested in the former Board are, by force of this sub-section, vested in the Board.

(4) All debts, liabilities and obligations of the former Board existing immediately before the commencement of sub-section (2) become, by force of this sub-section, debts, liabilities and obligations of the Board.

(5) The Board is, by force of this sub-section, substituted as a party to any proceedings pending in any court to which the former Board was a party immediately before the commencement of sub-section (2).

(6) The Board is, by force of this sub-section, substituted as a party to any arrangement or contract entered into by or on behalf of the former Board as a party and in force immediately before the commencement of sub-section (2).

(7) Any act, matter or thing done by or in relation to the former Board before the commencement of sub-section (2) has effect as if it had been done by or in relation to the Board and continues to have the same effect after that commencement as it had before then.

(8) Any reference to the former Board in any Act or in any proclamation, Order in Council, rule, regulation, order, agreement, instrument, deed or other document whatsoever shall, so far as it relates to any period after the commencement of sub-section (2) and if not inconsistent with the context or subject-matter, be construed as a reference to the Board.

(9) Despite anything to the contrary in this Act, the chairman of the former Board must be deemed to have been appointed as chairperson of the Board for the balance, as at immediately before the commencement of sub-section (2), of his term as chairman of the former Board.

(10) Despite anything to the contrary in this Act, the members of the former Board referred to in paragraphs (a) and (b) of section 5(3) of the Discharged Servicemen's Preference Act 1943 must be deemed to have been appointed as members of the Board referred to in paragraphs (a) and (b) respectively of section 8(2) of this Act for the balance, as at immediately before the commencement of sub-section (2), of their term as members of the former Board.




2 S. 6(1): See note 1.






Verilənlər bazası müəlliflik hüququ ilə müdafiə olunur ©azrefs.org 2016
rəhbərliyinə müraciət

    Ana səhifə