FAIR WORK AMENDMENT (SUPPORTING AUSTRALIA'S JOBS AND ECONOMIC RECOVERY) BILL 2020

This is a Bill, not an Act. For current law, see the Acts databases.

FAIR WORK AMENDMENT (SUPPORTING AUSTRALIA'S JOBS AND ECONOMIC RECOVERY) BILL 2020

2019-2020

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Fair Work Amendment (Supporting

Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

(Industrial Relations)

A Bill for an Act to amend the

Fair Work Act 2009

and the

Fair Work (Transitional Provisions and

Consequential Amendments) Act 2009

, and for

related purposes

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 3

Schedule 1--Casual employees

Part 1--Main amendments

Fair Work Act 2009

Part 2--Other amendments

Fair Work Act 2009

Schedule 2--Modern awards

Part 1--Additional hours for part-time employees

Fair Work Act 2009

Part 2--Flexible work directions

Fair Work Act 2009

Part 3--Repeal of Part 6-4D of the Fair Work Act 2009

Fair Work Act 2009

Schedule 3--Enterprise agreements etc.

Part 1--Objects

Fair Work Act 2009

Part 2--Notice of employee representational rights

Fair Work Act 2009

Part 3--Pre-approval requirements

Fair Work Act 2009

Part 4--Voting requirements

Fair Work Act 2009

Part 5--Better off overall test

Division 1--Main amendments

Fair Work Act 2009

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Division 2--Sunsetting of additional power to approve enterprise

agreements that do not pass the better off overall test

Fair Work Act 2009

Part 6--NES interaction terms

Fair Work Act 2009

Part 7--Variation of single enterprise agreements to cover

eligible franchisee employers and their employees

Fair Work Act 2009

Part 8--Terminating agreements after nominal expiry date

Fair Work Act 2009

Part 9--How the FWC may inform itself

Fair Work Act 2009

Part 10--Time limits for determining certain applications

Fair Work Act 2009

Part 11--FWC functions

Fair Work Act 2009

Part 12--Transfer of business

Fair Work Act 2009

Part 13--Cessation of instruments

Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009

Schedule 4--Greenfields agreements

Fair Work Act 2009

Schedule 5--Compliance and enforcement

Part 1--Orders relating to civil remedy provisions

Division 1--Main amendments

Fair Work Act 2009

Division 2--Consequential amendments

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

iii

Building and Construction Industry (Improving Productivity) Act

2016

Part 2--Small claims procedure

Division 1--Main amendments

Fair Work Act 2009

Federal Circuit Court of Australia Act 1999

Division 2--Amendments contingent on the commencement of the

Federal Circuit and Family Court of Australia Act 2020

Fair Work Act 2009

Federal Circuit and Family Court of Australia Act 2020

Part 3--Prohibiting employment advertisements with pay rate

less than the national minimum wage

Fair Work Act 2009

Part 4--Compliance notices, infringement notices and

enforceable undertakings

Building and Construction Industry (Improving Productivity) Act

2016

Fair Work Act 2009

Part 5--Sham arrangements

Fair Work Act 2009

Part 6--Functions of the ABC Commissioner and the Fair

Work Ombudsman

Building and Construction Industry (Improving Productivity) Act

2016

Fair Work Act 2009

Part 7--Criminalising underpayments

Division 1--Main amendments

Fair Work Act 2009

Division 2--Consequential amendments

Building and Construction Industry (Improving Productivity) Act

2016

Federal Court of Australia Act 1976

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Schedule 6--The Fair Work Commission

Fair Work Act 2009

Schedule 7--Application, saving and transitional provisions

Fair Work Act 2009

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

A Bill for an Act to amend the

Fair Work Act 2009

and the

Fair Work (Transitional Provisions and

Consequential Amendments) Act 2009

, and for

related purposes

The Parliament of Australia enacts:

1 Short title

This Act is the

Fair Work Amendment (Supporting Australia's

Jobs and Economic Recovery) Act 2020

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

The day after this Act receives the Royal

Assent.

3. Schedule 2,

Parts 1 and 2

The day after this Act receives the Royal

Assent.

4. Schedule 2,

Part 3

The day after the end of the period of 2 years

beginning on the day after this Act receives

the Royal Assent.

5. Schedule 3,

Parts 1 to 4

The day after this Act receives the Royal

Assent.

6. Schedule 3,

Part 5, Division 1

The day after this Act receives the Royal

Assent.

7. Schedule 3,

Part 5, Division 2

The day after the end of the period of 2 years

beginning on the day after this Act receives

the Royal Assent.

8. Schedule 3,

Parts 6 to 13

The day after this Act receives the Royal

Assent.

9. Schedule 4

The day after this Act receives the Royal

Assent.

10. Schedule 5,

Part 1

The day after this Act receives the Royal

Assent.

11. Schedule 5,

Part 2, Division 1

The day after the end of the period of 6

months beginning on the day this Act

receives the Royal Assent.

12. Schedule 5,

Part 2, Division 2

The later of:

(a) immediately after the commencement of

the provisions covered by table item 11;

and

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

(b) the commencement of the

Federal

Circuit and Family Court of Australia

Act 2020

However, the provisions do not commence

at all if the event mentioned in paragraph (b)

does not occur.

13. Schedule 5,

Part 3

The day after the end of the period of 6

months beginning on the day this Act

receives the Royal Assent.

14. Schedule 5,

Parts 4 and 5

The day after this Act receives the Royal

Assent.

15. Schedule 5,

Part 6

The day after the end of the period of 6

months beginning on the day this Act

receives the Royal Assent.

16. Schedule 5,

Part 7

The day after this Act receives the Royal

Assent.

17. Schedule 6

The day after this Act receives the Royal

Assent.

18. Schedule 7,

item 1

The day after this Act receives the Royal

Assent.

19. Schedule 7,

items 2 and 3

The day after the end of the period of 6

months beginning on the day this Act

receives the Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Casual employees

Schedule 1

Main amendments

Part 1

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Schedule 1--Casual employees

Part 1--Main amendments

Fair Work Act 2009

1 Section 12

Insert:

casual employee

: see section 15A.

2 At the end of Division 3 of Part 1-2

Add:

15A Meaning of

casual employee

(1) A person is a

casual employee

of an employer if:

(a) an offer of employment made by the employer to the person

is made on the basis that the employer makes no firm

advance commitment to continuing and indefinite work

according to an agreed pattern of work for the person; and

(b) the person accepts the offer on that basis; and

(2) For the purposes of subsection (1), in determining whether, at the

time the offer is made, the employer makes no firm advance

commitment to continuing and indefinite work according to an

agreed pattern of work for the person, regard must be had only to

the following considerations:

(a) whether the employer can elect to offer work and whether the

person can elect to accept or reject work;

(b) whether the person will work only as required;

(d) whether the person will be entitled to a casual loading or a

specific rate of pay for casual employees under the terms of

the offer or a fair work instrument.

Note:

Under Division 4A of Part 2-2, a casual employee who has worked for

an employer for at least 12 months and has, during at least the last 6

Schedule 1

Casual employees

Part 1

Main amendments

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Recovery) Bill 2020

No. , 2020

months of that time, worked a regular pattern of hours on an ongoing

basis may be entitled to be offered, or request, conversion to full-time

employment or part-time employment.

(3) To avoid doubt, a regular pattern of hours does not of itself

indicate a firm advance commitment to continuing and indefinite

work according to an agreed pattern of work.

(4) To avoid doubt, the question of whether a person is a casual

employee of an employer is to be assessed on the basis of the offer

of employment and the acceptance of that offer, not on the basis of

any subsequent conduct of either party.

(5) A person who commences employment as a result of acceptance of

an offer of employment in accordance with subsection (1) remains

casual employee

of the employer until:

(a) the employee's employment is converted to full-time or

part-time employment under Division 4A of Part 2-2; or

(b) the employee accepts an alternative offer of employment

(other than as a casual employee) by the employer and

commences work on that basis.

3 After Division 4 of Part 2-2

Insert:

Division 4A--Offers and requests for casual conversion

Subdivision A--Application of Division

66A Division applies to casual employees etc.

(1) This Division applies in relation to an employee who is a casual

employee.

(2) A reference in this Division to full-time employment or part-time

employment is taken not to include employment for a specified

period of time, for a specified task or for the duration of a specified

season.

Casual employees

Schedule 1

Main amendments

Part 1

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Subdivision B--Employer offers for casual conversion

66B Employer offers

(1) Subject to section 66C, an employer must make an offer to a casual

employee under this section if:

(a) the employee has been employed by the employer for a

period of 12 months beginning the day the employment

started; and

(b) during at least the last 6 months of that period, the employee

has worked a regular pattern of hours on an ongoing basis

which, without significant adjustment, the employee could

continue to work as a full-time employee or a part-time

employee (as the case may be).

Note:

An employee who meets the requirements of paragraphs (a) and (b)

would also be a regular casual employee because the employee has

been employed by the employer on a regular and systematic basis.

(2) The offer must:

(a) be in writing; and

(b) be an offer for the employee to convert:

(i) for an employee that has worked the equivalent of

full-time hours during the period referred to in

paragraph (1)(b)--to full-time employment; or

(ii) for an employee that has worked less than the

equivalent of full-time hours during the period referred

to in paragraph (1)(b)--to part-time employment that is

consistent with the regular pattern of hours worked

during that period; and

the end of the 12 month period referred to in

paragraph (1)(a).

Note:

If an offer is accepted, the conversion to full-time employment or

part-time employment has effect for all purposes (see section 66K

(3) For the purposes of paragraph (2)(b), in determining whether an

award/agreement free employee has worked the equivalent of

full-time hours, regard may be had to the hours of work of any

other full-time employees of the employer employed in the same

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Recovery) Bill 2020

No. , 2020

position as (or in a position that is comparable to) the position of

the employee.

66C When employer offers not required

(1) Despite section 66B, an employer is not required to make an offer

under that section to a casual employee if:

(a) there are reasonable grounds not to make the offer; and

(b) the reasonable grounds are based on facts that are known, or

reasonably foreseeable, at the time of deciding not to make

the offer.

(2) Without limiting paragraph (1)(a), reasonable grounds for deciding

not to make an offer include the following:

(a) the employee's position will cease to exist in the period of 12

months after the time of deciding not to make the offer;

(b) the hours of work which the employee is required to perform

will be significantly reduced in that period;

following in that period:

(i) the days on which the employee's hours of work are

required to be performed;

(ii) the times at which the employee's hours of work are

required to be performed;

which cannot be accommodated within the days or times the

employee is available to work during that period;

(d) making the offer would not comply with a recruitment or

selection process required by or under a law of the

Commonwealth or a State or a Territory.

(3) An employer must give written notice to a casual employee in

accordance with subsection (4) if:

(a) the employer decides under subsection (1) not to make an

offer to the employee; or

(b) the employee has been employed by the employer for the 12

month period referred to in paragraph 66B(1)(a) but does not

meet the requirement referred to in paragraph 66B(1)(b).

Casual employees

Schedule 1

Main amendments

Part 1

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Note:

If an employer fails to give notice to a casual employee, the employee

has a residual right to request conversion to full-time or part-time

employment in certain circumstances: see Subdivision C.

(4) The notice must:

(a) advise the employee that the employer is not making an offer

under section 66B; and

(b) include details of the reasons for not making the offer

(including any grounds on which the employer has decided to

not make the offer); and

of the 12 month period referred to in paragraph 66B(1)(a).

66D Employee must give a response

(1) The employee must give the employer a written response to the

offer within 21 days after the offer is given to the employee, stating

whether the employee accepts or declines the offer.

(2) If the employee fails to give the employer a written response in

accordance with subsection (1), the employee is taken to have

declined the offer.

66E Acceptances of offers

(1) If the employee accepts the offer, the employer must, within 21

days after the day the acceptance is given to the employer, give

written notice to the employee of the following:

(a) whether the employee is converting to full-time employment

or part-time employment;

(b) the employee's hours of work after the conversion takes

effect;

or part-time employment takes effect.

(2) However, the employer must discuss with the employee the matters

the employer intends to specify for the purposes of

paragraphs (1)(a), (b) and (c) before giving the notice.

(3) The day specified for the purposes of paragraph (1)(c) must be the

first day of the employee's first full pay period that starts after

the

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Part 1

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Recovery) Bill 2020

No. , 2020

day the notice is given, unless the employee and employer agree to

another day.

Subdivision C--Residual right to request casual conversion

66F Employee requests

(1) A casual employee may make a request of an employer under this

section if:

(a) the employee has been employed by the employer for a

period of at least 12 months beginning the day the

employment started; and

(b) the employee has, in the period of 6 months ending the day

the request is given, worked a regular pattern of hours on an

ongoing basis which, without significant adjustment, the

employee could continue to work as a full-time employee or

a part-time employee (as the case may be); and

(i) the employee has not, at any time during the period

referred to in paragraph (b), refused an offer made to the

employee under section 66B;

(ii) the employer has not, at any time during that period,

given the employee a notice in accordance with

paragraph 66C(3)(a) (which deals with notice of

employer decisions not to make offers on reasonable

grounds);

(iii) the employer has not, at any time during that period,

given a response to the employee under section 66G

refusing a previous request made under this section;

(iv) the request is not made during the period of 21 days

after the period referred to in paragraph 66B(1)(a).

(2) The request must:

(a) be in writing; and

(b) be a request for the employee to convert:

(i) for an employee that has worked the equivalent of

full-time hours during the period referred to in

paragraph (1)(b)--to full-time employment; or

Casual employees

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Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

(ii) for an employee that has worked less than the

equivalent of full-time hours during the period referred

to in paragraph (1)(b)--to part-time employment that is

consistent with the regular pattern of hours worked

during that period; and

Note:

If a request is accepted, the conversion to full-time employment or

part-time employment has effect for all purposes (see section 66K).

(3) For the purposes of paragraph (1)(b), in determining whether an

award/agreement free employee has worked the equivalent of

full-time hours, regard may be had to the hours of work of any

other full-time employees of the employer employed in the same

position as (or in a position that is comparable to) the position of

the employee.

66G Employer must give a response

The employer must give the employee a written response to the

request within 21 days after the request is given to the employer,

stating whether the employer grants or refuses the request.

66H Refusals of requests

(1) The employer must not refuse the request unless:

(a) the employer has consulted the employee; and

(b) there are reasonable grounds to refuse the request; and

reasonably foreseeable, at the time of refusing the request.

(2) Without limiting paragraph (1)(b), reasonable grounds for refusing

the request include the following:

(a) it would require a significant adjustment to the employee's

hours of work in order for the employee to be employed as a

full-time employee or part-time employee;

(b) the employee's position will cease to exist in the period of 12

months after giving the request;

will be significantly reduced in the period of 12 months after

giving the request;

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No. , 2020

(d) there will be a significant change in either or both of the

following in the period of 12 months after giving the request:

(i) the days on which the employee's hours of work are

required to be performed;

(ii) the times at which the employee's hours of work are

required to be performed;

which cannot be accommodated within the days or times the

employee is available to work during that period;

(e) granting the request would not comply with a recruitment or

selection process required by or under a law of the

Commonwealth or a State or a Territory.

(3) If the employer refuses the request, the written response under

section 66G must include details of the reasons for the refusal.

66J Grants of requests

(1) If the employer grants the request, the employer must, within 21

days after the day the request is given to the employer, give written

notice to the employee of the following:

(a) whether the employee is converting to full-time employment

or part-time employment;

(b) the employee's hours of work after the conversion takes

effect;

or part-time employment takes effect.

(2) However, the employer must discuss with the employee the matters

the employer intends to specify for the purposes of

paragraphs (1)(a), (b) and (c) before giving the notice.

(3) The day specified for the purposes of paragraph (1)(c) must be the

first day of the employee's first full pay period that starts after

the

day the notice is given, unless the employee and employer agree to

another day.

(4) To avoid doubt, the notice may be included in the written response

under section 66G.

Casual employees

Schedule 1

Main amendments

Part 1

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Subdivision D--Other provisions

66K Effect of conversion

To avoid doubt, an employee is taken, on and after the day

specified in a notice for the purposes of paragraph 66E(1)(c) or

66J(1)(c), to be a full-time employee or part-time employee of the

employer for the purposes of the following:

(a) this Act and any other law of the Commonwealth;

(b) a law of a State or Territory;

(d) the employee's contract of employment.

66L Other rights and obligations

(1) An employer must not reduce or vary an employee's hours of

work, or terminate an employee's employment, in order to avoid

any right or obligation under this Division.

Note:

The general protections provisions in Part 3-1 also prohibit the taking

of adverse action by an employer against an employee (which includes

a casual employee) because of a workplace right of the employee

under this Division.

(2) Nothing in this Division:

(a) requires an employee to convert to full-time employment or

part-time employment; or

(b) permits an employer to require an employee to convert to

full-time employment or part-time employment; or

employee who requests conversion to full-time employment

or part-time employment under this Division.

66M Disputes about the operation of this Division

Application of this section

(1) This section applies to a dispute between an employer and

employee about the operation of this Division.

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No. , 2020

(2) However, this section does not apply in relation to the dispute if

any of the following includes a term that provides a procedure for

dealing with the dispute:

(a) a fair work instrument that applies to the employee;

(b) the employee's contract of employment;

employee.

Note:

Modern awards and enterprise agreements must include a term that

provides a procedure for settling disputes in relation to the National

Employment Standards (see paragraph 146(b) and subsection 186(6)).

Resolving disputes

(3) In the first instance, the parties to the dispute must attempt to

resolve the dispute at the workplace level, by discussions between

the parties.

FWC may deal with disputes

(4) If discussions at the workplace level do not resolve the dispute, a

party to the dispute may refer the dispute to the FWC.

(5) If a dispute is referred under subsection (4):

(a) the FWC must deal with the dispute; and

(b) if the parties notify the FWC that they agree to the FWC

arbitrating the dispute--the FWC may deal with the dispute

by arbitration.

Note:

For the purposes of paragraph (a), the FWC may deal with the dispute

as it considers appropriate, including by mediation, conciliation,

making a recommendation or expressing an opinion (see

subsection 595(2)).

Representatives

(6) The employer or employee to the dispute may appoint a person or

industrial association to provide the employer or employee (as the

case may be) with support or representation for the purposes of

resolving, or the FWC dealing with, the dispute.

Note:

A person may be represented by a lawyer or paid agent in a matter

before the FWC only with the permission of the FWC (see

section 596).

Casual employees

Schedule 1

Main amendments

Part 1

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

4 Division 12 of Part 2-2 (heading)

Repeal the heading, substitute:

Division 12--Fair Work Ombudsman to prepare and

publish statements

5 At the end of Division 12

Add:

125A Fair Work Ombudsman to prepare and publish Casual

Employment Information Statement

(1) The Fair Work Ombudsman must prepare a Casual Employment

Information Statement. The Fair Work Ombudsman must publish

the Statement in the Gazette.

Note:

If the Fair Work Ombudsman changes the Statement, the Fair Work

Ombudsman must publish the new version of the Statement in the

Gazette.

(2) The Statement must contain information about casual employment

and offers and requests for casual conversion under Division 4A of

Part 2-2, including the following:

(a) the meaning of casual employee under section 15A;

(b) an employer offer for casual conversion must generally be

made to certain casual employees within 21 days after the

employee has completed 12 months of employment;

conversion if there are reasonable grounds to do so, but the

employer must notify the employee of these grounds;

(d) certain casual employees will also have a residual right to

request casual conversion;

(e) the FWC may deal with disputes about the operation of that

Division.

(3) The Casual Employment Information Statement is not a legislative

instrument.

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No. , 2020

(4) The regulations may prescribe other matters relating to the content

or form of the Statement, or the manner in which employers may

give the Statement to employees.

125B Giving new employees the Casual Employment Information

Statement

(1) An employer must give each casual employee the Casual

Employment Information Statement before, or as soon as

practicable after, the employee starts employment as a casual

employee with the employer.

(2) Subsection (1) does not require the employer to give the employee

the Statement more than once in any 12 months.

Note:

This is relevant if the employer employs the employee more than once

in the 12 months.

6 After section 545

Insert:

545A Orders relating to casual loading amounts

(1) This section applies if:

(a) a person is employed by an employer in circumstances where

the employment is described as casual employment; and

(b) the employer pays the person an identifiable amount (the

loading amount

) paid to compensate the person for not

having one or more relevant entitlements during a period (the

employment period

); and

employee; and

(d) the person (or another person for the benefit of the person)

makes a claim to be paid an amount for one or more of the

relevant entitlements with respect to the employment period.

Note:

For the purposes of paragraph (d), another person making a claim for

the benefit of the person could include an inspector or an employee

organisation.

(2) When making any orders in relation to the claim, a court must

reduce (but not below nil) any amount payable by the employer to

Casual employees

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Fair Work Amendment (Supporting Australia's Jobs and Economic

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the person for the relevant entitlements (the

claim amount

) by an

amount equal to the loading amount.

Note:

If the claim is below a certain amount, the person may choose to use

the small claims procedure: see section 548.

(3) Despite subsection (2), the court may reduce the claim amount by

an amount equal to a proportion (which may be nil) of the loading

amount the court considers appropriate, having regard only to:

(a) if a term of the fair work instrument or contract of

employment under which the loading amount is paid

specifies the relevant entitlements the loading amount is

compensating for and specifies the proportion of the loading

amount attributable to each such entitlement--that term

(including those proportions); or

(b) if such a term specifies the relevant entitlements the loading

amount is compensating for but does not specify the

proportion of the loading amount attributable to each such

entitlement--that term and what would be an appropriate

proportion of the loading amount attributable to each of those

entitlements in all the circumstances; or

referred to in subsection (4) and what would be an

appropriate proportion of the loading amount attributable to

each of those entitlements in all the circumstances.

(4) A reference in this section to a

relevant entitlement

is a reference

to an entitlement under the National Employment Standards, a fair

work instrument or a contract of employment to any of the

following:

(a) paid annual leave;

(b) paid personal/carer's leave;

(d) payment for absence on a public holiday;

(e) payment in lieu of notice of termination;

(f) redundancy pay.

(5) To avoid doubt, an entitlement referred to in subsection (4)

includes any such entitlement that has accrued but is untaken.

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Casual employees

Part 2

Other amendments

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Part 2--Other amendments

Fair Work Act 2009

7 Section 12 (definition of

long term casual

)

Repeal the definition.

8 Section 12

Insert:

regular casual employee

: a national system employee of a national

system employer is a

regular casual employee

at a particular time

if, at that time:

(a) the employee is a casual employee; and

(b) the employee has been employed by the employer on a

regular and systematic basis.

9 Paragraph 23(2)(b)

Omit the words after "at that time,", substitute "the employee is a

regular casual employee of the employer".

10 After paragraph 61(2)(b)

Insert:

(ba) offers and requests for casual conversion (Division 4A);

11 Subparagraph 65(2)(b)(i)

Repeal the subparagraph, substitute:

(i) is, immediately before making the request, a regular

casual employee of the employer who has been

employed on that basis for a sequence of periods of

employment during a period of at least 12 months; and

12 After subsection 65(2)

Insert:

(2A) For the purposes of applying paragraph (2)(a) in relation to an

employee who has had their employment converted under

Casual employees

Schedule 1

Other amendments

Part 2

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Division 4A of Part 2-2, any period for which the employee was a

regular casual employee of the employer is taken to be continuous

service for the purposes of that paragraph.

13 After subsection 67(1)

Insert:

(1A) For the purposes of applying subsection (1) in relation to an

employee who has had their employment converted under

Division 4A of Part 2-2, any period for which the employee was a

regular casual employee of the employer is taken to be continuous

service for the purposes of that subsection.

14 Paragraph 67(2)(a)

Repeal the paragraph, substitute:

(a) the employee is, or will be, immediately before the date that

applies under subsection (3), a regular casual employee of the

employer who has been employed on that basis for a

sequence of periods of employment during a period of at

least 12 months; and

15 Subsection 87(1)

Omit "with his or her employer", substitute "with an employer (other

than periods of employment as a casual employee of the employer)".

16 Subsection 87(2)

After "year of service", insert "(other than periods of employment as a

casual employee of the employer)".

17 Subsection 96(1)

Omit "with his or her employer", substitute "with an employer (other

than periods of employment as a casual employee of the employer)".

18 Subsection 96(2)

After "year of service", insert "(other than periods of employment as a

casual employee of the employer)".

19 At the end of section 117

Add:

Schedule 1

Casual employees

Part 2

Other amendments

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

(4) A reference in this section to continuous service with the employer

does not include periods of employment as a casual employee of

the employer.

20 At the end of section 119

Add:

(3) A reference in this section to continuous service with the employer

does not include periods of employment as a casual employee of

the employer.

21 Paragraph 121(1)(a)

After "with the employer", insert "(other than periods of employment as

a casual employee of the employer)".

22 Subparagraph 384(2)(a)(i)

Omit "on a regular and systematic basis", substitute "as a regular casual

employee".

Modern awards

Schedule 2

Additional hours for part-time employees

Part 1

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Schedule 2--Modern awards

Part 1--Additional hours for part-time employees

Fair Work Act 2009

1 Section 12

Insert:

additional agreed hours

: see subsection 168M(1).

identified modern award

: see subsections 168M(3) and (4).

relevant identified modern award

, in relation to an employer and

an employee: see subsection 168M(1).

simplified additional hours agreement

: see subsection 168M(1).

2 Section 132

After:

Division 8 contains additional provisions relating to State reference

public sector modern awards.

Insert:

Division 9 contains provisions for part-time employees, to whom

certain modern awards apply, to agree to work additional agreed

hours through simplified additional hours agreements.

3 After paragraph 136(1)(b)

Insert:

(ba) Division 9 (which deals with terms for part-time employees

to agree to work additional agreed hours); or

4 At the end of Subdivision B of Division 5 of Part 2-3

Add:

Schedule 2

Modern awards

Part 1

Additional hours for part-time employees

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

161A Variation of modern award to resolve uncertainty or difficulty

relating to simplified additional hours agreements

(1) Subject to subsection 168S(2), the FWC may make a determination

varying an identified modern award:

(a) to resolve an uncertainty or difficulty relating to the

interaction between the provisions of Division 9 and any

terms of the identified modern award; or

(b) to make the identified modern award operate effectively with

those provisions.

Note:

Certain provisions of Division 9 are taken to be terms of each

identified modern award. The FWC must not vary or revoke these

terms (see section 168S).

(2) The FWC may make the determination:

(a) on its own initiative; or

(b) on application by an employer, employee, organisation or

outworker entity to which the award applies; or

the industrial interests of one or more employers or

employees to which the award applies.

(3) A variation of an identified modern award under this section

operates from the day specified in the determination, which may be

a day before the determination is made.

5 At the end of Part 2-3

Add:

Division 9--Agreements for part-time employees to work

additional agreed hours

Subdivision A--Simplified additional hours agreements

168M When a simplified additional hours agreement may be made

(1) An employer and an employee may enter into an agreement under

this Subdivision (a

simplified

additional hours agreement

) for the

employee to work additional hours (

additional agreed hours

) if:

Modern awards

Schedule 2

Additional hours for part-time employees

Part 1

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

(a) an identified modern award (the

relevant identified modern

award

) applies to the employer and employee; and

(b) the employee is a part-time employee under the relevant

identified modern award; and

(i) if the relevant identified modern award provides for the

employee's ordinary hours of work to be averaged over

a period (such as a roster cycle)--at least 16 hours per

week, averaged over such a period; or

(ii) otherwise--at least 16 hours per week.

Note:

For

applies

, in relation to a modern award, see section 47.

(2) An employer must not require an employee to enter into a

simplified additional hours agreement.

Note 1:

Entering into a simplified additional hours agreement, or not doing so,

is also a workplace right for the purposes of the general protections in

Part 3-1 (see section 168T).

Note 2:

Also, section 344 prohibits the exertion of undue influence or undue

pressure on an employee in relation to a decision by the employee to

enter into, or not enter into, a simplified additional hours agreement.

(3) In this Act:

identified modern award

means the following modern awards, as

in force from time to time:

(a) the

Business Equipment Award 2020

;

(b) the

Commercial Sales Award 2020

;

Fast Food Industry Award 2010

;

(d) the

General Retail Industry Award 2020

;

(e) the

Hospitality Industry (General) Award 2020

;

(f) the

Meat Industry Award 2020

;

(g) the

Nursery Award 2020

;

(h) the

Pharmacy Industry Award 2020

;

(i) the

Restaurant Industry Award 2020

;

(j) the

Registered and Licensed Clubs Award 2010

;

(k) the

Seafood Processing Award 2020

;

(l) the

Vehicle Repair, Services and Retail Award 2020

;

Schedule 2

Modern awards

Part 1

Additional hours for part-time employees

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

(m) a modern award prescribed by the regulations for the

purposes of this paragraph.

(4) Despite subsection (3), a modern award is not an

identified

modern award

if the regulations prescribe the modern award for

the purposes of this subsection.

Interaction with other provisions of relevant identified modern

award

(5) An employer and an employee may agree, other than under this

Subdivision, for the employee to work additional hours (however

described) if an identified modern award that applies to the

employer and employee allows for this.

(6) However, if the employee and the employer enter into an

agreement under this Subdivision, this Subdivision prevails over

any other provision of the relevant identified modern award to the

extent of any inconsistency.

168N Entering into simplified additional hours agreement

(1) A simplified additional hours agreement:

(a) must identify additional agreed hours to be worked on one or

more days; and

(b) must be entered into before the start of the first such period

of additional agreed hours.

(2) The employer must:

(a) inform the employee that the agreement is a simplified

additional hours agreement before the employee agrees to it;

and

(b) if the agreement is not in writing--make a record of the

agreement in writing before the end of the first period of

additional agreed hours worked under the agreement; and

be, and provide a copy to the employee if requested to do so.

(3) If the employer fails to comply with subsection (2), the simplified

additional hours agreement is of no effect.

Modern awards

Schedule 2

Additional hours for part-time employees

Part 1

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

(4) To avoid doubt, additional agreed hours may include part hours,

subject to subsection 168P(1) (additional agreed hours must be, or

be part of, a period of continuous work of at least 3 hours).

(5) An employer may enter into a simplified additional hours

agreement with an employee who is under 18 only if a parent or

guardian of the employee has consented, in writing, to the

employer entering into simplified additional hours agreements with

the employee.

(6) A consent mentioned in subsection (5) has effect until it is

withdrawn.

168P Requirements for simplified additional hours agreements

(1) Each period of additional agreed hours to be worked under a

simplified additional hours agreement must:

(a) be a continuous period of at least 3 hours; or

(b) be part of a period of continuous work of at least 3 hours.

Note:

For example, a period of 1 hour of additional agreed hours worked

after the end of a 2 hour shift, so that the period of continuous work is

3 hours in total, will satisfy the requirement in paragraph (b).

(2) A meal break or other break required by the relevant identified

modern award does not prevent a period being continuous for the

purposes of subsection (1).

(3) A simplified additional hours agreement has no effect to the extent

that it is inconsistent with a provision of the relevant identified

modern award:

(a) that limits the maximum number of consecutive days that the

employee may be required to work or that requires the

employee not to work on a day; and

(b) that cannot be varied or avoided by any agreement or

arrangement between the employer and the employee.

Schedule 2

Modern awards

Part 1

Additional hours for part-time employees

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

168Q Effect of simplified additional hours agreement

Additional agreed hours may be worked

(1) If an employer and an employee enter into a simplified additional

hours agreement, the employee may work for each period of

additional agreed hours provided for by the agreement (subject to

any requirement in the relevant identified modern award for the

employee to take a break after a certain period).

Note:

This Subdivision prevails over anything in the relevant identified

modern award to the extent of any inconsistency (see

subsection 168M(6)).

Payment for additional agreed hours

(2) Additional agreed hours are to be paid without overtime.

(3) Despite subsection (2), overtime is payable in respect of additional

agreed hours:

(a) to the extent that those hours result in the employee working

outside a span or spread of hours, specified in the relevant

identified modern award, outside of which the relevant

identified modern award requires any part-time employee to

be paid overtime; or

(b) to the extent that those hours, together with any other hours

worked by the employee (not including hours for which

overtime is paid), result in the employee working more than:

(i) a maximum number of hours, specified in the relevant

identified modern award, that any part-time employee

may work in a day without being paid overtime; or

(ii) if the identified modern award provides for the

employee's ordinary hours of work to be averaged over

a period (such as a roster cycle)--38 hours per week,

averaged over such a period; or

(iii) if subparagraph (ii) does not apply--38 hours in a week;

purposes of this paragraph.

Modern awards

Schedule 2

Additional hours for part-time employees

Part 1

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Additional agreed hours to be treated as ordinary hours for certain

purposes

(4) Except where subsection (3) applies, additional agreed hours are to

be treated as ordinary hours of work:

(a) for the purposes of paying penalty rates that apply to ordinary

hours of work; and

(b) for the purposes of sections 87 and 90 (annual leave); and

leave); and

(d) for the purposes of the definition of

ordinary time earnings

in subsection 6(1) of the

Superannuation Guarantee

(Administration) Act 1992

; and

(e) for any other purposes prescribed by the regulations for the

purposes of this paragraph.

Other payments not affected

(5) Subsection (2) does not prevent any additional amounts, other than

overtime, being payable under the identified modern award.

Note:

Examples of those additional amounts include penalty rates,

incentive-based payments and bonuses, loadings and monetary

allowances.

168R Terminating a simplified additional hours agreement

(1) A simplified additional hours agreement can be terminated:

(a) by either the employee, or the employer, giving written

notice at least 7 days before the day on which the termination

is to take effect; or

(b) by the employee and the employer at any time if they agree,

in writing, to the termination.

Note 1:

Terminating a simplified additional hours agreement, or not doing so,

is a workplace right for the purposes of the general protections in

Part 3-1 (see section 168T).

Note 2:

Also, section 344 prohibits the exertion of undue influence or undue

pressure on an employee in relation to a decision by the employee to

terminate, or not terminate, a simplified additional hours agreement.

Schedule 2

Modern awards

Part 1

Additional hours for part-time employees

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

(2) The employer must keep a copy of a notice or agreement under

subsection (1), and provide a copy to the employee if requested to

do so.

Subdivision B--Other provisions

168S Certain provisions taken to be terms of an identified modern

award etc.

(1) Each provision in Subdivision A (other than subsections 168M(3)

and (4)) is taken to be a term of an identified modern award.

Note:

A person must not contravene a term of a modern award (see

section 45).

(2) The FWC must not vary or revoke a term of an identified modern

award mentioned in subsection (1).

(3) To avoid doubt:

(a) any disputes relating to the interaction between a provision in

Subdivision A and another term of an identified modern

award; or

(b) any disputes arising as a result of the operation of a provision

in Subdivision A;

may be resolved in accordance with the terms of the identified

modern award that provide a procedure for settling disputes about

matters arising under the award.

Note:

A modern award must include a term that provides a procedure for

settling disputes about any matters arising under the award (see

section 146).

(4) To avoid doubt, Subdivision A will at all times operate subject to

Part 2-2 (the National Employment Standards).

168T Protection of workplace rights

To avoid doubt, the following are workplace rights within the

meaning of Part 3-1 (general protections):

(a) entering into, or not entering into, a simplified additional

hours agreement;

(b) terminating, or not terminating, a simplified additional hours

agreement.

Modern awards

Schedule 2

Additional hours for part-time employees

Part 1

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Note:

Also, section 344 prohibits the exertion of undue influence or undue

pressure on an employee in relation to a decision by the employee to

enter into, not enter into, terminate or not terminate a simplified

additional hours agreement.

6 After paragraph 344(c)

Insert:

(ca) enter into, or not enter into, a simplified additional hours

agreement; or

(cb) terminate, or not terminate, a simplified additional hours

agreement; or

Schedule 2

Modern awards

Part 2

Flexible work directions

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Part 2--Flexible work directions

Fair Work Act 2009

7 Before paragraph 136(1)(c)

Insert:

(bb) Part 6-4D (which deals with terms in relation to duties and

location of work for certain employees); or

8 After Part 6-4C

Insert:

Part 6-4D--Flexible work directions

Division 1--Introduction

789GZC Guide to this Part

This Part deems identified modern awards to include terms that

allow an employer to give a direction to an employee about:

(a)

the duties to be performed by the employee; or

(b)

the location of the employee's work.

This Part provides that the FWC may deal with disputes arising

from the operation of the deemed terms in accordance with existing

dispute resolution terms in modern awards.

789GZD Application of Part

This Part applies in relation to employers and employees to whom

an identified modern award applies.

Note 1:

For

applies

, in relation to a modern award, see section 47.

Note 2:

For the meaning of

identified modern award

, see

subsections 168M(3) and (4).

Modern awards

Schedule 2

Flexible work directions

Part 2

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

789GZE Definitions

In this Part:

employee

means a national system employee.

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

employer

means a national system employer.

flexible work direction

means:

(a) a flexible work duties direction; or

(b) a flexible work location direction.

flexible work duties direction

means a direction referred to in

section 789GZG.

flexible work location direction

means a direction referred to in

section 789GZH.

licence

includes:

(a) registration; and

(b) permit.

Division 2--Flexible work directions

789GZF This Division prevails over inconsistent provision of

identified modern award

This Division prevails over a provision of an identified modern

award to the extent of any inconsistency.

789GZG Flexible work duties directions

An employer of an employee may give a direction (a

flexible work

duties direction

) to the employee to perform any duties during a

period that are within the employee's skill and competency if:

(a) those duties are safe, having regard to (without limitation) the

nature and spread of COVID-19; and

Schedule 2

Modern awards

Part 2

Flexible work directions

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

(b) in a case where the employee was required to have a licence

or qualification in order to perform those duties--the

employee had the licence or qualification; and

employer's business operations.

789GZH Flexible work location directions

An employer of an employee may give a direction (a

flexible work

location direction

) to the employee to perform duties during a

period at a place that is different from the employee's normal place

of work, including the employee's home, if:

(a) the place is suitable for the employee's duties; and

(b) if the place is not the employee's home--the place does not

require the employee to travel a distance that is unreasonable

in all the circumstances, including the circumstances

surrounding the COVID-19 pandemic; and

(i) safe, having regard to (without limitation) the nature

and spread of COVID-19; and

(ii) reasonably within the scope of the employer's business

operations.

789GZI Duration of flexible work directions

(1) A flexible work direction given by an employer to an employee of

the employer continues in effect until:

(a) it is withdrawn or revoked by the employer; or

(b) it is replaced by a new flexible work direction given by the

employer to the employee.

(2) Subsection (1) has effect subject to any order made by the FWC in

relation to the flexible work direction.

(3) A flexible work direction ceases to have effect at the start of the

day after the end of the period of 2 years beginning on the day this

section commences.

Modern awards

Schedule 2

Flexible work directions

Part 2

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

789GZJ Reasonableness

A flexible work direction given by an employer to an employee of

the employer does not apply to the employee if the direction is

unreasonable in all of the circumstances.

Note:

A direction may be unreasonable depending on the impact of the

direction on any caring responsibilities the employee may have.

789GZK Flexible work direction to assist the revival of the

enterprise

(1) A flexible work direction given by an employer to an employee of

the employer has no effect unless the employer has information

before the employer that leads the employer to reasonably believe

that the direction is a necessary part of a reasonable strategy to

assist in the revival of the employer's enterprise.

(2) In determining whether a flexible work direction given by an

employer to an employee of the employer (the

relevant employee

)

is a necessary part of a reasonable strategy to assist in the revival

of the employer's enterprise, it is immaterial that a similar flexible

work direction could have been given by the employer to an

employee of the employer other than the relevant employee.

789GZL Consultation

(1) A flexible work direction given by an employer to an employee of

the employer does not apply to the employee unless:

(a) the employer gave the employee written notice of the

employer's intention to give the direction; and

(b) the employer did so:

(i) at least 3 days before the direction was given; or

(ii) if the employee genuinely agreed to a lesser notice

period--during that lesser notice period; and

employee (or a representative of the employee) about the

direction.

Note:

An employee organisation may be a representative of the employee.

Schedule 2

Modern awards

Part 2

Flexible work directions

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

(2) Subsection (1) does not apply to a flexible work direction (the

relevant direction

) given by an employer to an employee of the

employer if:

(a) the employer previously complied with paragraphs (1)(a), (b)

and (c) in relation to a proposal to give the employee another

flexible work direction; and

(b) in the course of consulting the employee (or a representative

of the employee) about the proposal, the employee (or the

representative of the employee) expressed views to the

employer; and

relevant direction.

(3) An employer must keep a written record of a consultation under

paragraph (1)(c):

(a) with an employee of the employer; or

(b) with a representative of an employee of the employer.

789GZM Form of direction

A flexible work direction must be in writing.

789GZN Minimum rate of pay guarantee

Minimum rate of pay--duties of work

(1) If an employer gives a flexible work duties direction to an

employee of the employer, the employer must ensure that the

employee's base rate of pay (worked out on an hourly basis) is not

less than the greater of the following:

(a) the base rate of pay (worked out on an hourly basis) that

would have been applicable to the employee if the direction

had not been given to the employee;

(b) the base rate of pay (worked out on an hourly basis) that is

applicable to the duties the employee is performing.

Note:

This section guarantees an employee's hourly rate of pay.

Base rate of

pay

is defined in section 16 and does not include overtime or penalty

rates, monetary allowances or any other separately identifiable

amounts. However, monetary allowances, including the payment of

monetary allowances in relation to higher duties, must be paid to an

Modern awards

Schedule 2

Flexible work directions

Part 2

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

employee in accordance with the obligation to pay amounts payable to

the employee under section 323.

Base rate of pay for certain payment arrangements

(2) If:

(a) an employee is paid otherwise than:

(i) on an hourly basis; or

(ii) by reference to an hourly rate of pay; and

(b) an identified modern award applicable to the employee:

(i) specifies the employee's base rate of pay for the

purposes of the National Employment Standards; or

(ii) sets out a method for working out the employee's base

rate of pay for the purposes of the National Employment

Standards;

then, for the purposes of this section, the employee's base rate of

pay is:

(d) the amount worked out using the method set out in the

identified modern award;

as the case requires.

Division 3--Other provisions

789GZO Certain provisions taken to be terms of an identified

modern award

(1) Each provision in Division 2 is taken to be a term of an identified

modern award.

Note:

A person must not contravene a term of a modern award: see

section 45.

(2) The FWC may not vary or revoke a term of an identified modern

award mentioned in subsection (1).

(3) To avoid doubt:

(a) any disputes relating to the interaction between a provision in

Division 2 and a term of an identified modern award; or

(b) any disputes arising as a result of the operation of a provision

in Division 2;

Schedule 2

Modern awards

Part 2

Flexible work directions

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

may be resolved in accordance with the terms of the identified

modern award that provide a procedure for dealing with disputes

about matters arising under the award.

Note:

A modern award must include a term that provides a procedure for

settling disputes about any matters arising under the award (see

section 146).

(4) To avoid doubt, Division 2 will at all times operate subject to

Part 2-2 (the National Employment Standards).

789GZP Variation of modern award to resolve uncertainty or

difficulty relating to flexible work directions

(1) Subject to subsection 789GZO(2), the FWC may make a

determination varying an identified modern award:

(a) to resolve an uncertainty or difficulty relating to the

interaction between the provisions of Division 2 and any

terms of the identified modern award; or

(b) to make the identified modern award operate effectively with

those provisions.

Note:

The provisions in Division 2 are taken to be terms of each identified

modern award. The FWC must not vary or revoke these terms (see

subsection 789GZO(2)).

(2) The FWC may make the determination:

(a) on its own initiative; or

(b) on application by an employer, employee, organisation or

outworker entity to which the award applies; or

the industrial interests of one or more employers or

employees to which the award applies.

(3) A variation of an identified modern award under this section

operates from the day specified in the determination, which may be

a day before the determination is made.

Modern awards

Schedule 2

Repeal of Part 6-4D of the Fair Work Act 2009

Part 3

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Part 3--Repeal of Part 6-4D of the Fair Work Act 2009

Fair Work Act 2009

9 Paragraph 136(1)(bb)

Repeal the paragraph.

10 Part 6-4D

Repeal the Part.

Schedule 3

Enterprise agreements etc.

Part 1

Objects

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Schedule 3--Enterprise agreements etc.

Part 1--Objects

Fair Work Act 2009

1 Section 171

Repeal the section, substitute:

171 Objects of this Part

The objects of this Part are:

(a) to provide a simple, flexible, fair and balanced framework for

employers and employees to agree to terms and conditions of

employment, particularly at the enterprise level; and

(b) to enable collective bargaining in good faith for enterprise

agreements that:

(i) deliver productivity benefits; and

(ii) enable business and employment growth; and

(iii) reflect the needs and priorities of employers and

employees; and

making of enterprise agreements, including through:

(i) making bargaining orders; and

(ii) dealing with disputes where the bargaining

representatives request assistance; and

(iii) ensuring that applications to the FWC for approval of

enterprise agreements are dealt with in a timely,

practical and transparent manner.

Enterprise agreements etc.

Schedule 3

Notice of employee representational rights

Part 2

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Part 2--Notice of employee representational rights

Fair Work Act 2009

2 Subsection 173(3)

Omit "14 days", substitute "28 days".

3 After subsection 174(1B)

Insert:

(1C) The FWC must publish on its website the form prescribed for the

purposes of paragraph (1A)(c).

4 After paragraph 625(2)(a)

Insert:

(aa) publishing the form of a notice of employee representational

rights under subsection 174(1C);

Schedule 3

Enterprise agreements etc.

Part 3

Pre-approval requirements

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Part 3--Pre-approval requirements

Fair Work Act 2009

5 Section 180 (heading)

Repeal the heading, substitute:

180 Pre-approval requirements

6 Subsection 180(1)

After "employees", insert "(the

relevant employees

)".

7 At the end of subsection 180(1)

Add:

Note:

For the employees requested to approve the agreement, see paragraphs

181(1)(a) and (b).

8 Subsections 180(2) and (3)

Repeal the subsections, substitute:

Employees must be given fair and reasonable opportunity to decide

whether or not to approve proposed enterprise agreement

(2) The employer must take reasonable steps to ensure that the relevant

employees are given a fair and reasonable opportunity to decide

whether or not to approve the agreement.

(3) Without limiting subsection (2), the employer is taken to have

complied with that subsection if the employer takes reasonable

steps to ensure that:

(a) during the access period, the relevant employees have, or

have access to, a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the

agreement that is not publicly available; and

(b) the relevant employees are notified of the following by the

start of the access period:

Enterprise agreements etc.

Schedule 3

Pre-approval requirements

Part 3

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

explained to the relevant employees in an appropriate

manner, taking into account their particular circumstances

and needs.

Note:

The following are examples of employees whose circumstances and

needs may need to be taken into account:

(a) employees from culturally and linguistically diverse

backgrounds;

(b) young employees;

agreement.

9 Subsection 180(4)

Omit "the start of the voting process referred to in subsection 181(1)",

substitute "the day the voting process referred to in subsection 181(1)

starts".

10 Subsections 180(5) and (6)

Repeal the subsections.

11 Subparagraph 188(1)(a)(i)

Repeal the subparagraph, substitute:

(i) subsection 180(2) (which requires employees to be

given a fair and reasonable opportunity to decide

whether or not to approve an enterprise agreement);

12 Paragraph 211(3)(a)

Omit "steps", substitute "requirements".

13 Paragraph 211(3)(e)

Omit "those provisions to the employees employed at the time who will

be covered by the proposed enterprise agreement, or the employees

covered by the enterprise agreement,", substitute "subsection 186(2)

and section 188 to the employees covered by the enterprise agreement".

Schedule 3

Enterprise agreements etc.

Part 4

Voting requirements

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Part 4--Voting requirements

Fair Work Act 2009

14 Subsection 181(1)

Repeal the subsection, substitute:

(1) An employer that will be covered by a proposed enterprise

agreement may request the following employees who will be

covered by the agreement to approve the agreement by voting for

it:

(a) the employees employed at the time the request is made,

other than as casual employees;

(b) the casual employees who performed work at any time

during the access period for the agreement.

15 Paragraphs 207(1)(a) and (b)

Repeal the paragraphs, substitute:

(a) if the agreement covers a single employer--the employer and

the affected employees for the variation;

(b) if the agreement covers 2 or more employers--all of the

employers and the affected employees for the variation.

16 Subsection 207(2)

Repeal the subsection, substitute:

(2) The

affected employees

for the variation are the employees who:

(a) are covered by the agreement, or will be covered by the

agreement if the FWC approves the variation; and

(b) are either:

(i) employed at the time a request is made under

subsection 208(1) in relation to the variation, other than

as casual employees; or

(ii) casual employees who performed work at any time

during the access period for the variation.

Note:

For the

access period

for a variation, see subsection 180(4) as that

subsection has effect in accordance with subsection 211(3).

Enterprise agreements etc.

Schedule 3

Better off overall test

Part 5

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Part 5--Better off overall test

Division 1

--Main amendments

Fair Work Act 2009

17 Subsection 186(2) (note 2)

After "test", insert "in certain circumstances".

18 Paragraph 189(1)(a)

Omit "not required to", substitute "satisfied that it cannot".

19 After the heading to subsection 189(2)

Insert:

(1A) The FWC may approve the agreement under this section if the

agreement is not a greenfields agreement and the FWC is satisfied

that:

(a) it is appropriate to do so taking into account all the

circumstances, including:

(i) the views of the employees, and of the employer or

employers, covered by the agreement and of the

bargaining representatives for the agreement; and

(ii) the circumstances of those employees and employers,

and of any employee organisation that has given a

notice under subsection 183(1) that the organisation

wants the agreement to cover it, including the likely

effect that approving or not approving the agreement

will have on each of them; and

(iii) the impact of the coronavirus known as COVID-19 on

the enterprise or enterprises to which the agreement

relates; and

(iv) the extent of employee support for the agreement as

expressed in the outcome of the voting process referred

to in subsection 181(1); and

(b) because of those circumstances, the approval of the

agreement would not be contrary to the public interest.

Schedule 3

Enterprise agreements etc.

Part 5

Better off overall test

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

20 Subsection 189(2)

After "FWC may" (first occurring), insert "also".

21 Subsection 189(2) (note)

Repeal the note.

22 At the end of subsection 189(3)

Add:

Note:

The FWC may approve an enterprise agreement under this section

with undertakings (see section 190).

23 Subsection 190(2)

After "186", insert "or 189".

24 Subsection 193(2)

Repeal the subsection.

25 At the end of section 193

Add:

Relevant and irrelevant matters

(8) For the purposes of determining whether an enterprise agreement

passes the better off overall test:

(a) the FWC may have regard to patterns or kinds of work, or

types of employment, only if they are:

(i) if the agreement is not a greenfields agreement--

engaged in by award covered employees for the

agreement; or

(ii) in any case--reasonably foreseeable, as at the test time,

by the employer or employers covered by the agreement

to be engaged in by award covered employees or

prospective award covered employees for the

agreement; and

(b) the other matters the FWC may have regard to include the

overall benefits (including non-monetary benefits) an award

covered employee or prospective award covered employee

Enterprise agreements etc.

Schedule 3

Better off overall test

Part 5

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

would receive under the agreement when compared to the

relevant modern award; and

to whether the agreement passes the better off overall test

that have been expressed by:

(i) the employer or employers that are covered by the

agreement; or

(ii) if the agreement is not a greenfields agreement--the

award covered employees for the agreement; or

(iii) in any case--a bargaining representative for the

agreement; and

(d) if both of the following apply:

(i) the agreement is not a greenfields agreement;

(ii) an individual flexibility arrangement has been agreed to

by an award covered employee and his or her employer

under the flexibility term in the relevant modern award;

the FWC must disregard the individual flexibility

arrangement.

Example: For subparagraph (c)(ii)--the views of the award covered employees

as expressed in the outcome of the voting process referred to in

subsection 181(1).

26 Subsection 211(4)

Repeal the subsection, substitute:

(4) Section 193 (which deals with passing the better off overall test)

has effect as if:

(a) for a greenfields agreement--the agreement were an

enterprise agreement that is not a greenfields agreement; and

(b) in any case:

(i) the words "the agreement" in subsection (6) were

omitted and the words "the variation of the enterprise

agreement" were substituted; and

(ii) the reference in subsection (6) to subsection 182(4) or

section 185 were a reference to section 210; and

(iii) the reference in subparagraph (8)(c)(iii) to a bargaining

representative for the agreement were a reference to an

employee organisation that is covered by the agreement.

Schedule 3

Enterprise agreements etc.

Part 5

Better off overall test

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Note:

One effect of paragraph (a) is that subsection 193(1) applies for the

purposes of determining whether an enterprise agreement as proposed

to be varied passes the better off overall test, whether or not the

agreement is a greenfields agreement.

Division 2

--Sunsetting of additional power to approve

enterprise agreements that do not pass the

better off overall test

Fair Work Act 2009

27 Subsection 186(2) (note 2)

Omit "in certain circumstances".

28 Subsection 189(1A)

Repeal the subsection (not including the heading).

29 Subsection 189(2)

Omit "FWC may also", substitute "FWC may".

30 At the end of subsection 189(2)

Add:

Note:

The FWC may approve an enterprise agreement under this section

with undertakings (see section 190).

31 Subsection 189(3) (note)

Repeal the note.

Enterprise agreements etc.

Schedule 3

NES interaction terms

Part 6

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Part 6--NES interaction terms

Fair Work Act 2009

32 Section 12

Insert:

model NES interaction term

: see subsection 205A(3).

33 Subsection 55(7) (note)

Repeal the note.

34 Section

169 (paragraph beginning "Division 5")

Omit "and consultation requirements", substitute ", consultation

requirements and explaining the interaction with the National

Employment Standards".

35 Subsection 186(2) (heading)

Repeal the heading, substitute:

Requirements relating to genuine agreement and passing the better

off overall test

36 Paragraph 186(2)(c)

Repeal the paragraph.

37 Subsection 186(2) (note 3)

Repeal the note.

38 Paragraph 201(1)(b)

Omit "either or both", substitute "one or more".

39 At the end of paragraph 201(1)(b)

Add:

(iii) the model NES interaction term is taken, under

subsection 205A(2), to be a term of the agreement;

Schedule 3

Enterprise agreements etc.

Part 6

NES interaction terms

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

40 Before section 202

Insert:

Subdivision A--Flexibility terms

41 Before section 205

Insert:

Subdivision B--Consultation terms

42 At the end of Division 5 of Part 2-4

Add:

Subdivision C--NES interaction terms

205A Enterprise agreements to include model NES interaction term

(1) An enterprise agreement must include the model NES interaction

term.

(2) If an enterprise agreement does not include the model NES

interaction term, the model NES interaction term is taken to be a

term of the agreement.

(3) The regulations must prescribe a model term (the

model NES

interaction term

) for enterprise agreements that explains the

provisions of this Act that deal with the interaction between the

National Employment Standards and enterprise agreements.

43 Paragraph 211(3)(ha)

Omit "references in paragraphs 186(2)(c) and (d) to the agreement were

references", substitute "the reference in paragraph 186(2)(d) to the

agreement were a reference".

44 Subsection 272(5)

Repeal the subsection, substitute:

Enterprise agreements etc.

Schedule 3

NES interaction terms

Part 6

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Approval requirements relating to particular kinds of employees

(5) The determination must not include a term that would, if the

determination were an enterprise agreement, mean that the FWC

could not approve the agreement because of the operation of

Subdivision E of Division 4 of Part 2-4 (which deals with approval

requirements relating to particular kinds of employees).

45 At the end of section 273

Add:

Model NES interaction term

(6) The determination must include the model NES interaction term.

Schedule 3

Enterprise agreements etc.

Part 7

Variation of single enterprise agreements to cover eligible franchisee employers

and their employees

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Part 7--Variation of single enterprise agreements to

cover eligible franchisee employers and

their employees

Fair Work Act 2009

46 Section 12 (definition of

affected employees

)

Repeal the definition, substitute:

affected employees

(a) for a variation of an enterprise agreement under Subdivision

A of Division 7 of Part 2-4: see subsection 207(2); and

(b) for a variation of an enterprise agreement under Subdivision

AA of Division 7 of Part 2-4: see subsection 216A(4).

47 Section 12 (definition of

agreed to

)

Repeal the definition, substitute:

agreed to

(a) in relation to an application to vary a single-enterprise

agreement under Subdivision AA of Division 7 of Part 2-4:

see subsection 216A(7); and

(b) in relation to a termination of an enterprise agreement: see

section 221.

48 Section 12

Insert:

eligible franchisee employer

for a single-enterprise agreement: see

subsection 216A(2).

49 At the end of section 58

Add:

Enterprise agreements etc.

Schedule 3

Variation of single enterprise agreements to cover eligible franchisee employers and

their employees

Part 7

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Special rule--variation of single-enterprise agreement to cover

employee

(4) If:

(a) an enterprise agreement (the

earlier agreement

) applies to an

employee in relation to particular employment; and

(b) a single-enterprise agreement that is in operation is varied

under Subdivision AA of Division 7 of Part 2-4 to cover the

employee in relation to the same employment;

the earlier agreement ceases to apply to the employee in relation to

that employment when the variation comes into operation, and can

never so apply again.

50 Subdivision A of Division 7 of Part 2-4 (at the end of the

heading)

Add "

covered by those agreements

51 After Subdivision A of Division 7 of Part 2-4

Insert:

Subdivision AA--Variation of single-enterprise agreements to

cover eligible franchisee employers and their

employees

216A Eligible franchisee employer may request employees to

approve application for FWC to vary single-enterprise

agreement to cover them

Requesting employees to approve proposed application for FWC to

vary agreement

(1) An eligible franchisee employer for a single-enterprise agreement

may request the employees mentioned in subsection (3) to approve

a proposed application by the employer for the FWC to vary the

agreement, so that it covers the employer and employees specified

in the proposed application, by voting for the proposed application.

Note:

For when an application to vary a single-enterprise agreement is

agreed to

, see subsection (7).

Schedule 3

Enterprise agreements etc.

Part 7

Variation of single enterprise agreements to cover eligible franchisee employers

and their employees

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Meaning of

eligible franchisee employer

(2) An employer is an

eligible

franchisee employer

for a

single-enterprise agreement if:

(a) the agreement does not cover the employer, but covers 2 or

more other employers that are single interest employers; and

(b) the employer carries on similar business activities under the

same franchise as the other employers; and

(i) franchisees of the same franchisor; or

(ii) related bodies corporate of the same franchisor; or

(iii) any combination of the above.

Employees who may be requested to approve proposed application

(3) The employees who may be requested to approve the proposed

application are the following employees, of the eligible franchisee

employer, who will be covered by the agreement if the FWC

makes the variation:

(a) the employees employed at the time the request is made,

other than as casual employees;

(b) the casual employees who performed work at any time

during the 7-day period ending immediately before the day

the voting process referred to in subsection (1) starts.

Affected employees

for the variation

(4) The employees referred to in paragraphs (3)(a) and (b) are the

affected employees

for the variation.

Method of voting

(5) Without limiting subsection (1), the eligible franchisee employer

may request that the affected employees vote by ballot or by an

electronic method.

Steps that must be taken before making request

(6) Before making a request under subsection (1), the eligible

franchisee employer must:

Enterprise agreements etc.

Schedule 3

Variation of single enterprise agreements to cover eligible franchisee employers and

their employees

Part 7

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

(a) take reasonable steps to notify the affected employees of the

following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used;

(iii) the employees who will be covered by the agreement if

the FWC makes the variation; and

(b) take reasonable steps to ensure that the affected employees

are given a fair and reasonable opportunity to decide whether

they want to approve the proposed application.

When the application is

agreed to

(7) The application is

agreed to

when a majority of the affected

employees who cast a valid vote approve the application.

216B Application for the FWC to vary single-enterprise agreement

to cover eligible franchisee employer and employees

Application to vary agreement

(1) If an application to vary a single-enterprise agreement has been

agreed to under subsection 216A(7), the eligible franchisee

employer must apply to the FWC to vary the agreement so as to

cover the employer and the employees specified in the application.

Material to accompany the application

(2) The application must be accompanied by any declarations that are

required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the application is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend

that period--within such further period as the FWC allows.

Schedule 3

Enterprise agreements etc.

Part 7

Variation of single enterprise agreements to cover eligible franchisee employers

and their employees

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

216C When the FWC must vary a single-enterprise agreement to

cover eligible franchisee employer and employees

If an application to vary a single-enterprise agreement is made

under subsection 216B(1), the FWC must vary the agreement, so as

to cover the eligible franchisee employer and the employees

specified in the application, if the FWC is satisfied that:

(a)

the agreement has not passed its nominal expiry date; and

(b) no person coerced, or threatened to coerce, the eligible

franchisee employer to request the affected employees to

approve the application under subsection 216A(1); and

complied with

subsection 216A(6) (which deals with giving affected

employees a fair and

reasonable opportunity to decide etc.) in

relation to the application; and

(d) the application was agreed to in accordance with

subsection 216A(7) (which deals with agreement to the

application by employee vote); and

(e) there are no other reasonable grounds for believing that the

affected employees for the variation have not agreed to the

application;

unless the FWC is satisfied that there are serious public interest

grounds for not varying the agreement.

216D When variation comes into operation

If the FWC varies a single-enterprise agreement under

section 216C, the variation operates from the day specified in the

decision to vary the agreement.

216E Varied agreement remains a single-enterprise agreement

A single-enterprise agreement that is varied under this Subdivision

remains a single enterprise agreement, despite the variation.

52 After subsection 278(1)

Insert:

(1A) If:

Enterprise agreements etc.

Schedule 3

Variation of single enterprise agreements to cover eligible franchisee employers and

their employees

Part 7

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

(a) a workplace determination applies to an employee in relation

to particular employment; and

(b) a single-enterprise agreement that is in operation is varied

under Subdivision AA of Division 7 of Part 2-4 to cover the

employee in relation to the same employment;

the determination ceases to apply to the employee in relation to

that employment when the variation comes into operation, and can

never so apply again.

Schedule 3

Enterprise agreements etc.

Part 8

Terminating agreements after nominal expiry date

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Part 8--Terminating agreements after nominal expiry

date

Fair Work Act 2009

53 Section 225

Omit "If an enterprise agreement has passed its nominal expiry date,

any of the following may apply to the FWC for the termination of the

agreement", substitute "Any of the following may apply to the FWC for

the termination of an enterprise agreement if at least 3 months have

elapsed since the agreement passed its nominal expiry date".

Enterprise agreements etc.

Schedule 3

How the FWC may inform itself

Part 9

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Part 9--How the FWC may inform itself

Fair Work Act 2009

54 After section 254

Insert:

254AA How FWC may inform itself

(1) This section applies in relation to:

(a) an application made under subsection 182(4) or section 185

to approve an enterprise agreement; and

(b) an application made under subsection 210(1) to approve a

variation of an enterprise agreement.

(2) The FWC may inform itself in relation to the application only on

the basis of the following, unless the FWC is satisfied that there are

exceptional circumstances:

(a) information that is publicly available;

(b) submissions made by a body under section 254A (entitlement

for volunteer bodies to make submissions);

requested from:

(i) the applicant; or

(ii) the employer or employers covered by the agreement; or

(iii) an employee covered by the agreement; or

(iv) if paragraph (1)(a) applies--a bargaining representative

for the agreement; or

(v) if paragraph (1)(b) applies--an employee who will be

covered by the agreement if the FWC approves the

variation; or

(vi) if paragraph (1)(b) applies--an employee organisation

covered by the agreement; or

(vii) in any case--the Minister or a Minister of a State or

Territory who has responsibility for workplace relations

matters.

Schedule 3

Enterprise agreements etc.

Part 9

How the FWC may inform itself

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

55 At the end of subsection 590(1)

Add:

Note:

For a provision that provides otherwise, see section 254AA (which

deals with how the FWC may inform itself in relation to certain

enterprise agreement applications).

56 At the end of subsection 625(1)

Add:

Note:

For paragraph (b), the FWC's power under section 590 to inform itself

as it considers appropriate operates subject to other provisions of this

Act, such as section 254AA (which deals with how the FWC may

inform itself in relation to certain enterprise agreement applications).

Enterprise agreements etc.

Schedule 3

Time limits for determining certain applications

Part 10

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Part 10--Time limits for determining certain

applications

Fair Work Act 2009

57 After section 255

Insert:

255AA Certain applications to be determined within 21 days

(1) The FWC must, as far as practicable, determine:

(a) an application made under subsection 182(4) or section 185

to approve an enterprise agreement; or

(b) an application made under subsection 210(1) to approve a

variation of an enterprise agreement;

within 21 working days (the

decision period

) after the application

is made.

(2) If the FWC does not determine the application before the end of

the decision period, the FWC must, as soon as practicable, give

written notice to the following setting out why the FWC was

unable to determine the application during that period, including

whether any exceptional circumstances exist:

(a) each employer covered by the agreement;

(b) for an application mentioned in paragraph (1)(a):

(i) if the agreement is a greenfields agreement--each

relevant employee organisation that the agreement is

expressed to cover;

(ii) if the agreement is not a greenfields agreement--each

employee organisation that has given a notice under

subsection 183(1) that the organisation wants the

agreement to cover it;

employee organisation covered by the agreement;

(d) in any case--the applicant, if the applicant is not covered by

any of the preceding paragraphs.

Schedule 3

Enterprise agreements etc.

Part 10

Time limits for determining certain applications

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

(3) The FWC must publish a notice that it gives under subsection (2)

on its website or by any other means that the FWC considers

appropriate.

58 Before paragraph 625(2)(b)

Insert:

(ab) publishing, under subsection 255AA(3), notices setting out

why the FWC has not been able to determine an application

under subsection 182(4), section 185 or subsection 210(1)

within 21 working days;

Enterprise agreements etc.

Schedule 3

FWC functions

Part 11

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Part 11--FWC functions

Fair Work Act 2009

59 After section 254A

Insert:

254B FWC to recognise outcome of bargaining at enterprise level

The FWC must perform its functions and exercise its powers under

this Part in a manner that recognises the outcome of bargaining at

the enterprise level.

Note:

For other matters the FWC must take into account, see section 578.

60 At the end of section 578

Add:

Note:

For when the FWC is performing functions or exercising powers in

relation to a matter under Part 2-4 (enterprise agreements), see also

section 254B (recognising outcome of bargaining at enterprise level).

Schedule 3

Enterprise agreements etc.

Part 12

Transfer of business

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Part 12--Transfer of business

Fair Work Act 2009

61 Section 12 (paragraph (a) of the definition of

transfer of

business

)

Omit "subsection 311(1)", substitute "subsections 311(1) and (1A)".

62 After subsection 311(1)

Insert:

(1A) However, there is not a

transfer of business

if:

(a) the new employer is an associated entity of the old employer

when the employee becomes employed by the new employer;

and

(b) before the termination of the employee's employment with

the old employer, the employee sought to become employed

by the new employer at the employee's initiative.

Enterprise agreements etc.

Schedule 3

Cessation of instruments

Part 13

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Part 13--Cessation of instruments

Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009

63 Item 20 of Schedule 3 (heading)

Repeal the heading, substitute:

20 Initial sunsetting rules for particular transitional

instruments

64 After item 20 of Schedule 3

Insert:

20A Automatic sunsetting of all remaining agreement-based

transitional instruments on 1 July 2022

An agreement-based transitional instrument that has not terminated

before 1 July 2022 terminates on that day.

65 After item 26 of Schedule 3A

Insert:

26A Automatic sunsetting of all remaining Division 2B State

employment agreements on 1 July 2022

A Division 2B State employment agreement that has not terminated

before 1 July 2022 terminates on that day.

66 At the end of Part 3 of Schedule 7

Add:

Schedule 3

Enterprise agreements etc.

Part 13

Cessation of instruments

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Division 5

--Sunsetting of enterprise agreements made

during the bridging period

17A Automatic sunsetting of all remaining enterprise

agreements made during the bridging period on 1 July

2022

(1)

An enterprise agreement made during the bridging period that has not

ceased to operate before 1 July 2022 in accordance with

subsection 54(2) of the FW Act ceases to operate on that day.

(2)

If an enterprise agreement ceases to operate in accordance with

subitem (1), that does not affect:

(a) any right or liability that a person acquired, accrued or

incurred before the enterprise agreement ceased to operate; or

(b) any investigation, legal proceeding or remedy in respect of

any such right or liability.

(3)

Any such investigation, legal proceeding or remedy may be instituted,

continued or enforced as if the enterprise agreement had not ceased to

operate.

(4)

This item has effect subject to a contrary intention in this Act or in the

FW Act.

67 At the end of Part 5 of Schedule 7

Add:

26A Automatic sunsetting of all remaining workplace

determinations made during the bridging period on

1 July 2022

(1)

A workplace determination made during the bridging period that has

not ceased to operate before 1 July 2022 in accordance with

subsection 276(2) of the FW Act ceases to operate on that day.

(2)

If a workplace determination ceases to operate in accordance with

subitem (1), that does not affect:

(a) any right or liability that a person acquired, accrued or

incurred before the workplace determination ceased to

operate; or

Enterprise agreements etc.

Schedule 3

Cessation of instruments

Part 13

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

(b) any investigation, legal proceeding or remedy in respect of

any such right or liability.

(3)

Any such investigation, legal proceeding or remedy may be instituted,

continued or enforced as if the workplace determination had not ceased

to operate.

(4)

This item has effect subject to a contrary intention in this Act or in the

FW Act.

Schedule 4

Greenfields agreements

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Schedule 4--Greenfields agreements

Fair Work Act 2009

1 Section 12

Insert:

major project

: see section 23B.

responsible Minister

means the Minister who is prescribed by the

regulations for the purposes of this definition.

2 At the end of Division 4 of Part 1-2

Add:

23B Meaning of

major project

(1) A project is a

major project

if:

(a) the total expenditure of a capital nature that has been

incurred, or is reasonably likely to be incurred, in carrying

out the project is at least $500 million; or

(b) a declaration is made under subsection (2) that the project is

a major project for the purposes of this paragraph.

(2) The responsible Minister may, by legislative instrument, declare

that a project is a major project for the purposes of

paragraph (1)(b).

(3) The responsible Minister must not make a declaration under

subsection (2) in relation to a project unless the responsible

Minister is satisfied that the total expenditure of a capital nature

that has been incurred, or is reasonably likely to be incurred, in

carrying out the project is at least $250 million but less than $500

million.

(4) In deciding whether or not to make a declaration under

subsection (2) in relation to a project, the responsible Minister

must take into account the following matters:

(a) the national significance (if any) of the project;

Greenfields agreements

Schedule 4

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

(b) the regional significance (if any) of the project;

creation;

(d) any other matter the responsible Minister considers relevant.

(5) A declaration made under subsection (2) is a legislative instrument,

but section 42 (disallowance) of the

Legislation Act 2003

does not

apply to the declaration.

3 Paragraph 186(5)(b)

Repeal the paragraph, substitute:

(b) the date will not be more than:

(i) if the agreement is a greenfields agreement and the

FWC is satisfied that the work to be performed under

the agreement relates only to the construction of a major

project--8 years after the day the agreement will come

into operation; or

(ii) otherwise--4 years after the day on which the FWC

approves the agreement.

Note:

See subsection 54(1) for when an enterprise agreement comes into

operation.

4 At the end of section 187 (after the note)

Add:

(7) If:

(a) the agreement is a greenfields agreement; and

(b) the FWC is satisfied that the work to be performed under the

agreement relates only to the construction of a major project;

and

as its nominal expiry date will be more than 4 years after the

day on which the FWC approves the agreement;

the FWC must be satisfied that the agreement includes a term that

provides for at least an annual increase of the base rate of pay

payable to each employee who will be covered by the agreement to

occur on or before each day that is the anniversary of the day on

which the agreement comes into operation and that occurs before

the nominal expiry date of the agreement.

Schedule 4

Greenfields agreements

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

5 Paragraph 211(1)(b)

Repeal the paragraph, substitute:

(b) the FWC is satisfied that the agreement as proposed to be

varied would not specify a date as its nominal expiry date

which is more than:

(i) if subparagraph 186(5)(b)(i) applied in relation to the

approval of the agreement--8 years after the day on

which the agreement came into operation; or

(ii) otherwise--4 years after the day on which the FWC

approved the agreement;

6 Subsection 211(1) (note)

Omit "Note", substitute "Note 1".

7 At the end of 211(1)

Add:

Note 2:

See subsection 54(1) for when an enterprise agreement comes into

operation.

Compliance and enforcement

Schedule 5

Orders relating to civil remedy provisions

Part 1

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Schedule 5--Compliance and enforcement

Part 1--Orders relating to civil remedy provisions

Division 1

--Main amendments

Fair Work Act 2009

1 Section 12

Insert:

remuneration-related contravention

means:

(a) a contravention of a civil remedy provision mentioned in

item 8, 9, 10 or 10A of the table in subsection 539(2); or

(b) a contravention of a civil remedy provision mentioned in

item 1, 2, 3, 4, 5 or 7 of the table in subsection 539(2) that

relates to:

(i) the underpayment of wages, or other monetary

entitlements, of employees; or

(ii) the unreasonable deduction of amounts from amounts

owed to employees; or

(iii) the placing of unreasonable requirements on employees

to spend or pay amounts paid, or payable, to employees;

(iv) the method or frequency of amounts payable to

employees in relation to the performance of work.

value of the benefit

of a remuneration-related contravention: see

section 546A.

2 Subsection 539(2) (after note 3)

Insert:

Note 3A: Maximum penalties for contraventions of civil remedy provisions are

greater if the contravention is by a body corporate. Maximum

penalties may be affected if the contravention is a

remuneration-related contravention (see subsection 546(2)).

Schedule 5

Compliance and enforcement

Part 1

Orders relating to civil remedy provisions

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

3 At the end of subsection 545(2)

Add:

; (d) an adverse publicity order.

4 Subsections 546(2) and (3)

Repeal the subsections, substitute:

Determining amount of pecuniary penalty

(2) The pecuniary penalty must not be more than the amount

determined in accordance with the following table.

Determining amount of pecuniary penalty

Item Column 1

If ...

Column 2

the pecuniary penalty must not be

more than ...

the person is an individual and item 3

of this table does not apply

the maximum number of penalty units

referred to in the relevant item in

column 4 of the table in

subsection 539(2) for the kind of

contravention committed.

the person is a body corporate and

item 4, 5 or 6 of this table does not

apply

5 times the maximum number of

penalty units referred to in the relevant

item in column 4 of the table in

subsection 539(2) for the kind of

contravention committed.

(a) the person is an individual; and

(b) the contravention is a

remuneration-related contravention

but not a serious contravention

1.5 times the maximum number of

penalty units referred to in the relevant

item in column 4 of the table in

subsection 539(2) for a contravention

that is not a serious contravention.

(a) the person is a body corporate; and

(b) the contravention is a

remuneration-related contravention

but not a serious contravention;

and

business employer when the

application for the order was made

7.5 times the maximum number of

penalty units referred to in the relevant

item in column 4 of the table in

subsection 539(2) for a contravention

that is not a serious contravention.

Compliance and enforcement

Schedule 5

Orders relating to civil remedy provisions

Part 1

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Determining amount of pecuniary penalty

Item Column 1

If ...

Column 2

the pecuniary penalty must not be

more than ...

(a) the person is a body corporate; and

(b) the contravention is a

remuneration-related contravention

but not a serious contravention;

and

business employer when the

application for the order was made

the greater of the following:

(a) 7.5 times the maximum number of

penalty units referred to in the

relevant item in column 4 of the

table in subsection 539(2) for a

contravention that is not a serious

contravention;

(b) if the court can determine the value

of the benefit of the

contravention--2 times the value

of the benefit.

(a) the person is a body corporate; and

(b) the contravention is both a

remuneration-related contravention

and a serious contravention; and

business employer when the

application for the order was made

the greater of the following:

(a) 5 times the maximum number of

penalty units referred to in the

relevant item in column 4 of the

table in subsection 539(2)

for a

serious contravention;

(b) if the court can determine the value

of the benefit of the

contravention--3 times the value

of the benefit.

Note:

See section 546A for determining the value of the benefit of a

remuneration-related contravention.

Payment of penalty

(3) Subject to subsection (3A), the court may order that the pecuniary

penalty, or a part of the penalty, be paid to:

(a) the Commonwealth; or

(b) a particular organisation; or

(3A) If a pecuniary penalty for the purposes of item 5 or 6 of the table in

subsection (2) is based on the value of the benefit of the

contravention, the court may only order the pecuniary penalty be

paid to the Commonwealth.

Schedule 5

Compliance and enforcement

Part 1

Orders relating to civil remedy provisions

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

5 After section 546

Insert:

546A Value of the benefit of a remuneration-related contravention

(1) The

value of the benefit

that a body corporate obtains from a

remuneration-related contravention is the amount of remuneration

that employees of the body corporate would have received,

retained or been entitled to if the contravention had not occurred.

(2) In determining the value of the benefit, a particular amount must

not be taken into account in relation to more than one

contravention by the body corporate.

(3) To avoid doubt, if the contravention is comprised of 2 or more

contraventions that are taken to be a single contravention because

of section 557, the value of the benefit of the contravention is the

total value of the benefits of each of the contraventions comprising

that single contravention.

Division 2

--Consequential amendments

Building and Construction Industry (Improving Productivity)

Act 2016

6 Paragraph 49(c)

Omit "paragraph 546(2)(b)", substitute "item 2 of the table in

subsection 546(2)".

Compliance and enforcement

Schedule 5

Small claims procedure

Part 2

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Part 2--Small claims procedure

Division 1

--Main amendments

Fair Work Act 2009

7 Section 12

Insert:

small claims proceedings

means proceedings dealt with as small

claims proceedings under section 548.

8 Paragraph 548(2)(a)

Omit "$20,000", substitute "$50,000".

9 At the end of section 548

Add:

Costs for filing fees paid in relation to the proceedings

(10) If the court makes an order (the

small claims order

) mentioned in

subsection (1) against a party to small claims proceedings, the

court may make an order as to costs against the party for any filing

fees paid to the court by the party that applied for the small claims

order.

(11) Subsection (10) applies despite section 570.

10 After section 548

Insert:

548A Court must consider conciliation in small claims proceedings

As soon as practicable after small claims proceedings commence,

the court must consider whether it is appropriate to make an order

under section 548B to refer any matter in dispute in the

proceedings for conciliation by the FWC.

Schedule 5

Compliance and enforcement

Part 2

Small claims procedure

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Note:

Sections 22 and 23 of the

Federal Circuit Court of Australia Act 1999

set out requirements for the Federal Circuit Court in relation to

advising parties to proceedings about the use of dispute resolution

processes.

548B Court may refer small claims proceedings for conciliation

Order referring small claims proceedings to conciliation

(1) In small claims proceedings, the court may, by order, refer any

matter in dispute in the proceedings for conciliation by the FWC if

the court considers it appropriate to do so.

Note:

Parties to small claims proceedings may agree to arbitration by the

FWC if the conciliation ends without resolution (see section 548D).

(2) The court may make the order:

(a) on its own initiative; or

(b) on application by a party to the proceedings.

(3) In determining whether to make the order, the court must consider

the following:

(a) the stage the proceedings have reached since the

commencement of the proceedings;

(b) the complexity of the matters in dispute, including questions

of law that might arise;

matters in dispute in the proceedings.

(4) Subsection (3) does not limit the matters the court may consider.

Notification to the FWC of order

(5) If the order is made, the court must notify the FWC of the order as

soon as possible.

Other orders if small claims proceedings referred to conciliation

(6) If the order is made, the court may make:

(a) another order requiring any specified information given in

the proceedings to be provided to the FWC for the purposes

of the conciliation; and

Compliance and enforcement

Schedule 5

Small claims procedure

Part 2

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

(b) any other order in relation to the proceedings while the

conciliation is occurring.

Other powers to make orders not affected

(7) This section does not affect any other power a court may have to

refer a matter in dispute in the proceedings to conciliation,

mediation or any other form of dispute resolution.

548C Conciliation by FWC

(1) If a matter in dispute in small claims proceedings is referred under

section 548B, the FWC must deal with the matter by conciliation.

Note:

The parties to the proceedings bear their own costs in relation to the

conciliation before the FWC (see section 611). However, a court may

order costs against a party that unreasonably refuses to participate in a

matter before the FWC (see paragraph 570(2)(c)).

Conduct of conciliation

(2) The procedural rules may make provision for or in relation to the

conduct of the conciliation.

(3) Any conference conducted for the purposes of the conciliation

must be conducted in private, despite subsection 592(3).

Note:

For conduct of conferences, see section 592.

(4) Despite paragraphs 592(4)(a) and 595(2)(a), the FWC may only

conciliate the matter.

End of conciliation

(5) The FWC may end the conciliation if:

(a) the parties to the proceedings make a joint application to the

FWC to end the conciliation; or

(b) the FWC is satisfied the matter is resolved; or

the matter by conciliation have been, or are likely to be,

unsuccessful.

Note:

The parties could apply to the court for consent orders following

conciliation (see, for example, section 32 (consent orders) of the

Federal Circuit Court of Australia Act 1999

Schedule 5

Compliance and enforcement

Part 2

Small claims procedure

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

(6) If the court in the proceedings makes an order ending the

conciliation, the FWC must end the conciliation.

(7) If the FWC ends the conciliation under subsection (5), the FWC

must issue a certificate to that effect to the parties and the court in

the proceedings.

(8) If:

(a) the FWC ends the conciliation because of paragraph (5)(c);

and

(b) the FWC considers, taking into account all the materials

before it, a party to the proceedings has no reasonable

prospects of success in relation to the matter;

the FWC must advise the parties accordingly.

FWC must not facilitate an outcome inconsistent with this Act etc.

(9) The FWC must not facilitate an outcome as part of the conciliation

that would be inconsistent with this Act, or a fair work instrument

that applies to the parties to the proceedings.

548D Arbitration by FWC

Circumstances in which FWC may arbitrate matters in dispute in

small claims proceedings

(1) The FWC may deal with a matter in dispute in small claims

proceedings by arbitration if:

(a) the matter is referred under section 548B for conciliation by

the FWC; and

(b) the FWC issues a certificate under subsection 548C(7) at the

end of the conciliation; and

agree to the FWC arbitrating the matter; and

(d) the notification:

(i) is given to the FWC within 14 days after the day the

certificate is issued, or within such period as the FWC

allows on an application made during or after those 14

days; and

Compliance and enforcement

Schedule 5

Small claims procedure

Part 2

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

(ii) complies with any requirements prescribed by the

procedural rules.

(2) If the FWC is so notified, the FWC must notify the court in the

proceedings whether the FWC is arbitrating the matter.

Order awarding small claims amount

(3) If the FWC arbitrates the matter, the FWC may make an order

awarding one or more of the following:

(a) an amount that relates to an amount (the

disputed amount

)

referred to in subsection 548(1A);

(b) any interest that a court could have included under

section 547 if the court had made the order;

an order under Division 2 that related to the disputed amount.

(4) The order may permit the amount to be paid in instalments

specified in the order.

(5) An amount awarded in relation to the disputed amount must not be

more than the amount that may be awarded by a court under

subsection 548(2).

(6) Despite subsection 595(3), the FWC must not make any orders in

the arbitration to resolve the matter other than an order under

subsection (3).

FWC must not make an order or facilitate an outcome inconsistent

with this Act etc.

(7) The FWC must not make an order, or facilitate an outcome, as part

of the arbitration that would be inconsistent with this Act, or a fair

work instrument that applies to the parties to the proceedings.

Appeals under section 604

(8) To avoid doubt, section 604 (appeal of decisions) applies in

relation to an order made under this section.

Schedule 5

Compliance and enforcement

Part 2

Small claims procedure

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

548E Court may make order in terms of arbitration order

(1) This section applies if the FWC makes an order (the

arbitration

order

) under subsection 548D(3) to deal with a matter in dispute in

small claims proceedings.

(2) On application by a party to the proceedings, the court in the

proceedings may make an order (the

enforcement order

) in terms

of the arbitration order.

Note:

The court could also use other available powers to enforce the

arbitration order (see, for example, section 38 (arbitration awards) of

the

Federal Circuit Court of Australia Act 1999

(3) The court in the proceedings may make the enforcement order

whether or not the proceedings were discontinued.

(4) The court in the proceedings must not make the enforcement order

if the application for the enforcement order was made 6 years after

the arbitration order was made.

11 Subsection 570(1)

After "subsection (2) or", insert "548(10) or".

12 Subsection 570(1) (note)

Repeal the note, substitute:

Note 1:

A party to small claims proceedings might be ordered to pay for costs

under subsection 548(10) if a small claims order is made against that

party. The costs are limited to any filing fees paid to the court by the

party that applied for the small claims order.

Note 2:

The Commonwealth might be ordered to pay costs under section 569.

A State or Territory might be ordered to pay costs under section 569A.

13 After paragraph 576(2)(aa)

Insert:

(ab) conciliating matters in dispute in small claims proceedings

that have been referred by the court in the proceedings under

section 548B;

(ac) arbitrating matters in dispute in small claims proceedings

under section 548D;

Compliance and enforcement

Schedule 5

Small claims procedure

Part 2

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

14 Subsection 592(3) (note)

Omit "Note", substitute "Note 1".

15 At the end of subsection 592(3)

Add:

Note 2:

This subsection does not apply in relation to conferences conducted as

part of a conciliation under section 548C.

16 After paragraph 601(5)(f)

Insert:

(fa) a decision to issue a certificate under subsection 548C(7);

17 After paragraph 675(2)(i)

Insert:

(ia) an order under subsection 548D(3) (which deals with

arbitration of small claims);

Federal Circuit Court of Australia Act 1999

18 At the end of subsection 102(2)

Add:

; (p) the power to refer matters under subsection 548B(1) of the

Fair Work Act 2009

and to make orders as mentioned in

subsection 548B(6) of that Act.

Division 2

--Amendments contingent on the

commencement of the Federal Circuit and

Family Court of Australia Act 2020

Fair Work Act 2009

19 Section 548A (note)

Repeal the note, substitute:

Note:

Sections 157 and 158 of the

Federal Circuit and Family Court of

Australia Act 2020

set out requirements for the Federal Circuit and

Family Court of Australia (Division 2) in relation to advising parties

to proceedings about the use of dispute resolution processes.

Schedule 5

Compliance and enforcement

Part 2

Small claims procedure

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

20 Subsection 548C(5) (note)

Repeal the note, substitute:

Note:

The parties could apply to the court for consent orders following

conciliation (see, for example, section 167 (consent orders) of the

Federal Circuit and Family Court of Australia Act 2020

21 Subsection 548E(2) (note)

Repeal the note, substitute:

Note:

The court could also use other available powers to enforce the

arbitration order (see, for example, section 173 (arbitration awards) of

the

Federal Circuit and Family Court of Australia Act 2020

Federal Circuit and Family Court of Australia Act 2020

22 At the end of subsection 254(2)

Add:

; (t) the power to refer matters under subsection 548B(1) of the

Fair Work Act 2009

and to make orders as mentioned in

subsection 548B(6) of that Act.

Compliance and enforcement

Schedule 5

Prohibiting employment advertisements with pay rate less than the national minimum

wage

Part 3

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Part 3--Prohibiting employment advertisements with

pay rate less than the national minimum

wage

Fair Work Act 2009

23 At the end of section 528

Add:

Division 4 is about the requirement for national system employers

to not advertise employment at a rate of pay less than the national

minimum wage or special national minimum wage.

24 At the end of Part 3-6

Add:

Division 4--Employers must not advertise employment

with rate of pay less than the national minimum

wage

536AA Employers must not advertise employment with rate of pay

less than the national minimum wage

(1) An employer must not advertise, or cause to be advertised,

employment with the employer specifying a rate of pay less than

the national minimum wage or special national minimum wage, as

the case requires, set by a national minimum wage order.

Note:

This section is a civil remedy provision (see Part 4-1).

(2) However, subsection (1) does not apply if:

(a) the base rate of pay an employer is required to pay is less

than the national minimum wage or special national

minimum wage, as the case requires; and

(b) the rate of pay advertised is at least equal to that base rate of

pay.

Schedule 5

Compliance and enforcement

Part 3

Prohibiting employment advertisements with pay rate less than the national

minimum wage

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

(3) For the purposes of this section, an employer includes a person

who would be an employer if the advertised employment occurs.

25 Subsection 539(2) (after table item 29)

Insert:

29AA

536AA(1)

an inspector

(a) the Federal Court;

(b) the Federal

Circuit Court

60 penalty

units

26 After paragraph 557(2)(o)

Insert:

(oa) section 536AA (which deals with employers advertising

employment with a rate of pay less than the national

minimum wage);

27 After paragraph 716(1)(f)

Insert:

(fa) section 536AA (which deals with employers advertising

employment with a rate of pay less than the national

minimum wage);

Compliance and enforcement

Schedule 5

Compliance notices, infringement notices and enforceable undertakings

Part 4

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Part 4--Compliance notices, infringement notices

and enforceable undertakings

Building and Construction Industry (Improving Productivity)

Act 2016

28 Section 5

Insert:

remuneration-related contravention

has the meaning given by the

FW Act.

29 Section 98 (at the end of the heading)

Add "

and certain remuneration-related contraventions

30 Subsection 98(1)

Repeal the subsection, substitute:

Application of this section

(1) This section applies if the ABC Commissioner reasonably believes

a person has committed:

(a) a contravention of a civil remedy provision; or

(b) a remuneration-related contravention that relates (whether

directly or indirectly) to building work.

31 After subsection 98(4)

Insert:

(4A) An inspector must not under section 111 of this Act institute

proceedings under the FW Act against a person in relation to a

remuneration-related contravention if an undertaking given by the

person under this section in relation to the contravention has not

been withdrawn.

Schedule 5

Compliance and enforcement

Part 4

Compliance notices, infringement notices and enforceable undertakings

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

32 Application of amendments

Section 98 of the

Building and Construction Industry (Improving

Productivity) Act 2016

, as amended by this Part, applies in relation to

contraventions that occur before, on or after the commencement of this

item.

Fair Work Act 2009

33 Subsection 539(2) (table item 33, column 4)

Omit "30 penalty units", substitute "45 penalty units".

34 Subsection 558(2)

Omit "one-tenth", substitute "three-twentieths".

35 After subsection 715(2)

Insert:

(2A) In deciding whether to accept a written undertaking given by the

person, the Fair Work Ombudsman may take into account any

relevant matter, including the following:

(a) whether the person made a voluntary disclosure of the

contravention to the Fair Work Ombudsman;

(b) whether the person has demonstrated a willingness to address

the contravention's impact;

cooperate with the Fair Work Ombudsman in relation to the

contravention;

(d) whether the contravention was the result of an honest mistake

or inadvertence by the person;

(e) the nature and gravity of the contravention;

(f) the circumstances in which the contravention occurred;

(g) the person's history of compliance with this Act.

Compliance and enforcement

Schedule 5

Sham arrangements

Part 5

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Part 5--Sham arrangements

Fair Work Act 2009

36 Subsection 539(2) (table item 11, column 1)

Omit "357(1)".

37 Subsection 539(2) (table item 11, column 1)

Omit "358".

38 Subsection 539(2) (table item 11, column 1)

Omit "359".

39 Subsection 539(2) (before table item 12)

Insert:

11B

357(1)

358

359

(a) a person affected

by the

contravention;

(b) an industrial

association;

(a) the Federal Court;

(b) the Federal

Circuit Court

90 penalty

units

Schedule 5

Compliance and enforcement

Part 6

Functions of the ABC Commissioner and the Fair Work Ombudsman

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Part 6--Functions of the ABC Commissioner and the

Fair Work Ombudsman

Building and Construction Industry (Improving Productivity)

Act 2016

40 Before paragraph 16(1)(d)

Insert:

(cb) publishing information relating to the circumstances in which

the ABC Commissioner will institute, or defer instituting,

proceedings;

Fair Work Act 2009

41 After paragraph 682(1)(d)

Insert:

(da) to publish information relating to the circumstances in which

the Fair Work Ombudsman will commence, or defer

commencing, proceedings;

Compliance and enforcement

Schedule 5

Criminalising underpayments

Part 7

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Part 7--Criminalising underpayments

Division 1

--Main amendments

Fair Work Act 2009

42 Section 12

Insert:

dishonest

means:

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the

standards of ordinary people.

related offence provision

means:

(a) section 6 of the

Crimes Act 1914

; or

(b) a provision of Part 2.4 of the

Criminal Code

;

to the extent that the offence created by the provision relates to an

offence against this Act.

43 After paragraph 26(2)(d)

Insert:

(da) a law of a State or Territory providing for an employer, or an

officer, employee or agent of an employer, to be liable to be

prosecuted for an offence relating to underpaying an

employee an amount payable to the employee in relation to

the performance of work; or

(db) a law of a State or Territory providing for an employer, or an

officer, employee or agent of an employer, to be liable to be

prosecuted for an offence relating to an employee record that

is required to be made or kept by the employer under this Act

(such as an offence for failing to make or keep such a record

or making or keeping a false or misleading record); or

44 Paragraph 26(2)(g)

After "(d),", insert "(da), (db),".

Schedule 5

Compliance and enforcement

Part 7

Criminalising underpayments

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

45 At the end of subsection 323(1)

Add:

Note 3:

Section 324B creates an offence relating to underpayments.

46 Before section 325

Insert:

324B Offence relating to underpayments

(1) An employer commits an offence if the employer dishonestly

engages in a systematic pattern of underpaying one or more

employees.

Penalty:

(a) for an individual--imprisonment for 4 years or 5,000 penalty

units, or both; or

(b) for a body corporate--25,000 penalty units.

(2) For the purposes of subsection (1), an employer underpays an

employee if the employer fails to pay the employee an amount

payable to the employee in relation to the performance of work:

(a) in full (except as provided by section 324); or

(b) in money; or

Note:

Amounts referred to in subsection (2) include the following if they

become payable during a relevant period:

(a) incentive-based payments and bonuses;

(b) loadings;

(d) overtime or penalty rates;

(e) leave payments.

(3) For the purposes of subsection (2):

(a) anything given or provided by the employer other than in

money is taken never to have been given or provided to the

employee; and

(b) any amount that the employee has been required to spend or

pay contrary to subsection 325(1), or in accordance with a

term to which subsection 326(3) applies, is taken to be a

deduction, from an amount payable to the employee, made

Compliance and enforcement

Schedule 5

Criminalising underpayments

Part 7

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

by the employer otherwise than in accordance with

section 324.

Determination of dishonesty

(4) In a prosecution for an offence against subsection (1), the

determination of dishonesty is a matter for the trier of fact.

Matters to which court may have regard in determining whether

employer engaged in systematic pattern of underpaying employees

(5) In determining for the purposes of subsection (1) whether the

employer engaged in a systematic pattern of underpaying one or

more employees, a court may have regard to:

(a) the number of underpayments; and

(b) the period over which the underpayments occurred; and

(d) the employer's response, or failure to respond, to any

complaints made about the underpayments; and

(e) whether the employer failed to comply with a requirement in

subsection 535(1), (2) or (4) in relation to an employee

record relating to the underpayments; and

(f) whether the employer failed to comply with a requirement in

subsection 536(1), (2) or (3) in relation to a pay slip relating

to the underpayments.

(6) Subsection (5) does not limit the matters that a court may have

regard to.

Note 1:

If a court convicts an employer of an offence against subsection (1),

the court may, in addition to any penalty imposed on the employer,

order the employer to make reparation to any other person, by way of

money payment or otherwise, in respect of any loss suffered, or any

expense incurred, by the other person by reason of the offence (see

section 21B of the

Crimes Act 1914

Note 2:

An employer or another person may also be liable to an offence as a

result of Part 2.4 of the

Criminal Code

(extensions of criminal

responsibility) or section 6 of the

Crimes Act 1914

(accessory after the

fact).

Note 3:

Part 2.5 of the

Criminal Code

(which deals with corporate criminal

responsibility) does not apply to an offence against subsection (1) of

this section (see section 793 of this Act).

Schedule 5

Compliance and enforcement

Part 7

Criminalising underpayments

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Note 4:

Civil proceedings may also be brought under this Act to recover

unpaid amounts payable to an employee in relation to the performance

of work.

324C Commencing proceedings for offence relating to

underpayments

(1) Subject to subsection (2), proceedings for an offence against

subsection 324B(1) (underpayments), or for an offence against

section 6 of the

Crimes Act 1914

or a provision of Part 2.4 of the

Criminal Code

that relates to an offence against

subsection 324B(1), may only be commenced by:

(a) the Fair Work Ombudsman; or

(b) if the proceedings relate to a matter that involves a building

industry participant (within the meaning of the

Building and

Construction Industry (Improving Productivity) Act 2016

) or

building work (within the meaning of that Act) and without

limiting paragraph (a) of this subsection--the Australian

Building and Construction Commissioner.

Note:

In relation to paragraph (1)(b), see paragraph 16(1)(ca) of the

Building

and Construction Industry (Improving Productivity) Act 2016

(2) Nothing in subsection (1) affects the ability of the Director of

Public Prosecutions to institute proceedings for an offence.

(3) Despite anything in any other law, proceedings for an offence

against subsection 324B(1), or for an offence against section 6 of

the

Crimes Act 1914

or a provision of Part 2.4 of the

Criminal

Code

that relates to an offence against subsection 324B(1), in

respect of particular conduct may only be commenced:

(a) within 7 years after that conduct occurred; or

(b) at any later time with the Minister's consent.

47 Section 536CA

Repeal the section.

48 After subsection 536D(2)

Insert:

Compliance and enforcement

Schedule 5

Criminalising underpayments

Part 7

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Determination of dishonesty

(2A) In a prosecution for an offence against subsection (1) or (2), the

determination of dishonesty is a matter for the trier of fact.

49 Paragraphs 682(1)(c) and (d)

After "this Act", insert ", a related offence provision".

50 Paragraph 706(1)(a)

After "this Act", insert ", a related offence provision".

51 Subsection 711(1)

Omit "a civil remedy provision", substitute "a provision of this Act or a

related offence provision".

52 Paragraph 712AA(1)(a)

After "this Act", insert ", a related offence provision".

53 Subsections 793(1) and (2)

After "this Act", insert ", a related offence provision".

54 At the end of subsection 793(4)

Add "or a related offence provision".

Division 2

--Consequential amendments

Building and Construction Industry (Improving Productivity)

Act 2016

55 Section 5 (paragraph (a) of the definition of

designated

building law

)

After "FW Act", insert ", an FW Act related offence provision".

56 Section 5

Insert:

FW Act related offence provision

means:

(a) section 6 of the

Crimes Act 1914

; or

Schedule 5

Compliance and enforcement

Part 7

Criminalising underpayments

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

(b) a provision of Part 2.4 of the

Criminal Code

;

to the extent that the offence created by the provision relates to an

offence against the FW Act.

57 After paragraph 16(1)(c)

Insert:

(ca) instituting proceedings for an offence against

subsection 324B(1) of the FW Act (underpayments), or for

an offence against section 6 of the

Crimes Act 1914

or a

provision of Part 2.4 of the

Criminal Code

that relates to an

offence against subsection 324B(1) of the FW Act, relating to

a matter that involves a building industry participant or

building work;

Federal Court of Australia Act 1976

58 After paragraph 23AB(4)(a)

Insert:

(ab) an indictable offence against the

Fair Work Act 2009

;

The Fair Work Commission

Schedule 6

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

Schedule 6--The Fair Work Commission

Fair Work Act 2009

1 Section 587

Repeal the section, substitute:

587 Dismissing applications

(1) The FWC may dismiss an application if the application is not made

in accordance with this Act.

(2) The FWC may dismiss an application at any stage in dealing with

the matter if:

(a) the FWC is satisfied that the application:

(i) is frivolous, vexatious, misconceived or lacking in

substance; or

(ii) has no reasonable prospects of success; or

(iii) is otherwise an abuse of the process of the FWC; and

(b) the applicant has been given a reasonable opportunity to

make submissions to the FWC in relation to whether the

application should be dismissed.

(3) However, subsection (2) does not apply to an application under

section 365 or 773.

(4) The FWC may dismiss an application on grounds set out in this

section:

(a) on its own initiative; or

(b) on application.

(5)

This section does not limit when the FWC may dismiss an

application.

Note:

For another power of the FWC to dismiss an application for a remedy

for unfair dismissal made under Division 5 of Part 3-2, see

section 399A.

Schedule 6

The Fair Work Commission

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

587A Orders about further applications after dismissal

(1) This section applies if the FWC dismisses an application in

accordance with subsection 587(2).

(2) The FWC may order that the applicant must not make a further

application to the FWC of a kind specified in the order without the

permission of the FWC, given by the President, a Vice President or

a Deputy President.

Note 1:

For example, the FWC could order a person to not make one or more

of the following without permission:

(a) an application to the FWC under this Act in relation to the

person's dismissal by a specified employer;

(b) an application to the FWC under section 603 or 604 that relates

to an application made by the person before the date of the order;

specified person becoming a party to a matter.

Note 2:

The FWC must be constituted by a Full Bench to give an order under

subsection (2) (see subsection 616(4A)).

(3) The applicant must have been given a reasonable opportunity to

make submissions to the FWC in relation to whether the order

should be made.

(4) The FWC may make the order:

(a) on its own initiative; or

(b) on application.

(5) An order under subsection (2) has effect despite any other

provision of this Act or any other Act.

(6) An application made in contravention of an order under

subsection (2) has no effect.

No appeal of decisions to refuse permission

(7) A decision to refuse to permit a further application as mentioned in

subsection (2) must not be appealed under section 604.

2 Paragraphs 603(3)(b) and (c)

Repeal the paragraphs.

The Fair Work Commission

Schedule 6

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

3 Paragraph 607(1)(b)

Repeal the paragraph, substitute:

(b) the FWC has taken into account the views of the persons who

would otherwise, or who will, make submissions (whether

oral or written) for consideration in the appeal or review as to

whether the appeal or review should be heard or conducted

without a hearing.

4 After subsection 616(4)

Insert:

Further applications after application has been dismissed

(4A) An order under subsection 587A(2) about further applications

following the dismissal of an application must be made by a Full

Bench.

5 Before paragraph 675(2)(j)

Insert:

(ib) an order under subsection 587A(2) (which deals with further

applications after dismissal);

Schedule 7

Application, saving and transitional provisions

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Schedule 7--Application, saving and

transitional provisions

Fair Work Act 2009

1 In the appropriate position in Schedule 1

Insert:

Part 10--Amendments made by the Fair Work

Amendment (Supporting Australia's Jobs

and Economic Recovery) Act 2020

Division 1--Definitions

44 Definitions

In this Part:

amended Act

means this Act as amended by the

Fair Work

Amendment (Supporting Australia's Jobs and Economic Recovery)

Act 2020.

amending Act

means the

Fair Work Amendment (Supporting

Australia's Jobs and Economic Recovery) Act 2020

commencement

means the commencement of this Part.

Division 2--Amendments made by Schedule 1 to the

amending Act

45 Resolving uncertainties and difficulties about interaction between

enterprise agreements and the definition of casual

employee and casual conversion rights

(1) On application by an employer, employee or employee

organisation covered by an enterprise agreement that was made

Application, saving and transitional provisions

Schedule 7

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

before commencement, the FWC may make a determination

varying the agreement:

(a) to resolve an uncertainty or difficulty relating to the

interaction between the agreement and any of the following:

(i) the definition of

casual employee

in section 15A of the

amended Act (including to deal with uncertainty or

difficulty arising from the circumstances in which

employees are to be employed as casual employees

under the agreement);

(ii) the provisions of Division 4A of Part 2-2 of the

amended Act; or

(b) to make the agreement operate effectively with that section or

those provisions.

(2) A variation of an enterprise agreement under this clause operates

from the day specified in the determination, which may be a day

before the determination is made.

46 Application of certain amendments

(1) Section 15A of the amended Act applies on and after

commencement in relation to offers of employment that were given

before, on or after commencement.

(2) Subclause (1) does not apply in relation to a person who is an

employee of an employer as a result of accepting an offer that was

made before commencement if either of the following apply in

relation to that person:

(a) a court made a binding decision before commencement that

the person is not a casual employee of the employer;

(b) the person converted the employment before commencement

to employment other than casual employment under a term of

a fair work instrument or contract of employment.

(3) In addition to subclause (1), section 15A of the amended Act (and

the amendment made by item 1 of Schedule 1 to the amending Act)

also applies before commencement in relation to offers of

employment that were given before commencement, unless either

of the following apply in relation to a person who is or was an

employee of an employer as a result of accepting the offer:

Schedule 7

Application, saving and transitional provisions

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

(a) a court made a binding decision before commencement that

the person is not a casual employee of the employer;

(b) the person converted the employment before commencement

to employment other than casual employment under a term of

a fair work instrument or contract of employment.

(4) To avoid doubt, if, apart from subclause (3), an employee could

have made a claim for accrued relevant entitlements (within the

meaning of subsection 545A(4) of the amended Act), the effect of

that subclause is that the employee has not accrued, and cannot

make a claim for, those entitlements.

(5) Subject to clause 47, Division 4A of Part 2-2 of the amended Act

applies in relation to periods of employment starting before, on or

after commencement.

(6) Section 545A of the amended Act applies in relation to

entitlements that accrue, and loading amounts paid, on or after

commencement.

(7) In addition to subclause (6), section 545A of the amended Act also

applies in relation to entitlements that accrue, and loading amounts

paid, before commencement.

(8) To avoid doubt, section 545A of the amended Act applies:

(a) to periods of employment starting before, on or after

commencement (regardless of whether the employment

period ended before commencement); and

(b) regardless of whether a person is, or is not, an employee of

the relevant employer at the time a claim to which that

section relates is made.

(9) A reference to periods of employment as a casual employee in

section 87, 96, 117, 119 or 121 of the amended Act applies to

periods of employment starting before, on or after commencement.

(10) A reference to a regular casual employee in section 23, 65, 67 or

384 of the amended Act applies to periods of employment starting

before, on or after commencement.

(11) To avoid doubt, nothing in subclause (1) is taken to change the

time at which the person became an employee of the employer.

Application, saving and transitional provisions

Schedule 7

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

47 Transitioning casual employees

(1) This clause applies in relation to an employee and an employer if

any or all of the following apply:

(a) the employee was, immediately before commencement (and

disregarding subclause 46(3)), a casual employee of the

employer;

(b) the employee was, immediately before commencement (and

disregarding subclause 46(3)), designated as a casual

employee by the employer for the purposes of:

(i) any fair work instrument that applies to the employee;

(ii) the employee's contract of employment;

meaning of section 15A of the amended Act because of an

offer of an employment made before commencement.

Note:

The effect of this application provision is to provide a requirement for

an employer to assess whether to offer conversion under Division 4A

of Part 2-2 of the amended Act (as modified under this clause) to any

employee who was, or may have been, a casual employee immediately

before commencement, and to any employee who at commencement

is a casual employee within the meaning of section 15A of the

amended Act.

(2) Division 4A (other than Subdivision C) of Part 2-2 of the amended

Act is taken to apply in relation to the employee and employer for

the period (the

transition period

) of 6 months after commencement

only as if:

(a) the employer was required under section 66B of the amended

Act to assess, at a time during the transition period, whether

the employer was required to make an offer to the employee

under that section; and

(b) paragraph 66B(1)(a) of the amended Act were a requirement

for the employee to have been employed by the employer for

a period of 12 months ending the day the assessment is made;

and

to give the offer to the employee within 21 days after making

the assessment; and

Schedule 7

Application, saving and transitional provisions

100

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

(d) subsection 66C(3) of the amended Act included a

requirement to give a notice under that subsection if, when

the assessment is made, the employee does not meet the

requirement in paragraph (b) of this clause; and

(e) paragraph 66C(4)(c) of the amended Act were a requirement

to give the notice within 21 days of making the assessment

but no later than the end of the transition period.

(3) Subdivision C of Part 2-2 of the amended Act does not apply in

relation to the employee and employer for the transition period.

(4) Division 4A (including Subdivision C) of Part 2-2 of the amended

Act applies in relation to the employee and employer to whom

paragraph (1)(a) or (b) applies after the transition period as if the

employee were a casual employee of the employer within the

meaning of section 15A of the amended Act.

(5) An employer referred to in subclause (1) must give an employee

referred to in that subclause a Casual Employment Information

Statement as soon as practicable after the end of the transition

period.

48 Variations to modern awards

(1) If:

(a) a modern award is made before commencement; and

(b) the modern award is in operation on commencement; and

includes a term (the

relevant term

) that:

(i) defines or describes casual employment; or

(ii) deals with the circumstances in which employees are to

be employed as casual employees; or

(iii) provides for the manner in which casual employees are

to be employed; or

(iv) provides for the conversion of casual employment to

another type of employment;

then the FWC must, within 6 months after commencement, review

the relevant term in accordance with subclause (2).

(2) The review must consider the following:

Application, saving and transitional provisions

Schedule 7

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

101

(a) whether the relevant term is consistent with this Act as

amended by Schedule 1 to the amending Act;

(b) whether there is any uncertainty or difficulty relating to the

interaction between the award and the Act as so amended.

(3) If the review of a relevant term under subclause (1) finds that:

(a) the relevant term is not consistent with this Act as amended

by Schedule 1 to the amending Act; or

(b) there is a difficulty or uncertainty relating to the interaction

between the award and the Act as so amended;

then the FWC must make a determination varying the modern

award to make the award consistent or operate effectively with the

Act as so amended.

(4) The determination must be made as soon as reasonably practicable

after the review is conducted.

(5) A determination under subclause (2) comes into operation on (and

takes effect from) the start of the day the determination is made.

(6) Section 168 applies to a determination made under subclause (2) as

if it were a determination made under Part 2-3.

Division 3--Amendments made by Schedule 2 to the

amending Act

49 Transitional--flexible work directions

To avoid doubt, the repeal of Part 6-4D of the amended Act by Part 3 of

Schedule 2 to the amending Act has the effect that:

(a) no further flexible work directions can be given; and

(b) any flexible work directions that were in effect at the time of

the repeal cease to have effect from the time of the repeal;

and

are no longer taken to be terms of any modern award.

Schedule 7

Application, saving and transitional provisions

102

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

Division 4--Amendments made by Schedule 3 to the

amending Act

50 Application of amendments relating to enterprise agreements

(1) Except as provided by any of subclauses (2) to (8), the

amendments of Part 2-4 made by Schedule 3 to the amending Act

apply in relation to:

(a) enterprise agreements, or proposed enterprise agreements, for

which the access period begins on or after commencement;

and

(b) variations, or proposed variations, of enterprise agreements

for which the access period for the variation, or proposed

variation, begins on or after commencement.

(2) Sections 171 and 254B of the amended Act apply in relation to the

performance of a function or exercise of a power on or after

commencement.

(3) Subsection 173(3) of the amended Act applies in relation to a

proposed enterprise agreement for which the notification time is on

or after commencement.

(4) The repeal of subsection 189(1A) made by Division 2 of Part 5 of

Schedule 3 to the amending Act applies in relation to an enterprise

agreement for which the access period begins on or after that

repeal.

(5) Subdivision AA of Division 7 of Part 2-4 of the amended Act

applies in relation to an eligible franchisee employer for a

single-enterprise agreement whether the employer becomes a

franchisee of the relevant franchise, or the agreement is made,

before or after commencement.

(6) Section 225 of the amended Act applies in relation to enterprise

agreements that pass their nominal expiry date on or after

commencement.

(7) Sections 254AA and 255AA of the amended Act apply in relation

to an application made on or after commencement.

Application, saving and transitional provisions

Schedule 7

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

103

(8) Subsections 272(5) and 273(6) of the amended Act apply in

relation to workplace determinations made on or after

commencement.

51 Transfer of business

Subsection 311(1A) of the amended Act applies in relation to an

employee who becomes employed by the new employer after

commencement.

Division 5--Amendments made by Schedule 4 to the

amending Act

52 Application of amendments relating to greenfields agreements

The amendments made by Schedule 4 to the amending Act apply

in relation to an enterprise agreement that is made on or after

commencement.

Division 6--Amendments made by Schedule 5 to the

amending Act

54 Compliance notices

Section 539 of the amended Act applies in relation to notices under

section 716 given on or after commencement.

55 Remuneration-related contraventions

(1) Paragraphs (b) in column 2 of items 5 and 6 of the table in

subsection 546(2) of the amended Act apply in relation to conduct

engaged in on or after commencement.

(2) For the purposes of the application of section 557 in relation to

those paragraphs, conduct engaged in before commencement

cannot constitute the same course of conduct as conduct engaged in

after commencement.

Schedule 7

Application, saving and transitional provisions

104

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

No. , 2020

56 Infringement notices

Section 558 of the amended Act applies in relation to conduct

occurring on or after commencement.

57 Underpayments

Section 324B of the amended Act applies in relation to conduct

engaged in on or after commencement.

Division 7--Amendments made by Schedule 6 to the

amending Act

60 Varying and revoking certain FWC decisions

Subsection 603(3) of the amended Act applies in relation to a

decision made on or after commencement.

61 Appeals and reviews without hearings

Section 607 of the amended Act applies in relation to appeals and

reviews notified, or applied for, on or after commencement.

2 Before clause 54 of Schedule 1

Insert:

53 Employers must not advertise employment with rate of pay less

than the national minimum wage

Section 536AA of the amended Act applies in relation to

advertisements published on or after the commencement of this

clause.

3 At the end of Division 6 of Part 10 of Schedule 1

Add:

58 Small claims procedure--increase in amount of award

(1) This clause applies if:

Application, saving and transitional provisions

Schedule 7

No. , 2020

Fair Work Amendment (Supporting Australia's Jobs and Economic

Recovery) Bill 2020

105

(a) a person has applied for an order (other than a pecuniary

penalty order) under Division 2 of Part 4-1 from a court

mentioned in section 548; and

(b) the person has indicated in accordance with

paragraph 548(1)(c) that the person wants the small claims

procedure to apply to the proceedings; and

finally determined before the commencement of this clause.

(2) The application:

(a) is taken to have been made under the amended Act; and

(b) may be amended accordingly.

59 Small claims procedure--conciliation and arbitration of small

claims proceedings

Sections 548A to 548E of the amended Act apply in relation to

small claims proceedings commenced on or after the

commencement of this clause.

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