FAIR WORK AMENDMENT (STATE REFERRALS AND OTHER MEASURES) BILL 2009

i Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Referring States

Fair Work Act 2009

Schedule 2--Transitional matters related to State referrals

under Division 2B of Part 1-3 of the Fair Work

Act 2009

Part 1--Amendment of the Fair Work (Transitional Provisions

and Consequential Amendments) Act 2009

Part 2--Amendment of other Acts

Age Discrimination Act 2004

Australian Human Rights Commission Act 1986

Disability Discrimination Act 1992

Fair Work Act 2009

Legislative Instruments Act 2003

Sex Discrimination Act 1984

Superannuation Guarantee (Administration) Act 1992

Schedule 3--Other amendments

100

Part 1--Main amendments

100

Fair Work Act 2009

100

Part 2--Minor technical amendments

106

Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009

106

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009 1

A Bill for an Act to amend the Fair Work Act 2009,

and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Fair Work Amendment (State

Referrals and Other Measures) Act 2009.

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

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

according to its terms.

2 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

Commencement information

Column 1

Column 2

Column 3

Provision(s) 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,

items 1 to 6

A day or days to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

3. Schedule 1,

item 7

Immediately after the commencement of

item 2 of Schedule 3.

4. Schedule 1,

items 8 to 12

A day or days to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

5. Schedule 1,

item 13

Immediately after the commencement of

item 11 of Schedule 1 to the Fair Work

(State Referral and Consequential and Other

Amendments) Act 2009.

25 June 2009

6. Schedule 1,

items 14 and 15

A day or days to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

7. Schedule 1,

item 16

Immediately after the commencement of

item 11 of Schedule 1 to the Fair Work

(State Referral and Consequential and Other

Amendments) Act 2009.

25 June 2009

8. Schedule 1,

items 17 to 41

A day or days to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009 3

Commencement information

Column 1

Column 2

Column 3

Provision(s) Commencement

Date/Details

Royal Assent, they commence on the day

after the end of that period.

9. Schedule 1,

item 42

The day this Act receives the Royal Assent.

10. Schedule 2,

items 1 to 128

At the same time as item 39 of Schedule 1.

11. Schedule 2,

items 129 to 132

Immediately after the commencement of

section 168E of the Fair Work Act 2009.

12. Schedule 2,

items 133 to 138

At the same time as item 39 of Schedule 1.

13. Schedule 3,

Part 1

A day or days to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

14. Schedule 3,

Part 2

At the same time as item 39 of Schedule 1.

Note:

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

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

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

repealed as set out in the applicable items in the Schedule

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

according to its terms.

Schedule 1 Referring States

4 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

Schedule 1--Referring States

Fair Work Act 2009

1 Section 12 (note 2 at the end of the definition of employee)

Omit "subsection 15(1) and subsection 30E(1)", substitute "subsections

15(1), 30E(1) and 30P(1)".

2 Section 12 (note 2 at the end of the definition of employer)

Omit "subsection 15(2) and subsection 30E(2)", substitute "subsections

15(2), 30E(2) and 30P(2)".

3 Section 12 (note at the end of the definition of national

system employee)

Omit "Section 30C extends", substitute "Sections 30C and 30M

extend".

4 Section 12 (note at the end of the definition of national

system employer)

Omit "Section 30D extends", substitute "Sections 30D and 30N

extend".

5 Section 12 (note at the end of the definition of outworker

entity)

Omit "Section 30F extends", substitute "Sections 30F and 30Q extend".

6 Section 13 (note)

Omit "Section 30C extends", substitute "Sections 30C and 30M

extend".

7 Subsection 14(1) (note 2)

Omit "Section 30D extends", substitute "Sections 30D and 30N

extend".

8 Subsection 15(1) (note)

Omit "Subsection 30E(1) extends", substitute "Subsections 30E(1) and

30P(1) extend".

Referring States Schedule 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009 5

9 Subsection 15(2) (note)

Omit "Subsection 30E(2) extends", substitute "Subsections 30E(2) and

30P(2) extend".

10 Section 24

Omit "Division 2A is about the extended application of this Act in a

State that has", substitute "Divisions 2A and 2B are about the extended

application of this Act in States that have".

11 Division 2A of Part 1-3 (heading)

Repeal the heading, substitute:

Division 2A--Application of this Act in States that refer

matters before 1 July 2009

12 Section 30A

Before "In this Division", insert "(1)".

13 Section 30A (definition of amendment)

Repeal the definition.

14 Section 30A

Insert:

amendment reference of a State means the reference by the

Parliament of the State to the Parliament of the Commonwealth of

the matters covered by subsection 30B(4).

15 Section 30A (definition of excluded subject matter)

Repeal the definition, substitute:

excluded subject matter means any of the following matters:

(a) a matter dealt with in a law referred to in subsection 27(1A)

of this Act;

(b)

superannuation;

(c)

workers

compensation;

(d) occupational health and safety;

(e) matters relating to outworkers (within the ordinary meaning

of the term);

Schedule 1 Referring States

6 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

(f)

child

labour;

(g)

training

arrangements;

(h) long service leave;

(i) leave for victims of crime;

(j) attendance for service on a jury, or for emergency service

duties;

(k) declaration, prescription or substitution of public holidays;

(l) the following matters relating to provision of essential

services or to situations of emergency:

(i) directions to perform work (including to perform work

at a particular time or place, or in a particular way);

(ii) directions not to perform work (including not to perform

work at a particular time or place, or in a particular

way);

(m) regulation of any of the following:

(i)

employee

associations;

(ii)

employer

associations;

(iii) members of employee associations or of employer

associations;

(n)

workplace

surveillance;

(o) business trading hours;

(p) claims for enforcement of contracts of employment, except

so far as a law of a State provides for the variation or setting

aside of rights and obligations arising under a contract of

employment, or another arrangement for employment, that a

court or tribunal finds is unfair;

(q) rights or remedies incidental to a matter referred to in a

preceding paragraph of this definition;

except to the extent that this Act as originally enacted deals with

the matter (directly or indirectly), or requires or permits

instruments made or given effect under this Act so to deal with the

matter.

16 Section 30A (definition of express amendment)

Omit "amendment of this Act", substitute "amendment of the text of

this Act (whether by the insertion, omission, repeal, substitution or

relocation of words or matter)".

17 Section 30A

Referring States Schedule 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009 7

Insert:

fundamental

workplace relations

principles: see subsection

30B(9).

18 Section 30A

Insert:

initial reference of a State means the reference by the Parliament

of the State to the Parliament of the Commonwealth of the matters

covered by subsection 30B(3).

19 Section 30A (definition of law enforcement officer)

Repeal the definition, substitute:

law enforcement officer means:

(a) a member of a police force or police service; or

(b) a person appointed to a position for the purpose of being

trained as a member of a police force or police service; or

police force or police service;

and, without limiting paragraphs (a), (b) and (c), includes a police

reservist, a police recruit, a police cadet, a junior constable, a

police medical officer, a special constable, an ancillary constable

or a protective services officer.

20 Section 30A

Insert:

local government employee, of a State, means:

(a) an employee of a local government employer of the State; or

(b) any other employee in the State of a kind specified in the

regulations.

21 Section 30A

Insert:

local government employer, of a State, means an employer that is:

(a) a body corporate that is established for a local government

purpose by or under a law of a State; or

Schedule 1 Referring States

8 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

(b) a body corporate in which a body to which paragraph (a)

applies has, or 2 or more such bodies together have, a

controlling interest; or

unincorporated body that is established for a local

government purpose by or under a law of a State; or

(d) any other body corporate that is a local government body in

the State of a kind specified in the regulations; or

(e) any other person who employs individuals for the purposes of

an unincorporated body that is a local government body in

the State of a kind specified in the regulations.

22 Section 30A (paragraph (c) of the definition of referred

subject matters)

After "responsibilities of", insert "persons, including".

23 Section 30A (subparagraph (c)(i) of the definition of

referred subject matters)

After "association", insert "in the context of workplace relations,".

24 Section 30A (subparagraph (c)(viii) of the definition of

referred subject matters)

Before "rights of entry", insert "union".

25 Section 30A (paragraphs (a) to (d) of the definition of State

public sector employer)

Repeal the paragraphs, substitute:

(a) the State, the Governor of the State or a Minister of the State;

(b) a body corporate that is established for a public purpose by or

under a law of the State, by the Governor of the State or by a

Minister of the State; or

(d) a person who employs individuals for the purposes of an

unincorporated body that is established for a public purpose

by or under a law of the State, by the Governor of the State or

by a Minister of the State; or

Referring States Schedule 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009 9

(e) any other employer in the State of a kind specified in the

regulations;

26 Section 30A

Insert:

transition reference of a State means the reference by the

Parliament of the State to the Parliament of the Commonwealth of

the matters covered by subsection 30B(5).

27 At the end of section 30A

Add:

(2) Words or phrases in the definition of excluded subject matter in

subsection (1), or in the definition of referred subject matters in

subsection (1), that are defined in this Act (other than in this

Division) have, in that definition, the meanings set out in this Act

as in force on 1 July 2009.

28 Paragraph 30B(2)(b)

After "particular matters", insert ", or all matters,".

29 Paragraph 30B(2)(b)

Omit "those matters", substitute "the matters covered by

subsections (3), (4) and (5); or".

30 At the end of subsection 30B(2)

Add:

matters, relating to local government employees, or local

government employers, of the State are not included in any or

all of the matters covered by subsections (3), (4) and (5).

31 Subsection 30B(6)

Repeal the subsection, substitute:

Effect of termination of reference

(6) Despite anything to the contrary in a referral law of a State, a State

ceases to be a referring State if any or all of the following occurs:

(a) the State's initial reference terminates;

Schedule 1 Referring States

10 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

(b) the State's amendment reference terminates, and neither of

subsections (7) and (8) apply to the termination;

(7) A State does not cease to be a referring State because of the

termination of its amendment reference if:

(a) the termination is effected by the Governor of that State

fixing a day by proclamation as the day on which the

reference terminates; and

(b) the day fixed is no earlier than the first day after the end of

the period of 6 months beginning on the day on which the

proclamation is published; and

reference of every other referring State (other than a referring

State that has terminated its amendment reference in the

circumstances referred to in subsection (8)), terminate on the

same day.

(8) A State does not cease to be a referring State because of the

termination of its amendment reference if:

(a) the termination is effected by the Governor of that State

fixing a day by proclamation as the day on which the

reference terminates; and

(b) the day fixed is no earlier than the first day after the end of

the period of 3 months beginning on the day on which the

proclamation is published; and

which the termination is to be effected, declares that, in the

opinion of the Governor, this Act:

(i) is proposed to be amended (by an amendment

introduced into the Parliament by a Minister); or

(ii) has been amended;

in a manner that is inconsistent with one or more of the

fundamental

workplace relations

principles.

(9) The following are the fundamental workplace relations

principles:

(a) that this Act should provide for, and continue to provide for,

the following:

(i) a strong, simple and enforceable safety net of minimum

employment standards;

Referring States Schedule 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

(ii) genuine rights and responsibilities to ensure fairness,

choice and representation at work, including the

freedom to choose whether or

not to join and be

represented by a union or participate in collective

activities;

(iii)

collective bargaining at the enterprise level with no

provision for individual statutory agreements;

(iv)

fair and effective remedies available through an

independent umpire;

(v)

protection from unfair dismissal;

(b)

that there should be, and continue to be, in connection with

the operation of this Act, the following:

(i)

an independent tribunal system;

(ii)

an independent authority able to assist employers and

employees within a national workplace relations

system.

32 Paragraphs 30C(1)(a) and 30D(1)(a)

Omit "a referring State", substitute "a State that is a referring State

because of this Division".

33 Subsection 30E(1)

Omit "a referring State", substitute "a State that is a referring State

because of this Division".

34 Subsection 30E(2)

After "a State", insert "that is a referring State because of this

Division".

35 Subparagraphs 30F(1)(c)(i) to (iv)

Omit "a referring State", substitute "a State that is a referring State

because of this Division".

36 Subsection 30G(1)

Omit "a referring State", substitute "a State that is a referring State

because of this Division".

37 Section 30H

Schedule 1 Referring States

12 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

Omit "a referring State", substitute "a State that is a referring State

because of this Division".

38 Section 30J

Repeal the section.

39 After Division 2A of Part 1-3

Insert:

Division 2B--Application of this Act in States that refer

matters after 1 July 2009 but on or before

1 January 2010

30K Meaning of terms used in this Division

(1) In this Division:

amendment reference of a State means the reference by the

Parliament of the State to the Parliament of the Commonwealth of

the matters covered by subsection 30L(4).

excluded subject matter means any of the following matters:

(a) a matter dealt with in a law referred to in subsection 27(1A)

of this Act;

(b)

superannuation;

(c)

workers

compensation;

(d) occupational health and safety;

(e) matters relating to outworkers (within the ordinary meaning

of the term);

(f)

child

labour;

(g)

training

arrangements;

(h) long service leave;

(i) leave for victims of crime;

(j) attendance for service on a jury, or for emergency service

duties;

(k) declaration, prescription or substitution of public holidays;

(l) the following matters relating to provision of essential

services or to situations of emergency:

Referring States Schedule 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

(i) directions to perform work (including to perform work

at a particular time or place, or in a particular way);

(ii) directions not to perform work (including not to perform

work at a particular time or place, or in a particular

way);

(m) regulation of any of the following:

(i)

employee

associations;

(ii)

employer

associations;

(iii) members of employee associations or of employer

associations;

(n)

workplace

surveillance;

(o) business trading hours;

(p) claims for enforcement of contracts of employment, except

so far as a law of a State provides for the variation or setting

aside of rights and obligations arising under a contract of

employment, or another arrangement for employment, that a

court or tribunal finds is unfair;

(q) rights or remedies incidental to a matter referred to in a

preceding paragraph of this definition;

except to the extent that this Act as originally enacted deals with

the matter (directly or indirectly), or requires or permits

instruments made or given effect under this Act so to deal with the

matter.

express amendment means the direct amendment of the text of this

Act (whether by the insertion, omission, repeal, substitution or

relocation of words or matter), but does not include the enactment

by a Commonwealth Act of a provision that has, or will have,

substantive effect otherwise than as part of the text of this Act.

fundamental

workplace relations

principles: see subsection

30L(9).

initial reference of a State means the reference by the Parliament

of the State to the Parliament of the Commonwealth of the matters

covered by subsection 30L(3).

law enforcement officer means:

(a) a member of a police force or police service; or

(b) a person appointed to a position for the purpose of being

trained as a member of a police force or police service; or

Schedule 1 Referring States

14 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

police force or police service;

and, without limiting paragraphs (a), (b) and (c), includes a police

reservist, a police recruit, a police cadet, a junior constable, a

police medical officer, a special constable, an ancillary constable

or a protective services officer.

local government employee, of a State, means:

(a) an employee of a local government employer of the State; or

(b) any other employee in the State of a kind specified in the

regulations.

local government employer, of a State, means an employer that is:

(a) a body corporate that is established for a local government

purpose by or under a law of a State; or

(b) a body corporate in which a body to which paragraph (a)

applies has, or 2 or more such bodies together have, a

controlling interest; or

unincorporated body that is established for a local

government purpose by or under a law of a State; or

(d) any other body corporate that is a local government body in

the State of a kind specified in the regulations; or

(e) any other person who employs individuals for the purposes of

an unincorporated body that is a local government body in

the State of a kind specified in the regulations.

referral law, of a State, means the law of the State that refers

matters, as mentioned in subsection 30L(1), to the Parliament of

the Commonwealth.

referred provisions means the provisions of this Division to the

extent to which they deal with matters that are included in the

legislative powers of the Parliaments of the States.

referred subject matters means any of the following:

(a) terms and conditions of employment, including any of the

following:

(i) minimum terms and conditions of employment,

(including employment standards and minimum wages);

Referring States Schedule 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

(ii) terms and conditions of employment contained in

instruments (including instruments such as awards,

determinations and enterprise-level agreements);

(iii) bargaining in relation to terms and conditions of

employment;

(iv) the effect of a transfer of business on terms and

conditions of employment;

(b) terms and conditions under which an outworker entity may

arrange for work to be performed for the entity (directly or

indirectly), if the work is of a kind that is often performed by

outworkers;

employers, independent contractors, outworkers, outworker

entities, associations of employees or associations of

employers, being rights and responsibilities relating to any of

the following:

(i) freedom of association in the context of workplace

relations, and related protections;

(ii) protection from discrimination relating to employment;

(iii) termination of employment;

(iv)

industrial

action;

(v) protection from payment of fees for services related to

bargaining;

(vi) sham independent contractor arrangements;

(vii) standing down employees without pay;

(viii) union rights of entry and rights of access to records;

(d) compliance with, and enforcement of, this Act;

(e) the administration of this Act;

(f) the application of this Act;

(g) matters incidental or ancillary to the operation of this Act or

of instruments made or given effect under this Act;

but does not include any excluded subject matter.

referring State: see section 30L.

State public sector employee, of a State, means:

(a) an employee of a State public sector employer of the State; or

(b) any other employee in the State of a kind specified in the

regulations;

Schedule 1 Referring States

16 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

and includes a law enforcement officer of the State.

State public sector employer, of a State, means an employer that

is:

(a) the State, the Governor of the State or a Minister of the State;

(b) a body corporate that is established for a public purpose by or

under a law of the State, by the Governor of the State or by a

Minister of the State; or

(d) a person who employs individuals for the purposes of an

unincorporated body that is established for a public purpose

by or under a law of the State, by the Governor of the State or

by a Minister of the State; or

(e) any other employer in the State of a kind specified in the

regulations;

and includes a holder of an office of the State whom the State's

referral law provides is to be taken, for the purposes of this Act, to

be an employer of law enforcement officers of the State.

transition reference of a State means the reference by the

Parliament of the State to the Parliament of the Commonwealth of

the matters covered by subsection 30L(5).

(2) Words or phrases in the definition of excluded subject matter in

subsection (1), or in the definition of referred subject matters in

subsection (1), that are defined in this Act (other than in this

Division) have, in that definition, the meanings set out in this Act

as in force on 1 July 2009.

30L Meaning of referring State

Reference of matters by State Parliament to Commonwealth

Parliament

(1) A State is a referring State if the Parliament of the State has, after

1 July 2009 but on or before 1 January 2010, referred the matters

covered by subsections (3), (4) and (5) in relation to the State to the

Parliament of the Commonwealth for the purposes of paragraph

51(xxxvii) of the Constitution:

Referring States Schedule 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

(a) if and to the extent that the matters are not otherwise included

in the legislative powers of the Parliament of the

Commonwealth (otherwise than by a reference under

paragraph 51(xxxvii) of the Constitution); and

(b) if and to the extent that the matters are included in the

legislative powers of the Parliament of the State.

This subsection has effect subject to subsection (6).

(2) A State is a referring State even if:

(a) the State's referral law provides that the reference to the

Parliament of the Commonwealth of any or all of the matters

covered by subsections (3), (4) and (5) is to terminate in

particular circumstances; or

(b) the State's referral law provides that particular matters, or all

matters, relating to State public sector employees, or State

public sector employers, of the State are not included in any

or all of the matters covered by subsections (3), (4) and (5);

matters, relating to local government employees, or local

government employers, of the State are not included in any or

all of the matters covered by subsections (3), (4) and (5).

Reference covering referred provisions

(3) This subsection covers the matters to which the referred provisions

relate to the extent of making laws with respect to those matters by

amending this Act, as originally enacted, and as subsequently

amended by amendments enacted at any time before the State's

referral law commenced, to include the referred provisions.

Reference covering amendments

(4) This subsection covers the referred subject matters to the extent of

making laws with respect to those matters by making express

amendments of this Act.

Reference covering transitional matters

(5) This subsection covers making laws with respect to the transition

from the regime provided for by:

Schedule 1 Referring States

18 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

(a)

the

Workplace Relations Act 1996 (as it continues to apply

because of the Fair Work (Transitional Provisions and

Consequential Amendments) Act 2009); or

(b) a law of a State relating to workplace relations or industrial

relations;

to the regime provided for by this Act.

Effect of termination of reference

(6) Despite anything to the contrary in a referral law of a State, a State

ceases to be a referring State if any or all of the following occurs:

(a) the State's initial reference terminates;

(b) the State's amendment reference terminates, and neither of

subsections (7) and (8) apply to the termination;

(7) A State does not cease to be a referring State because of the

termination of its amendment reference if:

(a) the termination is effected by the Governor of that State

fixing a day by proclamation as the day on which the

reference terminates; and

(b) the day fixed is no earlier than the first day after the end of

the period of 6 months beginning on the day on which the

proclamation is published; and

reference of every other referring State (other than a referring

State that has terminated its amendment reference in the

circumstances referred to in subsection (8)), terminate on the

same day.

(8) A State does not cease to be a referring State because of the

termination of its amendment reference if:

(a) the termination is effected by the Governor of that State

fixing a day by proclamation as the day on which the

reference terminates; and

(b) the day fixed is no earlier than the first day after the end of

the period of 3 months beginning on the day on which the

proclamation is published; and

which the termination is to be effected, declares that, in the

opinion of the Governor, this Act:

Referring States Schedule 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

(i) is proposed to be amended (by an amendment

introduced into the Parliament by a Minister); or

(ii) has been amended;

in a manner that is inconsistent with one or more of the

fundamental

workplace relations

principles.

(9) The following are the fundamental workplace relations

principles:

(a) that this Act should provide for, and continue to provide for,

the following:

(i) a strong, simple and enforceable safety net of minimum

employment standards;

(ii) genuine rights and responsibilities to ensure fairness,

choice and representation at work, including the

freedom to choose whether or

not to join and be

represented by a union or participate in collective

activities;

(iii)

collective bargaining at the enterprise level with no

provision for individual statutory agreements;

(iv)

fair and effective remedies available through an

independent umpire;

(v)

protection from unfair dismissal;

(b)

that there should be, and continue to be, in connection with

the operation of this Act, the following:

(i)

an independent tribunal system;

(ii)

an independent authority able to assist employers and

employees within a national workplace relations

system.

30M Extended meaning of national system employee

(1)

national system employee includes:

(a) any individual in a State that is a referring State because of

this Division so far as he or she is employed, or usually

employed, as described in paragraph 30N(1)(a), except on a

vocational placement; and

(b) a law enforcement officer of the State to whom subsection

30P(1) applies.

Schedule 1 Referring States

20 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

(2) This section does not limit the operation of section 13 (which

defines a national system employee).

Note:

Section 30S may limit the extent to which this section extends the

meaning of national system employee.

30N Extended meaning of national system employer

(1)

national system employer includes:

(a) any person in a State that is a referring State because of this

Division so far as the person employs, or usually employs, an

individual; and

(b) a holder of an office to whom subsection 30P(2) applies.

(2) This section does not limit the operation of section 14 (which

defines a national system employer).

Note:

Section 30S may limit the extent to which this section extends the

meaning of national system employer.

30P Extended ordinary meanings of employee and employer

(1) A reference in this Act to an employee with its ordinary meaning

includes a reference to a law enforcement officer of a referring

State if the State's referral law so provides for the purposes of that

law.

(2) A reference in this Act to an employer with its ordinary meaning

includes a reference to a holder of an office of a State if the State's

referral law provides, for the purposes of that law, that the holder

of the office is taken to be the employer of a law enforcement

officer of the State.

(3) This section does not limit the operation of section 15 (which deals

with references to employee and employer with their ordinary

meanings).

Note:

Section 30S may limit the extent to which this section extends the

meanings of employee and employer.

30Q Extended meaning of outworker entity

(1)

outworker entity includes a person, other than in the person's

capacity as a national system employer, so far as:

Referring States Schedule 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

(a) the person arranges for work to be performed for the person

(either directly or indirectly); and

(b) the work is of a kind that is often performed by outworkers;

and

(i) at the time the arrangement is made, one or more parties

to the arrangement is in a State that is a referring State

because of this Division;

(ii) the work is to be performed in a State that is a referring

State because of this Division;

(iii) the person referred to in paragraph (a) carries on an

activity (whether of a commercial, governmental or

other nature) in a State that is a referring State because

of this Division, and the work is reasonably likely to be

performed in that State;

(iv) the person referred to in paragraph (a) carries on an

activity (whether of a commercial, governmental or

other nature) in a State that is a referring State because

of this Division, and the work is to be performed in

connection with that activity.

(2) This section does not limit the operation of the definition of

outworker entity in section 12.

Note:

Section 30S may limit the extent to which this section extends the

meaning of outworker entity.

30R General protections

(1) Part 3-1 (which deals with general protections) applies to action

taken in a State that is a referring State because of this Division.

(2) This section applies despite section 337 (which limits the

application of Part 3-1), and does not limit the operation of

sections 338 and 339 (which set out the application of that Part).

Note:

Section 30S may limit the extent to which this section extends the

application of Part 3-1.

30S Division only has effect if supported by reference

A provision of this Division has effect in relation to a State that is a

referring State because of this Division only to the extent that the

State's referral law refers to the Parliament of the Commonwealth

Schedule 1 Referring States

22 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

the matters mentioned in subsection 30L(1) that result in the

Parliament of the Commonwealth having sufficient legislative

power for the provision so to have effect.

40 At the end of Division 4 of Part 1-3

Add:

40A Application of the Acts Interpretation Act 1901

(1)

The

Acts Interpretation Act 1901, as in force on 25 June 2009,

applies to this Act.

(2) Amendments of the Acts Interpretation Act 1901 made after that

day do not apply to this Act.

41 Section 337 (note)

Omit "Section 30G extends", substitute "Sections 30G and 30R

extend".

42 Transitional--referring State

Victoria is taken, for the purposes of the Fair Work Act 2009:

(a) to have been a referring State at and after the

commencement of item 11 of Schedule 1 to the Fair Work

(State Referral and Consequential and Other Amendments)

Act 2009 until immediately before the commencement of this

item; and

(b) to continue to be a referring State at and after the

commencement of this item, subject to section 30B (meaning

of referring State) of the Fair Work Act 2009.

Transitional matters related to State referrals under Division 2B of Part 1-3 of the Fair

Work Act 2009 Schedule 2

Amendment of the Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009 Part 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

Schedule 2--Transitional matters related to

State referrals under Division 2B of

Part 1-3 of the Fair Work Act 2009

Part 1--Amendment of the Fair Work (Transitional

Provisions and Consequential Amendments)

Act 2009

1 Item 2 of Schedule 2 (definition of applies)

Repeal the definition, substitute:

applies:

(a) in relation to a transitional instrument: see subitem 3(2) of

Schedule 3; and

(b) in relation to a Division 2B State award: see item 4 of

Schedule 3A; and

item 6 of Schedule 3A.

2 Item 2 of Schedule 2

Insert:

collective Division 2B State employment agreement: see subitem 5(5)

of Schedule 3A.

3 Item 2 of Schedule 2

Insert:

collective State employment agreement: see subitem 2(6) of

Schedule 3A.

4 Item 2 of Schedule 2 (definition of conditional termination)

Repeal the definition, substitute:

conditional termination:

(a) in relation to an individual agreement-based transitional

instrument: see subitem 18(1) of Schedule 3; and

(b) in relation to an individual Division 2B State employment

agreement: see subitem 25(1) of Schedule 3A.

Schedule 2 Transitional matters related to State referrals under Division 2B of Part 1-3

of the Fair Work Act 2009

Part 1 Amendment of the Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009

24 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

5 Item 2 of Schedule 2 (at the end of the definition of covers)

Add:

; and (c) in relation to a Division 2B State award: see item 4 of

Schedule 3A; and

(d) in relation to a Division 2B State employment agreement: see

item 6 of Schedule 3A.

6 Item 2 of Schedule 2

Insert:

Division 2A referring State: see subitem 2A(7) of Schedule 3.

7 Item 2 of Schedule 2

Insert:

Division 2A State reference employee: see subitem 2A(3A) of

Schedule 3.

8 Item 2 of Schedule 2

Insert:

Division 2A State reference employer: see subitem 2A(4A) of

Schedule 3.

9 Item 2 of Schedule 2

Insert:

Division 2A State reference transitional award: see subitem 2A(1A) of

Schedule 3.

10 Item 2 of Schedule 2

Insert:

Division 2B enterprise award: see subitem 2(4) of Schedule 6.

11 Item 2 of Schedule 2

Insert:

Division 2B referral commencement: see subitem 2(4A) of Schedule 3.

12 Item 2 of Schedule 2

Insert:

Transitional matters related to State referrals under Division 2B of Part 1-3 of the Fair

Work Act 2009 Schedule 2

Amendment of the Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009 Part 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

Division 2B referring State: see subitem 2A(7) of Schedule 3.

13 Item 2 of Schedule 2

Insert:

Division 2B State award: see item 3 of Schedule 3A.

14 Item 2 of Schedule 2

Insert:

Division 2B State employment agreement: see item 5 of Schedule 3A.

15 Item 2 of Schedule 2

Insert:

Division 2B State instrument: see item 2 of Schedule 3A.

16 Item 2 of Schedule 2

Insert:

Division 2B State reference employee: see subitem 2A(3A) of

Schedule 3.

17 Item 2 of Schedule 2

Insert:

Division 2B State reference employer: see subitem 2A(4A) of

Schedule 3.

18 Item 2 of Schedule 2

Insert:

Division 2B State reference outworker entity: see subitem 4(3) of

Schedule 3A.

19 Item 2 of Schedule 2

Insert:

Division 2B State reference transitional award: see subitem 2A(1A) of

Schedule 3.

20 Item 2 of Schedule 2

Insert:

Schedule 2 Transitional matters related to State referrals under Division 2B of Part 1-3

of the Fair Work Act 2009

Part 1 Amendment of the Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009

26 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

individual Division 2B State employment agreement: see subitem 5(6)

of Schedule 3A.

21 Item 2 of Schedule 2

Insert:

individual State employment agreement: see subitem 2(7) of

Schedule 3A.

22 Item 2 of Schedule 2 (definition of instrument content

rules)

Repeal the definition, substitute:

instrument content rules:

(a) in Schedule 3: see subitem 4(2) of Schedule 3; and

(b) in Schedule 3A: see subitem 10(2) of Schedule 3A.

23 Item 2 of Schedule 2 (definition of instrument interaction

rules)

Repeal the definition, substitute:

instrument interaction rules:

(a) in Schedule 3: see subitem 5(2) of Schedule 3; and

(b) in Schedule 3A: see subitem 11(2) of Schedule 3A.

24 Item 2 of Schedule 2

Insert:

nominal expiry date, in relation to a Division 2B State employment

agreement: see item 27 of Schedule 3A.

25 Item 2 of Schedule 2

Insert:

outworker interaction rules: see subitem 12(2) of Schedule 3A.

26 Item 2 of Schedule 2

Insert:

referring State: see subitem 2A(7) of Schedule 3.

27 Item 2 of Schedule 2

Transitional matters related to State referrals under Division 2B of Part 1-3 of the Fair

Work Act 2009 Schedule 2

Amendment of the Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009 Part 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

Insert:

source agreement, in relation to a Division 2B State employment

agreement: see subitem 5(1) of Schedule 3A.

28 Item 2 of Schedule 2

Insert:

source award, in relation to a Division 2B State award: see subitem

3(1) of Schedule 3A.

29 Item 2 of Schedule 2

Insert:

source State:

(a) in relation to a Division 2B State award: see subitem 3(1) of

Schedule 3A; and

(b) in relation to a Division 2B State employment agreement: see

subitem 5(1) of Schedule 3A.

30 Item 2 of Schedule 2

Insert:

State award: see item 2 of Schedule 3A.

31 Item 2 of Schedule 2

Insert:

State employment agreement: see item 2 of Schedule 3A.

32 Item 2 of Schedule 2

Insert:

State industrial body means a commission performing or exercising

functions under a State industrial law, and includes a member of such a

commission and a registrar or deputy registrar of such a commission.

33 Item 2 of Schedule 2

Insert:

State industrial law means a law of a State that is a State or Territory

industrial law as defined in section 26 of the FW Act.

34 Item 2 of Schedule 2

Schedule 2 Transitional matters related to State referrals under Division 2B of Part 1-3

of the Fair Work Act 2009

Part 1 Amendment of the Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009

28 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

Insert:

State minimum wages instruments: see item 19 of Schedule 9.

35 Item 2 of Schedule 2 (definition of take-home pay)

After "see", insert "subitem 31(2) of Schedule 3A,".

36 Item 2 of Schedule 2 (definition of take-home pay order)

After "see", insert "subitems 32(1) and (2) of Schedule 3A,".

37 At the end of subitem 7(1) of Schedule 2

Add:

; (c) the transition from the regime provided for by State industrial

laws of Division 2B referring States to the regime provided

for by this Act and the FW Act, including:

(i) the transition from State awards and State employment

agreements to Division 2B State instruments; and

(ii) the transition from Division 2B State instruments to

modern awards and enterprise agreements;

(d) the amendments and repeals made by the Fair Work

Amendment (State Referrals and Other Measures Act) 2009.

38 At the end of subitem 7(2) of Schedule 2

Add:

; (c) provide for the application (with or without modifications),

as laws of the Commonwealth, of provisions of State

industrial laws of Division 2B referring States on and after

the Division 2B referral commencement.

39 Subitem 2(1) of Schedule 3

Omit "subitems (3) and (4)", substitute "subitems (3) to (4A)".

40 Paragraph 2(3)(a) of Schedule 3

After "WR Act instrument", insert "(other than a Division 2B State

reference transitional award)".

41 After subitem 2(4) of Schedule 3

Insert:

Transitional matters related to State referrals under Division 2B of Part 1-3 of the Fair

Work Act 2009 Schedule 2

Amendment of the Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009 Part 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

(4A)

A Division 2B State reference transitional award becomes a transitional

instrument on the Division 2B referral commencement. The

Division 2B referral commencement is the time when Division 2B of

Part 1-3 of the FW Act commences.

42 Item 2A of Schedule 3 (heading)

Repeal the heading, substitute:

2A Meaning of State reference transitional award and various

other expressions associated with State references

43 After subitem 2A(1) of Schedule 3

Insert:

(1A)

State reference transitional awards are classified as follows:

(a) if the employers and employees covered are Division 2A

State reference employers and Division 2A State reference

employees--the State reference transitional award is a

Division 2A State reference transitional award;

(b) if the employers and employees covered are Division 2B

State reference employers and Division 2B State reference

employees--the State reference transitional award is a

Division 2B State reference transitional award.

44 Subitem 2A(3) of Schedule 3

After "section 30C", insert "or 30M".

45 After subitem 2A(3) of Schedule 3

Insert:

(3A)

State reference employees are classified as follows:

(a) employees who are national system employees because of

section 30C of the FW Act are Division 2A State reference

employees;

(b) employees who are national system employees because of

section 30M of the FW Act are Division 2B State reference

employees.

46 Subitem 2A(4) of Schedule 3

After "section 30D", insert "or 30N".

Schedule 2 Transitional matters related to State referrals under Division 2B of Part 1-3

of the Fair Work Act 2009

Part 1 Amendment of the Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009

30 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

47 After subitem 2A(4) of Schedule 3

Insert:

(4A)

State reference employers are classified as follows:

(a) employers that are national system employers because of

section 30D of the FW Act are Division 2A State reference

employers;

(b) employers that are national system employers because of

section 30N of the FW Act are Division 2B State reference

employers.

48 Paragraph 2A(5)(a) of Schedule 3

Repeal the paragraph, substitute:

(a) a transitional award (the current award), as in force on the

WR Act repeal day, covers one or more Division 2A State

reference employers, and Division 2A State reference

employees of those employers; and

49 Subitem 2A(5) of Schedule 3

After "instead", insert ", on and after that day (subject to subitem (6)),".

50 Paragraph 2A(5)(c) of Schedule 3

Omit "a State reference", substitute "a Division 2A State reference".

51 At the end of item 2A of Schedule 3

Add:

(6) If:

(a) a transitional award (the current award), as in force on the

Division 2B referral commencement, covers one or more

Division 2B State reference employers, and Division 2B

State reference employees of those employers; and

(b) the current award also covers:

(i) other employees of those employers; or

(ii) other employers, and employees of those other

employers;

then, for the purposes of this Act, the current award is taken instead, on

and after the Division 2B referral commencement, to constitute 2

separate transitional awards as follows:

Transitional matters related to State referrals under Division 2B of Part 1-3 of the Fair

Work Act 2009 Schedule 2

Amendment of the Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009 Part 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

(i) the employers, and the employees of those employers,

referred to in paragraph (a); and

(ii) if the current award covers an organisation, in relation

to certain employers or employees referred to in

paragraph (a)--that organisation in relation to those

employers or employees;

(d) a transitional award covering:

(i) the employers, and the employees of those employers,

referred to in paragraph (b); and

(ii) if the current award covers an organisation, in relation

to certain employers or employees referred to in

paragraph (b)--that organisation in relation to those

employers or employees.

(7) A

referring State is:

(a) a State (a Division 2A referring State) that is a referring

State as defined in section 30B of the FW Act; or

(b) a State (a Division 2B referring State) that is a referring

State as defined in section 30L of the FW Act.

52 Subparagraph 20(2)(b)(ii) of Schedule 3

After "State employment agreement", insert "(within the meaning of the

WR Act)".

53 Paragraphs 20(4)(b) and (6)(d) of Schedule 3

After "State employment agreement", insert "(within the meaning of the

WR Act)".

54 After Schedule 3

Insert:

Schedule 2 Transitional matters related to State referrals under Division 2B of Part 1-3

of the Fair Work Act 2009

Part 1 Amendment of the Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009

32 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

Schedule 3A--Treatment of State awards and

State employment agreements of

Division 2B referring States

Part 1--Preliminary

1 Meanings of employer and employee

In this Schedule, employer and employee have their ordinary meanings.

Part 2--Division 2B State instruments

2 What are Division 2B State instruments?

(1) A

Division 2B State instrument is a Division 2B State award (see

item 3) or a Division 2B State employment agreement (see item 5).

(2)

Subject to subitem (3), a State award is an instrument in relation to

which the following conditions are satisfied:

(a) the instrument regulates terms and conditions of

employment;

(b) the instrument was made under a State industrial law by a

State industrial body;

Note:

This definition does not apply to a reference in a provision of this Act to a State award if

the provision expressly refers to the meaning that was given by the WR Act.

(3)

The regulations may provide that an instrument of a specified kind:

(a)

State award; or

(b) is not a State award.

(4)

Subject to subitem (5), a State employment agreement is:

(a) an agreement in relation to which the following conditions

are satisfied:

(i) the agreement is between an employer and one or more

employees of the employer, or between an employer and

an association of employees registered under a State

industrial law;

(ii) the agreement determines terms and conditions of

employment of one or more employees of the employer;

Transitional matters related to State referrals under Division 2B of Part 1-3 of the Fair

Work Act 2009 Schedule 2

Amendment of the Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009 Part 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

(iii) the agreement was made under a State industrial law; or

(b) a determination in relation to which the following conditions

are satisfied:

(i) the determination determines terms and conditions of

employment;

(ii) the determination was made under a State industrial law

by a State industrial body;

(iii) the determination was made in a situation in which

parties who were negotiating for the making of an

agreement of a kind described in paragraph (a) had not

been able to reach an agreement;

(iv) the purpose of the determination was to resolve the

matters that were at issue in those negotiations.

Note:

This definition does not apply to a reference in a provision of this Act to a State

employment agreement if the provision expressly refers to the meaning that was given

by the WR Act.

(5)

The regulations may provide that an instrument of a specified kind:

(a)

State employment agreement; or

(b) is not a State employment agreement.

(6)

A State employment agreement is a collective State employment

agreement unless:

(a) it is an agreement of a kind that, under the relevant State

industrial law, could only be entered into by a single

employee and a single employer; or

(b) the agreement is of a kind prescribed by the regulations for

the purpose of this paragraph.

(7)

A State employment agreement referred to in paragraph (6)(a) or (b) is

an individual State employment agreement.

3 Division 2B State awards

(1)

If, immediately before the Division 2B referral commencement:

(a) a State award (the source award) was in operation under a

State industrial law of a Division 2B referring State (the

source State); and

(b) the source award covered (however described in the source

award or a relevant law of the source State) employers and

employees who become Division 2B State reference

Schedule 2 Transitional matters related to State referrals under Division 2B of Part 1-3

of the Fair Work Act 2009

Part 1 Amendment of the Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009

34 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

employers and Division 2B State reference employees on the

Division 2B referral commencement (whether or not the

source award also covered other persons);

a Division 2B State award is taken to come into operation immediately

after the Division 2B referral commencement.

Note 1: A Division 2B State award is a notional federal instrument derived from the source

award.

Note 2: In addition to provisions of this Schedule, the following other provisions affect the

existence of Division 2B State awards:

(a) Division 2 of Part 2 of Schedule 6 (which deals with the

enterprise instrument modernisation process);

(b) Schedule 11 (which deals with transfer of business).

(2)

Subject to this Schedule, the Division 2B State award is taken to include

the same terms as were in the source award immediately before the

Division 2B referral commencement.

Note:

For the meanings of Division 2B referral commencement, Division 2B referring State,

Division 2B State reference employee and Division 2B State reference employer, see

items 2 and 2A of Schedule 3.

(3)

If the terms of the source award were affected by an order, decision or

determination of a State industrial body or a court of the source State

that was in operation immediately before the Division 2B referral

commencement, the terms of the Division 2B State award are taken to

be similarly affected by the terms of that order, decision or

determination.

4 The employees, employers etc. who are covered by a

Division 2B State award and to whom it applies

Meaning of covers

(1)

A Division 2B State award covers the same employees, employers,

outworker entities and any other persons that the source award covered

(however described in the award or a relevant law of the source State)

immediately before the Division 2B referral commencement.

Note: The

expression

covers is used to indicate the range of employees, employers etc. to

whom the Division 2B State award potentially applies (see subitem (5)). The

employees, employers etc. who are within this range will depend on the terms of the

award, and on any relevant provisions of the law of the source State.

(2)

The Division 2B State award also covers any employees who become

employed by an employer on or after the Division 2B referral

Transitional matters related to State referrals under Division 2B of Part 1-3 of the Fair

Work Act 2009 Schedule 2

Amendment of the Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009 Part 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

commencement, and who would have been covered by the source award

if they had become so employed immediately before that

commencement.

(3)

However, the Division 2B State award does not cover:

(a) any employees, employers or outworker entities that are not

Division 2B State reference employees, Division 2B State

reference employers or Division 2B State reference

outworker entities; or

(b) any employees, employers or outworker entities that are

covered by an award-based transitional instrument.

A Division 2B State reference outworker entity is an entity that is an

outworker entity only because of section 30Q of the FW Act.

(4) If:

(a) after the Division 2B referral commencement, a person (the

employer) starts to employ employees to do work of a kind

that was regulated by the source award immediately before

that commencement; and

(b) the employer did not employ employees to do that kind of

work immediately before that commencement;

then the Division 2B State award also does not cover any of the

following, in relation to that kind of work:

(c)

the

employer;

(d) employees of the employer;

(e) any other persons, in relation to the employer or employees

of the employer.

Meaning of applies

(5)

A Division 2B State award applies to the same employees, employers,

outworker entities and any other persons that the Division 2B State

award covers as would have been required by the law of the source

State to comply with terms of the source award, or entitled under the

law of the source State to enforce terms of the source award, if:

(a) the State had not been a referring State; and

(b) the law of the source State had continued to apply.

Note 1: The expression applies is used to indicate the range of employees, employers etc. who

are required to comply with, or can enforce, the terms of the Division 2B State award.

Schedule 2 Transitional matters related to State referrals under Division 2B of Part 1-3

of the Fair Work Act 2009

Part 1 Amendment of the Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009

36 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

Note 2: The Division 2B State award does not apply to any employers, employees or other

persons that it does not cover, whether because of subitem (3) or (4) or otherwise.

(6)

However, a Division 2B State award does not apply to an employee (or

to an employer, or an employee organisation, in relation to the

employee) at a time when the employee is a high income employee (see

section 329 of the FW Act).

Note:

Item 50 deals with the application of section 329 of the FW Act to Division 2B State

awards.

Item has effect subject to other provisions

(7)

This item has effect subject to:

(a) the instrument interaction rules (see item 11); and

(b) the termination of Division 2B State instruments as referred

to in item 18; and

interaction between Division 2B State instruments and FW

Act modern awards, enterprise agreements and workplace

determinations); and

(d) Schedule 11 (which deals with transfer of business).

References to laws of States

(8)

References in this item to the law of a State are references to the law of

the State as in force immediately before the Division 2B referral

commencement.

5 Division 2B State employment agreements

State employment agreements that were in operation

immediately before the Division 2B referral commencement

(1)

If, immediately before the Division 2B referral commencement:

(a) a State employment agreement (the source agreement) was

in operation under a State industrial law of a Division 2B

referring State (the source State); and

(b) the source agreement covered (however described in the

source agreement or a relevant law of the source State)

employers and employees who become Division 2B State

referral employers and Division 2B State referral employees

Transitional matters related to State referrals under Division 2B of Part 1-3 of the Fair

Work Act 2009 Schedule 2

Amendment of the Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009 Part 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

on the Division 2B referral commencement (whether or not

the source agreement also covered other persons);

a Division 2B State employment agreement is taken to come into

operation immediately after the Division 2B referral commencement.

Note 1: A Division 2B State employment agreement is a notional federal instrument derived

from the source agreement.

Note 2: In addition to provisions of this Schedule, the following other provisions affect the

existence of Division 2B State employment agreements:

(a) Division 2 of Part 2 of Schedule 6 (which deals with the

enterprise instrument modernisation process);

(b) Schedule 11 (which deals with transfer of business).

Note 3: For the meanings of Division 2B referral commencement, Division 2B referring State,

Division 2B State reference employee and Division 2B State reference employer, see

items 2 and 2A of Schedule 3.

(2)

Subject to this Schedule, the Division 2B State employment agreement

is taken to include the same terms as were in the source agreement

immediately before the Division 2B referral commencement.

State employment agreements that come into operation on or

after the Division 2B referral commencement

(3)

If, on or after the Division 2B referral commencement:

(a) a State employment agreement (the source agreement)

comes into operation under a State industrial law of a

Division 2B referring State (the source State); and

(b) the source agreement covers (however described in the

source agreement or a relevant law of the source State)

employers and employees who are Division 2B State referral

employers and Division 2B State referral employees when

the source agreement comes into operation (whether or not

the source agreement also covers other persons);

a Division 2B State employment agreement is taken to come into

operation immediately after the source agreement comes into operation.

Note 1: A Division 2B State employment agreement is a notional federal instrument derived

from the source agreement.

Note 2: There is limited scope for State employment agreements that cover Division 2B State

referral employers and employees to come into operation on or after the Division 2B

referral commencement: see Part 6 of this Schedule.

Note 3: In addition to provisions of this Schedule, the following other provisions affect the

existence of Division 2B State employment agreements:

Schedule 2 Transitional matters related to State referrals under Division 2B of Part 1-3

of the Fair Work Act 2009

Part 1 Amendment of the Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009

38 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

(a) Division 2 of Part 2 of Schedule 6 (which deals with the

enterprise instrument modernisation process);

(b) Schedule 11 (which deals with transfer of business).

(4)

Subject to this Schedule, the Division 2B State employment agreement

is taken to include the same terms as were in the source agreement

when it came into operation.

Collective and individual Division 2B State employment

agreements

(5)

If the source agreement in relation to a Division 2B State employment

agreement is a collective State employment agreement, the Division 2B

State employment agreement is a collective Division 2B State

employment agreement.

(6)

If the source agreement in relation to a Division 2B State employment

agreement is an individual State employment agreement, the

Division 2B State employment agreement is an individual Division 2B

State employment agreement.

6 The employees, employers etc. who are covered by a

Division 2B State employment agreement and to whom

it applies

Meaning of covers

(1)

A Division 2B State employment agreement covers the same

employees, employers and any other persons that the source agreement

covered (however described in the agreement or a relevant law of the

source State) immediately before the Division 2B State employment

agreement came into operation.

Note: The

expression

covers is used to indicate the range of employees, employers etc. to

whom the Division 2B State employment agreement potentially applies (see

subitem (4)). The employees, employers etc. who are within this range will depend on

the terms of the agreement, and on any relevant provisions of the law of the source

State.

(2)

The Division 2B State employment agreement also covers any

employees who become employed by an employer on or after the time

when the agreement came into operation, and who would have been

covered by the source agreement if they had become so employed

immediately before that time.

Transitional matters related to State referrals under Division 2B of Part 1-3 of the Fair

Work Act 2009 Schedule 2

Amendment of the Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009 Part 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

(3)

However, the Division 2B State employment agreement does not cover:

(a) any employees or employers that are not Division 2B State

reference employees or Division 2B State reference

employers; or

(b) any employees or employers that are covered by an

award-based transitional instrument.

Meaning of applies

(4)

A Division 2B State employment agreement applies to the same

employees, employers and any other persons that the Division 2B State

employment agreement covers as would have been required by the law

of the source State to comply with terms of the source agreement, or

entitled under the law of the source State to enforce terms of the source

agreement, if:

(a) the source State had not been a referring State; and

(b) the law of the source State had continued to apply.

Note 1: The expression applies is used to indicate the range of employees, employers etc. who

are required to comply with, or can enforce, the terms of the Division 2B State

employment agreement.

Note 2: The Division 2B State employment agreement does not apply to any employers,

employees or other persons that it does not cover, whether because of subitem (3) or

otherwise.

Item has effect subject to other provisions

(5)

This item has effect subject to:

(a) the instrument interaction rules (see item 11); and

(b) the termination of Division 2B State instruments as referred

to in item 18; and

interaction between Division 2B State instruments and FW

Act modern awards, enterprise agreements and workplace

determinations); and

(d) Schedule 11 (which deals with transfer of business).

References to laws of States

(6)

References in this item to the law of a State are references to the law of

the State as in force immediately before the Division 2B referral

commencement.

Schedule 2 Transitional matters related to State referrals under Division 2B of Part 1-3

of the Fair Work Act 2009

Part 1 Amendment of the Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009

40 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

7 Terms about disputes relating to matters arising under

Division 2B State awards

(1)

If the source award for a Division 2B State award includes a term that

provides for disputes relating to matters arising under the award to be

settled by:

(a) a State industrial body; or

(b) a person who is independent of the employers, employees or

organisations covered by the source award;

the Division 2B State award is taken not to include that term.

(2)

Each Division 2B State award is taken to include the model term that is

prescribed by the regulations for dealing with disputes relating to

matters arising under Division 2B State awards.

Note:

This subitem applies whether or not the source award included a term as mentioned in

subitem (1).

(3)

The model term does not apply to disputes about matters arising under

the source award before the Division 2B referral commencement.

(4)

The model term, as taken to be included in a Division 2B State award:

(a) cannot be varied; and

(b) cannot be removed from the award.

8 Terms about disputes relating to matters arising under

Division 2B State employment agreements

(1)

This item applies if the source agreement for a Division 2B State

employment agreement includes a term that provides for disputes

relating to matters arising under the agreement to be settled by:

(a) a State industrial body; or

(b) a person who is independent of the employers, employees or

organisations covered by the source agreement.

(2)

Item 13 of this Schedule does not apply in relation to the term.

Note:

Item 13 would otherwise result in references in the term to a State industrial body

having effect as if they were references to FWA.

(3)

FWA must, on application in accordance with subitem (4), vary the

term in accordance with the application.

(4)

For the purpose of subitem (3), an application must be made:

Transitional matters related to State referrals under Division 2B of Part 1-3 of the Fair

Work Act 2009 Schedule 2

Amendment of the Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009 Part 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

(a) by an employer to which the Division 2B State employment

agreement applies, or by an organisation that is entitled to

represent the industrial interests of such an employer, with

the consent of:

(i) one or more employees to whom the agreement applies;

(ii) an organisation that is entitled to represent the industrial

interests of one or more such employees; or

(b) by an employee to whom the Division 2B State employment

agreement applies, or by an organisation that is entitled to

represent the industrial interests of such an employee, with

the consent of:

(i) an employer to which the Division 2B State

employment agreement applies; or

(ii) an organisation that is entitled to represent the industrial

interests of such an employer.

9 Application to Division 2B State instruments of provisions

of FW Act about dealing with disputes

(1)

Subdivision B of Division 2 of Part 6-2 of the FW Act applies

(including for the purpose of section 595 of the FW Act) as follows:

(a) the Subdivision applies in relation to the model term that is

taken by item 7 to be included in a Division 2B State award

in the same way as the Subdivision applies in relation to a

term in a modern award that provides a procedure for dealing

with disputes;

(b) the Subdivision applies in relation to a term to which item 8

applies that is included in a Division 2B State employment

agreement in the same way as the Subdivision applies in

relation to a term in an enterprise agreement that provides a

procedure for dealing with disputes.

(2)

The reference in subsections 739(5) and 740(4) of the FW Act to a

decision that is inconsistent with this Act, or a fair work instrument that

applies to the parties, is taken to include a reference to a decision that is

inconsistent with a Division 2B State instrument that applies to the

parties.

Schedule 2 Transitional matters related to State referrals under Division 2B of Part 1-3

of the Fair Work Act 2009

Part 1 Amendment of the Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009

42 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

10 Division 2B State instruments continue to be subject to

the same instrument content rules

(1)

The instrument content rules (as in force immediately before the

Division 2B referral commencement) of the source State apply, in

relation to a Division 2B State instrument, as if:

(a) the rules were provisions of a law of the Commonwealth; and

(b) any references in the rules to State awards or State

employment agreements (however described in the rules)

were instead (respectively) references to Division 2B State

awards or Division 2B State employment agreements; and

regulations were made.

(2)

Instrument content rules, in relation to a State, are provisions of a law

of the State of any of the following kinds:

(a) provisions about what may, or must, be included in an

instrument;

(b) provisions to the effect that a particular term of an instrument

is of no effect (however described):

(i) either completely or to a limited extent; and

(ii) either permanently or for a limited period;

included in an instrument.

11 Division 2B State instruments continue to be subject to

the same instrument interaction rules

(1)

The instrument interaction rules (as in force immediately before the

Division 2B referral commencement) of the source State apply, in

relation to a Division 2B State instrument, as if:

(a) the rules were provisions of a law of the Commonwealth; and

(b) any references in the rules to State awards or State

employment agreements (however described in the rules)

were instead (respectively) references to Division 2B State

awards or Division 2B transitional State employment

agreements; and

regulations were made.

Transitional matters related to State referrals under Division 2B of Part 1-3 of the Fair

Work Act 2009 Schedule 2

Amendment of the Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009 Part 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

(2)

Instrument interaction rules, in relation to a State, are provisions of a

law of the State, the effect of which is that:

(a) one instrument has priority over, or excludes, another

instrument:

(i) either completely or to a particular extent; and

(ii) either permanently or for a particular period; or

(b) one instrument ceases to operate because of another

instrument:

(i) either completely or to a particular extent; and

(ii) either permanently or for a particular period.

12 Division 2B State awards continue to be subject to the

same outworker interaction rules

(1)

The outworker interaction rules (as in force immediately before the

Division 2B referral commencement) of the source State apply, in

relation to a Division 2B State award, as if:

(a) the rules were provisions of a law of the Commonwealth; and

(b) any references in the rules to State awards (however

described in the rules) were instead references to Division 2B

State awards; and

regulations were made.

(2)

Outworker interaction rules, in relation to a State, are provisions of a

law of the State, the effect of which is that:

(a) a State award prevails over, or excludes, a law of the State

relating to outworkers; or

(b) a State award has effect subject to a law of the State relating

to outworkers.

13 References in Division 2B State instruments to State

industrial bodies

(1)

Subject to subitem (2), if a term of a Division 2B State instrument is

expressed to confer a power or function on a State industrial body, that

term has effect as if references in it to the body were instead references

to FWA.

Schedule 2 Transitional matters related to State referrals under Division 2B of Part 1-3

of the Fair Work Act 2009

Part 1 Amendment of the Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009

44 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

(2)

If a term of a Division 2B State instrument is expressed to confer a

power or function on the registrar, or a deputy registrar, of a State

industrial body, that term has effect on and after the Division 2B

referral commencement as if references in it to the registrar or a deputy

registrar were instead references to the General Manager of FWA.

(3)

This item has effect subject to:

(a) a contrary intention in this Act; and

(b)

the

regulations.

Note 1: A Division 2B State award will be taken not to include a term from the source award

that provides for the settlement of disputes relating to matters arising under the award:

see item 7.

Note 2: This item does not apply to a term of a Division 2B State employment agreement that

provides for the settlement of disputes relating to matters arising under the agreement:

see item 8.

14 Non-accruing entitlements: counting service under the

source award or source agreement

General rule

(1)

Subitem (2) applies for the purpose of determining the entitlements of a

Division 2B State reference employee under a Division 2B State

instrument (other than an entitlement to leave of a kind to which

item 15 applies).

(2)

Service of the employee with an employer before the Division 2B

referral commencement that counted for the purpose of the application

to the employee of the source award or source agreement also counts as

service of the employee with the employer for the purpose of the

application to the employee of the Division 2B State instrument.

No double entitlement

(3)

If, before the Division 2B referral commencement, the employee has

already had the benefit of an entitlement, the amount of which was

calculated by reference to a period of service, subitem (2) does not

result in that period of service with the employer being counted again

when calculating the employee's entitlements of that kind under the

Division 2B State instrument.

(4)

To avoid doubt, subitem (3) does not require an employee to serve any

initial qualifying period of service for long service leave again.

Transitional matters related to State referrals under Division 2B of Part 1-3 of the Fair

Work Act 2009 Schedule 2

Amendment of the Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009 Part 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

Note:

For how the kinds of matters covered by this item and items 15 and 16 are dealt with in

relation to entitlements under the National Employment Standards, see Division 2 of

Part 3 of Schedule 4.

15 Accruing entitlements: leave accrued immediately before

the Division 2B referral commencement

(1)

This item applies to leave of the following kinds:

(a) annual leave (however described) that accrues to an

employee;

(b) personal leave or carer's leave (however described) that

accrues to an employee.

(2)

If a Division 2B referral employee to whom a Division 2B State

instrument applies had, immediately before the Division 2B referral

commencement, an accrued entitlement to an amount of leave to which

this item applies (whether the leave accrued under the source award or

source agreement, or under a State industrial law), the accrued leave is

taken to have accrued under the Division 2B State instrument.

16 Leave that is being, or is to be, taken under the source

award or source agreement

(1)

If a Division 2B State reference employee was, immediately before the

Division 2B referral commencement, taking a period of leave under the

source award or source agreement, the employee is entitled to continue

on that leave under the Division 2B State instrument for the remainder

of the period.

(2)

If a Division 2B State reference employee has, before the Division 2B

referral commencement, taken a step that the employee is required to

take so that the employee can, on or after the Division 2B referral

commencement, take a period of leave under the source award or source

agreement, the employee is taken to have taken the step under the

Division 2B State instrument.

(3)

The regulations may deal with other matters relating to how a

Division 2B State instrument applies to leave that, immediately before

the Division 2B referral commencement, is being, or is to be, taken by a

Division 2B State reference employee under the source award or source

agreement.

Schedule 2 Transitional matters related to State referrals under Division 2B of Part 1-3

of the Fair Work Act 2009

Part 1 Amendment of the Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009

46 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

17 No loss of accrued rights or liabilities when Division 2B

State instrument terminates or ceases to apply

(1)

If a Division 2B State instrument terminates, or ceases to apply in

relation to a person, that does not affect:

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

incurred before the instrument terminated or ceased to apply;

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

any such right or liability.

(2)

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

continued or enforced as if the Division 2B State instrument had not

terminated or ceased to apply.

(3)

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

FW Act.

Part 3--Variation and termination of Division 2B

State instruments

18 Division 2B State instruments can only be varied or

terminated in limited circumstances

(1)

A Division 2B State instrument cannot be varied except under:

(a) a provision of this Part or the regulations; or

(b) item 8 (which deals with terms about disputes relating to

matters arising under Division 2B State employment

agreements); or

interaction between Division 2B State instruments and the

National Employment Standards); or

(d) Part 6 of this Schedule (which deals with ongoing operation

of State laws for transitional purposes); or

(e) Division 2 of Part 2 of Schedule 6 (which deals with the

enterprise instrument modernisation process); or

(f) item 20 of Schedule 9 (which deals with variation of

Division 2B State awards in annual wage reviews); or

(g) Schedule 11 (which deals with transfer of business).

Transitional matters related to State referrals under Division 2B of Part 1-3 of the Fair

Work Act 2009 Schedule 2

Amendment of the Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009 Part 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

(2)

A Division 2B State instrument cannot be terminated (or otherwise

brought to an end) except under:

(a) a provision of this Part or the regulations; or

(b) Part 6 of this Schedule; or

(d)

Schedule

11.

19 Variation to remove ambiguities etc.

(1)

On application by a person covered by a Division 2B State instrument,

FWA may make a determination varying the instrument:

(a) to remove an ambiguity or uncertainty in the instrument; or

(b) if the instrument is a Division 2B State employment

agreement--to resolve an uncertainty or difficulty relating to

the interaction between the instrument and a modern award;

Act (which deals with general protections), or to vary terms

to make them consistent with that Part.

Note:

For variation of a Division 2B State instrument to resolve an uncertainty or difficulty

relating to the interaction between the instrument and the National Employment

Standards, see item 40.

(2)

A variation of a Division 2B State instrument operates from the day

specified in the determination, which may be a day before the

determination is made.

20 Variation on referral by Australian Human Rights

Commission

(1)

This item applies if a Division 2B State instrument is referred to FWA

under section 46PW of the Australian Human Rights Commission Act

1986 (which deals with discriminatory industrial instruments).

(2)

If the instrument is a Division 2B State award, section 161 of the FW

Act applies in relation to the referral of the instrument as if the

instrument were a modern award.

(3)

If the instrument is a Division 2B State employment agreement,

section 218 of the FW Act applies in relation to the referral of the

instrument as if the instrument were an enterprise agreement.

Schedule 2 Transitional matters related to State referrals under Division 2B of Part 1-3

of the Fair Work Act 2009

Part 1 Amendment of the Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009

48 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

21 Division 2B State awards: automatic termination after 12

months

(1)

A Division 2B State award terminates at the end of 12 months after the

Division 2B referral commencement.

(2)

A term of a Division 2B State award that provides for the award to

terminate before the end of that 12 month period is of no effect.

(3)

This item does not apply to a Division 2B enterprise award.

Note:

Schedule 6 (modern enterprise awards) applies to Division 2B enterprise awards.

22 Collective Division 2B State employment agreements:

termination by agreement

Subdivision C of Division 7 of Part 2-4 of the FW Act (which deals

with termination of enterprise agreements by employers and employees)

applies in relation to a collective Division 2B State employment

agreement as if a reference to an enterprise agreement included a

reference to a collective Division 2B State employment agreement.

23 Collective Division 2B State employment agreements:

termination by FWA

Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals

with termination of enterprise agreements after their nominal expiry

date) applies in relation to a collective Division 2B State employment

agreement as if a reference to an enterprise agreement included a

reference to a collective Division 2B State employment agreement.

24 Individual Division 2B State employment agreements:

termination by agreement

(1)

The employee and employer covered by an individual Division 2B State

employment agreement (the Division 2B agreement) may make a

written agreement (a termination agreement) to terminate the

Division 2B agreement in accordance with the following requirements:

(a) the termination agreement must be signed by the employee

and the employer;

(b) if the employee is under 18, it must also be signed by a

parent or guardian of the employee;

Transitional matters related to State referrals under Division 2B of Part 1-3 of the Fair

Work Act 2009 Schedule 2

Amendment of the Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009 Part 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

(2)

The termination has no effect unless it has been approved by FWA.

(3)

The employer or employee may apply to FWA for approval of the

termination agreement. The application must be made:

(a) within 14 days after the termination agreement was made; or

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

that period--within such further period as FWA allows.

(4)

If an application for FWA to approve the termination agreement is

made under subitem (3), FWA must approve the termination of the

Division 2B agreement if:

(a) FWA is satisfied that the requirements of subitem (1) have

been complied with; and

(b) FWA is satisfied that there are no other reasonable grounds

for believing that the employee has not agreed to the

termination.

(5)

If the termination is approved under subitem (4), the termination

operates from the day specified in the decision to approve the

termination.

25 Individual Division 2B State employment agreements:

termination conditional on enterprise agreement

(1)

This item provides for the making of an instrument (a conditional

termination) that will have the effect of terminating an individual

Division 2B State employment agreement (the Division 2B agreement)

if:

(a) an enterprise agreement (the proposed enterprise agreement)

is made that covers the employee and the employer; and

(b) the proposed enterprise agreement comes into operation.

(2)

If the Division 2B agreement has not passed its nominal expiry date, the

conditional termination must be a written agreement signed by the

employer and the employee. The signatures must be witnessed.

(3)

If the Division 2B agreement has passed its nominal expiry date, the

conditional termination must be in writing and signed either by the

employee or the employer. The signature must be witnessed.

Schedule 2 Transitional matters related to State referrals under Division 2B of Part 1-3

of the Fair Work Act 2009

Part 1 Amendment of the Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009

50 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

(4)

If the conditional termination is signed by the employee, and the

employee is under 18, it must also be signed by a parent or guardian of

the employee.

(5)

Any other requirements of the regulations relating to the form, content

or making of the conditional termination must also be complied with.

(6)

The employer must give the employee a copy of the conditional

termination if:

(a) the conditional termination is an agreement signed by the

employee and the employer in the circumstances covered by

subitem (2); or

(b) the conditional termination is signed by the employer in the

circumstances covered by subitem (3).

Note 1: For compliance with this obligation, see subitem 4B(1) of Schedule 16.

Note 2: Failure to comply with this obligation does not affect the operation of subitem (8).

(7)

The conditional termination must accompany any application to FWA

for approval of the proposed enterprise agreement under section 185 of

the FW Act.

Note 1: For compliance with this obligation, see subitem 4B(2) of Schedule 16.

Note 2: Failure to comply with this obligation does not affect the operation of subitem (8), or

the validity of an approval by FWA of the proposed enterprise agreement.

(8)

If the requirements of subitems (2) to (5) have been complied with in

relation to the conditional termination, the Division 2B agreement

terminates when the proposed enterprise agreement comes into

operation.

26 Individual Division 2B State employment agreements:

unilateral termination with FWA's approval

(1)

This item applies to an employer or employee:

(a) to whom an individual Division 2B State employment

agreement (the Division 2B agreement) that has passed its

nominal expiry date applies; and

(b) who wants to terminate the Division 2B agreement.

(2)

The employer or employee may:

Transitional matters related to State referrals under Division 2B of Part 1-3 of the Fair

Work Act 2009 Schedule 2

Amendment of the Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009 Part 1

Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. , 2009

(a) make a written declaration that identifies the Division 2B

agreement and that states that the employer or employee

wants to terminate the agreement; and

(b) apply to FWA for the approval of the termination.

(3)

The employer or employee cannot make an application as mentioned in

paragraph (2)(b) unless, at least 14 days before the day on which the

application is made, the employer or employee gives the other of them a

notice complying with the following requirements:

(a) the notice must identify the Division 2B agreement;

(b) the notice must state that the employer or employee intends

to apply to FWA for approval of the termination of the

agreement;

the agreement will terminate on the 90th day after the day on

which FWA makes the approval decision;

(d) the notice must comply with any other requirements of the

regulations.

(4)

FWA must approve the termination if FWA is satisfied that:

(a) the Division 2B agreement applies to the employer and the

employee; and

(b) the requirements of subitems (2) and (3) have been complied

with.

(5)

If FWA approves the termination, the Division 2B agreement terminates

on the 90th day after the day on which FWA makes the approval

decision.

27 Meaning of nominal expiry date of Division 2B State

employment agreement

The nominal expiry date of a Division 2B State employment agreement

is:

(a) the day on which the source agreement would nominally

have expired under the relevant State industrial law of the

source State; or

(b) if that day falls after the end of a period of 3 years beginning

on the Division 2B referral commencement--the last day of

that 3 year period.

Schedule 2 Transitional matters related to State referrals under Division 2B of Part 1-3

of the Fair Work Act 2009

Part 1 Amendment of the Fair Work (Transitional Provisions and Consequential

Amendments) Act 2009

52 Fair Work Amendment (State Referrals and Other Measures) Bill 2009 No. ,

2009

28 Effect of termination

If a Division 2B State instrument terminates, it ceases to cover (and can

never again cover) any employees, employers or other persons.

Part 4--Transition of employees from Division 2B

State awards to FW Act modern awards

Division 1--FWA required to consider varying modern

awards etc.

29 FWA to consider varying modern awards to continue

effect of terms of Division 2B State awards

(1)

During the period of 12 months starting on the Division 2B referral

commencement, FWA:

(a) must consider whether any modern awards should be varied

to include terms in relation to which the following conditions

are satisfied:

(i) the purpose of including the terms is to continue (in

whole or in part) the effect of terms that are contained in

a Division 2B State award, other than a Division 2B

enterprise award;

(ii) the terms only relate to employees, employers or other

persons covered by the Division 2B State award;

(iii) the terms deal with matters of a kind that are permitted

by section 136 of the FW Act to be included in modern

awards; and

(b) may make one or more determinations varying modern

awards to include such terms.

(2)

Terms may be included in a modern award in accordance with this item

despite section 154 of the FW Act.

(3)

Commonwealth of Australia Bills

FAIR WORK AMENDMENT (STATE REFERRALS AND OTHER MEASURES) BILL 2009