36Arbitration proceedings

#### 36 Arbitration proceedings (1) In this section, unless the contrary intention appears: > Arbitrator means the person holding, or performing the duties of, the office of Public Service Arbitrator under the Public Service Arbitration Act 1920‑1973. > claim means a claim made under the Public Service Arbitration Act 1920‑1973, or an application made under that Act to vary a determination of the Arbitrator, being a claim or application: (a) that was submitted to the Arbitrator before the commencing day; (b) that relates, either in whole or in part, to the Postmaster‑General’s Department; and (c) that is declared by the regulations to be a claim or application, as the case may be, to which this section applies. > Deputy Arbitrator means a person holding an office of Deputy Public Service Arbitrator under the Public Service Arbitration Act 1920‑1973. > relevant Commission, in relation to a claim, means a Commission declared under subsection (2) to be a relevant Commission in relation to that claim. (2) For the purposes of this section, the regulations may declare that the Australian Postal Commission or the Australian Telecommunications Commission, or that each of those Commissions, is a relevant Commission in relation to a claim. (3) Notwithstanding that a claim relates, either in whole or in part, to the Postmaster‑General’s Department: (a) where the hearing of the claim was completed, but a determination was not made in respect of the claim, before the commencing day, a determination may be made in respect of the claim; (b) where the hearing of the claim was commenced, but was not completed, before the commencing day, the hearing may be completed, and a determination may be made in respect of the claim; (c) where a determination was made in respect of the claim, and an appeal against that determination was instituted but not determined, before the commencing day, a determination may be made, or the appeal may be heard and a determination may be made, as the case requires, in respect of the appeal; or (d) where: (i) a determination in respect of the claim was made before the commencing day but the time for instituting an appeal against that determination had not expired before that day; or (ii) a determination in respect of the claim is made on or after the commencing day, an appeal may be instituted against that determination and the appeal may then be heard and a determination made in respect of the appeal, under the Public Service Arbitration Act 1920‑1973 on or after the commencing day, and that determination may purport to relate to the Postmaster‑General’s Department. (4) Where the hearing of the whole or a part of a claim referred to in paragraph (3)(b) was deferred before the commencing day, being a claim or a part of a claim that relates to the Postmaster‑General’s Department, subsection (3) does not authorize the making of a determination in respect of that claim or that part of that claim, as the case may be. (5) Subject to subsection (6), where a determination referred to in subsection (3) that is made after the commencing day in respect of a claim purports to determine terms and conditions of employment applicable to persons performing the duties of offices included in a class of offices, or designations of persons included in a class of designations of persons, in the Postmaster‑General’s Department, a relevant Commission in relation to the claim shall vary the terms and conditions of employment applicable to the officers and employees in its Service in such manner as is necessary to ensure that the terms and conditions of employment, in respect of matters to which the determination relates, of those officers and employees who are performing the duties of positions included in a class of positions in its Service that correspond with that class of offices, designations of persons or positions are no less favourable than those first‑mentioned terms and conditions of employment. (6) Subsection (5) does not apply to a determination made by the Arbitrator or a Deputy Arbitrator: (a) until the expiration of the period allowed for the institution of an appeal against the determination; and (b) if an appeal is instituted, or appeals are instituted, against the determination—unless the appeal, or each of the appeals, is withdrawn or held not to lie or the determination is confirmed, either with or without a variation. (7) For the purposes of making a determination referred to in subsection (3), the Arbitrator, the Deputy Arbitrator or the Conciliation and Arbitration Commission, as the case requires, shall assume that: (a) the persons who, immediately before the commencing day, were employed in the Postmaster‑General’s Department were continuing, on and after that day, to be members of the Australian Public Service, to be employed in that Department and to be performing the duties that they were performing immediately before that day; and (b) the offices established in, and the designations of persons employed in, the Postmaster‑General’s Department immediately before the commencing day continued in existence without change of duties, on and after that day, as offices in, and as designations of persons employed in, that Department. (8) The Conciliation and Arbitration Commission, the Arbitrator and a Deputy Arbitrator have, respectively, in respect of a hearing of a claim or appeal referred to in subsection (3) and in respect of the making of a determination referred to in that subsection, all the powers conferred on it, him or her by the Public Service Arbitration Act 1920‑1973, including the powers conferred by sections 15 and 15A, but an application does not lie to the Arbitrator to vary a determination so referred to in so far as the determination purports to relate to the Postmaster‑General’s Department. (9) A relevant Commission in relation to a claim has, by virtue of this subsection, the like rights, and may exercise the like powers, in relation to the claim, or a determination made in respect of the claim, to which subsection (3) applies as the rights and powers that are conferred by the Public Service Arbitration Act 1920‑1973 on the Public Service Board in relation to the claim or determination. (10) Nothing in this section shall be taken to affect the application of section 22 of the Public Service Arbitration Act 1920‑1973 in relation to a determination, but a determination of a kind referred to in subsection (3) shall not, for the purposes of that section, be deemed to be not in accord with the Postal Services Act 1975 or the Telecommunications Act 1975. (11) Nothing in this section shall be taken to affect the application of the Public Service Arbitration Act 1920‑1973 in relation to a claim in so far as the claim is not related to the Postmaster‑General’s Department.