2008-2009 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 (Education, Employment and Workplace Relations) A Bill for an Act to amend the Fair Work Act 2009, to make amendments consequential on the enactment of that Act, and for other purposes [Page Break] 1 Short title ............................................................................................ 1 2 Commencement .................................................................................. 1 3 Schedule(s) ......................................................................................... 6 4 Definition ............................................................................................ 6 Schedule 1--Referring States 7 Fair Work Act 2009 7 Schedule 2--Consequential and transitional provisions relating to referral of matters 16 Part 1--Treatment of transitional awards and common rules as transitional instruments etc. 16 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 16 Part 2--State reference public sector modern awards 25 Div ision 1--State reference public sector transitional award modernisation 25 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 25 Div ision 2--Other amend ments related to State reference public sector modern awards 38 Fair Work Act 2009 38 Schedule 3--Other ame ndments of the Fair Work Act 2009 46 Schedule 4--Agriculture, Fisheries and Forestry 47 Australian Meat and Live-stock Industry (Repeals and Consequential Provisions) Act 1997 47 Dairy Industry Service Reform Act 2003 47 Horticulture Marketing and Research and Development Services (Repeals and Consequential Provisions) Act 2000 47 Pig Industry Act 2001 47 Schedule 5--Attorney-General 48 Part 1--General consequential amendments 48 Age Discrimination Act 2004 48 i Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Australian Crime Commission Act 2002 48 Australian Federal Police Act 1979 49 Bankruptcy Act 1966 50 Crimes Act 1914 51 Criminal Code Act 1995 51 Disability Discrimination Act 1992 52 Human Rights and Equal Opportunity Commission Act 1986 52 Judges' Pensions Act 1968 53 Judiciary Act 1903 53 Jurisdiction of Courts (Cross-vesting) Act 1987 54 Jury Exemption Act 1965 54 Legislative Instruments Act 2003 54 Northern Territory (Self-Government) Act 1978 54 Seat of Government (Administration) Act 1910 55 Sex Discrimination Act 1984 56 Part 2--Amendments relating to discrimination in compliance with industrial instruments and laws 57 Div ision 1--General 57 Age Discrimination Act 2004 57 Disability Discrimination Act 1992 58 Fair Work Act 2009 58 Human Rights and Equal Opportunity Commission Act 1986 60 Sex Discrimination Act 1984 60 Div ision 2--A mend ments relating to HREOC name change 61 Fair Work Act 2009 61 Part 3--Application provisions 62 Schedule 6--Broadband, Communications and the Digital Economy 64 Telstra Corporation Act 1991 64 Schedule 7--Defence 65 Naval Defence Act 1910 65 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 ii [Page Break] Part 1--Consequential amendments 66 Air Passenger Ticket Levy (Collection) Act 2001 66 Building and Construction Industry Improvement Act 2005 66 Coal Mining Industry (Long Service Leave Funding) Act 1992 78 Defence Act 1903 79 Long Service Leave (Commonwealth Employees) Act 1976 80 Maternity Leave (Commonwealth Employees) Act 1973 81 Occupational Health and Safety Act 1991 81 Occupational Health and Safety (Maritime Industry) Act 1993 81 Remuneration Tribunal Act 1973 81 Safety, Rehabilitation and Compensation Act 1988 82 Seafarers Rehabilitation and Compensation Act 1992 82 Social Security Act 1991 84 Tradesmen's Rights Regulation Act 1946 88 United States Naval Communication Station (Civilian Employees) Act 1968 88 Part 2--Transitional provisions 89 Div ision 1--Provisions relating to the Bu ild ing and Construction Industry Improvement Act 2005 89 Div ision 2--Provision relating to the Defence Act 1903 90 Div ision 3--Provisions relating to the Remunerat ion Tribunal Act 1973 90 Schedule 9--Families, Housing, Community Services and Indigenous Affairs 92 Equal Opportunity for Women in the Workplace Act 1999 92 Social Security Act 1991 92 Schedule 10--Finance and Deregulation 93 Airports (Transitional) Act 1996 93 Commonwealth Authorities and Companies Act 1997 93 Commonwealth Electoral Act 1918 93 Superannuation Act 1976 94 iii Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Schedule 11--Health and Ageing 95 Commonwealth Serum Laboratories Act 1961 95 National Health Act 1953 95 Schedule 12--Immigration and Citizenship 97 Fair Work Act 2009 97 Migration Act 1958 97 Schedule 13--Infrastructure, Transport, Regional Development and Local Gove rnme nt 103 Navigation Act 1912 103 Schedule 14--Innovation, Industry, Science and Research 104 Part 1--Consequential amendments 104 Independent Contractors Act 2006 104 Part 2--Transitional provision 106 Schedule 15--Parliame ntary Service 107 Part 1--Consequential amendments 107 Parliamentary Service Act 1999 107 Part 2--Saving provision 112 Schedule 16--Prime Minister and Cabinet 113 Part 1--Consequential amendments 113 Privacy Act 1988 113 Public Service Act 1999 114 Part 2--Saving provision 119 Schedule 17--Resources, Ene rgy and Touris m 120 Moomba-Sydney Pipeline System Sale Act 1994 120 Offshore Petroleum and Greenhouse Gas Storage Act 2006 120 Snowy Hydro Corporatisation Act 1997 121 Schedule 18--Treasury 122 Part 1--Consequential amendments 122 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 iv [Page Break] Corporations Act 2001 122 Financial Sector (Business Transfer and Group Restructure) Act 1999 122 Fringe Benefits Tax Assessment Act 1986 122 Income Tax Assessment Act 1997 123 Income Tax (Transitional Provisions) Act 1997 123 Insurance Act 1973 123 Life Insurance Act 1995 124 Superannuation Guarantee (Administration) Act 1992 124 Superannuation Industry (Supervision) Act 1993 126 Trade Practices Act 1974 126 Part 2--Application provision 128 Schedule 19--Veterans' Affairs 129 Military Rehabilitation and Compensation Act 2004 129 Schedule 20--Regulations 131 v Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] 2 to make amendments consequential on the 3 enactment of that Act, and for other purposes 4 The Parliament of Australia enacts: 5 1 Short title 6 This Act may be cited as the Fair Work (State Referral and 7 Consequential and Other Amendments) Act 2009. 8 2 Commence ment 9 (1) Each provision of this Act specified in column 1 of the table 10 commences, or is taken to have commenced, in accordance with 11 column 2 of the table. Any other statement in column 2 has effect 12 according to its terms. 13 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 4 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedule 1, Immediately after the commencement of the items 1 to 10 provision(s) covered by table item 3. 3. Schedule 1, The day on which this Act receives the item 11 Royal Assent. 4. Schedule 1, Immediately after the commencement of the item 12 provision(s) covered by table item 3. 5. Schedule 2, Immediately after the commencement of Part 1 Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. 6. Schedule 2, Immediately after the commencement of item 33 section 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. 7. Schedule 2, Immediately after the commencement of items 34 to 51 Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. 8. Schedule 2, Immediately after the commencement of Part 2, Division 2 Part 3 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. 9. Schedule 3 Immediately after the commencement of the provision(s) covered by table item 3. 10. Schedule 4 Immediately after the commencement of Part 2-4 of the Fair Work Act 2009. 11. Schedule 5, Immediately after the commencement of items 1 to 30 Part 2-4 of the Fair Work Act 2009. 12. Schedule 5, The later of: item 31 (a) immediately after the co mmencement of Part 2-4 of the Fair Work Act 2009; and 2 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details (b) immed iately after the commencement of item 41 of Schedule 2 to the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009. However, the provision(s) do not commence at all if the event mentioned in paragraph (b ) does not occur. 13. Schedule 5, Immediately after the commencement of items 32 to 64 Part 2-4 of the Fair Work Act 2009. 14. Schedule 5, The later of: items 65 and 66 (a) immediately after the co mmencement of Part 2-4 of the Fair Work Act 2009; and (b) immed iately after the commencement of item 101 o f Schedule 2 to the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009. However, the provision(s) do not commence at all if the event mentioned in paragraph (b ) does not occur. 15. Schedule 5, Immediately after the commencement of item 67 Part 2-4 of the Fair Work Act 2009. 16. Schedule 5, Immediately after the commencement of items 68 and 69 Part 2-3 of the Fair Work Act 2009. 17. Schedule 5, Immediately after the commencement of items 70 to 79 Part 2-4 of the Fair Work Act 2009. 18. Schedule 5, The later of: item 80 (a) immediately after the co mmencement of item 68 of Schedule 5; and (b) the commencement of item 38 o f Schedule 3 to the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009. However, the provision(s) do not commence at all if the event mentioned in paragraph (b ) does not occur. 19. Schedule 5, The later of: item 81 (a) immediately after the co mmencement of Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 3 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details item 70 of Schedule 5; and (b) the commencement of item 38 o f Schedule 3 to the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009. However, the provision(s) do not commence at all if the event mentioned in paragraph (b ) does not occur. 20. Schedule 5, The later of: item 82 (a) immediately after the co mmencement of item 72of Schedule 5; and (b) the commencement of item 38 o f Schedule 3 to the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009. However, the provision(s) do not commence at all if the event mentioned in paragraph (b ) does not occur. 21. Schedule 5, Immediately after the commencement of Part 3 Part 2-4 of the Fair Work Act 2009. 22. Schedule 6 Immediately after the commencement of Part 2-4 of the Fair Work Act 2009. 23. Schedule 7 Immediately after the commencement of Part 2-4 of the Fair Work Act 2009. 24. Schedule 8, Immediately after the commencement of items 1 to 130 Part 2-4 of the Fair Work Act 2009. 25. Schedule 8, The later of: items 131 and 132 (a) immediately after the co mmencement of Part 2-4 of the Fair Work Act 2009; and (b) immed iately after the commencement of item 33 of Schedule 2 to the Social Security Legislation Amendment (Employment Services Reform) Act 2009. 26. Schedule 8, Immediately after the commencement of items 133 to 135 Part 2-4 of the Fair Work Act 2009. 27. Schedule 8 The later of: item 136 (a) immediately after the co mmencement of 4 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details Part 2-4 of the Fair Work Act 2009; and (b) immed iately after the commencement of item 147 o f Schedule 2 to the Social Security Legislation Amendment (Employment Services Reform) Act 2009. 28. Schedule 8, Immediately after the commencement of items 137 and 138 Part 2-4 of the Fair Work Act 2009. 29. Schedule 8, The later of: item 139 (a) immediately after the co mmencement of Part 2-4 of the Fair Work Act 2009; and (b) immed iately after the commencement of item 195 o f Schedule 2 to the Social Security Legislation Amendment (Employment Services Reform) Act 2009. 30. Schedule 8, Immediately after the commencement of items 140 to 161 Part 2-4 of the Fair Work Act 2009. 31. Schedule 9 Immediately after the commencement of Part 2-4 of the Fair Work Act 2009. 32. Schedule 10 Immediately after the commencement of Part 2-4 of the Fair Work Act 2009. 33. Schedule 11 Immediately after the commencement of Part 2-4 of the Fair Work Act 2009. 34. Schedule 12, Immediately after the commencement of items 1 to 3 Part 2-4 of the Fair Work Act 2009. 35. Schedule 12, The later of: item 4 (a) immediately after the co mmencement of Part 2-4 of the Fair Work Act 2009; and (b) immed iately after the commencement of Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008. 36. Schedule 13 Immediately after the commencement of Part 2-4 of the Fair Work Act 2009. 37. Schedule 14 Immediately after the commencement of Part 2-4 of the Fair Work Act 2009. 38. Schedule 15 Immediately after the commencement of Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 5 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details Part 2-4 of the Fair Work Act 2009. 39. Schedule 16 Immediately after the commencement of Part 2-4 of the Fair Work Act 2009. 40. Schedule 17 Immediately after the commencement of Part 2-4 of the Fair Work Act 2009. 41. Schedule 18 Immediately after the commencement of Part 2-4 of the Fair Work Act 2009. 42. Schedule 19 Immediately after the commencement of Part 2-4 of the Fair Work Act 2009. 43. Schedule 20 The day on which this Act receives the Royal Assent. 1 Note: This table relates only to the provisions of this Act as originally 2 passed by both Houses of the Parliament and assented to. It will not be 3 expanded to deal with provisions inserted in this Act after assent. 4 (2) Column 3 of the table contains additional information that is not 5 part of this Act. Information in this column may be added to or 6 edited in any published version of this Act. 7 3 Schedule(s) 8 Each Act that is specified in a Schedule to this Act is amended or 9 repealed as set out in the applicable items in the Schedule 10 concerned, and any other item in a Schedule to this Act has effect 11 according to its terms. 12 4 Definition 13 In this Act: 14 WR Act repeal day has the meaning given by Schedule 2 to the 15 Fair Work (Transitional Provisions and Consequential 16 Amendments) Act 2009. 17 6 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] 1 2 Schedule 1--Referring States 3 4 Fair Work Act 2009 5 1 Section 12 (at the end of note 2 at the end of the definition 6 of employee) 7 Add "and subsection 30E(1)". 8 2 Section 12 (at the end of note 2 at the end of the definition 9 of employer) 10 Add "and subsection 30E(2)". 11 3 Section 12 (at the end of the definition of national system 12 employee) 13 Add: 14 Note: Section 30C extends the meaning of national system employee in 15 relation to a referring State. 16 4 Section 12 (at the end of the definition of national system 17 employer) 18 Add: 19 Note: Section 30D extends the meaning of national system employer in 20 relation to a referring State. 21 5 Section 12 (note at the end of the definition of outworker 22 entity) 23 Repeal the note, substitute: 24 Note: Section 30F extends the meaning of outworker entity in relation to a 25 referring State. 26 6 At the end of section 13 27 Add: 28 Note: Section 30C extends the meaning of national system employee in 29 relation to a referring State. 30 7 Section 14 (note) 31 Repeal the note, substitute: Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 7 [Page Break] 1 Note 1: In this context, Australia includes the Territory of Christmas Island 2 and the Territory of Cocos (Keeling) Islands (see paragraph 17(a) of 3 the Acts Interpretation Act 1901). 4 Note 2: Section 30D extends the meaning of national system employer in 5 relation to a referring State. 6 8 At the end of subsection 15(1) 7 Add: 8 Note: Subsection 30E(1) extends the meaning of employee in relation to a 9 referring State. 10 9 At the end of subsection 15(2) 11 Add: 12 Note: Subsection 30E(2) extends the meaning of employer in relation to a 13 referring State. 14 10 Section 24 15 Repeal the section, substitute: 16 24 Guide to this Part 17 This Part deals with the extent of the application of this Act. 18 Division 2 is about how this Act affects the operation of certain 19 State or Territory laws. 20 Division 2A is about the extended application of this Act in a State 21 that has referred to the Parliament of the Commonwealth matters 22 relating to this Act. 23 Division 3 is about the geographical application of this Act. 24 Division 4 deals with other matters relating to the application of 25 this Act. 26 11 After Division 2 of Part 1-3 27 Insert: 8 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] 1 Division 2A--Application of this Act in a referring State 2 30A Meaning of terms used in this Division 3 In this Division: 4 amendment includes the insertion, omission, repeal, substitution, 5 addition or relocation of words or matter. 6 excluded subject matter means: 7 (a) a matter dealt with in a law referred to in subsection 27(1A) 8 of this Act as originally enacted; or 9 (b) a non-excluded matter within the meaning of subsection 10 27(2) of this Act as so enacted (other than paragraph 27(2)(p) 11 of this Act as so enacted); or 12 (c) rights or remedies incidental to a matter referred to in 13 paragraph (a) or (b) of this definition; 14 except to the extent that this Act as so enacted deals with the 15 matter (directly or indirectly), or requires or permits instruments 16 made or given effect under this Act so to deal with the matter. 17 express amendment means the direct amendment of this Act, but 18 does not include the enactment by a Commonwealth Act of a 19 provision that has, or will have, substantive effect otherwise than 20 as part of the text of this Act. 21 law enforcement officer is a member of a police force, a police 22 reservist, a police recruit or a protective services officer. 23 referral law, of a State, means the law of the State that refers 24 matters, as mentioned in subsection 30B(1), to the Parliament of 25 the Commonwealth. 26 referred provisions means the provisions of this Division to the 27 extent to which they deal with matters that are included in the 28 legislative powers of the Parliaments of the States. 29 referred subject matters means any of the following: 30 (a) terms and conditions of employment, including any of the 31 following: 32 (i) minimum terms and conditions of employment, 33 (including employment standards and minimum wages); Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 9 [Page Break] 1 (ii) terms and conditions of employment contained in 2 instruments (including instruments such as awards, 3 determinations and enterprise-level agreements); 4 (iii) bargaining in relation to terms and conditions of 5 employment; 6 (iv) the effect of a transfer of business on terms and 7 conditions of employment; 8 (b) terms and conditions under which an outworker entity may 9 arrange for work to be performed for the entity (directly or 10 indirectly), if the work is of a kind that is often performed by 11 outworkers; 12 (c) rights and responsibilities of employees, employers, 13 independent contractors, outworkers, outworker entities, 14 associations of employees or associations of employers, 15 being rights and responsibilities relating to any of the 16 following: 17 (i) freedom of association and related protections; 18 (ii) protection from discrimination relating to employment; 19 (iii) termination of employment; 20 (iv) industrial action; 21 (v) protection from payment of fees for services related to 22 bargaining; 23 (vi) sham independent contractor arrangements; 24 (vii) standing down employees without pay; 25 (viii) rights of entry and rights of access to records; 26 (d) compliance with, and enforcement of, this Act; 27 (e) the administration of this Act; 28 (f) the application of this Act; 29 (g) matters incidental or ancillary to the operation of this Act or 30 of instruments made or given effect under this Act; 31 but does not include any excluded subject matter. 32 referring State: see section 30B. 33 State public sector employee, of a State, means: 34 (a) an employee of a State public sector employer of the State; or 35 (b) any other employee in the State of a kind specified in the 36 regulations; 10 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] 1 and includes a law enforcement officer to whom subsection 30E(1) 2 applies. 3 State public sector employer, of a State, means an employer that 4 is: 5 (a) the State; or 6 (b) a body (whether incorporated or unincorporated) established 7 for a public purpose by or under a law of the State, by the 8 Governor of a State or by a Minister of the State; or 9 (c) a body corporate in which the State has a controlling interest; 10 or 11 (d) any other employer in the State of a kind specified in the 12 regulations; 13 and includes a holder of an office to whom subsection 30E(2) 14 applies. 15 30B Meaning of referring State 16 Reference of matters by State Parliament to Commonwealth 17 Parliament 18 (1) A State is a referring State if the Parliament of the State has 19 referred the matters covered by subsections (3), (4) and (5) in 20 relation to the State to the Parliament of the Commonwealth for the 21 purposes of paragraph 51(xxxvii) of the Constitution: 22 (a) if and to the extent that the matters are not otherwise included 23 in the legislative powers of the Parliament of the 24 Commonwealth (otherwise than by a reference under 25 paragraph 51(xxxvii) of the Constitution); and 26 (b) if and to the extent that the matters are included in the 27 legislative powers of the Parliament of the State. 28 This subsection has effect subject to subsection (6). 29 (2) A State is a referring State even if: 30 (a) the State's referral law provides that the reference to the 31 Parliament of the Commonwealth of any or all of the matters 32 covered by subsections (3), (4) and (5) is to terminate in 33 particular circumstances; or 34 (b) the State's referral law provides that particular matters 35 relating to State public sector employees, or State public Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 11 [Page Break] 1 sector employers, of the State are not included in any or all of 2 those matters. 3 Reference covering referred provisions 4 (3) This subsection covers the matters to which the referred provisions 5 relate to the extent of making laws with respect to those matters by 6 amending this Act, as originally enacted, to include the referred 7 provisions. 8 Reference covering amendments 9 (4) This subsection covers the referred subject matters to the extent of 10 making laws with respect to those matters by making express 11 amendments of this Act. 12 Reference covering transitional matters 13 (5) This subsection covers making laws with respect to the transition 14 from the regime provided for by: 15 (a) the Workplace Relations Act 1996; or 16 (b) a law of a State relating to workplace relations; 17 to the regime provided for by this Act. 18 Effect of termination of reference 19 (6) Despite anything to the contrary in a referral law of a State, a State 20 ceases to be a referring State if any or all of the following occurs: 21 (a) the reference by the Parliament of the State to the Parliament 22 of the Commonwealth of the matters covered by 23 subsection (3) terminates; 24 (b) the reference by the Parliament of the State to the Parliament 25 of the Commonwealth of the matters covered by 26 subsection (4) terminates; 27 (c) the reference by the Parliament of the State to the Parliament 28 of the Commonwealth of the matters covered by 29 subsection (5) terminates. 30 30C Extende d meaning of national system employee 31 (1) A national system employee includes: 12 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] 1 (a) any individual in a referring State so far as he or she is 2 employed, or usually employed, as described in paragraph 3 30D(1)(a), except on a vocational placement; and 4 (b) a law enforcement officer of the State to whom subsection 5 30E(1) applies. 6 (2) This section does not limit the operation of section 13 (which 7 defines a national system employee). 8 Note: Section 30H may limit the extent to which this section extends the 9 meaning of national system employee. 10 30D Extende d meaning of national system employer 11 (1) A national system employer includes: 12 (a) any person in a referring State so far as the person employs, 13 or usually employs, an individual; and 14 (b) a holder of an office to whom subsection 30E(2) applies. 15 (2) This section does not limit the operation of section 14 (which 16 defines a national system employer). 17 Note: Section 30H may limit the extent to which this section extends the 18 meaning of national system employer. 19 30E Extended ordinary meanings of employee and employer 20 (1) A reference in this Act to an employee with its ordinary meaning 21 includes a reference to a law enforcement officer of a referring 22 State if the State's referral law so provides for the purposes of that 23 law. 24 (2) A reference in this Act to an employer with its ordinary meaning 25 includes a reference to a holder of an office of a State if the State's 26 referral law provides, for the purposes of that law, that the holder 27 of the office is taken to be the employer of a law enforcement 28 officer of the State. 29 (3) This section does not limit the operation of section 15 (which deals 30 with references to employee and employer with their ordinary 31 meanings). 32 Note: Section 30H may limit the extent to which this section extends the 33 meanings of employee and employer. Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 13 [Page Break] 1 30F Extended meaning of outworker entity 2 (1) An outworker entity includes a person, other than in the person's 3 capacity as a national system employer, so far as: 4 (a) the person arranges for work to be performed for the person 5 (either directly or indirectly); and 6 (b) the work is of a kind that is often performed by outworkers; 7 and 8 (c) one or more of the following applies: 9 (i) at the time the arrangement is made, one or more parties 10 to the arrangement is in a referring State; 11 (ii) the work is to be performed in a referring State; 12 (iii) the person referred to in paragraph (a) carries on an 13 activity (whether of a commercial, governmental or 14 other nature) in a referring State, and the work is 15 reasonably likely to be performed in that State; 16 (iv) the person referred to in paragraph (a) carries on an 17 activity (whether of a commercial, governmental or 18 other nature) in a referring State, and the work is to be 19 performed in connection with that activity. 20 (2) This section does not limit the operation of the definition of 21 outworker entity in section 12. 22 Note: Section 30H may limit the extent to which this section extends the 23 meaning of outworker entity. 24 30G General protections 25 (1) Part 3-1 (which deals with general protections) applies to action 26 taken in a referring State. 27 (2) This section applies despite section 337 (which limits the 28 application of Part 3-1), and does not limit the operation of 29 sections 338 and 339 (which set out the application of that Part). 30 Note: Section 30H may limit the extent to which this section extends the 31 application of Part 3-1. 32 30H Division only has effect if supported by reference 33 A provision of this Division has effect in relation to a referring 34 State only to the extent that the State's referral law refers to the 35 Parliament of the Commonwealth the matters mentioned in 14 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] 1 subsection 30B(1) that result in the Parliament of the 2 Commonwealth having sufficient legislative power for the 3 provision so to have effect. 4 30J Application of the Acts Interpretation Act 1901 5 (1) The Acts Interpretation Act 1901, as in force on the day on which 6 this Division commences, applies to this Act. 7 (2) Amendments of the Acts Interpretation Act 1901 made after that 8 day do not apply to this Act. 9 12 At the end of section 337 10 Add: 11 Note: Section 30G extends the operation of this Part in a referring State. 12 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 15 [Page Break] Part 1 Treat ment of t ransitional awards and common rules as transitional instruments etc. 1 Schedule 2--Consequential and transitional 2 provisions relating to referral of 3 matters 4 Part 1--Treatment of transitional awards and 5 common rules as transitional instruments 6 etc. 7 Fair Work (Transitional Provisions and Consequential 8 Amendments) Act 2009 9 1 Item 2 of Schedule 2 10 Insert: 11 common rule means a common rule within the meaning of clauses 82 12 to 87 of Schedule 6 to the WR Act (including those clauses as they 13 continue to apply because of item 8A of Schedule 3). 14 2 Item 2 of Schedule 2 15 Insert: 16 State reference common rule: see subitem 2A(2) of Schedule 3. 17 3 Item 2 of Schedule 2 18 Insert: 19 State reference employee: see subitem 2A(3) of Schedule 3. 20 4 Item 2 of Schedule 2 21 Insert: 22 State reference employer: see subitem 2A(4) of Schedule 3. 23 5 Item 2 of Schedule 2 24 Insert: 25 State reference transitional award: see subitem 2A(1) of Schedule 3. 26 6 Item 2 of Schedule 2 27 Insert: 16 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Treat ment of transitional awards and common rules as transitional instruments etc. Part 1 1 State reference transitional award or common rule means a State 2 reference transitional award or a State reference common rule. 3 7 Item 2 of Schedule 2 4 Insert: 5 Victorian employment agreement: see item 41 of Schedule 3. 6 8 After paragraph 2(2)(a) of Schedule 3 7 Insert: 8 (aa) a State reference transitional award or common rule; 9 9 Subitem 2(2) of Schedule 3 (note 4) 10 Repeal the note, substitute: 11 Note 4: For transitional provisions relating to other transitional awards, see Schedule 20. 12 10 At the end of subitem 2(3) of Schedule 3 13 Add: 14 Note: Victorian employment agreements are not continued as transitional instruments. For 15 provisions relating to these agreements, see Part 7 of this Schedule. 16 11 After subitem 2(3) of Schedule 3 17 Insert: 18 (3A) If a State reference common rule comes into effect on or after the WR 19 Act repeal day under the provisions that continue to apply because of 20 item 8A, the State reference common rule becomes a transitional 21 instrument when the common rule comes into effect. 22 12 Paragraph 2(5)(a) of Schedule 3 23 After "awards," (first occurring), insert "State reference transitional 24 awards or common rules,". 25 13 After item 2 of Schedule 3 26 Insert: 27 2A Meanings of State reference transitional award and State 28 reference common rule 29 (1) A State reference transitional award is a transitional award that covers: 30 (a) one or more specified State reference employers; and Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 17 [Page Break] Part 1 Treat ment of t ransitional awards and common rules as transitional instruments etc. 1 (b) specified State reference employees of those employers. 2 Note: A transitional award includes a transitional Victorian reference award. 3 (2) A State reference common rule is a common rule that covers: 4 (a) specified State reference employers; and 5 (b) specified State reference employees of those employers. 6 (3) A State reference employee is an employee who is a national system 7 employee only because of section 30C of the FW Act. 8 (4) A State reference employer is an employer that is a national system 9 employer only because of section 30D of the FW Act. 10 (5) If: 11 (a) a transitional award (the current award) covers one or more 12 State reference employers, and State reference employees of 13 those employers; and 14 (b) the current award also covers: 15 (i) other employees of those employers; or 16 (ii) other employers, and employees of those other 17 employers; 18 then, for the purposes of this Act, the current award is taken instead to 19 constitute 2 separate transitional awards as follows: 20 (c) a State reference transitional award covering: 21 (i) the employers, and the employees of those employers, 22 referred to in paragraph (a); and 23 (ii) if the current award covers an organisation, in relation 24 to certain employers or employees referred to in 25 paragraph (a)--that organisation in relation to those 26 employers or employees; and 27 (d) a transitional award covering: 28 (i) the employers, and the employees of those employers, 29 referred to in paragraph (b); and 30 (ii) if the current award covers an organisation, in relation 31 to certain employers or employees referred to in 32 paragraph (b)--that organisation in relation to those 33 employers or employees. 34 14 At the end of Part 2 of Schedule 3 35 Add: 18 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Treat ment of transitional awards and common rules as transitional instruments etc. Part 1 1 8A Continuing application of provisions of the WR Act about 2 common rules 3 (1) Subject to this item, clauses 82 to 87 of Schedule 6 to the WR Act 4 continue to apply on and after the WR Act repeal day in relation to State 5 reference common rules. 6 (2) Clauses 82 to 87 continue to apply as if: 7 (a) references in the clauses to the transitional period (including 8 references to the end of the transitional period) were omitted; 9 and 10 (b) a reference in the clauses to the Commission were instead a 11 reference to FWA; and 12 (c) a reference in the clauses to a Registrar were instead a 13 reference to the General Manager of FWA; and 14 (d) a reference in the clauses to the Rules of the Commission 15 were instead a reference to the procedural rules of FWA. 16 (3) Subitem (2) has effect unless the context otherwise requires and subject 17 to the regulations. 18 Note: For example, paragraph (2)(a) does not apply if the reference is to something that the 19 Commission did before the WR Act repeal day (or before the reform commencement). 20 15 After item 12 of Schedule 3 21 Insert: 22 12A State reference transitional awards: variation and 23 revocation 24 General provisions 25 (1) Subject to this item, Divisions 5 (other than subsections 554(1) to (4)) 26 and 6 of Part 10 of the WR Act apply on and after the WR Act repeal 27 day in relation to transitional instruments that are State reference 28 transitional awards as if: 29 (a) references to the Commission were instead references to 30 FWA; and 31 (b) references to an award included references to a State 32 reference transitional award. 33 Note 1: Items 10 and 11 apply instead of subsections 554(1) to (4) of the WR Act. Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 19 [Page Break] Part 1 Treat ment of t ransitional awards and common rules as transitional instruments etc. 1 Note 2: For variation of State reference common rules, see the provisions continued in effect by 2 item 8A. 3 (2) To avoid doubt, for the purpose of sections 552 and 553 of the WR Act, 4 as applied by subitem (1) in relation to State reference transitional 5 awards, "minimum safety net entitlements" includes minimum safety 6 net entitlements relating to wages. 7 Note: For variation of terms relating to wages after the end of the bridging period, see 8 subitems (4) to (6). 9 (3) FWA must perform its powers and functions under Divisions 5 and 6 in 10 a way that furthers the objects of Part 10 of the WR Act. 11 Special provisions about variation or revocation after the end of 12 the bridging period 13 (4) A State reference transitional award cannot be varied or revoked after 14 the end of the bridging period except as follows: 15 (a) a State reference transitional award, other than terms relating 16 to wages, can be varied after the end of the bridging period 17 under section 553 of the WR Act; 18 (b) terms of a State reference transitional award relating to wages 19 can be varied after the end of the bridging period in an annual 20 wage review under the FW Act as provided for in 21 subitem (5); 22 (c) a State reference transitional award can be varied after the 23 end of the bridging period as a result of FWA continuing to 24 deal with a matter that it was dealing with before the end of 25 the bridging period. 26 (5) In an annual wage review, FWA may make a determination varying 27 terms of a State reference transitional award relating to wages. 28 (6) For the purpose of subitem (5), Division 3 of Part 2-6 of the FW Act 29 (other than section 292) applies to terms of a State reference transitional 30 award relating to wages in the same way as it applies to a modern 31 award. 32 16 At the end of Schedule 3 33 Add: 20 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Treat ment of transitional awards and common rules as transitional instruments etc. Part 1 1 Part 7--Victorian employment agreements 2 41 Part applies to Victorian employment agreements 3 This Part applies to a Victorian employment agreement that was in 4 force in relation to an employer and an employee (the parties) under 5 Division 12 of Part 21 of the WR Act immediately before the WR Act 6 repeal. A Victorian employment agreement is an employment 7 agreement within the meaning of that Division. 8 42 Victorian employment agreement enforceable as a 9 contract 10 On and after the WR Act repeal day the Victorian employment 11 agreement is enforceable by one of the parties against the other party as 12 if it were a contract. The provisions of Division 12 of Part 21 of the WR 13 Act do not continue to apply in relation to the agreement. 14 17 Subitem 2(2A) of Schedule 6 15 Omit "an award, if the award", substitute "an award or a State reference 16 transitional award, if the award or State reference transitional award". 17 18 Subitem 3(1) of Schedule 7 18 Insert: 19 award includes a State reference transitional award or common rule. 20 19 Paragraph 13(2)(a) of Schedule 7 21 After "an award", insert ", a State reference transitional award or 22 common rule,". 23 20 At the end of item 18 of Schedule 7 24 Add: 25 State reference transitional awards or common rules: transitional 26 APCSs not relevant 27 (5) If the relevant award-based transitional instrument in relation to an 28 employee is a State reference transitional award or common rule, the 29 references in this item to a transitional APCS are to be disregarded. 30 Note: State reference transitional awards or common rules contain terms dealing with wages. Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 21 [Page Break] Part 1 Treat ment of t ransitional awards and common rules as transitional instruments etc. 1 21 At the end of item 19 of Schedule 7 2 Add: 3 State reference transitional awards or common rules: transitional 4 APCSs not relevant 5 (6) If the relevant award-based transitional instrument in relation to an 6 employee is a State reference transitional award or common rule, the 7 references in this item to a transitional APCS are to be disregarded. 8 Note: State reference transitional awards or common rules contain terms dealing with wages. 9 22 Item 21 of Schedule 7 10 After "awards" (last occurring), insert "(including State reference 11 transitional awards and common rules)". 12 23 Paragraph 25(3)(a) of Schedule 7 13 After "an award", insert "or a State reference transitional award or 14 common rule". 15 24 Subitem 27(5) of Schedule 8 16 Insert: 17 award includes a State reference transitional award. 18 25 At the end of item 5 of Schedule 9 19 Add: 20 (4) Despite item 6 of Schedule 2, the following provisions of Part 21 of the 21 WR Act do not apply in relation to the continued AFPCS wages 22 provisions: 23 (a) subparagraph 861(1)(d)(iii); 24 (b) section 865. 25 Note: Paragraph (a) has a flow-through effect to the reference in subparagraph 885(1)(j) of the 26 WR Act to section 861. 27 26 At the end of paragraph 5(2)(d) of Schedule 10 28 Add "or a State reference transitional award or common rule". 29 27 After subitem 2(2) of Schedule 11 30 Insert: 22 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Treat ment of transitional awards and common rules as transitional instruments etc. Part 1 1 (2A) For the purpose of the continued application, by subitem (2), of 2 Division 5 of Part 11 of the WR Act: 3 (a) a reference in those provisions to an award is taken to include 4 a reference to a State reference transitional award; and 5 (b) despite item 6 of Schedule 2, paragraph 885(1)(e) of that Act 6 does not continue to apply. 7 Note: Paragraph 885(1)(e) would otherwise have disapplied Division 5 of Part 11 of the WR 8 Act. 9 28 Subitem 5(2) of Schedule 11 10 After "award", insert "or a State reference transitional award". 11 29 Subitem 8(1) of Schedule 11 12 After "operation", insert "and other than a State reference common 13 rule". 14 30 At the end of paragraph 8(2)(b) of Schedule 11 15 Add ", other than a State reference common rule". 16 31 Paragraph 13(2)(a) of Schedule 18 17 Omit ", a transitional award (including a transitional Victorian reference 18 award) or a common rule", substitute "or a transitional award that is not 19 a WR Act instrument". 20 32 Item 1 of Schedule 20 21 Repeal the item, substitute: 22 1 Schedule 6 to the WR Act 23 (1) Schedule 6 to the WR Act (continued Schedule 6) continues to apply 24 on and after the WR Act repeal day in accordance with this Schedule. 25 (2) Except for instrument content rules and instrument interaction rules, 26 nothing in this Schedule or continued Schedule 6 applies to State 27 reference transitional awards or common rules. 28 Note: State reference transitional awards or common rules are continued in existence by 29 Schedule 3 as transitional instruments. 30 (3) Without limiting subitem (1) (but subject to subitem (2)), transitional 31 awards that were in operation under Schedule 6 to the WR Act 32 immediately before the WR Act repeal day continue in operation as Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 23 [Page Break] Part 1 Treat ment of t ransitional awards and common rules as transitional instruments etc. 1 continuing Schedule 6 instruments on and after the repeal day in 2 accordance with continued Schedule 6. 3 Note 1: In addition to provisions of this Schedule, Part 3 of Schedule 2 may also affect 4 continuing Schedule 6 instruments. 5 Note 2: Compliance with continuing Schedule 6 instruments is dealt with in Schedule 16. 6 24 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] State reference public sector modern awards Part 2 1 Part 2--State reference public sector modern awards 2 Division 1--State reference public sector transitional 3 award modernisation 4 Fair Work (Transitional Provisions and Consequential 5 Amendments) Act 2009 6 33 Subsection 2(1)(after table item 4) 7 Insert: 4A. Schedule 6A At the same time as the provision(s) covered by table item 2. 8 34 Item 2 of Schedule 2 (at the end of the definition of 9 modernisation-related reduction in take-home pay) 10 Add: 11 ; and (c) in relation to the State reference public sector transitional 12 award modernisation process--has the meaning given by 13 subitem 13(3) of Schedule 6A. 14 35 Item 2 of Schedule 2 15 Insert: 16 State reference public sector employee: see subitem 2(2) of 17 Schedule 6A. 18 36 Item 2 of Schedule 2 19 Insert: 20 State reference public sector employer: see subitem 2(3) of 21 Schedule 6A. 22 37 Item 2 of Schedule 2 23 Insert: 24 State reference public sector modern award: see subitem 3(2) of 25 Schedule 6A. 26 38 Item 2 of Schedule 2 27 Insert: Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 25 [Page Break] Part 2 State reference public sector modern awards 1 State reference public sector modern awards objective: see subitem 2 7(2) of Schedule 6A. 3 39 Item 2 of Schedule 2 4 Insert: 5 State reference public sector transitional award: see subitem 2(1) of 6 Schedule 6A. 7 40 Item 2 of Schedule 2 8 Insert: 9 State reference public sector transitional award modernisation 10 process: see subitem 3(1) of Schedule 6A. 11 41 Item 2 of Schedule 2 (definition of take-home pay) 12 Omit "and subitem 11(2) of Schedule 6", substitute ", subitem 11(2) of 13 Schedule 6 and subitem 13(2) of Schedule 6A". 14 42 Item 2 of Schedule 2 (definition of take-home pay order) 15 Omit "and subitem 12(1) of Schedule 6", substitute ", subitem 12(1) of 16 Schedule 6 and subitem 14(1) of Schedule 6A". 17 43 Subitem 29(1) of Schedule 3 (note) 18 Repeal the note, substitute: 19 Note: A modern award cannot be expressed to cover an employee who is covered by a 20 transitional instrument that is an enterprise instrument or a State reference public sector 21 transitional award (see subsections 143(8) and (10) of the FW Act). 22 44 Schedule 5 (heading) 23 Repeal the heading, substitute: 24 Schedule 5--Modern awards (other than 25 modern enterprise awards and State 26 reference public sector modern 27 awards) 28 45 Subitem 3(3) of Schedule 5 29 After "enterprise instrument" (wherever occurring), insert "or a State 30 reference public sector transitional award". 26 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] State reference public sector modern awards Part 2 1 46 Subitem 3(3) of Schedule 5 (note) 2 After "Note", insert "1.". 3 47 At the end of subitem 3(3) of Schedule 5 4 Add: 5 Note 2: Item 10 of Schedule 6A deals with termination and variation of State reference public 6 sector transitional awards to take account of the State reference public sector transitional 7 award modernisation process. 8 48 Item 6 of Schedule 5 (heading) 9 After "modern enterprise awards", insert "and State reference 10 public sector modern awards ". 11 49 Subitem 6(1) of Schedule 5 12 After "modern enterprise awards", insert "and State reference public 13 sector modern awards". 14 50 Subitem 2(2) of Schedule 6 15 After "award-based transitional instrument", insert ", other than a State 16 reference public sector transitional award,". 17 51 After Schedule 6 18 Insert: 19 Schedule 6A--State reference public sector 20 modern awards 21 Part 1--Preliminary 22 1 Meanings of employer and employee 23 In this Schedule, employer and employee have their ordinary meanings. Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 27 [Page Break] Part 2 State reference public sector modern awards 1 Part 2--The State reference public sector transitional 2 award modernisation process 3 Division 1--State reference public sector transitional 4 awards 5 2 State reference public sector transitional awards 6 (1) A State reference public sector transitional award is a State reference 7 transitional award or common rule in relation to which the following 8 conditions are satisfied: 9 (a) the only employers that are expressed to be covered by the 10 award or common rule are one or more specified State 11 reference public sector employers; 12 (b) the only employees who are expressed to be covered by the 13 award or common rule are specified State reference public 14 sector employees of those employers. 15 Note: State reference transitional awards and common rules are continued in existence as 16 transitional instruments by Schedule 3. 17 (2) A State reference public sector employee is a State reference employee 18 who is a State public sector employee as defined in section 30A of the 19 FW Act. 20 (3) A State reference public sector employer is a State reference employer 21 that is a State public sector employer as defined in section 30A of the 22 FW Act. 23 (4) If: 24 (a) a State reference transitional award or common rule (the 25 current award) covers one or more State reference public 26 sector employers, and State reference public sector 27 employees of those employers; and 28 (b) the current award also covers: 29 (i) other employees of those employers; or 30 (ii) other employers, and employees of those other 31 employers; 32 then, for the purposes of this Act, the current award is taken instead to 33 constitute 2 separate State reference transitional awards or common 34 rules as follows: 35 (c) a State reference public sector transitional award covering: 28 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] State reference public sector modern awards Part 2 1 (i) the employers, and the employees of those employers, 2 referred to in paragraph (a); and 3 (ii) if the current award covers an organisation, in relation 4 to certain employers or employees referred to in 5 paragraph (a)--that organisation in relation to those 6 employers or employees; and 7 (d) a State reference transitional award or a State reference 8 common rule (as the case requires) covering: 9 (i) the employers, and the employees of those employers, 10 referred to in paragraph (b); and 11 (ii) if the current award covers an organisation, in relation 12 to certain employers or employees referred to in 13 paragraph (b)--that organisation in relation to those 14 employers or employees. 15 Division 2--The State reference public sector transitional 16 award modernisation process 17 3 The State reference public sector transitional award 18 modernisation process 19 (1) The State reference public sector transitional award modernisation 20 process is the process of making State reference public sector modern 21 awards under this Division covering employers, employees and 22 organisations that are covered by State reference public sector 23 transitional awards. 24 (2) A State reference public sector modern award is a modern award in 25 relation to which the following conditions are satisfied: 26 (a) the only employers that are expressed to be covered by the 27 modern award are one or more specified State reference 28 public sector employers; 29 (b) the only employees who are expressed to be covered by the 30 modern award are specified State reference public sector 31 employees of those employers. 32 (3) A State reference public sector modern award must be made by a Full 33 Bench. 34 4 Making State reference public sector modern awards on 35 application Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 29 [Page Break] Part 2 State reference public sector modern awards 1 (1) An employer or organisation that is covered by a State reference public 2 sector transitional award (the current award) may apply to FWA for the 3 making of a State reference public sector modern award (the proposed 4 award). 5 (2) The application may be made only during the period starting on the WR 6 Act repeal day and ending at the end of 31 December 2013. 7 (3) The application must specify the employers, employees and 8 organisations (the proposed parties) proposed to be covered by the 9 proposed award. 10 (4) FWA must consider the application, and must make a State reference 11 public sector modern award covering the proposed parties if FWA is 12 satisfied that: 13 (a) the proposed parties are covered by State reference public 14 sector transitional awards; and 15 (b) the employers and organisations that are proposed parties 16 have agreed to the making of the application. 17 Note: The proposed parties will cease to be covered by State reference public sector 18 transitional awards when the State reference public sector modern award comes into 19 operation: see item 29 of Schedule 3. 20 5 Terminating State reference public sector transitional 21 awards on application 22 (1) An employer or organisation that is covered by a State reference public 23 sector transitional award (the current award) may apply to FWA to 24 terminate the current award. 25 (2) The application may be made only during the period starting on the WR 26 Act repeal day and ending at the end of 31 December 2013. 27 (3) FWA must not terminate the current award unless FWA is satisfied that 28 the employees who are covered by the current award will, if the current 29 award is terminated, be covered by a modern award (other than the 30 miscellaneous modern award) that is in operation and that is appropriate 31 for them. 32 (4) In deciding whether to terminate the current award, FWA must take into 33 account the following: 34 (a) the circumstances that led to the making of the current award; 30 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] State reference public sector modern awards Part 2 1 (b) the terms and conditions of employment applying in the 2 industry or occupation in which the persons covered by the 3 current award operate, and the extent to which those terms 4 and conditions are reflected in the current award; 5 (c) the extent to which the current award facilitates 6 arrangements, and provides terms and conditions of 7 employment, referred to in paragraphs 7(2)(a) and (b); 8 (d) the likely impact on the persons covered by the current award 9 of a decision to terminate, or not to terminate, the current 10 award; 11 (e) the views of the persons covered by the current award; 12 (f) any other matter prescribed by the regulations. 13 (5) If FWA terminates the current award, the termination operates from the 14 day specified in the decision to terminate the current award, being a day 15 that is not earlier than the FW (safety net provisions) commencement 16 day. 17 6 Further obligation of FWA to make or vary State reference 18 public sector modern awards at end of application 19 period 20 If, at the end of the period referred to in subitem 4(2), there are one or 21 more State reference public sector transitional awards that still cover 22 some employers and employees, FWA must make, or (in accordance 23 with section 168L of the FW Act) vary the coverage of, one or more 24 State reference public sector modern awards so that all those employers 25 and employees are covered by State reference public sector modern 26 awards. 27 Note: The employers and employees will cease to be covered by the State reference public 28 sector transitional awards when they start to be covered by a State reference public 29 sector modern award that is in operation: see item 29 of Schedule 3. 30 7 The State reference public sector modern awards objective 31 (1) If FWA is required by item 4 or 6 to make a State reference public 32 sector modern award, the modern awards objective and the minimum 33 wages objective apply to the making of the modern award. 34 (2) However, in applying the modern awards objective and the minimum 35 wages objective, FWA must recognise: 36 (a) the need to facilitate arrangements for State reference public 37 sector employers and State reference public sector employees Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 31 [Page Break] Part 2 State reference public sector modern awards 1 that are appropriately adapted to the effective administration 2 of a State; and 3 (b) that State reference public sector modern awards may 4 provide terms and conditions tailored to reflect employment 5 arrangements that have been developed in relation to State 6 reference public sector employers and State reference public 7 sector employees. 8 This is the State reference public sector modern awards objective. 9 Note 1: See also item 13 (State reference public sector transitional award modernisation process 10 is not intended to result in reduction in take-home pay). 11 Note 2: See also item 19 (how the FW Act applies in relation to the State reference public sector 12 transitional award modernisation process before the FW (safety net provisions) 13 commencement day). 14 8 Terms of State reference public sector modern awards 15 (1) Division 3 (other than sections 143 and 154) of Part 2-3 of the FW Act 16 (which deals with terms of modern awards) applies in relation to a State 17 reference public sector modern award made under this Division. 18 Note: See also item 19 (how the FW Act applies in relation to the State reference public sector 19 transitional award modernisation process before the FW (safety net provisions) 20 commencement day). 21 (2) If FWA makes a State reference public sector modern award before the 22 FW (safety net provisions) commencement day, the State reference 23 public sector modern award must not be expressed to commence on a 24 day earlier than the FW (safety net provisions) commencement day. 25 9 Coverage terms 26 Coverage terms must be included 27 (1) A State reference public sector modern award must include terms 28 (coverage terms) setting out, in accordance with this item, the 29 employers, employees and organisations that are covered by the State 30 reference public sector modern award. 31 Employers and employees 32 (2) The coverage terms must be such that: 33 (a) the only employers that are expressed to be covered by the 34 modern award are one or more specified State reference 35 public sector employers; and 32 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] State reference public sector modern awards Part 2 1 (b) the only employees who are expressed to be covered by the 2 modern award are specified State reference public sector 3 employees of those employers. 4 Organisations 5 (3) A State reference public sector modern award may be expressed to 6 cover one or more specified organisations, in relation to: 7 (a) all or specified employees covered by the modern award; or 8 (b) the employer, or all or specified employers, covered by the 9 modern award. 10 Outworker entities 11 (4) A State reference public sector modern award must not be expressed to 12 cover outworker entities. 13 How coverage etc. is expressed 14 (5) For the purposes of this item: 15 (a) an employer or employers may be specified by name or by 16 inclusion in a specified class or specified classes; and 17 (b) employees must be specified by inclusion in a specified class 18 or specified classes; and 19 (c) organisations must be specified by name. 20 10 Variation and termination of State reference public sector 21 transitional awards to take account of the 22 modernisation process 23 (1) If a State reference public sector modern award completely replaces a 24 State reference public sector transitional award, the transitional award 25 terminates when the modern award comes into operation. 26 (2) If a State reference public sector modern award partially replaces a 27 State reference public sector transitional award, FWA must, as soon as 28 practicable after the modern award comes into operation, vary the 29 transitional award so that employees who are covered by the modern 30 award are no longer covered by the transitional award. 31 (3) For the purposes of this item: 32 (a) the modern award completely replaces the transitional award 33 if all the employees who are covered by the transitional Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 33 [Page Break] Part 2 State reference public sector modern awards 1 award become covered by the modern award when it comes 2 into operation; and 3 (b) the modern award partially replaces the transitional award if 4 only some of the employees who are covered by the 5 transitional award become covered by the modern award 6 when it comes into operation. 7 Note: This item does not limit the effect of any other provision of this Act under which a 8 transitional instrument (a State reference public sector transitional award is a 9 transitional instrument) ceases to cover a person from a time earlier than when the 10 instrument is terminated or varied under this item. 11 11 Notification of the cut-off for the State reference public 12 sector transitional award modernisation process 13 (1) FWA must, at least 6 months before the end of the period specified in 14 subitem 4(2), advise any persons still covered by a State reference 15 public sector transitional award: 16 (a) that the period for making applications under items 4 and 5 17 ends on 31 December 2013; and 18 (b) that FWA will, at the end of that period, commence the State 19 reference public sector transitional award modernisation 20 process in relation to the transitional award for any 21 employees and employers who are still covered by the 22 transitional award at that time. 23 (2) FWA may give that advice by any means it considers appropriate. 24 (3) Section 625 of the FW Act (which deals with delegation by the 25 President of functions and powers of FWA) has effect as if 26 subsection (2) of that section included a reference to FWA's functions 27 and powers under this item. 28 12 Regulations dealing with other matters 29 The regulations may deal with other matters relating to the State 30 reference public sector transitional award modernisation process. 31 Division 3--Avoiding reductions in take-home pay 32 13 State reference public sector transitional award 33 modernisation process is not intended to result in 34 reduction in take-home pay 34 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] State reference public sector modern awards Part 2 1 (1) The State reference public sector transitional award modernisation 2 process is not intended to result in a reduction in the take-home pay of 3 employees. 4 (2) An employee's take-home pay is the pay an employee actually receives: 5 (a) including wages and incentive-based payments, and 6 additional amounts such as allowances and overtime; but 7 (b) disregarding the effect of any deductions that are made as 8 permitted by section 324 of the FW Act. 9 Note: Deductions permitted by section 324 of the FW Act may (for example) include 10 deductions under salary sacrificing arrangements. 11 (3) An employee suffers a modernisation-related reduction in take-home 12 pay if, and only if: 13 (a) a State reference public sector modern award made in the 14 State reference public sector transitional award 15 modernisation process starts to apply to the employee when 16 the modern award comes into operation; and 17 (b) the employee is employed in the same position as (or a 18 position that is comparable to) the position he or she was 19 employed in immediately before the State reference public 20 sector modern award came into operation; and 21 (c) the amount of the employee's take-home pay for working 22 particular hours or for a particular quantity of work after the 23 State reference public sector modern award comes into 24 operation is less than what would have been the employee's 25 take-home pay for those hours or that quantity of work 26 immediately before the modern award came into operation; 27 and 28 (d) that reduction in the employee's take-home pay is 29 attributable to the State reference public sector transitional 30 award modernisation process. 31 14 Orders remedying reductions in take-home pay 32 (1) If FWA is satisfied that an employee, or a class of employees, to whom 33 a State reference public sector modern award applies has suffered a 34 modernisation-related reduction in take-home pay, FWA may make any 35 order (a take-home pay order) requiring, or relating to, the payment of 36 an amount or amounts to the employee or employees that FWA 37 considers appropriate to remedy the situation. Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 35 [Page Break] Part 2 State reference public sector modern awards 1 (2) FWA may make a take-home pay order only on application by: 2 (a) an employee who has suffered a modernisation-related 3 reduction in take-home pay; or 4 (b) an organisation that is entitled to represent the industrial 5 interests of such an employee; or 6 (c) a person acting on behalf of a class of such employees. 7 (3) If FWA is satisfied that an application for a take-home pay order has 8 already been made in relation to an employee or a class of employees, 9 FWA may dismiss any later application that is made under these 10 provisions in relation to the same employee or employees. 11 15 Ensuring that take-home pay orders are confined to the 12 circumstances for which they are needed 13 (1) FWA must not make a take-home pay order in relation to an employee 14 or class of employees if: 15 (a) FWA considers that the modernisation-related reduction in 16 take-home pay is minor or insignificant; or 17 (b) FWA is satisfied that the employee or employees have been 18 adequately compensated in other ways for the reduction. 19 (2) FWA must ensure that a take-home pay order is expressed so that: 20 (a) it does not apply to an employee unless the employee has 21 actually suffered a modernisation-related reduction in 22 take-home pay; and 23 (b) if the take-home pay payable to the employee under the State 24 reference public sector modern award increases after the 25 order is made, there is a corresponding reduction in any 26 amount payable to the employee under the order. 27 16 Take-home pay order continues to have effect so long as 28 State reference public sector modern award continues 29 to cover the employee or employees 30 A take-home pay order made in relation to an employee or class of 31 employees to whom a particular State reference public sector modern 32 award applies continues to have effect in relation to those employees 33 (subject to the terms of the order) for so long as the State reference 34 public sector modern award continues to cover the employee or 35 employees, even if it stops applying to the employee or employees 36 because an enterprise agreement starts to apply. 36 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] State reference public sector modern awards Part 2 1 17 Inconsistency with State reference public sector modern 2 awards and enterprise agreements 3 A term of a State reference public sector modern award or an enterprise 4 agreement has no effect in relation to an employee to the extent that it is 5 less beneficial to the employee than a term of a take-home pay order 6 that applies to the employee. 7 18 Application of provisions of FW Act to take-home pay 8 orders 9 The FW Act applies as if the following provisions of that Act included a 10 reference to a take-home pay order: 11 (a) subsection 675(2); 12 (b) subsection 706(2). 13 Note: For compliance with take-home pay orders, see item 7 of Schedule 16. 14 Division 4--Application of the FW Act 15 19 How the FW Act applies to the modernisation process 16 before the FW (safety net provisions) commencement 17 day 18 For the purposes of making a State reference public sector modern 19 award before the FW (safety net provisions) commencement day, the 20 following provisions of the FW Act apply as if they had already 21 commenced: 22 (a) Part 2-2 (which deals with the National Employment 23 Standards); 24 (b) section 134 (which deals with the modern awards objective); 25 (c) Division 3 of Part 2-3 (which deals with terms of modern 26 awards); 27 (d) section 284 (which deals with the minimum wages 28 objective); 29 (e) any provisions that are necessary for the effectual operation 30 of the provisions referred to in paragraphs (a) to (d). 31 20 How the FW Act applies to modern awards made in the 32 State reference public sector transitional award 33 modernisation process Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 37 [Page Break] Part 2 State reference public sector modern awards 1 (1) A State reference public sector modern award made under Division 2 is, 2 for the purposes of the FW Act (and any other law), taken to be a 3 modern award (being a State reference public sector modern award) 4 within the meaning of that Act from the day on which the State 5 reference public sector modern award is made. 6 (2) Section 49 of the FW Act does not apply for the purpose of determining 7 when the State reference public sector modern award comes into 8 operation. Instead, the modern award comes into operation on the day 9 on which it is expressed to commence, being a day that is not earlier 10 than the day on which the modern award is made. 11 (3) The regulations may deal with other matters relating to how the FW Act 12 applies in relation to State reference public sector modern awards. 13 Division 2--Other amendments related to State reference 14 public sector modern awards 15 Fair Work Act 2009 16 52 Section 12 (at the end of the definition of award 17 modernisation process) 18 add: 19 ; and (c) the State reference public sector transitional award 20 modernisation process provided for by Part 2 of Schedule 6A 21 of the Fair Work (Transitional Provisions and Consequential 22 Amendments) Act 2009. 23 53 Section 12 (at the end of the definition of coverage terms) 24 add: 25 ; and (c) in relation to a State reference public sector modern award: 26 see section 143B. 27 54 Section 12 28 Insert: 29 State reference public sector employee: see subsection 168E(3). 30 55 Section 12 31 Insert: 38 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] State reference public sector modern awards Part 2 1 State reference public sector employer: see subsection 168E(4). 2 56 Section 12 3 Insert: 4 State reference public sector modern award: see subsection 5 168E(2). 6 57 Section 12 7 Insert: 8 State reference public sector modern awards objective: see 9 section 168F. 10 58 At the end of subsection 49(3) 11 Insert: 12 Note: For when a State reference public sector modern award comes into 13 operation, see section 168J. 14 59 Section 132 (after the paragraph relating to Division 7) 15 Insert: 16 Division 8 contains additional provisions relating to State reference 17 public sector modern awards. 18 60 At the end of section 143 19 Add: 20 State reference public sector modern awards 21 (10) A modern award (other than a State reference public sector modern 22 award) must be expressed not to cover employees who are covered 23 by a State reference public sector modern award, or a State 24 reference public sector transitional award (within the meaning of 25 the Fair Work (Transitional Provisions and Consequential 26 Amendments) Act 2009), or employers in relation to those 27 employees. 28 (11) This section does not apply to State reference public sector modern 29 awards. Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 39 [Page Break] Part 2 State reference public sector modern awards 1 Note: The heading to section 143 is altered by adding at the end "and S tate reference public 2 sector modern awards". 3 61 After section 143A 4 Insert: 5 143B Coverage terms of State reference public sector modern 6 awards 7 Coverage terms must be included 8 (1) A State reference public sector modern award must include terms 9 (coverage terms) setting out, in accordance with this section, the 10 employers, employees and organisations that are covered by the 11 modern award. 12 Employers and employees 13 (2) The coverage terms must be such that: 14 (a) the only employers that are expressed to be covered by the 15 modern award are one or more specified State reference 16 public sector employers; and 17 (b) the only employees who are expressed to be covered by the 18 modern award are specified State reference public sector 19 employees of those employers. 20 Organisations 21 (3) A State reference public sector modern award may be expressed to 22 cover one or more specified organisations, in relation to: 23 (a) all or specified employees covered by the modern award; or 24 (b) the employer, or all or specified employers, covered by the 25 modern award. 26 Outworker entities 27 (4) A State reference public sector modern award must not be 28 expressed to cover outworker entities. 29 How coverage etc. is expressed 30 (5) For the purposes of this section: 40 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] State reference public sector modern awards Part 2 1 (a) an employer or employers may be specified by name or by 2 inclusion in a specified class or specified classes; and 3 (b) employees must be specified by inclusion in a specified class 4 or specified classes; and 5 (c) organisations must be specified by name. 6 62 At the end of Part 2-3 7 Add: 8 Division 8--Additional provisions relating to State 9 reference public sector modern awards 10 168E State reference public sector modern awards 11 (1) This Division contains additional provisions that relate to State 12 reference public sector modern awards. The provisions in this 13 Division have effect despite anything else in this Part. 14 (2) A State reference public sector modern award is a modern award 15 in relation to which the following conditions are satisfied: 16 (a) the only employers that are expressed to be covered by the 17 modern award are one or more specified State reference 18 public sector employers; 19 (b) the only employees who are expressed to be covered by the 20 modern award are specified State reference public sector 21 employees of those employers. 22 (3) A State reference public sector employee is an employee: 23 (a) who is a national system employee only because of 24 section 30C; and 25 (b) who is a State public sector employee as defined in 26 section 30A. 27 (4) A State reference public sector employer is an employer: 28 (a) that is a national system employer only because of 29 section 30D; and 30 (b) that is a State public sector employer as defined in 31 section 30A. Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 41 [Page Break] Part 2 State reference public sector modern awards 1 168F The State reference public sector modern awards objective 2 The State reference public sector modern awards objective 3 (1) FWA must recognise: 4 (a) the need to facilitate arrangements for State reference public 5 sector employers and State reference public sector employees 6 that are appropriately adapted to the effective administration 7 of a State; and 8 (b) that State reference public sector modern awards may 9 provide terms and conditions tailored to reflect employment 10 arrangements that have been developed in relation to State 11 reference public sector employers and State reference public 12 sector employees. 13 This is the State reference public sector modern awards objective. 14 When does the State reference public sector modern awards 15 objective apply? 16 (2) The State reference public sector modern awards objective applies 17 to the performance of FWA's functions or powers under this Act, 18 so far as they relate to State reference public sector modern awards. 19 References to the modern awards objective 20 (3) A reference to the modern awards objective in this Act, other than 21 section 134, is taken to include a reference to the State reference 22 public sector modern awards objective. 23 168G Making State reference public sector mode rn awards on 24 application 25 (1) FWA may make a State reference public sector modern award (the 26 proposed award) only on application under section 158 by: 27 (a) a State reference public sector employer; or 28 (b) an organisation that is entitled to represent the industrial 29 interests of a State reference public sector employer or of a 30 State reference public sector employee. 31 (2) The application must specify the employers, employees and 32 organisations (the proposed parties) proposed to be covered by the 33 proposed award. 42 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] State reference public sector modern awards Part 2 1 (3) FWA must consider the application, and must make a State 2 reference public sector modern award covering the proposed 3 parties if FWA is satisfied that: 4 (a) the employers and organisations that are proposed parties 5 have agreed to the making of the application; and 6 (b) either: 7 (i) none of the employers and employees that are proposed 8 parties are already covered by a State reference public 9 sector modern award; or 10 (ii) if there are employers and employees that are proposed 11 parties and that are already covered by a State reference 12 public sector modern award (the current award)--it is 13 appropriate (in accordance with section 168L) to vary 14 the coverage of the current award so that the employers 15 or employees cease to be covered by the current award. 16 (4) FWA must not make a State reference public sector modern award 17 otherwise than in accordance with this Division or in accordance 18 with Part 2 of Schedule 6A to the Fair Work (Transitional 19 Provisions and Consequential Amendments) Act 2009. 20 168H State reference public sector modern awards may contain 21 State-based differences 22 Section 154 (which deals with terms that contain State-based 23 differences) does not apply in relation to State reference public 24 sector modern awards. 25 168J When State reference public sector modern awards come into 26 operation 27 Section 49 does not apply for the purpose of determining when a 28 State reference public sector modern award comes into operation. 29 Instead, the modern award comes into operation on the day on 30 which it is expressed to commence, being a day that is not earlier 31 than the day on which the modern award is made. 32 168K Rules about revoking State reference public sector modern 33 awards 34 (1) FWA may make a determination revoking a State reference public 35 sector modern award only on application under section 158 by: Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 43 [Page Break] Part 2 State reference public sector modern awards 1 (a) a State reference public sector employer; or 2 (b) an organisation that is entitled to represent the industrial 3 interests of a State reference public sector employer or of a 4 State reference public sector employee. 5 (2) FWA must not make a determination revoking a State reference 6 public sector modern award unless FWA is satisfied that: 7 (a) the modern award is obsolete or no longer capable of 8 operating; or 9 (b) all the employees covered by the modern award will, when 10 the revocation comes into operation, be covered by a 11 different modern award (other than the miscellaneous modern 12 award) that is appropriate for them. 13 (3) In deciding whether to revoke a State reference public sector 14 modern award, FWA must take into account the following: 15 (a) the circumstances that led to the making of the modern 16 award; 17 (b) the terms and conditions of employment applying in the 18 industry or occupation in which the persons covered by the 19 modern award operate, and the extent to which those terms 20 and conditions are reflected in the modern award; 21 (c) the extent to which the modern award facilitates 22 arrangements, and provides terms and conditions of 23 employment, referred to in paragraphs 168F(1)(a) and (b); 24 (d) the likely impact on the persons covered by the modern 25 award of a decision to revoke, or not to revoke, the modern 26 award; 27 (e) the views of the persons covered by the modern award; 28 (f) any other matter prescribed by the regulations. 29 168L Rules about varying coverage of State reference public sector 30 modern awards 31 (1) FWA may make a determination varying the coverage of a State 32 reference public sector modern award only on application under 33 section 158 by: 34 (a) a State reference public sector employer; or 35 (b) an organisation that is entitled to represent the industrial 36 interests of a State reference public sector employer or of a 37 State reference public sector employee. 44 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] State reference public sector modern awards Part 2 1 (2) FWA must not make a determination varying the coverage of a 2 State reference public sector modern award so that it ceases to be a 3 State reference public sector modern award. 4 (3) In deciding whether to make a determination varying the coverage 5 of a State reference public sector modern award in some other way, 6 FWA must take into account the following: 7 (a) the circumstances that led to the making of the modern 8 award; 9 (b) the terms and conditions of employment applying in the 10 industry or occupation in which the persons covered, or 11 proposed to be covered, by the modern award operate, and 12 the extent to which those terms and conditions are reflected 13 in the modern award; 14 (c) the likely impact on the persons covered, or proposed to be 15 covered, by the modern award of a decision to make, or not 16 make, the variation; 17 (d) if the variation would result in the modern award covering 18 one or more additional classes of employers or employees-- 19 whether it is appropriate for that modern award to cover 20 those classes of employers or employees, as well as the 21 classes of employers and employees that it already covers; 22 (e) the views of the persons covered, or proposed to be covered, 23 by the modern award; 24 (f) any other matter prescribed by the regulations. 25 63 Subsection 292(1) 26 After "modern enterprise award" (wherever occurring), insert "or a 27 State reference public sector modern award". 28 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 45 [Page Break] 1 2 Schedule 3--Other amendments of the Fair 3 Work Act 2009 4 5 1 Section 12 6 Insert: 7 connected with a Territory: an arrangement for work to be 8 performed for a person (either directly or indirectly) is connected 9 with a Territory if one or more of the following apply: 10 (a) at the time the arrangement is made, one or more parties to 11 the arrangement is in a Territory in Australia; 12 (b) the work is to be performed in such a Territory; 13 (c) the person carries on an activity (whether of a commercial, 14 governmental or other nature) in such a Territory, and the 15 work is reasonably likely to be performed in that Territory; 16 (d) the person carries on an activity (whether of a commercial, 17 governmental or other nature) in such a Territory, and the 18 work is to be performed in connection with that activity. 19 Note: In this context, Australia includes the Territory of Christmas Island 20 and the Territory of Cocos (Keeling) Islands (see paragraph 17(a) of 21 the Acts Interpretation Act 1901). 22 2 Section 12 (paragraph (e) of the definition of outworker 23 entity) 24 Omit "who carries on an activity (whether of a commercial, 25 governmental or other nature) in a Territory in Australia,". 26 3 Section 12 (subparagraph (e)(iii) of the definition of 27 outworker entity) 28 Repeal the subparagraph, substitute: 29 (iii) the arrangement is connected with a Territory. 30 4 Subparagraph 27(1)(d)(i) 31 Repeal the subparagraph, substitute: 32 (i) any law referred to in subsection (1A); or 33 46 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] 1 Schedule 4--Agriculture, Fisheries and 2 Forestry 3 4 Australian Meat and Live-stock Industry (Repeals and 5 Consequential Provisions) Act 1997 6 1 Item 23 of Schedule 5 (definition of award) 7 Repeal the definition. 8 Dairy Industry Service Reform Act 2003 9 2 Subsection 22(2) (definition of award) 10 Repeal the definition. 11 3 Subsection 38(2) (definition of award) 12 Repeal the definition. 13 Horticulture Marketing and Research and Development 14 Services (Repeals and Consequential Provisions) 15 Act 2000 16 4 Subsection 4(1) (definition of award) 17 Repeal the definition. 18 Pig Industry Act 2001 19 5 Section 7 (definition of award) 20 Repeal the definition. 21 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 47 [Page Break] Part 1 General consequential amend ments 1 Schedule 5--Attorney-General 2 Part 1--General consequential amendments 3 Age Discrimination Act 2004 4 1 Section 5 (paragraph (c) of the definition of Commonwealth 5 law) 6 Omit "or award", substitute ", determination or award". 7 2 Subsection 23(3) (definition of registered organisation) 8 Omit "within the meaning of Schedule 1B to the Workplace Relations 9 Act 1996", substitute "registered, or an association recognised, under 10 the Fair Work (Registered Organisations) Act 2009". 11 Note: The heading to section 23 is altered by omitting "S chedule 1B to the Workplace 12 Relations Act 1996" and substituting "the Fair Work (Registered Organisations) Act 13 2009". 14 3 Subsection 36(2) (definition of registered organisation) 15 Omit "within the meaning of Schedule 1B to the Workplace Relations 16 Act 1996", substitute "registered, or an association recognised, under 17 the Fair Work (Registered Organisations) Act 2009". 18 Australian Capital Territory (Self-Government) Act 1988 19 4 Section 28 (note) 20 Omit "Section 17 of the Workplace Relations Act 1996", substitute 21 "Sections 29 and 40 of the Fair Work Act 2009". 22 Australian Crime Commission Act 2002 23 5 Subsection 19A(8) (definition of prescribed agency) 24 Omit "the Australian Industrial Relations Commission", substitute "Fair 25 Work Australia". 26 6 Schedule 1 27 Insert the following entry in its appropriate alphabetical position 28 (determined on a letter-by-letter basis): 48 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] General consequential amendments Part 1 1 Fair Work (Registered Organisations) Act 2009, section 356 2 7 Schedule 1 3 Omit "Workplace Relations Act 1996, section 355, and section 356 of 4 Schedule 1B". 5 Australian Federal Police Act 1979 6 8 Subsection 4(1) (definition of collective agreement) 7 Repeal the definition. 8 9 Subsection 27(4) (definition of industrial instrument) 9 Omit all the words from and including "any" to and including "an 10 AWA.", substitute "an award, determination or industrial agreement 11 made under the Fair Work Act 2009 or continued in existence by the 12 Fair Work (Transitional Provisions and Consequential Amendments) 13 Act 2009 (see item 2 of Schedule 3 to that Act).". 14 10 Subsection 27(4) (note) 15 Omit ", within the meaning given by the Workplace Relations Act 16 1996", substitute "(within the meaning of the Fair Work (Transitional 17 Provisions and Consequential Amendments) Act 2009: see item 4 of 18 Schedule 2 to that Act) or under the National Employment Standards 19 (within the meaning of the Fair Work Act 2009)". 20 11 Section 28 (note) 21 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 22 2009". 23 12 Subparagraph 40J(1)(ab)(i) 24 Omit "certified agreement or collective agreement", substitute 25 "industrial agreement (however described)". 26 13 Subsection 69B(1) 27 Omit "Workplace Relations Act 1996 (other than Division 9 of Part 9 or 28 Part 16)", substitute "Fair Work Act 2009 (other than Part 3-1 or 29 Division 9 of Part 3-3)". 30 Note: The heading to section 69B is altered by omitting "Workplace Relations Act" and 31 substituting "Fair Work Act". Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 49 [Page Break] Part 1 General consequential amend ments 1 14 Paragraph 69B(1)(b) 2 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 3 2009". 4 15 Subsection 69B(2) 5 Omit "Workplace Relations Act 1996 (other than Division 4 of 6 Part 12)", substitute "Fair Work Act 2009 (other than Parts 3-1, 3-2, 6-1 7 and 6-4, and Division 2 of Part 3-6)". 8 16 Subsection 69B(3) 9 Omit "Workplace Relations Act 1996" (wherever occurring), substitute 10 "Fair Work Act 2009". 11 Bankruptcy Act 1966 12 17 Subsection 5(1) 13 Insert: 14 industrial instrument means: 15 (a) a law of the Commonwealth, a State or a Territory regulating 16 conditions of employment; or 17 (b) an award, determination or agreement made under such a 18 law. 19 18 Paragraph 109(1)(e) 20 Omit "an award or agreement, regulating conditions of employment, or 21 the Australian Fair Pay and Conditions Standard (within the meaning 22 given by the Workplace Relations Act 1996)", substitute "an industrial 23 instrument". 24 19 Subparagraph 139Y(1)(b)(i) 25 Repeal the subparagraph, substitute: 26 (i) in the case of employment where an industrial 27 instrument prescribes rates or minimum rates of salary 28 or wages for the employment--might reasonably be 29 expected to be or to have been received by the bankrupt 30 in respect of the employment by virtue of the industrial 31 instrument; or 50 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] General consequential amendments Part 1 1 Crimes Act 1914 2 20 Section 85ZL (subparagraphs (c)(ii) and (iii) of the 3 definition of Commonwealth authority) 4 Repeal the subparagraphs, substitute: 5 (ii) an organisation registered, or an association recognised, 6 under the Fair Work (Registered Organisations) Act 7 2009, or a branch of such an organisation or association; 8 Criminal Code Act 1995 9 21 Dictionary in the Criminal Code (subparagraphs (a)(vi) and 10 (vii) of the definition of Commonwealth authority) 11 Repeal the subparagraphs. 12 22 Dictionary in the Criminal Code (after paragraph (aa) of 13 the definition of Commonwealth authority) 14 Insert: 15 (ab) an organisation registered, or an association recognised, 16 under the Fair Work (Registered Organisations) Act 2009; or 17 23 Dictionary in the Criminal Code (paragraph (n) of the 18 definition of Commonwealth public official) 19 After "individual", insert "(other than an official of a registered 20 industrial organisation)". 21 24 Dictionary in the Criminal Code (subparagraphs (n)(vi) and 22 (vii) of the definition of Commonwealth public official) 23 Repeal the subparagraphs. 24 25 Dictionary in the Criminal Code (paragraph (r) of the 25 definition of Commonwealth public official) 26 After "individual", insert "(other than an official of a registered 27 industrial organisation)". 28 26 Dictionary in the Criminal Code (subparagraph (r)(vi) of 29 the definition of Commonwealth public official) 30 Repeal the subparagraph. Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 51 [Page Break] Part 1 General consequential amend ments 1 27 Dictionary in the Criminal Code 2 Insert: 3 official of a registered industrial organisation means a person 4 who holds an office (within the meaning of the Fair Work Act 5 2009) in an organisation registered, or an association recognised, 6 under the Fair Work (Registered Organisations) Act 2009. 7 Disability Discrimination Act 1992 8 28 Subsection 4(1) (paragraph (c) of the definition of 9 Commonwealth law) 10 Omit "(b); or", substitute "(b).". 11 29 Subsection 4(1) (paragraph (d) of the definition of 12 Commonwealth law) 13 Repeal the paragraph. 14 30 Subsection 4(1) (definition of registered organisation) 15 Repeal the definition, substitute: 16 registered organisation means an organisation registered, or an 17 association recognised, under the Fair Work (Registered 18 Organisations) Act 2009. 19 Note: The heading to section 20 is altered by omitting "S chedule 1B to the Workplace 20 Relations Act 1996" and substituting "the Fair Work (Registered Organisations) Act 21 2009". 22 31 Paragraph 21A(4)(b) 23 Omit "Workplace Relations Act 1996", substitute "Fair Work 24 (Registered Organisations) Act 2009". 25 Human Rights and Equal Opportunity Commission Act 1986 26 32 Subsection 3(1) (paragraph (a) of the definition of trade 27 union) 28 Repeal the paragraph, substitute: 29 (a) an association of employees that is registered as an 30 organisation, or recognised, under the Fair Work (Registered 31 Organisations) Act 2009; or 52 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] General consequential amendments Part 1 1 Judges' Pensions Act 1968 2 33 Subsection 4(1) (paragraph (a) of the definition of 3 appropriate current judicial salary) 4 Omit "or (d)", substitute ", (d) or (e)". 5 34 Subsection 4(1) (paragraph (a) of the definition of 6 appropriate current judicial salary) 7 Omit "died;", substitute "died; and". 8 35 Subsection 4(1) (paragraph (b) of the definition of 9 appropriate current judicial salary) 10 Omit "Australia;", substitute "Australia; and". 11 36 Subsection 4(1) (at the end of the definition of appropriate 12 current judicial salary) 13 Add: 14 ; and (e) in the case of a Judge who was a Presidential Member of the 15 Australian Industrial Relations Commission--the salary that 16 would be payable to the Judge if section 79 of the Workplace 17 Relations Act 1996 (as in force immediately before the repeal 18 of that section) continued to apply in relation to the Judge. 19 37 Paragraph 20(2)(a) 20 Omit "presidential members of the Australian Industrial Relations 21 Commission--to the Industrial Registrar", substitute "persons who were 22 Presidential Members of the Australian Industrial Relations 23 Commission or the President of Fair Work Australia--to the General 24 Manager of Fair Work Australia". 25 Judiciary Act 1903 26 38 Subsection 39B(2) 27 Omit all the words from and including "reference to" to and including 28 "Australia.", substitute "reference to a Judge or Judges of the Family 29 Court of Australia.". Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 53 [Page Break] Part 1 General consequential amend ments 1 Jurisdiction of Courts (Cross-vesting) Act 1987 2 39 After paragraph 4(4)(aa) 3 Insert: 4 (ab) the Fair Work Act 2009; or 5 (ac) the Fair Work (Registered Organisations) Act 2009; or 6 (ad) the Fair Work (Transitional Provisions and Consequential 7 Amendments) Act 2009; or 8 Jury Exemption Act 1965 9 40 The Schedule 10 Omit "Members of the Australian Industrial Relations Commission", 11 substitute "Members of Fair Work Australia". 12 41 The Schedule 13 Omit "Members of the Australian Fair Pay Commission". 14 Legislative Instruments Act 2003 15 42 Subsection 7(1) (table items 18, 18A and 19) 16 Repeal the items, substitute: 18 Fair wo rk instruments (within the meaning of the Fair Work Act 2009) 18A Transitional instru ments (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009) 19 Decisions and orders of Fair Work Australia 19A Orders made by the Australian Industrial Relations Co mmission in proceedings under the Workplace Relations Act 1996 or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 19B Decisions of the Australian Fair Pay Co mmission 17 Northern Territory (Self-Government) Act 1978 18 43 Subsections 53(3) and (4) 54 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] General consequential amendments Part 1 1 Omit "the Australian Industrial Relations Commission", substitute "Fair 2 Work Australia". 3 Note: The heading to section 53 is altered by omitting "Workplace Relations Act 1996" and 4 substituting "Fair Work Act 2009". 5 44 Subsection 53(4) 6 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 7 2009". 8 45 Subsection 53(4) 9 Omit "the Commission", substitute "Fair Work Australia". 10 46 After subsection 53(6) 11 Insert: 12 Note: See section 40 of the Fair Work Act 2009 and regulations made under 13 subsection (2) of that section for the interaction between 14 determinations made under paragraph (6)(b) of this section and fair 15 work instruments (within the meaning of that Act). 16 47 Subsection 53(7) 17 Repeal the subsection. 18 Seat of Government (Administration) Act 1910 19 48 Subsections 5(3) and (4) 20 Omit "the Australian Industrial Relations Commission", substitute "Fair 21 Work Australia". 22 Note: The heading to section 5 is altered by omitting "Workplace Relations Act 1996" and 23 substituting "Fair Work Act 2009". 24 49 Subsection 5(4) 25 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 26 2009". 27 50 Subsection 5(4) 28 Omit "the Commission", substitute "Fair Work Australia". 29 51 Subsection 5(5) 30 Repeal the subsection. Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 55 [Page Break] Part 1 General consequential amend ments 1 Sex Discrimination Act 1984 2 52 Subsection 4(1) (definition of committee of management) 3 Omit "organization" (wherever occurring), substitute "organisation". 4 53 Subsection 4(1) (paragraph (c) of the definition of 5 Commonwealth law) 6 Omit "(b); or", substitute "(b).". 7 54 Subsection 4(1) (paragraph (d) of the definition of 8 Commonwealth law) 9 Repeal the paragraph. 10 55 Subsection 4(1) 11 Insert: 12 registered organisation means an organisation registered, or an 13 association recognised, under the Fair Work (Registered 14 Organisations) Act 2009. 15 56 Subsection 4(1) (definition of registered organization) 16 Repeal the definition. 17 57 Subsection 4(1) (paragraph (b) of the definition of 18 voluntary body) 19 Omit "organization", substitute "organisation". 20 58 Section 19 21 Omit "organization" (wherever occurring), substitute "organisation". 22 Note: The heading to section 19 is altered by omitting "S chedule 1B to the Workplace 23 Relations Act 1996" and substituting "the Fair Work (Registered Organisations) Act 24 2009". 25 59 Section 109 26 Repeal the section. 27 56 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Amend ments relating to discrimination in co mp liance with industrial instruments and laws Part 2 1 Part 2--Amendments relating to discrimination in 2 compliance with industrial instruments and 3 laws 4 Division 1--General 5 Age Discrimination Act 2004 6 60 Paragraph 39(8)(a) 7 Omit "decision", substitute "determination". 8 61 Paragraph 39(8)(b) 9 Repeal the paragraph, substitute: 10 (b) an instrument (an industrial instrument) that is: 11 (i) a fair work instrument (within the meaning of the Fair 12 Work Act 2009); or 13 (ii) a transitional instrument (within the meaning of the Fair 14 Work (Transitional Provisions and Consequential 15 Amendments) Act 2009). 16 62 Subsection 39(8) (note) 17 Repeal the note, substitute: 18 Note: A person does not comply with an industrial instrument for the 19 purpose of this subsection if that person purports to comply with a 20 provision of that instrument that has no effect. Accordingly, the 21 exemption under this subsection for acting in direct compliance with 22 such an instrument would not apply in such circumstances. 23 63 Schedule 1 (after table item 25) 24 Insert: 25A Fair Work Act 2009 25B Fair Work (Registered Organisations) Act 2009 25C Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 25 64 Schedule 1 (table item 48) 26 Repeal the item. Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 57 [Page Break] Part 2 A mend ments relating to discrimination in co mp liance with industrial instruments and laws 1 Disability Discrimination Act 1992 2 65 Paragraph 47(1)(c) 3 Repeal the paragraph, substitute: 4 (c) an instrument (an industrial instrument) that is: 5 (i) a fair work instrument (within the meaning of the Fair 6 Work Act 2009); or 7 (ii) a transitional instrument (within the meaning of the Fair 8 Work (Transitional Provisions and Consequential 9 Amendments) Act 2009); 10 to the extent to which the industrial instrument has specific 11 provisions relating to the payment of rates of salary or wages 12 to persons, in circumstances in which: 13 (iii) if the persons were not in receipt of the salary or wages, 14 they would be eligible for a disability support pension; 15 and 16 (iv) the salary or wages are determined by reference to the 17 capacity of the person; or 18 66 Subsection 47(1) (note) 19 Repeal the note, substitute: 20 Note: A person does not comply with an industrial instrument for the 21 purpose of this subsection if that person purports to comply with a 22 provision of that instrument that has no effect. Accordingly, the 23 exemption under this subsection for acting in direct compliance with 24 such an instrument would not apply in such circumstances. 25 Fair Work Act 2009 26 67 Section 12 27 Insert: 28 Disability Discrimination Commissioner means the Disability 29 Discrimination Commissioner appointed under the Disability 30 Discrimination Act 1992. 31 68 Subsection 161(2) 32 Repeal the subsection, substitute: 58 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Amend ments relating to discrimination in co mp liance with industrial instruments and laws Part 2 1 (2) The following are entitled to make submissions to FWA for 2 consideration in the review: 3 (a) if the referral relates to action that would be unlawful under 4 Part 4 of the Age Discrimination Act 2004--the Human 5 Rights and Equal Opportunity Commission; 6 (b) if the referral relates to action that would be unlawful under 7 Part 2 of the Disability Discrimination Act 1992--the 8 Disability Discrimination Commissioner; 9 (c) if the referral relates to action that would be unlawful under 10 Part II of the Sex Discrimination Act 1984--the Sex 11 Discrimination Commissioner. 12 69 Subsection 161(3) 13 Omit "Part II of the Sex Discrimination Act 1984", substitute "any of 14 the Acts referred to in subsection (2)". 15 70 Subsection 218(2) 16 Repeal the subsection, substitute: 17 (2) The following are entitled to make submissions to FWA for 18 consideration in the review: 19 (a) if the referral relates to action that would be unlawful under 20 Part 4 of the Age Discrimination Act 2004--the Human 21 Rights and Equal Opportunity Commission; 22 (b) if the referral relates to action that would be unlawful under 23 Part 2 of the Disability Discrimination Act 1992--the 24 Disability Discrimination Commissioner; 25 (c) if the referral relates to action that would be unlawful under 26 Part II of the Sex Discrimination Act 1984--the Sex 27 Discrimination Commissioner. 28 71 Subsection 218(3) 29 Omit "Part II of the Sex Discrimination Act 1984", substitute "any of 30 the Acts referred to in subsection (2)". 31 72 Paragraph 279(2)(f) 32 Omit "agreements)", substitute "agreements) other than section 218 33 (which deals with variation of an enterprise agreement on referral by 34 HREOC)". Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 59 [Page Break] Part 2 A mend ments relating to discrimination in co mp liance with indus trial instruments and laws 1 Human Rights and Equal Opportunity Commission Act 1986 2 73 Subsections 46PW(3) and (5) 3 Omit "Australian Industrial Relations Commission", substitute "Fair 4 Work Australia". 5 Note: The heading to section 46PW is altered by omitting "Australian Industrial Relations 6 Commission" and substituting "Fair Work Australia". 7 74 Subsection 46PW(7) (definition of discriminatory act 8 under an industrial instrument) 9 Repeal the definition, substitute: 10 discriminatory act under an industrial instrument means an act 11 that would be unlawful under: 12 (a) Part 4 of the Age Discrimination Act 2004; or 13 (b) Part 2 of the Disability Discrimination Act 1992; or 14 (c) Part II of the Sex Discrimination Act 1984; 15 but for the fact that the act was done in direct compliance with an 16 industrial instrument. 17 75 Subsection 46PW(7) (definition of industrial instrument) 18 Repeal the definition, substitute: 19 industrial instrument means: 20 (a) a fair work instrument (within the meaning of the Fair Work 21 Act 2009); or 22 (b) a transitional instrument (within the meaning of the Fair 23 Work (Transitional Provisions and Consequential 24 Amendments) Act 2009). 25 Sex Discrimination Act 1984 26 76 Paragraph 40(1)(e) 27 After "order", insert ", determination". 28 77 Paragraph 40(1)(f) 29 Repeal the paragraph. 30 78 Paragraph 40(1)(g) 60 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Amend ments relating to discrimination in co mp liance with industrial instruments and laws Part 2 1 Repeal the paragraph, substitute: 2 (g) an instrument (an industrial instrument) that is: 3 (i) a fair work instrument (within the meaning of the Fair 4 Work Act 2009); or 5 (ii) a transitional instrument (within the meaning of the Fair 6 Work (Transitional Provisions and Consequential 7 Amendments) Act 2009). 8 79 Subsection 40(1) (note) 9 Repeal the note, substitute: 10 Note: A person does not comply with an industrial instrument for the 11 purpose of this subsection if that person purports to comply with a 12 provision of that instrument that has no effect. Accordingly, the 13 exemption under this subsection for acting in direct compliance with 14 such an instrument would not apply in such circumstances. 15 Division 2--Amendments relating to HREOC name 16 change 17 Fair Work Act 2009 18 80 Paragraph 161(2)(a) 19 Omit "Human Rights and Equal Opportunity Commission", substitute 20 "Australian Human Rights Commission". 21 81 Paragraph 218(2)(a) 22 Omit "Human Rights and Equal Opportunity Commission", substitute 23 "Australian Human Rights Commission". 24 82 Paragraph 279(2)(f) 25 Omit "HREOC", substitute "the Australian Human Rights 26 Commission". 27 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 61 [Page Break] Part 3 Application provisions 1 Part 3--Application provisions 2 83 Application of item 5 3 Despite the amendment made by item 5 of this Schedule, section 19A of 4 the Australian Crime Commission Act 2002 continues to apply, on and 5 after the WR Act repeal day, in relation to the Australian Industrial 6 Relations Commission as it continues in existence because of the Fair 7 Work (Transitional Provisions and Consequential Amendments) Act 8 2009, as if that amendment had not been made. 9 84 Application of item 29 10 Despite the amendment made by item 29 of this Schedule, the Disability 11 Discrimination Act 1992, as in force immediately before the WR Act 12 repeal day, continues to apply in relation to a decision of the Australian 13 Fair Pay Commission, whether made before or after that day. 14 85 Application of item 38 15 (1) The amendment made by item 38 of this Schedule applies in relation to 16 any matter in which a writ of mandamus or prohibition or an injunction 17 is sought, on or after the WR Act repeal day, against an officer or 18 officers of the Commonwealth in relation to a decision made (whether 19 before or after that day) by the officer or officers in the capacity of a 20 person who holds office under the Fair Work Act 2009. 21 (2) Despite the amendment made by item 38 of this Schedule, subsection 22 39B(2) of the Judiciary Act 1903, as in force immediately before the 23 WR Act repeal day, continues to apply in relation to any matter in 24 which a writ of mandamus or prohibition or an injunction is sought, on 25 or after that day, against an officer or officers of the Commonwealth in 26 relation to a decision made (whether before or after that day) by the 27 officer or officers in the capacity of a person who holds office under the 28 Workplace Relations Act 1996. 29 86 Application of items 40 and 41 62 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Application provisions Part 3 1 Despite the amendments made by items 40 and 41 of this Schedule, the 2 Jury Exemption Act 1965, as in force immediately before the 3 commencement of those items, continues to apply, on and after that 4 commencement, in relation to members of the Australian Industrial 5 Relations Commission and the Australian Fair Pay Commission, as 6 those members continue to hold office because of the Fair Work 7 (Transitional Provisions and Consequential Amendments) Act 2009, as 8 if those amendments had not been made. 9 87 Application of item 54 10 Despite the amendment made by item 54 of this Schedule, the Sex 11 Discrimination Act 1984, as in force immediately before the WR Act 12 repeal day, continues to apply, in relation to a decision of the Australian 13 Fair Pay Commission (whether made before or after that day), as if that 14 amendment had not been made. 15 88 Application of item 77 16 Despite the amendment made by item 77 of this Schedule, subsection 17 40(1) of the Sex Discrimination Act 1984, as in force immediately 18 before the commencement of that amendment, continues to apply on 19 and after that commencement in relation to a decision of the Australian 20 Fair Pay Commission made before that commencement. 21 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 63 [Page Break] 1 Schedule 6--Broadband, Communications 2 and the Digital Economy 3 4 Telstra Corporation Act 1991 5 1 Subsection 9A(2) (definition of industrial instrument) 6 Repeal the definition. 7 2 Subsection 9A(2) (paragraph (b) of the definition of law) 8 Omit "or industrial instrument", substitute ", award or industrial 9 agreement". 10 3 Subsection 9A(2) (definition of post-sale long service leave 11 rights) 12 Omit "or industrial instrument", substitute ", award, industrial 13 agreement". 14 64 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] 1 Schedule 7--Defence 2 3 Naval Defence Act 1910 4 1 Subsection 40(1) (definition of Australian Fair Pay and 5 Conditions Standard) 6 Repeal the definition. 7 2 Subsection 40(1) 8 Insert: 9 National Employment Standards has the meaning given by the 10 Fair Work Act 2009. 11 3 Subsection 40(1) (definition of industrial award) 12 Repeal the definition. 13 4 Subsection 42A(7) 14 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 15 2009". 16 5 Subsection 42D(3) 17 Omit "(other than the Australian Fair Pay and Conditions Standard or 18 an industrial award)", substitute ", but subject to the National 19 Employment Standards and any relevant national minimum wage order 20 or industrial award". 21 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 65 [Page Break] Part 1 Consequential amendments 1 Schedule 8--Education, Employment and 2 Workplace Relations 3 Part 1--Consequential amendments 4 Air Passenger Ticket Levy (Collection) Act 2001 5 1 Section 5 (definition of Workplace Relations Minister) 6 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 7 2009". 8 Building and Construction Industry Improvement Act 2005 9 2 Subsection 4(1) (definition of Australian Fair Pay and 10 Conditions Standard) 11 Omit all the words after "has", substitute "the same meaning as in the 12 Fair Work (Transitional Provisions and Consequential Amendments) 13 Act 2009.". 14 3 Subsection 4(1) (definition of AWA) 15 Omit all the words after "has", substitute "the same meaning as in the 16 Fair Work (Transitional Provisions and Consequential Amendments) 17 Act 2009.". 18 4 Subsection 4(1) (definition of award) 19 Omit all the words after "has", substitute "the same meaning as in the 20 Fair Work (Transitional Provisions and Consequential Amendments) 21 Act 2009.". 22 5 Subsection 4(1) 23 Insert: 24 bargaining representative has the same meaning as in the FW Act. 25 6 Subsection 4(1) (definition of building agreement) 26 Repeal the definition. 66 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 7 Subsection 4(1) (definition of building collective 2 agreement) 3 Repeal the definition. 4 8 Subsection 4(1) 5 Insert: 6 building enterprise agreement means an enterprise agreement that 7 applies to building work (whether or not it also applies to other 8 work). 9 9 Subsection 4(1) (at the end of the definition of 10 Commonwealth industrial instrument) 11 Add: 12 ; (f) a fair work instrument; 13 (g) the National Employment Standards. 14 10 Subsection 4(1) (paragraph (a) of the definition of 15 designated building law) 16 Omit "or the Workplace Relations Act", substitute ", the FW Act or the 17 Fair Work (Transitional Provisions and Consequential Amendments) 18 Act 2009". 19 11 Subsection 4(1) (definition of employee organisation) 20 Omit "within the meaning of the Workplace Relations Act". 21 12 Subsection 4(1) 22 Insert: 23 enterprise agreement has the same meaning as in the FW Act. 24 13 Subsection 4(1) 25 Insert: 26 fair work instrument has the same meaning as in the FW Act. 27 14 Subsection 4(1) 28 Insert: 29 FWA has the same meaning as in the FW Act. Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 67 [Page Break] Part 1 Consequential amendments 1 15 Subsection 4(1) 2 Insert: 3 FW Act means the Fair Work Act 2009. 4 16 Subsection 4(1) 5 Insert: 6 independent contractor has the same meaning as in the FW Act. 7 17 Subsection 4(1) (definition of industrial association) 8 Repeal the definition, substitute: 9 industrial association means: 10 (a) an association of employees or independent contractors, or 11 both, or an association of employers, that is registered or 12 recognised as such an association (however described) under 13 a workplace law (within the meaning of the FW Act); or 14 (b) an association of employees, or independent contractors, or 15 both, a purpose of which is the protection and promotion of 16 their interests in matters concerning their employment, or 17 their interests as independent contractors (as the case may 18 be); or 19 (c) an association of employers a principal purpose of which is 20 the protection and promotion of their interests in matters 21 concerning employment, independent contractors or both; 22 and includes: 23 (d) a branch of such an association; and 24 (e) an organisation; and 25 (f) a branch of an organisation. 26 18 Subsection 4(1) (definition of industrial body) 27 Repeal the definition, substitute: 28 industrial body has the same meaning as in the FW Act. 29 19 Subsection 4(1) (definition of industrial dispute) 30 Repeal the definition. 68 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 20 Subsection 4(1) (paragraph (a) of the definition of 2 industrial law) 3 Omit "or the Workplace Relations Act", substitute ", the FW Act or the 4 Fair Work (Transitional Provisions and Consequential Amendments) 5 Act 2009". 6 21 Subsection 4(1) (definition of Industrial Registrar) 7 Repeal the definition. 8 22 Subsection 4(1) 9 Insert: 10 National Employment Standards has the same meaning as in the 11 FW Act. 12 23 Subsection 4(1) (definition of negotiating party) 13 Repeal the definition. 14 24 Subsection 4(1) (definition of occupier) 15 Omit "meaning given by section 4 of the Workplace Relations Act", 16 substitute "same meaning as in the FW Act". 17 25 Subsection 4(1) (definition of organisation) 18 Omit "meaning given by the Workplace Relations Act", substitute 19 "same meaning as in the Fair Work (Registered Organisations) Act 20 2009". 21 26 Subsection 4(1) (definition of premises) 22 Omit "meaning given by section 4 of the Workplace Relations Act", 23 substitute "same meaning as in the FW Act". 24 27 Subsection 4(1) (definition of pre-reform AWA) 25 Omit all the words after "has", substitute "the same meaning as in the 26 Fair Work (Transitional Provisions and Consequential Amendments) 27 Act 2009.". 28 28 Subsection 4(1) (definition of pre-reform certified 29 agreement) Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 69 [Page Break] Part 1 Consequential amendments 1 Omit all the words after "has", substitute "the same meaning as in the 2 Fair Work (Transitional Provisions and Consequential Amendments) 3 Act 2009.". 4 29 Subsection 4(1) 5 Insert: 6 protected industrial action has the same meaning as in the FW 7 Act. 8 30 Subsection 4(1) (definition of workplace agreement) 9 Omit "has the meaning given by the Workplace Relations Act", 10 substitute "means a workplace agreement within the meaning of the 11 Fair Work (Transitional Provisions and Consequential Amendments) 12 Act 2009". 13 31 Subparagraph 10(a)(i) 14 Omit "and the Workplace Relations Act", substitute ", the FW Act and 15 the Fair Work (Transitional Provisions and Consequential 16 Amendments) Act 2009". 17 32 Subparagraph 10(b)(i) 18 Omit "the Workplace Relations Act", substitute "the FW Act, the Fair 19 Work (Transitional Provisions and Consequential Amendments) Act 20 2009". 21 33 Paragraph 10(c) 22 After "proceedings", insert ", or making submissions,". 23 34 Paragraph 10(d) 24 Omit "and the Workplace Relations Act", substitute ", the FW Act and 25 the Fair Work (Transitional Provisions and Consequential 26 Amendments) Act 2009". 27 35 Paragraph 10(e) 28 Omit "or the Workplace Relations Act" (wherever occurring), substitute 29 ", the FW Act or the Fair Work (Transitional Provisions and 30 Consequential Amendments) Act 2009". 31 36 Paragraph 10(f) 70 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 Omit "the Workplace Relations Act", substitute "the FW Act, the Fair 2 Work (Transitional Provisions and Consequential Amendments) Act 3 2009". 4 37 Subsection 36(1) (paragraph (c) of the definition of 5 constitutionally-connected action) 6 Repeal the paragraph. 7 38 Subsection 36(1) (paragraph (e) of the definition of 8 constitutionally-connected action) 9 Omit all the words after "relates to", substitute "the bargaining or 10 proposed bargaining for, or the making or proposed making of, an 11 enterprise agreement". 12 39 Subsection 36(1) (definition of excluded action) 13 Omit all the words after "protected", substitute "industrial action (as 14 affected by Part 3 of this Chapter)". 15 40 Subsection 36(4) (paragraph (e) of the definition of 16 industrial dispute) 17 Omit "under an industrial law". 18 41 Part 3 of Chapter 5 (heading) 19 Repeal the heading, substitute: 20 Part 3--Protected industrial action 21 42 Subsection 40(1) 22 Omit "building agreement is not protected action for the purposes of the 23 Workplace Relations Act", substitute "building enterprise agreement is 24 not protected industrial action". 25 43 Subsection 40(2) (paragraph (a) of the definition of 26 protected person) 27 Omit "negotiating party to", substitute "bargaining representative for". 28 44 Subsection 40(2) (paragraph (b) of the definition of 29 protected person) Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 71 [Page Break] Part 1 Consequential amendments 1 Omit "whose employment will be subject to", substitute "who will be 2 covered by". 3 45 Subsection 40(2) (paragraph (d) of the definition of 4 protected person) 5 Omit "negotiating party to", substitute "bargaining representative for". 6 46 Section 41 7 Repeal the section. 8 47 Subsection 42(1) 9 Omit "Division 9 of Part 9 of the Workplace Relations Act", substitute 10 "Division 9 of Part 3-3 of the FW Act (which deals with payments for 11 periods of industrial action)". 12 48 Paragraph 42(1)(b) 13 Repeal the paragraph, substitute: 14 (b) if the person who contravenes a civil remedy provision to 15 which table item 21, 22, 23 or 24 of the table set out in 16 section 539 of the FW Act relates is a body corporate--then, 17 for the purposes of paragraph 546(2)(b) of that Act, the 18 pecuniary penalty must not be more than 1,000 penalty units. 19 49 Subsection 42(2) 20 Omit "Division 9 of Part 9 of the Workplace Relations Act", substitute 21 "Division 9 of Part 3-3 of the FW Act (which deals with payments for 22 periods of industrial action)". 23 50 Paragraph 44(1)(c) 24 Omit "building agreement under Part 8 of the Workplace Relations 25 Act", substitute "building enterprise agreement". 26 Note: The heading to section 44 is altered by omitting "collective" and substituting 27 "enterprise". 28 51 Subsection 44(2) 29 Omit "protected action for the purposes of the Workplace Relations 30 Act", substitute "protected industrial action". 31 52 Subsection 44(3) 72 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 Omit all the words from and including "the employer" (first occurring), 2 to and including "request" (last occurring), substitute "the employer in 3 relation to who is to be, or is not to be , the employee's bargaining 4 representative". 5 53 Subsection 44(4) 6 Omit all the words from and including "the employer" (first occurring) 7 to and including "request" (last occurring), substitute "the employer in 8 relation to who is to be, or is not to be, the employee's bargaining 9 representative". 10 54 Subsection 44(5) 11 Repeal the subsection, substitute: 12 (5) To the extent that section 343 of the FW Act relates to: 13 (a) the making, varying or terminating of an enterprise 14 agreement; or 15 (b) the appointment, or termination of appointment, of a 16 bargaining representative for an enterprise agreement; 17 that section does not apply if the agreement is a building enterprise 18 agreement. 19 55 At the end of paragraph 45(1)(a) 20 Add: 21 (v) the National Employment Standards; or 22 56 At the end of paragraph 45(1)(b) 23 Add: 24 ; or (v) the National Employment Standards. 25 57 Subsection 45(1) (example for subparagraphs (1)(a)(ii) and 26 (1)(b)(ii)) 27 Repeal the example. 28 58 Subsection 45(2) 29 Omit "protected action for the purposes of the Workplace Relations 30 Act", substitute "protected industrial action". 31 59 Paragraph 45(4)(a) Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 73 [Page Break] Part 1 Consequential amendments 1 Omit "or pre-reform AWA", substitute ", pre-reform AWA or fair work 2 instrument". 3 60 Subsection 46(2) 4 Omit "protected action for the purposes of the Workplace Relations 5 Act", substitute "protected industrial action". 6 61 Subsection 50(4) 7 Repeal the subsection. 8 62 Subsection 64(1) 9 Omit "(1)". 10 63 Paragraph 64(1)(d) 11 Repeal the paragraph, substitute: 12 (d) the agreement has not been not approved by FWA (within the 13 meaning of the FW Act); 14 64 Subsection 64(2) 15 Repeal the subsection. 16 65 Subsection 65(8) (paragraph (j) of the definition of 17 designated official) 18 Repeal the paragraph, substitute: 19 (j) the General Manager of FWA; 20 66 Paragraph 67(c) 21 Omit "or the Workplace Relations Act", substitute ", the FW Act or the 22 Fair Work (Transitional Provisions and Consequential Amendments) 23 Act 2009". 24 67 Paragraph 71(1)(b) 25 Omit "or the Workplace Relations Act", substitute ", the FW Act or the 26 Fair Work (Transitional Provisions and Consequential Amendments) 27 Act 2009". 28 68 Section 72 74 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 Omit "Industrial Registrar, intervene in a matter before the AIRC that 2 arises under the Workplace Relations Act", substitute "General 3 Manager of FWA, make a submission in a matter before FWA that 4 arises under the FW Act or the Fair Work (Transitional Provisions and 5 Consequential Amendments) Act 2009". 6 Note: The heading to section 72 is altered by omitting "intervention in AIRC" and 7 substituting "may make submissions in FWA". 8 69 Subsection 73(1) 9 Omit "Workplace Relations Act, or of an instrument under that Act, 10 authorises a workplace inspector (within the meaning of that Act)", 11 substitute "FW Act, the Fair Work (Transitional Provisions and 12 Consequential Amendments) Act 2009 or of an instrument under either 13 of those Acts, authorises a Fair Work Inspector (within the meaning of 14 the FW Act)". 15 Note 1: The heading to section 73 is altered by omitting "Workplace Relations Act" and 16 substituting "FW Act, etc.". 17 Note 2: The heading to subsection 73(1) is altered by omitting "workplace inspectors under the 18 Workplace Relations Act" and substituting "Fair Work Inspectors under the FW Act, 19 etc.". 20 70 Paragraph 73(1)(a) 21 Omit "the AIRC", substitute "FWA". 22 71 Subsection 73(2) 23 Omit "the Workplace Relations Act", substitute "the FW Act, the Fair 24 Work (Transitional Provisions and Consequential Amendments) Act 25 2009". 26 72 Subsection 73(2) 27 Omit "workplace inspector (within the meaning of that Act)", substitute 28 "Fair Work Inspector (within the meaning of the FW Act)". 29 73 Subsection 73(3) 30 Omit "subsection 167(7) of the Workplace Relations Act", substitute 31 "section 704 or 705 of the FW Act". 32 74 Subsections 73(4) and (5) 33 Repeal the subsections. Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 75 [Page Break] Part 1 Consequential amendments 1 75 Subsection 73A(3) 2 Omit "subsection 167(7) of the Workplace Relations Act", substitute 3 "section 704 or 705 of the FW Act". 4 76 Section 74 5 Omit "Industrial Registrar" (first occurring), substitute "General 6 Manager of FWA". 7 Note: The heading to section 74 is altered by omitting "Industrial Registrar" and substituting 8 "General Manager of FWA". 9 77 Paragraph 74(a) 10 Omit "the AIRC, or the Industrial Registrar, under the Workplace 11 Relations Act", substitute "FWA, or the General Manager of FWA 12 under the FW Act or the Fair Work (Transitional Provisions and 13 Consequential Amendments) Act 2009". 14 78 Paragraph 75(3)(a) 15 Omit "Workplace Relations Act", substitute "FW Act". 16 Note: The heading to subsection 75(3) is altered by omitting "Workplace Relations" and 17 substituting "FW". 18 79 Subsection 75(4) 19 Omit "Subsections 412(2) and (3), and subsection 415(1), of the 20 Workplace Relations Act", substitute "Paragraph 563(b) of the FW Act 21 and paragraph 22(b) of Schedule 17 to the Fair Work (Transitional 22 Provisions and Consequential Amendments) Act 2009". 23 80 After section 75 24 Insert: 25 75A Exercising juris diction in the Fair Work Division of the Fede ral 26 Court 27 (1) This section applies if: 28 (a) an application is made to the Federal Court under this Act; or 29 (b) a writ of mandamus or prohibition or an injunction is sought 30 in the Federal Court against a person holding office under 31 this Act; or 76 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 (c) a declaration is sought under section 21 of the Federal Court 2 of Australia Act 1976 in relation to a matter arising under this 3 Act; or 4 (d) an injunction is sought under section 23 of the Federal Court 5 of Australia Act 1976 in relation to a matter arising under this 6 Act; or 7 (e) a prosecution is instituted in the Federal Court under this Act; 8 or 9 (f) an appeal is instituted in the Federal Court from a judgment 10 of the Federal Magistrates Court or a court of a State or 11 Territory in a matter arising under this Act; or 12 (g) proceedings in relation to a matter arising under this Act are 13 transferred to the Federal Court from the Federal Magistrates 14 Court; or 15 (h) the Federal Magistrates Court or a court of a State or 16 Territory states a case or reserves a question for the 17 consideration of the Federal Court in a matter arising under 18 this Act; or 19 (i) the High Court remits a matter arising under this Act to the 20 Federal Court. 21 (2) The jurisdiction of the Federal Court is to be exercised in the Fair 22 Work Division of the Federal Court. 23 75B Exercising jurisdiction in the Fair Work Division of the Federal 24 Magistrates Court 25 (1) This section applies if: 26 (a) an application is made to the Federal Magistrates Court under 27 this Act; or 28 (b) an injunction is sought under section 15 of the Federal 29 Magistrates Act 1999 in relation to a matter arising under this 30 Act; or 31 (c) a declaration is sought under section 16 of the Federal 32 Magistrates Act 1999 in relation to a matter arising under this 33 Act; or 34 (d) proceedings in relation to a matter arising under this Act are 35 transferred to the Federal Magistrates Court from the Federal 36 Court; or Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 77 [Page Break] Part 1 Consequential amendments 1 (e) the High Court remits a matter arising under this Act to the 2 Federal Magistrates Court. 3 (2) The jurisdiction of the Federal Magistrates Court is to be exercised 4 in the Fair Work Division of the Federal Magistrates Court. 5 81 Paragraph 76(b) 6 Omit "Workplace Relations Act", substitute "FW Act or the Fair Work 7 (Transitional Provisions and Consequential Amendments) Act 2009". 8 82 Paragraph 77(1)(b) 9 Omit "or the Workplace Relations Act", substitute ", the FW Act or the 10 Fair Work (Transitional Provisions and Consequential Amendments) 11 Act 2009". 12 83 Subsection 77(2) (paragraph (j) of the definition of 13 protected person) 14 Omit "Industrial Registrar", substitute "General Manager of FWA". 15 84 Subparagraph 78(2)(d)(i) 16 Omit "or the Workplace Relations Act", substitute ", the FW Act or the 17 Fair Work (Transitional Provisions and Consequential Amendments) 18 Act 2009". 19 Coal Mining Industry (Long Service Leave Funding) Act 20 1992 21 85 Subsection 4(1) (definition of Australian Fair Pay and 22 Conditions Standard) 23 Repeal the definition. 24 86 Subsection 4(1) (paragraph (a) of the definition of eligible 25 employee) 26 Omit "Australian Fair Pay and Conditions Standard", substitute 27 "National Employment Standards". 28 87 Subsection 4(1) (definition of industrial authority) 78 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 Omit "the Australian Industrial Relations Commission, the Workplace 2 Authority Director, the Employment Advocate", substitute "Fair Work 3 Australia,". 4 88 Subsection 4(1) 5 Insert: 6 National Employment Standards has the same meaning as in the 7 Fair Work Act 2009. 8 89 Subsection 4(1) (paragraph (a) of the definition of relevant 9 industrial instrument) 10 Repeal the paragraph, substitute: 11 (a) an award made by, or registered with, an industrial authority; 12 or 13 90 Subsection 4(1) (paragraphs (d) to (f) of the definition of 14 relevant industrial instrument) 15 Repeal the paragraphs, substitute: 16 (d) an agreement approved by, or registered with, an industrial 17 authority; 18 Defence Act 1903 19 91 Section 58F 20 Insert: 21 Fair Work Australia means the body established by section 575 of 22 the Fair Work Act 2009. 23 92 Section 58F 24 Insert: 25 FWA means Fair Work Australia. 26 93 Section 58F (definition of presidential member of the 27 Commission) 28 Repeal the definition. 29 94 Subsection 58G(4) Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 79 [Page Break] Part 1 Consequential amendments 1 Omit "presidential member of the Commission", substitute "Deputy 2 President of FWA". 3 95 Subsection 58K(7) 4 Omit all the words from and including "to any decision" to the end, 5 substitute: 6 to: 7 (a) any decision of, or principles established by, FWA that is or 8 are relevant to the making of the determination; or 9 . (b) if FWA has not yet made any such decision or established 10 any such principles, any decision of, or pr inciples established 11 by, the Commission that is or are relevant to the making of 12 the determination. 13 96 Subsection 58KB(4) 14 Omit all the words from and including "to any decision" to the end, 15 substitute: 16 to: 17 (a) any decision of, or principles established by, FWA that is or 18 are relevant to the making of the determination; or 19 . (b) if FWA has not yet made any such decision or established 20 any such principles, any decision of, or principles established 21 by, the Commission that is or are relevant to the making of 22 the determination. 23 97 Paragraph 58L(2)(c) 24 Omit "presidential member of the Commission", substitute "Deputy 25 President of FWA". 26 Long Service Leave (Commonwealth Employees) Act 1976 27 98 Paragraph 12(11)(a) 28 Omit "Workplace Relations Act 1996", substitute "Fair Work 29 (Registered Organisations) Act 2009". 30 99 At the end of subsection 15(1) 31 Add: 80 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 ; and (e) does not prevent the making of an award, order, agreement or 2 determination under the Fair Work Act 2009 in relation to 3 long service leave for maritime employees included in a 4 prescribed class of maritime employees, or affect the 5 operation of such an award, order, agreement or 6 determination. 7 100 Subsection 15(4) (definition of maritime employee) 8 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 9 2009". 10 Maternity Leave (Commonwealth Employees) Act 1973 11 101 Section 8 12 Omit "Sections 280 and 281 of the Workplace Relations Act 1996 13 apply", substitute "Section 84 of the Fair Work Act 2009 applies". 14 Occupational Health and Safety Act 1991 15 102 Subsection 5(1) (paragraph (a) of the definition of 16 registered organisation) 17 Repeal the paragraph, substitute: 18 (a) an association that is registered or recognised under the Fair 19 Work (Registered Organisations) Act 2009; or 20 Occupational Health and Safety (Maritime Industry) Act 21 1993 22 103 Section 4 (paragraph (a) of the definition of registered 23 union) 24 Repeal the paragraph, substitute: 25 (a) an association of employees that is registered or recognised 26 under the Fair Work (Registered Organisations) Act 2009; or 27 Remuneration Tribunal Act 1973 28 104 Paragraph 3(4)(j) 29 Repeal the paragraph, substitute: Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 81 [Page Break] Part 1 Consequential amendments 1 (j) the office of President of Fair Work Australia; 2 105 Paragraphs 5(1)(a) and (b) 3 Repeal the paragraphs, substitute: 4 (a) national minimum wage orders made by Fair Work Australia; 5 or 6 (b) if Fair Work Australia has not yet made its first national 7 minimum wage order--the last wage-setting decision of the 8 Australian Fair Pay Commission. 9 106 Subsection 7(4B) 10 Omit "members of the Australian Industrial Relations Commission 11 established under section 8 of the Workplace Relations Act 1996", 12 substitute "the President of Fair Work Australia". 13 107 Subsection 7(4C) 14 Repeal the subsection. 15 108 Paragraph 7(9)(af) 16 Repeal the paragraph. 17 Safety, Rehabilitation and Compensation Act 1988 18 109 Paragraph 52(6)(b) 19 After "award", insert ", determination". 20 110 Subsection 116(1) 21 Omit "award", substitute "industrial award, determination or 22 agreement". 23 Seafarers Rehabilitation and Compensation Act 1992 24 111 Section 3 (definition of Australian Fair Pay and 25 Conditions Standard) 26 Repeal the definition. 27 112 Section 3 (definition of collective agreement) 28 Repeal the definition. 82 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 113 Section 3 2 Insert: 3 individual industrial agreement means an industrial agreement 4 that applies to only one employee. 5 114 Section 3 6 Insert: 7 industrial instrument: 8 (a) includes an industrial award, determination or agreement; but 9 (b) does not include an individual industrial agreement. 10 115 Section 3 11 Insert: 12 National Employment Standards has the same meaning as in the 13 Fair Work Act 2009. 14 116 Section 3 (definition of pre-reform certified agreement) 15 Repeal the definition. 16 117 Subsection 13(2) 17 Omit "award, determination, collective agreement, pre-reform certified 18 agreement or the Australian Fair Pay and Conditions Standard", 19 substitute "industrial instrument or National Employment Standards". 20 118 Subsection 13(3) 21 Omit "a certified agreement", substitute "an industrial instrument". 22 119 Subsection 13(5) 23 Omit "award, determination, collective agreement, pre-reform certified 24 agreement or the Australian Fair Pay and Conditions Standard or", 25 substitute "industrial instrument, the National Employment Standards or 26 a". 27 120 Paragraph 13(6)(b) Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 83 [Page Break] Part 1 Consequential amendments 1 Omit "award, determination, collective agreement, pre-reform certified 2 agreement or the Australian Fair Pay and Conditions Standard", 3 substitute "industrial instrument or the National Employment 4 Standards". 5 121 Paragraph 31(14)(a) 6 Omit "award, determination, collective agreement, pre-reform certified 7 agreement or the Australian Fair Pay and Conditions Standard that 8 applies", substitute "industrial instrument or National Employment 9 Standards that apply". 10 122 Subsection 61(6) (definition of award) 11 Omit "determination or order", substitute "determination, order or 12 agreement". 13 123 Subsection 61(6) (definition of award) 14 Omit "award or order made", substitute "award, determination or order 15 made, or agreement entered into,". 16 124 Subsection 78(7) (definition of industry panel) 17 Omit "a collective agreement or a pre-reform certified agreement", 18 substitute "an industrial agreement". 19 125 Section 137 20 Omit "award, determination, collective agreement or pre-reform 21 certified agreement", substitute "industrial instrument or National 22 Employment Standards". 23 Social Security Act 1991 24 126 Section 16C 25 Repeal the section. 26 127 Subsection 23(1) (definition of applicable statutory 27 conditions) 28 Omit "has the meaning given by section 16C", substitute ", in relation 29 to particular work, means the minimum terms and conditions of 30 employment (including wages) applicable under law in relation to that 31 work". 84 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 128 Subsection 23(1) (definition of Australian Fair Pay and 2 Conditions Standard) 3 Repeal the definition. 4 129 Subsection 23(1) (definition of relevant minimum wage) 5 Omit all the words after "means", substitute "the minimum wage 6 payable to the employee under law". 7 130 Paragraph 120(d) 8 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 9 2009". 10 131 Paragraph 501D(4)(d) 11 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 12 2009". 13 132 Paragraph 544B(8)(d) 14 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 15 2009". 16 133 Paragraphs 553A(4)(a) to (c) 17 Repeal the paragraphs, substitute: 18 (a) a prescribed State industrial authority within the meaning of 19 the Fair Work Act 2009; or 20 (b) Fair Work Australia or the Australian Industrial Relations 21 Commission; or 22 (c) the Federal Court of Australia; or 23 (d) the Federal Magistrates Court; 24 134 Subsection 596(4) 25 Omit "by a State industrial authority, the Australian Industrial Relations 26 Commission, the Federal Court or the Federal Magistrates Court,", 27 substitute: 28 by: 29 (a) a prescribed State industrial authority within the meaning of 30 the Fair Work Act 2009; or 31 (b) Fair Work Australia or the Australian Industrial Relations 32 Commission; or Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 85 [Page Break] Part 1 Consequential amendments 1 (c) the Federal Court of Australia; or 2 (d) the Federal Magistrates Court; 3 135 Subsection 596(4) (note) 4 Repeal the note. 5 136 Paragraph 631C(d) 6 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 7 2009". 8 137 Subsection 660XBE(4) 9 Omit "by a State industrial authority, the Australian Industrial Relations 10 Commission, the Federal Court or the Federal Magistrates Court,", 11 substitute: 12 by: 13 (a) a prescribed State industrial authority within the meaning of 14 the Fair Work Act 2009; or 15 (b) Fair Work Australia or the Australian Industrial Relations 16 Commission; or 17 (c) the Federal Court of Australia; or 18 (d) the Federal Magistrates Court; 19 138 Subsection 660XBE(4) (note) 20 Repeal the note. 21 139 Paragraph 745L(d) 22 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 23 2009". 24 140 Subsection 771HB(4) 25 Omit "by a State industrial authority, the Australian Industrial Relations 26 Commission, the Federal Court or the Federal Magistrates Court,", 27 substitute: 28 by: 29 (a) a prescribed State industrial authority within the meaning of 30 the Fair Work Act 2009; or 31 (b) Fair Work Australia or the Australian Industrial Relations 32 Commission; or 86 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 (c) the Federal Court of Australia; or 2 (d) the Federal Magistrates Court; 3 141 Subsection 771HB(4) (note) 4 Repeal the note. 5 142 Paragraph 954A(1)(f) 6 Omit all the words after "above", substitute "the relevant minimum 7 wage; and". 8 143 Paragraph 1061PB(2)(a) 9 Omit "AFPCS", substitute "National Employment Standards". 10 144 Subsection 1061PB(6) (definition of AFPCS) 11 Repeal the definition. 12 145 Subsection 1061PB(6) (definition of industrial 13 instrument) 14 After "award", insert ", determination". 15 146 Subsection 1061PB(6) 16 Insert: 17 National Employment Standards has the same meaning as in the 18 Fair Work Act 2009. 19 147 Subparagraph 1067A(10)(c)(i) 20 Omit "the Australian Pay and Classification Scale", substitute "a 21 transitional Australian Pay and Classification Scale or modern award". 22 148 Subparagraph 1067A(10)(c)(ii) 23 Omit "the Australian Fair Pay Commission", substitute "Fair Work 24 Australia". 25 149 Paragraph 1188BB(d) 26 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 27 2009". Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 87 [Page Break] Part 1 Consequential amendments 1 Tradesmen's Rights Regulation Act 1946 2 150 Section 6 (definition of Australian Pay and Classification 3 Scale) 4 Repeal the definition. 5 151 Section 6 (definition of award) 6 Repeal the definition. 7 152 Section 6 (definition of industrial agreement) 8 Repeal the definition. 9 153 Subsections 33E(6) and 41(6) and (7) 10 Omit "Australian Pay and Classification Scale, the appropriate", 11 substitute "standard, pay or classification scale,". 12 United States Naval Communication Station (Civilian 13 Employees) Act 1968 14 154 Paragraph 4(b) 15 Omit "within the meaning of Schedule 1B to the Workplace Relations 16 Act 1996", substitute "registered under, or association recognised by, 17 the Fair Work (Registered Organisations) Act 2009". 18 88 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Transitional provisions Part 2 1 Part 2--Transitional provisions 2 Division 1--Provisions relating to the Building and 3 Construction Industry Improvement Act 2005 4 155 General transitional provision relating to functions and 5 powers of the ABC Commissioner and ABC inspectors 6 If the Building and Construction Industry Improvement Act 2005 7 confers a function or power on the ABC Commissioner or an ABC 8 inspector in relation to the Fair Work Act 2009, the Building and 9 Construction Industry Improvement Act 2005 has effect, on and after 10 the WR Act repeal day, as if the function or power were also conferred 11 in relation to: 12 (a) the Workplace Relations Act 1996 as in force before the WR 13 Act repeal day; and 14 (b) the Workplace Relations Act 1996 as continued in force after 15 the WR Act repeal day by the Fair Work (Transitional 16 Provisions and Consequential Amendments) Act 2009. 17 156 Transitional provision relating to paragraph 44(1)(c) 18 Despite the amendment of paragraph 44(1)(c) of the Building and 19 Construction Industry Improvement Act 2005 made by item 50 of this 20 Schedule, that paragraph applies, in relation to a building agreement 21 made before the WR Act repeal day as if it referred to that agreement. 22 157 Transitional provision relating to paragraph 64(1)(d) 23 Despite the repeal of paragraph 64(1)(d) of the Building and 24 Construction Industry Improvement Act 2005 by item 63 of this 25 Schedule, that paragraph continues to apply, in relation to an agreement 26 entered into before the WR Act repeal day, as if it had not been 27 repealed. 28 158 Transitional provisions relating to the Industrial 29 Registrar 30 (1) Section 65 of the Building and Construction Industry Improvement Act 31 2005 applies, on and after the WR Act repeal day, in relation to the 32 Industrial Registrar as if the Industrial Registrar were a designated 33 person. Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 89 [Page Break] Part 2 Transitional provisions 1 (2) Section 74 of the Building and Construction Industry Improvement Act 2 2005, as in force immediately before the WR Act repeal day, continues 3 to apply in relation to an application lodged before that day. 4 (3) Subsection 77(2) of the Building and Construction Industry 5 Improvement Act 2005 applies, on and after the WR Act repeal day, in 6 relation to the Industrial Registrar as if the Industrial Registrar were a 7 protected person. 8 Division 2--Provision relating to the Defence Act 1903 9 159 Transitional provision relating to the appointment of the 10 President of the Defence Force Remuneration Tribunal 11 (1) Despite the amendment made by item 94, an appointment as President 12 of the Defence Force Remuneration Tribunal in effect under 13 section 58G of the Defence Act 1903 immediately before the 14 commencement of that amendment continues in effect on and after that 15 commencement, subject to: 16 (a) its terms; and 17 (b) the amendments made by this Schedule. 18 (2) However, for the purposes of an appointment continued in effect by 19 subitem (1), the requirement in paragraph 58L(2)(c) of the Defence Act 20 1903 (as amended by this Act) that the President of the Defence Force 21 Remuneration Tribunal be a Deputy President of FWA may be met 22 instead by the President being a presidential member of the Commission 23 (within the meaning of section 58F of the Defence Act 1903 as in force 24 immediately before the commencement of item 93). 25 Division 3--Provisions relating to the Remuneration 26 Tribunal Act 1973 27 160 Transitional provision relating to section 3 28 (1) Despite the repeal of paragraph 3(4)(j) of the Remuneration Tribunal 29 Act 1973 by item 104, that paragraph, as in force immediately before 30 that repeal, continues to apply in relation to an office of member of the 31 Australian Industrial Relations Commission until that Commission 32 ceases to exist. 33 (2) The reference in paragraph 3(4)(j) of the Remuneration Tribunal Act 34 1973, as substituted by item 104, to the office of President of Fair Work 90 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Transitional provisions Part 2 1 Australia is taken to include a reference to an office of member (other 2 than President) of Fair Work Australia, but only in relation to persons 3 who are taken to have been appointed to that office under item 1 of 4 Schedule 18 to the Fair Work (Transitional Provisions and 5 Consequential Amendments) Act 2009. 6 161 Transitional provision relating to section 7 7 (1) Despite the amendment of subsection 7(4B) of the Remuneration 8 Tribunal Act 1973 by item 106, that subsection, as in force immediately 9 before that amendment, continues to apply in relation to members of the 10 Australian Industrial Relations Commission until that Commission 11 ceases to exist. 12 (2) The reference in subsection 7(4B) of the Remuneration Tribunal Act 13 1973, as amended by item 106, to the President of Fair Work Australia 14 is taken to include a reference to the other members of Fair Work 15 Australia, but only in relation to persons who are taken to have been 16 appointed as such a member under item 1 of Schedule 18 to the Fair 17 Work (Transitional Provisions and Consequential Amendments) Act 18 2009. 19 (3) Despite the repeal of subsection 7(4C) of the Remuneration Tribunal 20 Act 1973 by item 107, that subsection, as in force immediately before 21 that repeal, continues to apply in relation to members of the Australian 22 Fair Pay Commission until that Commission ceases to exist. 23 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 91 [Page Break] 1 Schedule 9--Families, Housing, Community 2 Services and Indigenous Affairs 3 4 Equal Opportunity for Women in the Workplace Act 1999 5 1 Subsection 3(1) (paragraph (a) of the definition of trade 6 union) 7 Omit "an organisation within the meaning of Schedule 1B to the 8 Workplace Relations Act 1996", substitute "registered or recognised 9 under the Fair Work (Registered Organisations) Act 2009". 10 Social Security Act 1991 11 2 Paragraphs 729AA(4)(a) to (c) 12 Repeal the paragraphs, substitute: 13 (a) a prescribed State industrial authority within the meaning of 14 the Fair Work Act 2009; or 15 (b) Fair Work Australia or the Australian Industrial Relations 16 Commission; or 17 (c) the Federal Court of Australia; or 18 3 Paragraphs 759(4)(a) to (c) 19 Repeal the paragraphs, substitute: 20 (a) a prescribed State industrial authority within the meaning of 21 the Fair Work Act 2009; or 22 (b) Fair Work Australia or the Australian Industrial Relations 23 Commission; or 24 (c) the Federal Court of Australia; or 25 92 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] 1 Schedule 10--Finance and Deregulation 2 3 Airports (Transitional) Act 1996 4 1 Paragraphs 59(4)(b), (c), (d) and (da) 5 Repeal the paragraphs, substitute: 6 (b) any of the following (within the meaning of the Fair Work 7 (Transitional Provisions and Consequential Amendments) 8 Act 2009): 9 (i) an award; 10 (ii) a pre-reform certified agreement; 11 (iii) an individual transitional employment agreement; 12 (iv) an AWA; or 13 2 At the end of subsection 59(4) 14 Add: 15 Note: For an instrument referred to in paragraph (b), see item 4 of 16 Schedule 2 to the Fair Work (Transitional Provisions and 17 Consequential Amendments) Act 2009. 18 Commonwealth Authorities and Companies Act 1997 19 3 Paragraph 7(2)(c) 20 Repeal the paragraph, substitute: 21 (c) associations that are organisations (within the meaning of the 22 Fair Work (Registered Organisations) Act 2009). 23 Commonwealth Electoral Act 1918 24 4 Section 5 (definition of electoral matters) 25 Omit "and ballots under the Workplace Relations Act 1996", substitute 26 ", ballots under the Fair Work Act 2009 or the Fair Work (Registered 27 Organisations) Act 2009". 28 5 Subsection 287(1) (definition of registered industrial 29 organisation) 30 Repeal the definition, substitute: Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 93 [Page Break] 1 registered industrial organisation means: 2 (a) an organisation registered under the Fair Work (Registered 3 Organisations) Act 2009; or 4 (b) an association registered or recognised under that Act or 5 under a law of a State or Territory concerning the registration 6 of industrial associations. 7 Superannuation Act 1976 8 6 Subsection 3(1) (definition of industrial award) 9 Repeal the definition, substitute: 10 industrial award means an industrial award, determination or 11 agreement made, approved, lodged or registered under a law of the 12 Commonwealth, a State or a Territory. 13 7 Subsection 51(2BB) (paragraph (a) of the definition of 14 approved organisation) 15 Omit "under Schedule 1B to the Workplace Relations Act 1996", 16 substitute "or an association recognised under the Fair Work 17 (Registered Organisations) Act 2009". 18 8 Subsection 54C(1) 19 Omit "award, determination", substitute "industrial award". 20 Superannuation Act 1990 21 9 Subsection 13(1) 22 Omit "award, determination", substitute "industrial award". 23 10 At the end of section 13 24 Add: 25 (3) In subsection (1), industrial award means an industrial award, 26 determination or agreement made, approved, lodged or registered 27 under a law of the Commonwealth, a State or a Territory. 28 94 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] 1 Schedule 11--Health and Ageing 2 3 Commonwealth Serum Laboratories Act 1961 4 1 Subsection 27(1) 5 Omit "or industrial instrument", substitute ", award or industrial 6 agreement". 7 2 Subsection 27(5) 8 Repeal the subsection. 9 3 Paragraph 29(2)(b) 10 Omit "or industrial instrument", substitute ", award or industrial 11 agreement". 12 4 Subsection 29(3) (definition of industrial instrument) 13 Repeal the definition. 14 National Health Act 1953 15 5 Subsection 98A(4) 16 Omit "Senior Deputy President or a Deputy President of the Australian 17 Industrial Relations Commission", substitute "Deputy President of Fair 18 Work Australia". 19 6 Paragraphs 98B(5)(a) and (b) 20 Repeal the paragraphs, substitute: 21 (a) national minimum wage orders of Fair Work Australia, and, 22 in particular, any statements by Fair Work Australia about 23 the effect of wage increases on productivity, inflation and 24 levels of employment; or 25 (b) if no such order has been made--the last wage-setting 26 decision of the Australian Fair Pay Commission. 27 7 Subsection 99A(2) 28 Omit "Senior Deputy President or a Deputy President of the Australian 29 Industrial Relations Commission", substitute "Deputy President of Fair 30 Work Australia". Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 95 [Page Break] 1 8 Subsection 99B(1) 2 Omit "Senior Deputy President or Deputy President of the Australian 3 Industrial Relations Commission", substitute "Deputy President of Fair 4 Work Australia". 5 9 Subsections 99D(1) and (10) 6 Omit "Senior Deputy President or a Deputy President of the Australian 7 Industrial Relations Commission", substitute "Deputy President of Fair 8 Work Australia". 9 96 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] 1 Schedule 12--Immigration and Citizenship 2 3 Fair Work Act 2009 4 1 Section 709 (note) 5 After "713", insert ", 713A". 6 2 Paragraphs 713(d) and (e) 7 Repeal the paragraphs. 8 3 After section 713 9 Insert: 10 713A Certain records and docume nts are inadmissible 11 The following are not admissible in evidence in criminal 12 proceedings against an individual: 13 (a) any record or document inspected or copied under paragraph 14 709(e) of which the individual had custody, or to which the 15 individual had access, when it was inspected or copied; 16 (b) any information, document or thing obtained as a direct or 17 indirect consequence of inspecting or copying a record or 18 document of which the individual had custody, or to which 19 the individual had access, when it was inspected or copied 20 under paragraph 709(e). 21 Migration Act 1958 22 4 Sections 140X, 140Y, 140Z and 140ZA 23 Repeal the sections, substitute: 24 140X Purpose for which powe rs of inspectors may be exercised 25 The powers of an inspector under this Subdivision may be 26 exercised: 27 (a) for the purpose of determining whether a sponsorship 28 obligation is being, or has been, complied with; or 29 (b) for a purpose prescribed by the regulations. Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 97 [Page Break] 1 140XA When powe rs of inspectors may be exercised 2 An inspector may exercise powers under this Subdivision: 3 (a) at any time during working hours; or 4 (b) at any other time, if the inspector reasonably believes that it 5 is necessary to do so for the purposes referred to in 6 section 140X. 7 140XB Powe r of ins pectors to enter pre mises or places 8 (1) An inspector may, without force, enter business premises or 9 another place, if the inspector reasonably believes that there are 10 records or documents relevant to the purposes referred to in 11 section 140X on the premises or at the place, or accessible from a 12 computer on the premises or at the place. 13 (2) The inspector must, either before or as soon as practicable after 14 entering those premises or that place, show his or her identity card 15 to the occupier, or another person who apparently represents the 16 occupier, if the occupier or other person is present at the premises 17 or place. 18 140XC Powe rs of inspectors while on premises or at a place 19 An inspector who enters premises or a place under section 140XB 20 may exercise one or more of the following powers while on the 21 premises or at the place: 22 (a) inspect any work, process or object; 23 (b) interview any person; 24 (c) require a person to tell the inspector who has custody of, or 25 access to, a record or document; 26 (d) require a person who has the custody of, or access to, a 27 record or document to produce the record or document to the 28 inspector either while the inspector is on the premises or at 29 the place, or within a specified period; 30 (e) inspect, and make copies of, any record or document that: 31 (i) is kept on the premises or at the place; or 32 (ii) is accessible from a computer that is kept on the 33 premises or at the place. 34 Note: See also sections 140XG, 140XH and 140XI (which deal with 35 self-incrimination and produced documents etc.). 98 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] 1 140XD Persons assisting inspectors 2 (1) A person (the assistant) may accompany the inspector onto the 3 premises or to the place to assist the inspector if the Secretary is 4 satisfied that: 5 (a) the assistance is necessary and reasonable; and 6 (b) the assistant has suitable qualifications and experience to 7 properly assist the inspector. 8 (2) The assistant: 9 (a) may do such things on the premises or at the place as the 10 inspector requires to assist the inspector to exercise powers 11 under this Subdivision; but 12 (b) must not do anything that the inspector does not have power 13 to do. 14 (3) Anything done by the assistant is taken for all purposes to have 15 been done by the inspector. 16 140XE Powe r to ask for person's name and address 17 (1) An inspector may require a person to tell the inspector the person's 18 name and address if the inspector reasonably believes that the 19 person has contravened a civil penalty provision. 20 (2) If the inspector reasonably believes that the name or address is 21 false, the inspector may require the person to give evidence of its 22 correctness. 23 (3) A person contravenes this subsection if: 24 (a) the inspector requires the person to do a thing referred to in 25 subsection (1) or (2); and 26 (b) the inspector advises the person that he or she may 27 contravene a civil penalty provision if he or she fails to 28 comply with the requirement; and 29 (c) the inspector shows his or her identity card to the person; and 30 (d) the person does not comply with the requirement. 31 Civil penalty: 32 (a) for an individual--60 penalty units; and 33 (b) for a body corporate--300 penalty units. Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 99 [Page Break] 1 (4) Subsection (3) does not apply if the person has a reasonable 2 excuse. 3 140XF Powe r to require persons to produce records or docume nts 4 (1) An inspector may require a person, by notice, to produce a record 5 or document to the inspector. 6 (2) The notice must: 7 (a) be in writing; and 8 (b) be served on the person; and 9 (c) require the person to produce the record or document at a 10 specified place within a specified period of at least 7 days. 11 The notice may be served by sending the notice to the person's fax 12 number. 13 (3) A person contravenes this subsection if: 14 (a) the person is served with a notice to produce under 15 subsection (1); and 16 (b) the person fails to comply with the notice. 17 Civil penalty: 18 (a) for an individual--60 penalty units; and 19 (b) for a body corporate--300 penalty units. 20 (4) Subsection (3) does not apply if the person has a reasonable 21 excuse. 22 140XG Self-incrimination 23 (1) A person is not excused from producing a record or document 24 under paragraph 140XC(d), or subsection 140XF(1), on the ground 25 that the production of the record or document might tend to 26 incriminate the person or expose the person to a penalty. 27 (2) However, in the case of an individual, none of the following are 28 admissible in evidence against the individual in criminal 29 proceedings: 30 (a) the record or document produced; 31 (b) producing the record or document; 32 (c) any information, document or thing obtained as a direct or 33 indirect consequence of producing the record or document; 100 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] 1 except in proceedings for an offence against section 137.1 or 137.2 2 of the Criminal Code (false or misleading information or 3 documents) in relation to the information or document. 4 140XH Certain records and documents are inadmissible 5 The following are not admissible in evidence in criminal 6 proceedings against an individual: 7 (a) any record or document inspected or copied under paragraph 8 140XC(e) of which the individual had custody, or to which 9 the individual had access, when it was inspected or copied; 10 (b) any information, document or thing obtained as a direct or 11 indirect consequence of inspecting or copying a record or 12 document of which the individual had custody, or to which 13 the individual had access, when it was inspected or copied 14 under paragraph 140XC(e). 15 140XI Power to keep records or docume nts 16 (1) If a record or document is produced to an inspector in accordance 17 with this Subdivision, the inspector may: 18 (a) inspect, and make copies of, the record or document; and 19 (b) keep the record or document for such period as is necessary. 20 (2) While an inspector keeps a record or document, the inspector must 21 allow the following persons to inspect, or make copies of, the 22 record or document at all reasonable times: 23 (a) the person who produced the record or document; 24 (b) any person otherwise entitled to possession of the record or 25 document; 26 (c) a person authorised by the person referred to in 27 paragraph (b). 28 140XJ Disclosure of information by the Secretary 29 Information to which this section applies 30 (1) This section applies to the following information: 31 (a) information acquired by an inspector in the course of 32 performing functions, or exercising powers, as an inspector 33 under this Subdivision; Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 101 [Page Break] 1 (b) information acquired by a person in the course of assisting an 2 inspector under section 140XD. 3 Disclosure that is necessary or appropriate, or likely to assist 4 administration or enforcement 5 (2) The Secretary may disclose, or authorise the disclosure of, the 6 information if the Secretary reasonably believes: 7 (a) that it is necessary or appropriate to do so in the course of 8 performing functions, or exercising powers, under 9 Division 3A of Part 2 of this Act; or 10 (b) that the disclosure is likely to assist in the administration or 11 enforcement of a law of the Commonwealth, a State or a 12 Territory. 13 102 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] 1 Schedule 13--Infrastructure, Transport, 2 Regional Development and Local 3 Government 4 5 Navigation Act 1912 6 1 Section 292 7 Repeal the section, substitute: 8 292 Evidence of rates of wages 9 Any of the following which is binding on or applicable to seamen 10 employed in any part of the coasting trade is prima facie evidence 11 of the rates of wages in Australia for those seamen: 12 (a) a modern award (within the meaning of the Fair Work Act 13 2009); 14 (b) a transitional APCS or transitional award (both within the 15 meaning of the Fair Work (Transitional Provisions and 16 Consequential Amendments) Act 2009). 17 Note: For an instrument referred to in paragraph (b), see items 2 and 4 of 18 Schedule 2 to the Fair Work (Transitional Provisions and 19 Consequential Amendments) Act 2009). 20 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 103 [Page Break] Part 1 Consequential amendments 1 Schedule 14--Innovation, Industry, Science 2 and Research 3 Part 1--Consequential amendments 4 Independent Contractors Act 2006 5 1 Section 4 6 Insert: 7 Fair Work Inspector has the same meaning as in the Fair Work 8 Act 2009. 9 2 Section 4 (definition of organisation) 10 Repeal the definition, substitute: 11 organisation means an organisation that is registered or an 12 association that is recognised under the Fair Work (Registered 13 Organisations) Act 2009. 14 3 Section 4 (definition of workplace inspector) 15 Repeal the definition. 16 4 Section 6 (definition of State or Territory industrial law) 17 Repeal the definition, substitute: 18 State or Territory industrial law has the same meaning as in the 19 Fair Work Act 2009. 20 5 Subparagraph 8(1)(h)(i) 21 Repeal the subparagraph, substitute: 22 (i) the Fair Work Act 2009; or 23 (ia) the Fair Work (Transitional Provisions and 24 Consequential Amendments) Act 2009; or 25 6 Subparagraph 9(1)(e)(i) 26 Repeal the subparagraph, substitute: 27 (i) the Fair Work Act 2009; or 104 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 (ia) the Workplace Relations Act 1996, as in force at any 2 time before the WR Act repeal day, or as that Act 3 applies after that day because of the Fair Work 4 (Transitional Provisions and Consequential 5 Amendments) Act 2009; or 6 7 Subparagraph 9(1)(e)(iii) 7 After "(i)", insert ", (ia)". 8 8 At the end of section 9 9 Add: 10 (3) In this section: 11 WR Act repeal day has the meaning given by Schedule 2 to the 12 Fair Work (Transitional Provisions and Consequential 13 Amendments) Act 2009. 14 9 Paragraph 34(5)(a) 15 Repeal the paragraph, substitute: 16 (a) a Fair Work Inspector; or 17 10 Subsection 34(7) 18 Omit "Division 3 of Part 14 of the Workplace Relations Act 1996", 19 substitute "Division 4 of Part 4-1 of the Fair Work Act 2009". 20 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 105 [Page Break] Part 2 Transitional provision 1 Part 2--Transitional provision 2 3 11 Transitional provision 4 Despite the amendment of subsection 34(7) of the Independent 5 Contractors Act 2006 made by item 10, Division 3 of Part 14 of the 6 Workplace Relations Act 1996, as in force immediately before the 7 commencement of this item, continues to have effect on and after that 8 commencement in relation to a breach, or suspected breach, of 9 subsection 34(1) or (2) of the Independent Contractors Act 2006 that 10 was committed before the commencement of this item. 11 106 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 Schedule 15--Parliamentary Service 2 Part 1--Consequential amendments 3 Parliamentary Service Act 1999 4 1 Section 7 (definition of APCS) 5 Repeal the definition. 6 2 Section 7 (definition of Australian Fair Pay and Conditions 7 Standard) 8 Repeal the definition, substitute: 9 Australian Fair Pay and Conditions Standard has the same 10 meaning as in the Fair Work (Transitional Provisions and 11 Consequential Amendments) Act 2009. 12 Note: See Schedules 4 and 9 of the Fair Work (Transitional Provisions and 13 Consequential Amendments) Act 2009 in relation to the application of 14 the Australian Fair Pay and Conditions Standard. 15 3 Section 7 (definition of AWA) 16 Repeal the definition. 17 4 Section 7 (definition of award) 18 Repeal the definition. 19 5 Section 7 (definition of collective agreement) 20 Repeal the definition. 21 6 Section 7 22 Insert: 23 enterprise agreement has the same meaning as in the Fair Work 24 Act 2009. 25 7 Section 7 26 Insert: 27 fair work instrument has the same meaning as in the Fair Work 28 Act 2009. Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 107 [Page Break] Part 1 Consequential amendments 1 8 Section 7 2 Insert: 3 modern award has the same meaning as in the Fair Work Act 4 2009. 5 9 Section 7 6 Insert: 7 National Employment Standards has the same meaning as in the 8 Fair Work Act 2009. 9 10 Section 7 (definition of pre-reform AWA) 10 Repeal the definition. 11 11 Section 7 (definition of pre-reform certified agreement) 12 Repeal the definition. 13 12 Section 7 (definition of workplace agreement) 14 Repeal the definition. 15 13 Section 7 16 Insert: 17 WR Act collective transitional instrument means an award, a 18 collective agreement or a pre-reform certified agreement (within 19 the meaning of those terms in the Fair Work (Transitional 20 Provisions and Consequential Amendments) Act 2009). 21 14 Section 7 22 Insert: 23 WR Act transitional instrument means an award, a workplace 24 agreement, a pre-reform certified agreement, an AWA or a 25 pre-reform AWA (within the meaning of those terms in the Fair 26 Work (Transitional Provisions and Consequential Amendments) 27 Act 2009). 28 15 Subsection 8(1) 108 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 2009 2 and the Fair Work (Transitional Provisions and Consequential 3 Amendments) Act 2009". 4 Note: The heading to section 8 is replaced by the heading "Relationship with Fair Work 5 Acts". 6 16 Subsection 8(2) 7 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 2009 8 or the Fair Work (Transitional Provisions and Consequential 9 Amendments) Act 2009". 10 17 Subsection 23(2) 11 Repeal the subsection, substitute: 12 (2) The Classification Rules may apply, adopt or incorporate, with or 13 without modification, any of the provisions of: 14 (a) a modern award, as in force at a particular time or as in force 15 from time to time; or 16 (b) a transitional APCS, as in force at a particular time or as in 17 force from time to time. 18 18 Subsection 23(5) 19 Repeal the subsection, substitute: 20 (5) If a relevant industrial instrument contains procedures to be 21 followed when reducing the classification, then a reduction is of no 22 effect unless those procedures are followed. 23 (6) In this section: 24 industrial instrument means: 25 (a) a modern award; or 26 (b) an enterprise agreement; or 27 (c) a workplace determination; or 28 (d) a WR Act transitional instrument; or 29 (e) a transitional APCS. 30 transitional APCS has the meaning given by Schedule 2 to the 31 Fair Work (Transitional Provisions and Consequential 32 Amendments) Act 2009. Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 109 [Page Break] Part 1 Consequential amendments 1 workplace determination has the same meaning as in the Fair 2 Work Act 2009. 3 19 Subsections 24(1) and (2) 4 Repeal the subsections, substitute: 5 (1) A Secretary may from time to time determine in writing the 6 remuneration and other terms and conditions of employment 7 applying to a Parliamentary Service employee or Parliamentary 8 Service employees in the relevant Department. 9 Note 1: Certain terms and conditions of employment are applicable to a 10 Parliamentary Service employee under the Australian Fair Pay and 11 Conditions Standard or the National Employment Standards. 12 Note 2: Other Commonwealth laws deal with matters such as superannuation, 13 compensation, long service leave and maternity leave. 14 (1A) A determination under subsection (1) is of no effect to the extent 15 that it would reduce the benefit to a Parliamentary Service 16 employee of an individual term or condition applicable to the 17 employee under: 18 (a) a fair work instrument; or 19 (b) a WR Act transitional instrument. 20 Note: A determination under subsection (1) would also be of no effect to the 21 extent that it would reduce the benefit to a Parliamentary Service 22 employee of a term or condition applicable to the employee under the 23 Australian Fair Pay and Conditions Standard or the National 24 Employment Standards. 25 (2) A determination under subsection (1) may apply, adopt or 26 incorporate, with or without modification, any of the provisions of: 27 (a) a fair work instrument; or 28 (b) a WR Act collective transitional instrument; 29 as in force from time to time. 30 Note: A determination under subsection (1) may apply, adopt or incorporate, 31 with or without modification, any of the provisions of the Australian 32 Fair Pay and Conditions Standard or the National Employment 33 Standards. However, any modification of the provisions of those 34 Standards by a determination under subsection (1) would be of no 35 effect to the extent that it would reduce the benefit to a Parliamentary 36 Service employee of a term or condition applicable to the employee 37 under those Standards. 38 20 Subsection 24(4) 110 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 Repeal the subsection, substitute: 2 (4) The limitation in subsection (1A) does not apply in relation to a 3 determination under subsection (3). 4 (5) A determination under subsection (3) overrides the following, to 5 the extent of any inconsistency: 6 (a) a determination under subsection (1); 7 (b) the Australian Fair Pay and Conditions Standard; 8 (c) the National Employment Standards. 9 21 Subsection 29(1) (note) 10 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 11 2009". 12 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 111 [Page Break] Part 2 Sav ing provision 1 Part 2--Saving provision 2 22 Saving provision--determinations under subsection 24(1) 3 If a determination made by a Secretary under subsection 24(1) of the 4 Parliamentary Service Act 1999 was in force immediately before the 5 commencement of this Schedule, the determination continues in force 6 on and after that commencement as if it had been made under 7 subsection 24(1) of that Act, as amended by this Schedule. 8 112 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 Schedule 16--Prime Minister and Cabinet 2 Part 1--Consequential amendments 3 Privacy Act 1988 4 1 Subsection 6(1) (subparagraph (c)(ii) of the definition of 5 agency) 6 Repeal the subparagraph, substitute: 7 (ii) an organisation that is registered under the Fair Work 8 (Registered Organisations) Act 2009 or a branch of such 9 an organisation; or 10 2 After subsection 6E(1A) 11 Insert: 12 Small business operator that is a protected action ballot agent 13 under the Fair Work Act 2009 14 (1B) If a small business operator is the protected action ballot agent for 15 a protected action ballot conducted under Part 3-3 of the Fair Work 16 Act 2009, this Act applies, with the prescribed modifications (if 17 any), in relation to the activities carried on by the small business 18 operator for the purpose of, or in connection with, the conduct of 19 the protected action ballot, as if the small business operator were 20 an organisation. 21 Note: The regulations may prescribe different modifications of the Act for 22 different small business operators. See subsection 33(3A) of the Acts 23 Interpretation Act 1901. 24 Small business operator that is an association of employees that is 25 registered or recognised under the Fair Work (Registered 26 Organisations) Act 2009 27 (1C) If a small business operator is an association of employees that is 28 registered or recognised under the Fair Work (Registered 29 Organisations) Act 2009, this Act applies, with the prescribed 30 modifications (if any), in relation to the activities carried on by the 31 small business operator, as if the small business operator were an 32 organisation (within the meaning of this Act). Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 113 [Page Break] Part 1 Consequential amendments 1 Note: The regulations may prescribe different modifications of the Act for 2 different small business operators. See subsection 33(3A) of the Acts 3 Interpretation Act 1901. 4 3 Subsection 6E(3) 5 Insert: 6 protected action ballot agent means a person (other than the 7 Australian Electoral Commission) that conducts a protected action 8 ballot under Part 3-3 of the Fair Work Act 2009. 9 Note: The heading to subsection 6E(3) is replaced by the heading "Definitions". 10 Public Service Act 1999 11 4 Section 7 (definition of APCS) 12 Repeal the definition. 13 5 Section 7 (definition of Australian Fair Pay and Conditions 14 Standard) 15 Repeal the definition, substitute: 16 Australian Fair Pay and Conditions Standard has the same 17 meaning as in the Fair Work (Transitional Provisions and 18 Consequential Amendments) Act 2009. 19 Note: See Schedules 4 and 9 of the Fair Work (Transitional Provisions and 20 Consequential Amendments) Act 2009 in relation to the application of 21 the Australian Fair Pay and Conditions Standard. 22 6 Section 7 (definition of AWA) 23 Repeal the definition. 24 7 Section 7 (definition of award) 25 Repeal the definition. 26 8 Section 7 (definition of collective agreement) 27 Repeal the definition. 28 9 Section 7 29 Insert: 114 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 enterprise agreement has the same meaning as in the Fair Work 2 Act 2009. 3 10 Section 7 4 Insert: 5 fair work instrument has the same meaning as in the Fair Work 6 Act 2009. 7 11 Section 7 8 Insert: 9 modern award has the same meaning as in the Fair Work Act 10 2009. 11 12 Section 7 12 Insert: 13 National Employment Standards has the same meaning as in the 14 Fair Work Act 2009. 15 13 Section 7 (definition of pre-reform AWA) 16 Repeal the definition. 17 14 Section 7 (definition of pre-reform certified agreement) 18 Repeal the definition. 19 15 Section 7 (definition of workplace agreement) 20 Repeal the definition. 21 16 Section 7 22 Insert: 23 WR Act collective transitional instrument means an award, a 24 collective agreement or a pre-reform certified agreement (within 25 the meaning of those terms in the Fair Work (Transitional 26 Provisions and Consequential Amendments) Act 2009). 27 17 Section 7 28 Insert: Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 115 [Page Break] Part 1 Consequential amendments 1 WR Act transitional instrument means an award, a workplace 2 agreement, a pre-reform certified agreement, an AWA or a 3 pre-reform AWA (within the meaning of those terms in the Fair 4 Work (Transitional Provisions and Consequential Amendments) 5 Act 2009). 6 18 Subsection 8(1) 7 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 2009 8 and the Fair Work (Transitional Provisions and Consequential 9 Amendments) Act 2009". 10 Note: The heading to section 8 is replaced by the heading "Relationship with Fair Work 11 Acts". 12 19 Subsection 8(2) 13 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 2009 14 or the Fair Work (Transitional Provisions and Consequential 15 Amendments) Act 2009". 16 20 Subsection 23(2) 17 Repeal the subsection, substitute: 18 (2) The Classification Rules may apply, adopt or incorporate, with or 19 without modification, any of the provisions of: 20 (a) a modern award, as in force at a particular time or as in force 21 from time to time; or 22 (b) a transitional APCS, as in force at a particular time or as in 23 force from time to time. 24 21 Subsection 23(5) 25 Repeal the subsection, substitute: 26 (5) If a relevant industrial instrument contains procedures to be 27 followed when reducing the classification, then a reduction is of no 28 effect unless those procedures are followed. 29 (6) In this section: 30 industrial instrument means: 31 (a) a modern award; or 32 (b) an enterprise agreement; or 33 (c) a workplace determination; or 116 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 (d) a WR Act transitional instrument; or 2 (e) a transitional APCS. 3 transitional APCS has the meaning given by Schedule 2 to the 4 Fair Work (Transitional Provisions and Consequential 5 Amendments) Act 2009. 6 workplace determination has the same meaning as in the Fair 7 Work Act 2009. 8 22 Subsections 24(1) and (2) 9 Repeal the subsections, substitute: 10 (1) An Agency Head may from time to time determine in writing the 11 remuneration and other terms and conditions of employment 12 applying to an APS employee or APS employees in the Agency. 13 Note 1: Certain terms and conditions of employment are applicable to an APS 14 employee under the Australian Fair Pay and Conditions Standard or 15 the National Employment Standards. 16 Note 2: Other Commonwealth laws deal with matters such as superannuation, 17 compensation, long service leave and maternity leave. 18 (1A) A determination under subsection (1) is of no effect to the extent 19 that it would reduce the benefit to an APS employee of an 20 individual term or condition applicable to the employee under: 21 (a) a fair work instrument; or 22 (b) a WR Act transitional instrument. 23 Note: A determination under subsection (1) would also be of no effect to the 24 extent that it would reduce the benefit to an APS employee of a term 25 or condition applicable to the employee under the Australian Fair Pay 26 and Conditions Standard or the National Employment Standards. 27 (2) A determination under subsection (1) may apply, adopt or 28 incorporate, with or without modification, any of the provisions of: 29 (a) a fair work instrument; or 30 (b) a WR Act collective transitional instrument; 31 as in force from time to time. 32 Note: A determination under subsection (1) may apply, adopt or incorporate, 33 with or without modification, any of the provisions of the Australian 34 Fair Pay and Conditions Standard or the National Employment 35 Standards. However, any modification of the provisions of those 36 Standards by a determination under subsection (1) would be of no 37 effect to the extent that it would reduce the benefit to an APS Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 117 [Page Break] Part 1 Consequential amendments 1 employee of a term or condition applicable to the employee under 2 those Standards. 3 23 Subsection 24(4) 4 Repeal the subsection, substitute: 5 (4) The limitation in subsection (1A) does not apply in relation to a 6 determination under subsection (3). 7 (5) A determination under subsection (3) overrides the following, to 8 the extent of any inconsistency: 9 (a) a determination under subsection (1); 10 (b) the Australian Fair Pay and Conditions Standard; 11 (c) the National Employment Standards. 12 24 Subsection 29(1) (note) 13 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 14 2009". 15 25 Paragraphs 72(3)(a) and (b) 16 Repeal the paragraphs, substitute: 17 (a) a fair work instrument; or 18 (b) a WR Act transitional instrument; or 19 (c) a determination under this Act. 20 26 Paragraph 72(4)(a) 21 Repeal the paragraph, substitute: 22 (a) results from: 23 (i) the making, variation or termination of a modern award, 24 an enterprise agreement or a workplace determination; 25 or 26 (ii) the variation, termination or replacement of a WR Act 27 transitional instrument; and 28 27 Subsection 72(6) 29 Insert: 30 workplace determination has the same meaning as in the Fair 31 Work Act 2009. 32 118 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Saving provision Part 2 1 Part 2--Saving provision 2 28 Saving provision--determinations under subsection 24(1) 3 If a determination made by an Agency Head under subsection 24(1) of 4 the Public Service Act 1999 was in force immediately before the 5 commencement of this Schedule, the determination continues in force 6 on and after that commencement as if it had been made under 7 subsection 24(1) of that Act, as amended by this Schedule. 8 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 119 [Page Break] 1 Schedule 17--Resources, Energy and Tourism 2 3 Moomba-Sydney Pipeline System Sale Act 1994 4 1 Subsection 3(1) (definition of award) 5 Repeal the definition. 6 Offshore Petroleum and Greenhouse Gas Storage Act 2006 7 2 Clause 3 of Schedule 3 (definition of registered 8 organisation) 9 Omit "within the meaning of the Workplace Relations Act 1996", 10 substitute "registered or an association recognised under the Fair Work 11 (Registered Organisations) Act 2009". 12 3 Clause 3 of Schedule 3 (paragraph (a) of the definition of 13 workforce representative) 14 Omit "a registered organisation, or a transitionally registered 15 association (within the meaning of Schedule 10 to the Workplace 16 Relations Act 1996)", substitute "an organisation registered or an 17 association recognised under the Fair Work (Registered Organisations) 18 Act 2009". 19 4 Clause 3 of Schedule 3 (paragraph (a) of the definition of 20 workforce representative) 21 After "that organisation", insert "or association". 22 5 Clause 3 of Schedule 3 (paragraph (b) of the definition of 23 workforce representative) 24 Omit "a registered organisation, or a transitionally registered 25 association (within the meaning of Schedule 10 to the Workplace 26 Relations Act 1996)", substitute "an organisation registered or an 27 association recognised under the Fair Work (Registered Organisations) 28 Act 2009". 29 6 Clause 3 of Schedule 3 (paragraph (b) of the definition of 30 workforce representative) 31 After "that organisation", insert "or association". 120 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] 1 Snowy Hydro Corporatisation Act 1997 2 7 Paragraph 23(5)(b) 3 Omit "as defined by section 4 of the Workplace Relations Act 1996", 4 substitute "within the meaning of the Fair Work (Transitional 5 Provisions and Consequential Amendments) Act 2009". 6 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 121 [Page Break] Part 1 Consequential amendments 1 Schedule 18--Treasury 2 Part 1--Consequential amendments 3 Commonwealth Volunteers Protection Act 2003 4 1 Subsection 4(1) (paragraph (b) of the definition of 5 Commonwealth authority) 6 Repeal the paragraph, substitute: 7 (b) an organisation registered or an association recognised under 8 the Fair Work (Registered Organisations) Act 2009; or 9 Corporations Act 2001 10 2 Subparagraphs 764A(1)(d)(i), (e)(i) and (f)(i) 11 Omit "that is an organisation within the meaning of the Workplace 12 Relations Act 1996 for a member of the organisation", substitute "that is 13 registered as an organisation, or recognised, under the Fair Work 14 (Registered Organisations) Act 2009 for a member of the association". 15 3 Paragraph 765A(1)(u) 16 Omit "that is an organisation within the meaning of the Workplace 17 Relations Act 1996 for a member of the organisation", substitute "that is 18 registered as an organisation, or recognised, under the Fair Work 19 (Registered Organisations) Act 2009 for a member of the association". 20 Financial Sector (Business Transfer and Group Restructure) 21 Act 1999 22 4 Subsection 43(7) 23 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 2009, 24 the Fair Work (Registered Organisations) Act 2009, or the Fair Work 25 (Transitional Provisions and Consequential Amendments) Act 2009". 26 Fringe Benefits Tax Assessment Act 1986 27 5 Paragraph 65J(1)(f) 122 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 Omit "under the Workplace Relations Act 1996", substitute "or 2 recognised under the Fair Work (Registered Organisations) Act 2009". 3 Income Tax Assessment Act 1997 4 6 Section 50-15 (table item 3.1) 5 Omit "under the Workplace Relations Act 1996", substitute "or 6 recognised under the Fair Work (Registered Organisations) Act 2009". 7 7 Paragraph 290-80(1)(b) 8 Omit "given by Schedule 8 to the Workplace Relations Act 1996", 9 substitute "of the Fair Work (Transitional Provisions and 10 Consequential Amendments) Act 2009". 11 8 Subsection 290-80(2) (note) 12 Omit all the words from and including "individual" to and including 13 "1996", substitute "enterprise agreement within the meaning of the Fair 14 Work Act 2009". 15 9 At the end of section 290-80 16 Add: 17 (3) For the purposes of this section, a reference to a determination does 18 not include a reference to a workplace determination made under 19 the Fair Work Act 2009 or the Workplace Relations Act 1996. 20 Income Tax (Transitional Provisions) Act 1997 21 10 Paragraph 82-10(1)(a) 22 Omit all the words from and including "Workplace" to and including 23 "7A to", substitute "Fair Work (Transitional Provisions and 24 Consequential Amendments) Act 2009 or an AWA within the meaning 25 of". 26 Insurance Act 1973 27 11 Subsection 3(1) (paragraph (e) of the definition of 28 insurance business) Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 123 [Page Break] Part 1 Consequential amendments 1 Omit all the words from and including "an organisation" to and 2 including "1996", substitute "registered as an organisation, or 3 recognised, under the Fair Work (Registered Organisations) Act 2009". 4 Life Insurance Act 1995 5 12 Paragraph 11(3)(b) 6 Omit all the words and subparagraphs from and including "that is" to 7 and including "1996" (second occurring), substitute "that is registered 8 as an organisation, or recognised, under the Fair Work (Registered 9 Organisations) Act 2009". 10 Superannuation Guarantee (Administration) Act 1992 11 13 Paragraph 5B(1)(a) 12 Omit all the words from and including "the Australian" to and including 13 "1996", substitute "Fair Work Australia". 14 Note: The heading to section 5B is altered by omitting "Australian Industrial Relations 15 Commission" and substituting "Fair Work Australia". 16 14 Paragraph 5B(1)(aa) 17 Repeal the paragraph. 18 15 Paragraph 5B(1)(b) 19 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 2009, 20 the Fair Work (Registered Organisations) Act 2009, or the Fair Work 21 (Transitional Provisions and Consequential Amendments) Act 2009". 22 16 Subsection 5B(2) 23 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 2009, 24 the Fair Work (Registered Organisations) Act 2009, or the Fair Work 25 (Transitional Provisions and Consequential Amendments) Act 2009". 26 17 Section 12A 27 Repeal the section, substitute: 124 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 12A Interpretation: references to industrial instruments 2 (1) In this Act, the following expressions have the same meanings as 3 in the Fair Work (Transitional Provisions and Consequential 4 Amendments) Act 2009: 5 (a) AWA; 6 (b) collective agreement; 7 (c) ITEA; 8 (d) notional agreement preserving State awards; 9 (e) old IR agreement; 10 (f) pre-reform AWA; 11 (g) pre-reform certified agreement; 12 (h) preserved State agreement. 13 Note: For an instrument referred to in this subsection, see item 4 of 14 Schedule 2 to the Fair Work (Transitional Provisions and 15 Consequential Amendments) Act 2009. 16 (2) In this Act, enterprise agreement has the same meaning as in the 17 Fair Work Act 2009. 18 (3) In this Act, workplace determination means a workplace 19 determination made under the Fair Work Act 2009 or the 20 Workplace Relations Act 1996. 21 18 At the end of subsection 32C(6) 22 Add: 23 ; or (g) a workplace determination; or 24 (h) an enterprise agreement. 25 Note: The heading to subsection 32C(6) is altered by omitting "workplace agreements" and 26 substituting "agreements and workplace determinations". 27 19 Subsection 32C(6) (note) 28 Omit "Workplace Relations Act 1996", substitute "Fair Work 29 (Transitional Provisions and Consequential Amendments) Act 2009 or 30 the Fair Work Act 2009". 31 20 Subsection 32C(6A) (note) 32 Omit "Workplace Relations Act 1996", substitute "Fair Work 33 (Transitional Provisions and Consequential Amendments) Act 2009 or 34 the Fair Work Act 2009". Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 125 [Page Break] Part 1 Consequential amendments 1 21 Subsection 32C(6B) (note) 2 Omit "Workplace Relations Act 1996", substitute "Fair Work 3 (Transitional Provisions and Consequential Amendments) Act 2009 or 4 the Fair Work Act 2009". 5 22 Subsection 32C(7) 6 Repeal the subsection. 7 Superannuation Industry (Supervision) Act 1993 8 23 Subsection 10(1) (paragraph (c) of the definition of 9 registered organisation) 10 Omit "under Schedule 1B to the Workplace Relations Act 1996", 11 substitute ", or recognised, under the Fair Work (Registered 12 Organisations) Act 2009". 13 Trade Practices Act 1974 14 24 Subsection 45DD(4) 15 Omit "an industrial instrument" (wherever occurring), substitute "a 16 workplace instrument". 17 25 Subsection 45DD(4) 18 Omit "industrial instrument have the meanings given by subsection 19 779(1) of the Workplace Relations Act 1996", substitute "workplace 20 instrument have the same meanings as in the Fair Work Act 2009". 21 26 Subsection 45DD(8) (note) 22 Omit "Section 170MT of the Workplace Relations Act 1996", substitute 23 "Section 415 of the Fair Work Act 2009". 24 27 Subsection 87AA(2) (definition of industrial authority) 25 Repeal the definition, substitute: 26 industrial authority means: 27 (a) a board or court of conciliation or arbitration, or tribunal, 28 body or persons, having authority under a law of a State to 29 exercise any power of conciliation or arbitration in relation to 30 industrial disputes within the limits of the State; or 126 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] Consequential amend ments Part 1 1 (b) a special board constituted under a law of a State relating to 2 factories; or 3 (c) any other State board, court, tribunal, body or official 4 prescribed by the regulations for the purposes of this 5 definition. 6 28 Subsection 93AB(11) (definition of trade union) 7 Repeal the definition, substitute: 8 trade union means the following: 9 (a) an association of employees that is registered as an 10 organisation, or recognised, under the Fair Work (Registered 11 Organisations) Act 2009; 12 (b) an association of employees that is registered or recognised 13 as a trade union (however described) under the law of a State 14 or Territory; 15 (c) an association of employees a principal purpose of which is 16 the protection and promotion of the employees' interests in 17 matters concerning their employment. 18 29 Subclause 45DD(4) of the Schedule 19 Omit "an industrial instrument" (wherever occurring), substitute "a 20 workplace instrument". 21 30 Subclause 45DD(4) of the Schedule 22 Omit ", industrial dispute and industrial instrument have the meanings 23 given by subsection 298B(1) of the Workplace Relations Act 1996", 24 substitute "and workplace instrument have the same meanings as in the 25 Fair Work Act 2009". 26 31 Subclause 45DD(6) of the Schedule (note) 27 Omit "Section 170MT of the Workplace Relations Act 1996", substitute 28 "Section 415 of the Fair Work Act 2009". 29 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 127 [Page Break] Part 2 Application provision 1 Part 2--Application provision 2 32 Superannuation Guarantee (Administration) Act 1992 3 Despite the amendments of section 5B of the Superannuation 4 Guarantee (Administration) Act 1992 made by this Schedule, that 5 section continues to apply, on and after the WR Act repeal day, as if 6 those amendments had not been made, in relation to: 7 (a) the Australian Industrial Relations Commission, as it 8 continues in existence because of the Fair Work 9 (Transitional Provisions and Consequential Amendments) 10 Act 2009; and 11 (b) the Australian Fair Pay Commission, as it continues in 12 existence because of the Fair Work (Transitional Provisions 13 and Consequential Amendments) Act 2009; and 14 (c) the Workplace Relations Act 1996, as that Act continues to 15 apply because of the Fair Work (Transitional Provisions and 16 Consequential Amendments) Act 2009. 17 128 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] 1 Schedule 19--Veterans' Affairs 2 3 Military Rehabilitation and Compensation Act 2004 4 1 Subsection 89(3) (note 1) 5 Repeal the note, substitute: 6 Note 1: If a member's normal earnings are less than the relevant minimum 7 wage set by a national minimum wage order, then the member's 8 normal earnings are instead the relevant minimum wage (see 9 section 179). 10 2 Subsection 132(2) (note 1) 11 Repeal the note, substitute: 12 Note 1: If a person's normal earnings are less than the relevant minimum wage 13 set by a national minimum wage order, then the person's normal 14 earnings are instead the relevant minimum wage (see section 179). 15 3 Paragraph 178(a) 16 Omit "federal minimum wage", substitute "relevant minimum wage set 17 by a national minimum wage order". 18 4 Section 179 19 Omit "Federal Minimum Wage (as it applies under section 194 of the 20 Workplace Relations Act 1996)", substitute "relevant minimum wage 21 set by a national minimum wage order (under section 294 of the Fair 22 Work Act 2009)". 23 Note: The heading to section 179 is altered by omitting "federal". 24 5 Subparagraph 185(2)(b)(ii) 25 Omit "an Australian Pay and Classification Scale", substitute "a 26 national minimum wage order". 27 6 Subparagraph 185(2)(b)(ii) 28 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 29 2009". 30 7 Paragraph 193(2)(b) 31 Omit "an Australian Pay and Classification Scale", substitute "a 32 national minimum wage order". Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 129 [Page Break] 1 8 Paragraph 193(2)(b) 2 Omit "Workplace Relations Act 1996", substitute "Fair Work Act 3 2009". 4 130 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 [Page Break] 1 Schedule 20--Regulations 2 3 1 Regulations may deal with transitional etc. matters 4 (1) The Governor-General may make regulations dealing with matters of a 5 transitional, saving or application nature relating to amendments made 6 by this Act. 7 (2) In this item: 8 amendments made by this Act includes amendments made by 9 regulations under item 2. 10 2 Regulations may make consequential amendments of Acts 11 (1) The Governor-General may make regulations amending Acts (other 12 than the Fair Work Act 2009) being amendments that are consequential 13 on, or that otherwise relate to, the enactment of the Fair Work Act 2009, 14 the Fair Work (Transitional Provisions and Consequential 15 Amendments) Act 2009 or this Act. 16 (2) For the purposes of the Amendments Incorporation Act 1905, 17 amendments made by regulations for the purposes of this item are to be 18 treated as if they had been made by an Act. 19 Note: This subitem ensures that the amendments can be incorporated into a reprint of the Act. 20 3 Regulations may take effect from date before registration 21 (1) Despite subsection 12(2) of the Legislative Instruments Act 2003 and 22 subject to subitem (2), regulations made under item 1 or 2 may be 23 expressed to take effect from a date before the regulations are registered 24 under that Act. 25 (2) If: 26 (a) regulations made under item 1 or 2 are expressed to take 27 effect from a date (the registration date) before the 28 regulations are registered under the Legislative Instruments 29 Act 2003; and 30 (b) a person engaged in conduct before the registration date; and 31 (c) but for the retrospective effect of the regulations, the conduct 32 would not have contravened a provision of an Act; Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009 131 [Page Break] 1 then a court must not convict the person of an offence, or order the 2 person to pay a pecuniary penalty, in relation to the conduct on the 3 grounds that it contravened a provision of that Act. 132 Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 No. , 2009