WORKPLACE RELATIONS AMENDMENT (WORK CHOICES) BILL 2005

Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 ii

Contents

1 Short

title ...........................................................................................1

2 Commencement.................................................................................1

3 Schedule(s) ........................................................................................3

Schedule 1--Main amendments

Workplace Relations Act 1996

Schedule 2--Transitional arrangements for State organisations

659

Workplace Relations Act 1996

659

Schedule 3--School-based apprentices and trainees

666

Workplace Relations Act 1996

666

Schedule 4--Transitional and other provisions

674

Part 1--Regulations for transitional etc. provisions and

consequential amendments

674

Part 2--Transitional, application and saving provisions

675

Division 1--Definitions used in this Part

675

Division 2--Awards

675

Division 3--Termination of employment

676

Division 4--Miscellaneous

679

Schedule 5--Renumbering the Workplace Relations Act 1996

685

Workplace Relations Act 1996

685

Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 1

A Bill for an Act to amend the law relating to

workplace relations, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Workplace Relations Amendment

(Work Choices) Act 2005.

2 Commencement

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

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

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

according to its terms.

2 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1

A single day to be fixed by Proclamation.

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

commence within the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

3. Schedule 2

A single day to be fixed by Proclamation.

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

commence within the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

4. Schedule 3

A single day to be fixed by Proclamation.

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

commence within the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

5. Schedule 4,

Part 1

The day on which this Act receives the

Royal Assent.

6. Schedule 4,

Part 2

At the same time as the provision(s) covered

by table item 2.

7. Schedule 5

A single day to be fixed by Proclamation.

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

commence within the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

Note:

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

passed by the Parliament and assented to. It will not be expanded to

deal with provisions inserted in this Act after assent.

Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 3

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

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

edited in any published version of this Act.

3 Schedule(s)

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

repealed as set out in the applicable items in the Schedule

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

according to its terms.

Schedule 1 Main amendments

4 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Schedule 1--Main amendments

Workplace Relations Act 1996

1 Section 3

Repeal the section, substitute:

3 Principal object

The principal object of this Act is to provide a framework for

cooperative workplace relations which promotes the economic

prosperity and welfare of the people of Australia by:

(a) encouraging the pursuit of high employment, improved living

standards, low inflation and international competitiveness

through higher productivity and a flexible and fair labour

market; and

(b) establishing and maintaining a simplified national system of

workplace relations; and

minimum wages and conditions for those whose employment

is regulated by this Act; and

(d) providing a foundation of key minimum standards for

agreement-making while ensuring that the primary

responsibility for determining matters affecting the

employment relationship rests with the employer and

employees at the workplace or enterprise level; and

(e) enabling employers and employees to choose the most

appropriate form of agreement for their particular

circumstances; and

(f) ensuring compliance with minimum standards, industrial

instruments and bargaining processes by providing effective

means for the investigation and enforcement of:

(i) employee entitlements; and

(ii) the rights and obligations of employers and employees,

and their organisations; and

(g) ensuring that awards provide minimum safety net

entitlements for award-reliant employees which are

consistent with Australian Fair Pay Commission decisions

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 5

and which avoid creating disincentives to bargain at the

workplace level; and

(h) supporting harmonious and productive workplace relations

by providing flexible mechanisms for the voluntary

settlement of disputes; and

(i) balancing the right to take industrial action for the purposes

of collective bargaining at the workplace level with the need

to protect the public interest and appropriately deal with

illegitimate and unprotected industrial action; and

(j) ensuring freedom of association, including the rights of

employees and employers to join an organisation or

association of their choice, or not to join an organisation or

association; and

(k) protecting the competitive position of young people in the

labour market, promoting youth employment, youth skills

and community standards and assisting in reducing youth

unemployment; and

(l) assisting employees to balance their work and family

responsibilities effectively through the development of

mutually beneficial work practices with employers; and

(m) respecting and valuing the diversity of the work force by

helping to prevent and eliminate discrimination on the basis

of race, colour, sex, sexual preference, age, physical or

mental disability, marital status, family responsibilities,

pregnancy, religion, political opinion, national extraction or

social origin; and

(n) assisting in giving effect to Australia's international

obligations in relation to labour standards.

2 Section 4

Repeal the section, substitute:

4 Definitions

(1) In this Act, unless the contrary intention appears:

A.C.T. Consequential Provisions Act means the A.C.T.

Self-Government (Consequential Provisions) Act 1988.

AFPC has the meaning given by section 7F.

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6 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

allowable award matters means the matters referred to in

subsection 116(1).

Note:

The matters referred to in subsection 116(1) have a meaning that is

affected by section 116B.

alternative dispute resolution process has the meaning given by

section 176A.

Anti-Discrimination Conventions means:

(a) the Equal Remuneration Convention; and

(b) the Convention on the Elimination of all Forms of

Discrimination against Women, a copy of the English text of

which is set out in the Schedule to the Sex Discrimination Act

1984; and

Employment and Occupation, a copy of the English text of

which is set out in Schedule 1 to the Human Rights and

Equal Opportunity Commission Act 1986; and

(d) Articles 3 and 7 of the International Covenant on Economic,

Social and Cultural Rights.

APCS has the meaning given by section 90B.

applies to employment generally: a law of a State or Territory

applies to employment generally if it applies (subject to

constitutional limitations) to:

(a) all employers and employees in the State or Territory; or

(b) all employers and employees in the State or Territory except

those identified (by reference to a class or otherwise) by a

law of the State or Territory.

For this purpose, it does not matter whether or not the law also

applies to other persons, or whether or not an exercise of a power

under the law affects all the persons to whom the law applies.

arbitration powers means the powers of the Commission in

relation to arbitration.

Australian-based employee means:

(a) an employee whose primary place of work is in Australia, in

Australia's exclusive economic zone or in, on, or over

Australia's continental shelf; or

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 7

(b) an employee who is employed by the Commonwealth or a

Commonwealth authority, except an employee engaged

outside Australia and the external Territories to perform

duties outside Australia and the external Territories; or

purposes of this definition.

Note:

Subsection 4AA(1) defines employee.

Australian Capital Territory Government Service means the

service established by the Public Sector Management Act 1994 of

the Australian Capital Territory.

Australian employer means:

(a) an employer that is a trading corporation formed within the

limits of the Commonwealth (within the meaning of

paragraph 51(xx) of the Constitution); or

(b) an employer that is a financial corporation formed within the

limits of the Commonwealth (within the meaning of

paragraph 51(xx) of the Constitution); or

(d) an employer that is a Commonwealth authority; or

(e) an employer that is a body corporate incorporated in a

Territory; or

(f) an employer that carries on in Australia, in Australia's

exclusive economic zone or in, on, or over Australia's

continental shelf activities (whether of a commercial,

governmental or other nature) whose central management

and control is in Australia; or

(g) an employer that is prescribed by the regulations for the

purposes of this definition.

Note:

Subsection 4AB(1) defines employer.

Australian Fair Pay and Conditions Standard has the meaning

given by subsection 89(3).

Australian workplace agreement or AWA has the meaning given

by section 96.

Australia's continental shelf means the continental shelf (as

defined in the Seas and Submerged Lands Act 1973) of Australia.

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8 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Australia's exclusive economic zone means the exclusive

economic zone (as defined in the Seas and Submerged Lands Act

1973) of Australia.

AWA: see Australian workplace agreement.

award means:

(a) an award made by the Commission under section 118E; or

(b)

pre-reform

award.

award rationalisation process means a process of award

rationalisation conducted as a result of an award rationalisation

request.

award rationalisation request has the meaning given by

section 118.

award-related order means an order varying, revoking or

suspending an award.

award simplification process means a process of reviewing and

simplifying awards under section 118M.

bargaining agent means:

(a) in relation to an AWA--a person who has been duly

appointed as a bargaining agent in relation to the AWA in

accordance with section 97A; or

(b) in relation to an employee collective agreement--a person

who has been requested to be a bargaining agent in relation

to the agreement in accordance with section 97B.

BCII Act means the Building and Construction Industry

Improvement Act 2005.

breach includes non-observance.

Chief Justice means the Chief Justice of the Court.

civil remedy provision has the meaning given by section 188.

collective agreement means:

(a) an employee collective agreement; or

(b) a union collective agreement; or

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 9

(d) a union greenfields agreement; or

(e)

multiple-business

agreement.

Commission means the Australian Industrial Relations

Commission.

Commissioner means a Commissioner of the Commission.

committee of management, in relation to an organisation,

association or branch of an organisation or association, means the

group or body of persons (however described) that manages the

affairs of the organisation, association or branch.

Commonwealth authority means:

(a) a body corporate established for a public purpose by or under

a law of the Commonwealth; or

(b) a body corporate:

(i) incorporated under a law of the Commonwealth or a

State or Territory; and

(ii) in which the Commonwealth has a controlling interest.

conciliation powers means the powers of the Commission in

relation to conciliation.

constitutional corporation means a corporation to which

paragraph 51(xx) of the Constitution applies.

constitutional trade or commerce means trade or commerce:

(a) between Australia and a place outside Australia; or

(b) among the States; or

(d) between 2 Territories; or

(e) within a Territory.

contingency fee agreement means an agreement between a legal

practitioner and a person under which:

(a) the legal practitioner agrees to provide legal services; and

(b) the payment of all, or a substantial proportion, of the legal

practitioner's costs is contingent on the outcome of the

matter in which the practitioner provides the legal services

for the person.

Court means the Federal Court of Australia.

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10 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Note:

For the purposes of various provisions of this Act, Court means the

Federal Court of Australia or the Federal Magistrates Court. This is

indicated by definitions that apply for the purposes of those

provisions.

demarcation dispute includes:

(a) a dispute arising between 2 or more organisations, or within

an organisation, as to the rights, status or functions of

members of the organisations or organisation in relation to

the employment of those members; or

(b) a dispute arising between employers and employees, or

between members of different organisations, as to the

demarcation of functions of employees or classes of

employees; or

Registration and Accountability of Organisations Schedule,

of the industrial interests of employees by an organisation of

employees.

Deputy President means a Deputy President of the Commission.

employee has a meaning affected by section 4AA.

employee collective agreement has the meaning given by

section 96A.

employer has a meaning affected by section 4AB.

employer greenfields agreement has the meaning given by

section 96D.

employing authority, in relation to a class of employees, means the

person or body, or each of the persons or bodies, prescribed as the

employing authority in relation to the class of employees.

employment has a meaning affected by section 4AC.

Employment Advocate means the Employment Advocate referred

to in Part IVA.

Equal Remuneration Convention means the Equal Remuneration

Convention, 1951.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 11

Family Responsibilities Convention means the Workers with

Family Responsibilities Convention, 1981, a copy of the English

text of which is set out in Schedule 12.

flight crew officer has the meaning given by clause 1 of

Schedule 1.

Full Bench means a Full Bench of the Commission.

Full Court means a Full Court of the Court.

greenfields agreement means a union greenfields agreement or an

employer greenfields agreement.

industrial action has the meaning given by section 106A.

Industrial Registrar means the Industrial Registrar appointed

under section 67.

Industrial Registry means the Australian Industrial Registry.

industry includes:

(a) any business, trade, manufacture, undertaking or calling of

employers; and

(b) any calling, service, employment, handicraft, industrial

occupation or vocation of employees; and

inspector means a workplace inspector.

Judge means:

(a) in the case of a reference to the Court or a Judge--a Judge

(including the Chief Justice) sitting in Chambers; or

(b) otherwise--a Judge of the Court (including the Chief

Justice).

judgment means a judgment, decree or order, whether final or

interlocutory, or a sentence.

legal practitioner means a legal practitioner (however described)

of the High Court or of a Supreme Court of a State or Territory.

magistrate's court means:

(a) a court constituted by a police, stipendiary or special

magistrate; or

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12 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(b) a court constituted by an industrial magistrate who is also a

police, stipendiary or special magistrate.

maritime employee has the meaning given by clause 1 of

Schedule 1.

model dispute resolution process means the process set out in

Division 2 of Part VIIA.

multiple-business agreement has the meaning given by

section 96E.

new APCS has the meaning given by subsection 90ZJ(1).

nominal expiry date of a workplace agreement has the meaning

given by section 101.

Northern Territory authority means:

(a) a body corporate established for a public purpose by or under

a law of the Northern Territory; or

(b) a body corporate:

(i) incorporated under a law of the Northern Territory; and

(ii) in which the Northern Territory has a controlling

interest;

other than a prescribed body.

notional agreement preserving State awards has the meaning

given by clause 1 of Schedule 15.

occupier, in relation to premises, includes a person in charge of the

premises.

office, in relation to an organisation or a branch of an organisation,

has the same meaning as in the Registration and Accountability of

Organisations Schedule.

officer, in relation to an organisation or a branch of an

organisation, means a person who holds an office in the

organisation or branch.

organisation means an organisation registered under the

Registration and Accountability of Organisations Schedule.

Note:

An organisation that was registered under the Workplace Relations

Act 1996 immediately before the commencement of item 1 of

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 13

Schedule 2 to the Workplace Relations Legislation Amendment

(Registration and Accountability of Organisations) (Consequential

Provisions) Act 2002 (the Consequential Provisions Act) is taken to

have been registered under the Registration and Accountability of

Organisations Schedule (see item 15 of Schedule 1 to the

Consequential Provisions Act).

panel means a panel to which an industry has been assigned under

section 37.

peak council means a national or State council or federation that is

effectively representative of a significant number of organisations

representing employers or employees in a range of industries.

penalty unit has the meaning given by section 4AA of the Crimes

Act 1914.

person includes an organisation.

pilot has the meaning given by clause 1 of Schedule 1.

premises includes any land, building, structure, mine, mine

working, ship, aircraft, vessel, vehicle or place.

pre-reform AWA has the meaning given by clause 1 of

Schedule 14.

pre-reform award means an instrument that has effect after the

reform commencement under item 4 of Schedule 4 to the

Workplace Relations Amendment (Work Choices) Act 2005.

prescribed includes prescribed by Rules of the Commission made

under section 48.

preserved APCS has the meaning given by subsection 90ZD(1).

preserved award entitlement, in relation to an employee, has the

meaning given by section 117B.

preserved award term has the meaning given by section 117.

preserved State agreement has the meaning given by clause 1 of

Schedule 15.

President means the President of the Commission.

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14 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Presidential Member means the President, a Vice President, a

Senior Deputy President or a Deputy President.

previous Act means the Conciliation and Arbitration Act 1904, and

includes any other Act so far as the other Act affects the operation

of that Act.

proceeding includes a proceeding relating to the following:

(a) an award rationalisation process;

(b) an award simplification process.

protected action has the meaning given by section 108.

protected action ballot means a ballot under Division 4 of Part VC.

public sector employment means employment of, or service by, a

person in any capacity (whether permanently or temporarily and

whether full-time or part-time):

(a)

under

the

Public Service Act 1999 or the Parliamentary

Service Act 1999; or

(b) by or in the service of a Commonwealth authority; or

employment by that Territory, including a law relating to the

Australian Capital Territory Government Service; or

(d) by or in the service of:

(i) an enactment authority as defined by section 3 of the

A.C.T. Consequential Provisions Act; or

(ii) a body corporate incorporated under a law of the

Australian Capital Territory and in which the Australian

Capital Territory has a controlling interest;

other than a prescribed authority or body; or

(e) under a law of the Northern Territory relating to the Public

Service of the Northern Territory; or

(f) by or in the service of a Northern Territory authority; or

(g) by or in the service of a prescribed person or under a

prescribed law;

but, other than in section 44N, does not include:

(h) employment of, or service by, a person included in a

prescribed class of persons; or

(i) employment or service under a prescribed law.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 15

reform commencement means the commencement of Schedule 1

to the Workplace Relations Amendment (Work Choices) Act 2005.

Registrar means the Industrial Registrar or a Deputy Industrial

Registrar.

Registration and Accountability of Organisations Schedule

means Schedule 1B.

registry means the Principal Registry or another registry

established under section 64.

regular part-time employee means an employee who:

(a) works less than full-time ordinary hours; and

(b) has reasonably predictable hours of work; and

those specified in an award or awards for full-time

employees who do the same kind of work.

secondary office, in relation to a person who holds an office of

member of the Commission and an office of member of a

prescribed State industrial authority, means the office to which the

person was most recently appointed.

Senior Deputy President means a Senior Deputy President of the

Commission.

ship has the meaning given by clause 1 of Schedule 1.

single business has the meaning given by section 95A.

special magistrate means a magistrate appointed as a special

magistrate under a law of a State or Territory.

State award means an award, order, decision or determination of a

State industrial authority.

State employment agreement means an agreement:

(a) between an employer and one or more of the following:

(i) an employee of the employer;

(ii) a trade union; and

(b) that regulates wages and conditions of employment of one or

more of the employees; and

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16 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(d) that prevails over an inconsistent State award.

State industrial authority means:

(a) a board or court of conciliation or arbitration, or tribunal,

body or persons, having authority under a State Act to

exercise any power of conciliation or arbitration in relation to

industrial disputes within the limits of the State; or

(b) a special board constituted under a State Act relating to

factories; or

prescribed for the purposes of this definition.

State or Territory industrial law means:

(a) any of the following State Acts:

(i)

the

Industrial Relations Act 1996 of New South Wales;

(ii)

the

Industrial Relations Act 1999 of Queensland;

(iii)

the

Industrial Relations Act 1979 of Western Australia;

(iv)

the

Fair Work Act 1994 of South Australia;

(v)

the

Industrial Relations Act 1984 of Tasmania; or

(b) an Act of a State or Territory that applies to employment

generally and has one or more of the following as its main

purpose or one or more of its main purposes:

(i) regulating workplace relations (including industrial

matters, industrial disputes and industrial action, within

the ordinary meaning of those expressions);

(ii) providing for the determination of terms and conditions

of employment;

(iii) providing for the making and enforcement of

agreements determining terms and conditions of

employment;

(iv) providing for rights and remedies connected with the

termination of employment;

(v) prohibiting conduct that relates to the fact that a person

either is, or is not, a member of an industrial association

(as defined in section 240); or

or (b), so far as the instrument is of a legislative character; or

(d) a law that:

(i) is a law of a State or Territory; and

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 17

(ii) is prescribed by regulations for the purposes of this

paragraph.

State or Territory training authority means a body authorised by a

law or award of a State or Territory for the purpose of overseeing

arrangements for the training of employees.

stevedoring operations has the meaning given by clause 1 of

Schedule 1.

Termination of Employment Convention means the Termination

of Employment Convention, 1982, a copy of the English text of

which is set out in Schedule 10.

this Act includes the regulations but does not include Schedule 1B

or regulations made under that Schedule.

trade union means:

(a) an organisation of employees; or

(b) an association of employees that is registered or recognised

as a trade union (however described) under the law of a State

or Territory; or

the protection and promotion of the employees' interests in

matters concerning their employment.

training arrangement means a combination of work and training

that is subject to a training agreement or a training contract

between the employee and employer that is registered:

(a) with the relevant State or Territory training authority; or

(b) under a law of a State or Territory relating to the training of

employees.

union collective agreement has the meaning given by section 96B.

union greenfields agreement has the meaning given by

section 96C.

Vice President means a Vice President of the Commission.

vocational placement means a placement that is:

(a) undertaken with an employer for which a person is not

entitled to be paid any remuneration; and

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18 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(b) undertaken as a requirement of an education or training

course; and

the Commonwealth, a State or a Territory.

waterside worker has the meaning given by clause 1 of Schedule 1.

wharf has the meaning given by clause 1 of Schedule 1.

working day means a day that is not a Saturday, a Sunday or a

public holiday.

workplace agreement means:

(a) an AWA; or

(b) a collective agreement.

Note:

Section 95D affects the meaning of workplace agreement.

workplace determination means a determination under Division 8

of Part VC.

workplace inspector means a person appointed as a workplace

inspector under section 84.

(2) To avoid doubt, it is declared that a reference in this Act (except in

Part XA) to an independent contractor is confined to a natural

person.

(3) In this Act, a reference to:

(a) a person who is eligible to become a member of an

organisation; or

(b) a person who is eligible for membership of an organisation;

includes a reference to a person who is eligible merely because of

an agreement made under rules of the organisation made under

subsection 151(1) of the Registration and Accountability of

Organisations Schedule.

(4) In this Act, a reference to a person making a statement that is to the

person's knowledge false or misleading in a material particular

includes a reference to a person making a statement where the

person is reckless as to whether the statement is false or misleading

in a material particular.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 19

(5) In this Act, a reference to engaging in conduct includes a reference

to being, whether directly or indirectly, a party to or concerned in

the conduct.

(6) A reference in this Act to a term of an award includes a reference

to a provision of an award.

Note:

Section 69B of the Australian Federal Police Act 1979 provides that

this Act does not apply to certain matters relating to AFP employees.

3 After section 4

Insert:

4AA Employee

Basic definition

(1) In this Act, unless the contrary intention appears:

employee means an individual so far as he or she is employed, or

usually employed, as described in the definition of employer in

subsection 4AB(1), by an employer, except on a vocational

placement.

Note:

See also Part XV (employees and employers in Victoria).

References to employee with ordinary meaning

(2) However, a reference to employee has its ordinary meaning

(subject to subsections (3) and (4)) if the reference is listed in

clause 2 of Schedule 1. This does not limit the circumstances in

which a contrary intention may appear for the purposes of

subsection (1).

Note:

The regulations may amend clause 2 of Schedule 1. See clause 5 of

Schedule 1.

(3) In this Act, unless the contrary intention appears, a reference to

employee with its ordinary meaning includes a reference to an

individual who is usually an employee with that meaning.

(4) In this Act, unless the contrary intention appears, a reference to

employee with its ordinary meaning does not include a reference to

an individual on a vocational placement.

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20 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

4AB Employer

Basic definition

(1) In this Act, unless the contrary intention appears:

employer means:

(a) a constitutional corporation, so far as it employs, or usually

employs, an individual; or

(b) the Commonwealth, so far as it employs, or usually employs,

an individual; or

employs, an individual; or

(d) a person or entity (which may be an unincorporated club) so

far as the person or entity, in connection with constitutional

trade or commerce, employs, or usually employs, an

individual as:

(i) a flight crew officer; or

(ii) a maritime employee; or

(iii) a waterside worker; or

(e) a body corporate incorporated in a Territory, so far as the

body employs, or usually employs, an individual; or

(f) a person or entity (which may be an unincorporated club) that

carries on an activity (whether of a commercial,

governmental or other nature) in a Territory in Australia, so

far as the person or entity employs, or usually employs, an

individual in connection with the activity carried on in the

Territory.

Note 1:

In this context, Australia includes the Territory of Christmas Island

and the Territory of Cocos (Keeling) Islands. See paragraph 17(a) of

the Acts Interpretation Act 1901.

Note 2:

See also Part XV (employees and employers in Victoria).

References to employer with ordinary meaning

(2) However, a reference to employer has its ordinary meaning

(subject to subsection (3)) if the reference is listed in clause 3 of

Schedule 1. This does not limit the circumstances in which a

contrary intention may appear for the purposes of subsection (1).

Note:

The regulations may amend clause 3 of Schedule 1. See clause 5 of

Schedule 1.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 21

(3) In this Act, unless the contrary intention appears, a reference to

employer with its ordinary meaning includes a reference to a

person or entity that is usually an employer with that meaning.

4AC Employment

(1) In this Act, unless the contrary intention appears:

employment means the employment of an employee by an

employer.

Note:

Subsections 4AA(1) and 4AB(1) define employee and employer.

References to employment with ordinary meaning

(2) However, a reference to employment has its ordinary meaning if

the reference is listed in clause 4 of Schedule 1. This does not limit

the circumstances in which a contrary intention may appear for the

purposes of subsection (1).

Note:

The regulations may amend clause 4 of Schedule 1. See clause 5 of

Schedule 1.

4 Section 4A

Repeal the section, substitute:

4A Schedules 1B, 13, 14, 15 and 16 have effect

Schedules 1B, 13, 14, 15 and 16 have effect.

Note 1:

Schedule 1B is about registration and accountability of organisations.

Note 2:

Schedule 13 is about transitional arrangements for parties bound by

federal awards.

Note 3:

Schedule 14 is about transitional arrangements for existing pre-reform

certified agreements.

Note 4:

Schedule 15 is about transitional treatment of State employment

agreements and State awards.

Note 5:

Schedule 16 is about transitional instruments and transmission of

business.

5 Sections 5 and 5AA

Repeal the sections.

6 Section 7

Schedule 1 Main amendments

22 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Repeal the section, substitute:

7 Modifications for Christmas Island and Cocos (Keeling) Islands

(1) If the regulations prescribe modifications of this Act for its

application in relation to the Territory of Christmas Island, this Act

has effect as modified in relation to the Territory.

(2) If the regulations prescribe modifications of this Act for its

application in relation to the Territory of Cocos (Keeling) Islands,

this Act has effect as modified in relation to the Territory.

(3) In this section:

modifications includes additions, omissions and substitutions.

7AA Extraterritorial application

(1) Each Part or Division listed in the table, and the rest of this Act so

far as it relates to the Part or Division, extends to persons, acts,

omissions, matters and things outside Australia as described in the

relevant section listed in the table.

Extraterritorial application

Item This

Part

or Division:

Which is about this topic: Extends to persons, acts,

omissions, matters and things

outside Australia as

described in this section:

Part VA

The Australian Fair Pay

and Conditions Standard

Section 89D

Part VB

Workplace agreements

Section 95E

Part VI

Awards

Section 115C

4 Division

of Part VIA

Meal breaks

Section 170AD

5 Division

of Part VIA

Equal remuneration for

work of equal value

Section 170BGD

6 Division

of Part VIA

Termination of

employment

Section 170CCB

Part IX

Right of entry

Section 200

Part XA

Freedom of association

Section 249

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 23

Note 1:

In this context, Australia includes the Territory of Christmas Island,

the Territory of Cocos (Keeling) Islands and the coastal sea. See

section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.

Note 2:

Provisions of section 86 giving inspectors power to enter certain

premises and places and do certain things there also extend to some

premises and places outside Australia, subject to Australia's

international obligations relating to foreign-flagged ships and

foreign-registered aircraft.

Modified application in Australia's exclusive economic zone

(2) If the regulations prescribe modifications of this Act for its

operation in relation to all or part of Australia's exclusive

economic zone, then, so far as this Act extends to the zone or part

apart from this subsection, it has effect as modified in relation to

the zone or part.

(3) For the purposes of subsection (2), the regulations may prescribe

different modifications in relation to different parts of Australia's

exclusive economic zone.

Modified application in relation to Australia's continental shelf

(4) If the regulations prescribe modifications of this Act for its

operation in relation to all or part of Australia's continental shelf,

then, so far as this Act extends in relation to the continental shelf or

part apart from this subsection, it has effect as modified in relation

to the continental shelf or part.

(5) For the purposes of subsection (4), the regulations may prescribe

different modifications in relation to different parts of Australia's

continental shelf.

Definitions

(6) In this section:

modifications includes additions, omissions and substitutions.

this Act includes the Registration and Accountability of

Organisations Schedule and regulations made under it.

7 Section 7B

Before "Chapter", insert "(1)".

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24 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

8 At the end of section 7B

Add:

(2) However, so far as Part 2.7 of the Criminal Code is relevant to this

Act, it has effect subject to the following sections of this Act:

(a)

section

7AA;

(b) the sections mentioned in section 7AA;

(c)

section

86.

Note:

Part 2.7 of the Criminal Code is about geographical jurisdiction in

connection with offences. Section 7AA, the sections mentioned there

and section 86 deal with extraterritorial operation of this Act.

9 At the end of Part I

Add:

7C Act excludes some State and Territory laws

(1) This Act is intended to apply to the exclusion of all the following

laws of a State or Territory so far as they would otherwise apply in

relation to an employee or employer:

(a) a State or Territory industrial law;

(b) a law that applies to employment generally and deals with

leave other than long service leave;

the State or Territory to make an order in relation to equal

remuneration for work of equal value (as defined in

section 170BB);

(d) a law providing for the variation or setting aside of rights and

obligations arising under a contract of employment, or

another arrangement for employment, that a court or tribunal

finds is unfair;

(e) a law that entitles a representative of a trade union to enter

premises for a purpose other than a purpose connected with

occupational health and safety.

Note: Subsection

4(1)

defines

applies to employment generally.

State and Territory laws that are not excluded

(2) However, subsection (1) does not apply to a law of a State or

Territory so far as:

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 25

(a) the law deals with the prevention of discrimination, the

promotion of EEO or both, and is neither a State or Territory

industrial law nor contained in such a law; or

(b) the law is prescribed by the regulations as a law to which

subsection (1) does not apply; or

matters) described in subsection (3).

(3) The non-excluded matters are as follows:

(a)

superannuation;

(b)

workers

compensation;

(d)

child

labour;

(e) long service leave;

(f) the observance of a public holiday, except the rate of

payment of an employee for the public holiday;

(g) the method of payment of wages or salaries;

(h) the frequency of payment of wages or salaries;

(i) deductions from wages or salaries;

(j) matters relating to training or apprenticeships, except the rate

of payment of trainees and apprentices;

(k) industrial action (within the ordinary meaning of the

expression) affecting essential services;

(l) attendance for service on a jury;

(m) regulation of any of the following:

(i) associations of employees;

(ii) associations of employers;

(iii) members of associations of employees or of

associations of employers.

Note:

Part IX (Right of entry) sets prerequisites for a trade union

representative to enter certain premises under a right given by a

prescribed law of a State or Territory. The prerequisites apply even

though the law deals with occupational health and safety and

paragraph (2)(c) says this Act is not to apply to the exclusion of a law

dealing with that.

Schedule 1 Main amendments

26 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

This Act excludes prescribed State and Territory laws

(4) This Act is intended to apply to the exclusion of a law of a State or

Territory that is prescribed by the regulations for the purposes of

this subsection.

Definition

(5) In this section:

this Act includes the Registration and Accountability of

Organisations Schedule and regulations made under it.

7D Awards, agreements and Commission orders prevail over State

and Territory law etc.

(1) An award or workplace agreement prevails over a law of a State or

Territory, a State award or a State employment agreement, to the

extent of any inconsistency.

(2) However, a term of an award or workplace agreement dealing with

any of the following matters has effect subject to a law of a State or

Territory dealing with the matter:

(a) occupational health and safety;

(b)

workers

compensation;

(c)

apprenticeship;

(d) a matter prescribed by the regulations for the purposes of this

paragraph.

(3) An order of the Commission under Part VIA prevails over a law of

a State or Territory, a State award or a State employment

agreement, to the extent of any inconsistency.

Note:

Part VIA is about minimum entitlements of employees.

7E Act may exclude State and Territory laws in other cases

(1) Sections 7C and 7D are not a complete statement of the

circumstances in which this Act and instruments made under it are

intended to apply to the exclusion of, or prevail over, laws of the

States and Territories or instruments made under those laws.

Note:

Other provisions of this Act deal with its relationship with laws of the

States and Territories. For example, see clause 87 of Schedule 13,

Main amendments Schedule 1

Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 27

which is about not excluding or limiting Victorian law that can

operate concurrently with certain provisions of that Schedule.

(2) In this section:

this Act includes the Registration and Accountability of

Organisations Schedule and regulations made under it.

10 After Part I

Insert:

Part IA--Australian Fair Pay Commission

Division 1--Preliminary

7F Definitions

In this Part:

AFPC Chair means the AFPC Chair appointed under section 7P.

AFPC Commissioner means an AFPC Commissioner appointed

under section 7Y.

AFPC Secretariat means the AFPC Secretariat established under

section 7ZG.

Director of the Secretariat means the Director of the Secretariat

appointed under section 7ZK.

wage review means a review conducted by the AFPC to determine

whether it should exercise any of its wage-setting powers.

wage-setting decision means a decision made by the AFPC in the

exercise of its wage-setting powers.

wage-setting function has the meaning given by section 7I.

wage-setting powers means the powers of the AFPC under

Division 2 of Part VA.

Schedule 1 Main amendments

28 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

Division 2--Australian Fair Pay Commission

Subdivision A--Establishment and functions

7G Establishment

(1) The Australian Fair Pay Commission is established by this section.

(2) The AFPC is to consist of:

(a) the AFPC Chair; and

(b) 4 AFPC Commissioners.

7H Functions of the AFPC

The functions of the AFPC are as follows:

(a) its wage-setting function as set out in section 7I;

(b) any other functions conferred on the AFPC under this Act or

any other Act;

made under this Act or any other Act;

(d) to undertake activities to promote public understanding of

matters relevant to its wage-setting and other functions.

Subdivision B--AFPC's wage-setting function

7I AFPC's wage-setting function

The

AFPC's

wage-setting function is to:

(a) conduct wage reviews; and

(b) exercise its wage-setting powers as necessary depending on

the outcomes of wage reviews.

Note:

The main wage-setting powers of the AFPC cover the following

matters (within the meaning of Division 2 of Part VA):

(a)

adjusting the standard FMW (short for Federal Minimum Wage);

(b)

determining or adjusting special FMWs for junior employees,

employees with disabilities or employees to whom training

arrangements apply;

(c)

determining or adjusting basic periodic rates of pay and basic

piece rates of pay payable to employees or employees of

particular classifications;

(d)

determining or adjusting casual loadings.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 29

7J AFPC's wage-setting parameters

The objective of the AFPC in performing its wage-setting function

is to promote the economic prosperity of the people of Australia

having regard to the following:

(a) the capacity for the unemployed and low paid to obtain and

remain in employment;

(b) employment and competitiveness across the economy;

(d) providing minimum wages for junior employees, employees

to whom training arrangements apply and employees with

disabilities that ensure those employees are competitive in

the labour market.

7K Wage reviews and wage-setting decisions

(1) The AFPC may determine the following:

(a) the timing and frequency of wage reviews;

(b) the scope of particular wage reviews;

(d) when wage-setting decisions are to come into effect.

(2) For the purposes of performing its wage-setting function, the

AFPC may inform itself in any way it thinks appropriate, including

by:

(a) undertaking or commissioning research; or

(b) consulting with any other person, body or organisation; or

decisions.

(3) Subsections (1) and (2) have effect subject to this Act and any

regulations made under this Act.

(4) The AFPC's wage-setting decisions must:

(a) be in writing; and

(b) be expressed as decisions of the AFPC as a body; and

AFPC as a body.

A wage-setting decision is not a legislative instrument.

Schedule 1 Main amendments

30 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

7L Constitution of the AFPC for wage reviews

(1) For the purposes of exercising its wage-setting powers, the AFPC

must be constituted by:

(a) the AFPC Chair; and

(b) the 4 AFPC Commissioners.

(2) However, if the AFPC Chair considers it necessary in

circumstances where AFPC Commissioners are unavailable, the

AFPC Chair may determine that, for the purposes of exercising its

wage-setting powers in those circumstances, the AFPC is to be

constituted by:

(a) the AFPC Chair; and

(b) no fewer than 2 AFPC Commissioners.

7M Publishing wage-setting decisions etc.

(1) The AFPC must publish its wage-setting decisions.

(2) The AFPC may, as it thinks appropriate, publish other information

about wages or its wage-setting function.

(3) Publishing under subsection (1) or (2) may be done in any way the

AFPC thinks appropriate.

Subdivision C--Operation of the AFPC

7N AFPC to determine its own procedures

(1) The AFPC may determine the procedures it will use in performing

its functions.

(2) Subsection (1) has effect subject to Subdivision B and any

regulations made under subsection (3).

(3) The regulations may prescribe procedures to be used by the AFPC

for all or for specified purposes.

7O Annual report

The AFPC must, as soon as practicable after the end of each

financial year, give to the Minister a report on the operation of the

AFPC for presentation to the Parliament.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 31

Subdivision D--AFPC Chair

7P Appointment

(1) The AFPC Chair is to be appointed by the Governor-General by

written instrument.

(2) The AFPC Chair may be appointed on a full-time or part-time

basis and holds office for the period specified in his or her

instrument of appointment. The period must not exceed 5 years.

(3) To be appointed as AFPC Chair, a person must have a high level of

skills and experience in business or economics.

7Q Remuneration

(1) The AFPC Chair is to be paid the remuneration that is determined

by the Remuneration Tribunal. If no determination of that

remuneration by the Tribunal is in operation, the AFPC Chair is to

be paid the remuneration that is prescribed.

(2) The AFPC Chair is to be paid the allowances that are prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

7R Leave of absence

(1) If the AFPC Chair is appointed on a full-time basis:

(a) the AFPC Chair has the recreation leave entitlements that are

determined by the Remuneration Tribunal; and

(b) the Minister may grant the AFPC Chair leave of absence,

other than recreation leave, on the terms and conditions as to

remuneration or otherwise that the Minister determines.

(2) If the AFPC Chair is appointed on a part-time basis, the Minister

may grant leave of absence to the AFPC Chair on the terms and

conditions that the Minister determines.

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32 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

7S Engaging in other paid employment

If the AFPC Chair is appointed on a full-time basis, the AFPC

Chair must not engage in paid employment outside the duties of his

or her office without the Minister's approval.

7T Disclosure of interests

The AFPC Chair must give written notice to the Minister of all

interests (financial or otherwise) that the AFPC Chair has or

acquires and that could conflict with the proper performance of his

or her duties.

7U Resignation

(1) The AFPC Chair may resign his or her appointment by giving the

Governor-General a written resignation.

(2) The resignation takes effect on the day it is received by the

Governor-General or, if a later day is specified in the resignation,

on that later day.

7V Termination of appointment

(1) The Governor-General may terminate the appointment of the

AFPC Chair if:

(a) the AFPC Chair:

(i)

becomes

bankrupt;

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

(b) the AFPC Chair fails, without reasonable excuse, to comply

with section 7T; or

an employer or employee) that the Minister considers conflict

unacceptably with the proper performance of the AFPC

Chair's duties; or

(d) if the AFPC Chair is appointed on a full-time basis:

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 33

(i) the AFPC Chair engages, except with the Minister's

approval, in paid employment outside the duties of his

or her office; or

(ii) the AFPC Chair is absent, except on leave of absence,

for 14 consecutive days or for 28 days in any 12

months; or

(e) if the AFPC Chair is appointed on a part-time basis--the

AFPC Chair is absent, except on leave of absence, to an

extent that the Minister considers excessive.

(2) Subject to subsections (3) and (4), the Governor-General may

terminate the appointment of the AFPC Chair for misbehaviour or

physical or mental incapacity.

(3) If the AFPC Chair:

(a) is an eligible employee for the purposes of the

Superannuation Act 1976; and

(b) has not reached his or her maximum retiring age within the

meaning of that Act;

his or her appointment cannot be terminated for physical or mental

incapacity unless the CSS Board has given a certificate under

section 54C of that Act.

(4) If the AFPC Chair:

(a) is a member of the superannuation scheme established by

deed under the Superannuation Act 1990; and

(b) is under 60 years of age;

his or her appointment cannot be terminated for physical or mental

incapacity unless the PSS Board has given a certificate under

section 13 of that Act.

7W Other terms and conditions

The AFPC Chair holds office on the terms and conditions (if any)

in relation to matters not covered by this Act that are determined

by the Minister.

7X Acting AFPC Chair

(1) The Minister may appoint a person who meets the requirements set

out in subsection 7P(3) to act as the AFPC Chair:

Schedule 1 Main amendments

34 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(a) during a vacancy in the office of the AFPC Chair (whether or

not an appointment has previously been made to the office);

(b) during any period, or during all periods, when the AFPC

Chair is absent from duty or from Australia, or is, for any

reason, unable to perform the duties of the office.

(2) Anything done by or in relation to a person purporting to act under

an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the

appointment; or

(d) the occasion to act had not arisen or had ceased.

Subdivision E--AFPC Commissioners

7Y Appointment

(1) An AFPC Commissioner is to be appointed by the

Governor-General by written instrument.

(2) An AFPC Commissioner holds office on a part-time basis for the

period specified in his or her instrument of appointment. The

period must not exceed 4 years.

(3) To be appointed as an AFPC Commissioner, a person must have

experience in one or more of the following areas:

(a)

business;

(b)

economics;

(c)

community

organisations;

(d)

workplace

relations.

7Z Remuneration

(1) An AFPC Commissioner is to be paid the remuneration that is

determined by the Remuneration Tribunal. If no determination of

that remuneration by the Tribunal is in operation, an AFPC

Commissioner is to be paid the remuneration that is prescribed.

(2) An AFPC Commissioner is to be paid the allowances that are

prescribed.

Main amendments Schedule 1

Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 35

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

7ZA Leave of absence

The AFPC Chair may grant leave of absence to an AFPC

Commissioner on the terms and conditions that the AFPC Chair

determines.

7ZB Disclosure of interests

An AFPC Commissioner must give written notice to the Minister

of all interests (financial or otherwise) that the AFPC

Commissioner has or acquires and that could conflict with the

proper performance of his or her duties.

7ZC Resignation

(1) An AFPC Commissioner may resign his or her appointment by

giving the Governor-General a written resignation.

(2) The resignation takes effect on the day it is received by the

Governor-General or, if a later day is specified in the resignation,

on that later day.

7ZD Termination of appointment

(1) The Governor-General may terminate the appointment of an AFPC

Commissioner if:

(a) the AFPC Commissioner:

(i)

becomes

bankrupt;

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

(b) the AFPC Commissioner fails, without reasonable excuse, to

comply with section 7ZB; or

by being an employer or employee) that the Minister

Schedule 1 Main amendments

36 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

considers conflict unacceptably with the proper performance

of the AFPC Commissioner's duties; or

(d) the AFPC Commissioner is absent, except on leave of

absence, to an extent that the Minister considers excessive.

(2) Subject to subsections (3) and (4), the Governor-General may

terminate the appointment of an AFPC Commissioner for

misbehaviour or physical or mental incapacity.

(3) If an AFPC Commissioner:

(a) is an eligible employee for the purposes of the

Superannuation Act 1976; and

(b) has not reached his or her maximum retiring age within the

meaning of that Act;

his or her appointment cannot be terminated for physical or mental

incapacity unless the CSS Board has given a certificate under

section 54C of that Act.

(4) If an AFPC Commissioner:

(a) is a member of the superannuation scheme established by

deed under the Superannuation Act 1990; and

(b) is under 60 years of age;

his or her appointment cannot be terminated for physical or mental

incapacity unless the PSS Board has given a certificate under

section 13 of that Act.

7ZE Other terms and conditions

An AFPC Commissioner holds office on the terms and conditions

(if any) in relation to matters not covered by this Act that are

determined by the Minister.

7ZF Acting AFPC Commissioners

(1) The Minister may appoint a person who meets the requirement set

out in subsection 7Y(3) to act as an AFPC Commissioner:

(a) during a vacancy in the office of an AFPC Commissioner

(whether or not an appointment has previously been made to

the office); or

(b) during any period, or during all periods, when an AFPC

Commissioner is acting as AFPC chair, is absent from duty

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 37

or from Australia, or is, for any reason, unable to perform the

duties of the office.

(2) Anything done by or in relation to a person purporting to act under

an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the

appointment; or

(d) the occasion to act had not arisen or had ceased.

Division 3--AFPC Secretariat

Subdivision A--Establishment and function

7ZG Establishment

(1) The AFPC Secretariat is established by this section.

(2) The AFPC Secretariat is to consist of:

(a) the Director of the Secretariat; and

(b) the staff of the Secretariat.

7ZH Function

The function of the AFPC Secretariat is to assist the AFPC in the

performance of the AFPC's functions.

Subdivision B--Operation of the AFPC Secretariat

7ZI AFPC Chair may give directions

(1) The AFPC Chair may give directions to the Director of the

Secretariat about the performance of the function of the AFPC

Secretariat.

(2) The Director of the Secretariat must ensure that a direction given

under subsection (1) is complied with.

(3) To avoid doubt, the AFPC Chair must not give directions under

subsection (1) in relation to the performance of functions, or

Schedule 1 Main amendments

38 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

exercise of powers, under the Financial Management and

Accountability Act 1997 or the Public Service Act 1999.

7ZJ Annual report

The Director of the Secretariat must, as soon as practicable after

the end of each financial year, give to the Minister a report on the

operation of the AFPC Secretariat for presentation to the

Parliament.

Subdivision C--The Director of the Secretariat

7ZK Appointment

(1) The Director of the Secretariat is to be appointed by the Minister

by written instrument.

(2) The Director of the Secretariat holds office on a full-time basis for

the period specified in his or her instrument of appointment. The

period must not exceed 5 years.

7ZL Remuneration

(1) The Director of the Secretariat is to be paid the remuneration that is

determined by the Remuneration Tribunal. If no determination of

that remuneration by the Tribunal is in operation, the Director of

the Secretariat is to be paid the remuneration that is prescribed.

(2) The Director of the Secretariat is to be paid the allowances that are

prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

7ZM Leave of absence

(1) The Director of the Secretariat has the recreation leave entitlements

that are determined by the Remuneration Tribunal.

(2) The Minister may grant the Director of the Secretariat leave of

absence, other than recreation leave, on the terms and conditions as

to remuneration or otherwise that the Minister determines.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 39

7ZN Engaging in other paid employment

The Director of the Secretariat must not engage in paid

employment outside the duties of his or her office without the

Minister's approval.

7ZO Disclosure of interests

The Director of the Secretariat must give written notice to the

Minister of all interests (financial or otherwise) that the Director of

the Secretariat has or acquires and that could conflict with the

proper performance of his or her duties.

7ZP Resignation

(1) The Director of the Secretariat may resign his or her appointment

by giving the Minister a written resignation.

(2) The resignation takes effect on the day it is received by the

Minister or, if a later day is specified in the resignation, on that

later day.

7ZQ Termination of appointment

(1) The Minister may terminate the appointment of the Director of the

Secretariat if:

(a) the Director of the Secretariat:

(i)

becomes

bankrupt;

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

(b) the Director of the Secretariat fails, without reasonable

excuse, to comply with section 7ZO; or

the Minister considers conflict unacceptably with the proper

performance of the Director of the Secretariat's duties; or

(d) the Director of the Secretariat engages, except with the

Minister's approval, in paid employment outside the duties of

his or her office; or

Schedule 1 Main amendments

40 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(e) the Director of the Secretariat is absent, except on leave of

absence, for 14 consecutive days or for 28 days in any 12

months.

(2) The Minister must terminate the appointment of the Director of the

Secretariat if the Minister is of the opinion that the performance of

the Director of the Secretariat has been unsatisfactory for a

significant period of time.

(3) Subject to subsections (4) and (5), the Minister may terminate the

appointment of the Director of the Secretariat for misbehaviour or

physical or mental incapacity.

(4) If the Director of the Secretariat:

(a) is an eligible employee for the purposes of the

Superannuation Act 1976; and

(b) has not reached his or her maximum retiring age within the

meaning of that Act;

his or her appointment cannot be terminated for physical or mental

incapacity unless the CSS Board has given a certificate under

section 54C of that Act.

(5) If the Director of the Secretariat:

(a) is a member of the superannuation scheme established by

deed under the Superannuation Act 1990; and

(b) is under 60 years of age;

his or her appointment cannot be terminated for physical or mental

incapacity unless the PSS Board has given a certificate under

section 13 of that Act.

7ZR Other terms and conditions

The Director of the Secretariat holds office on the terms and

conditions (if any) in relation to matters not covered by this Act

that are determined by the Minister.

7ZS Acting Director of the Secretariat

(1) The Minister may appoint a person to act as the Director of the

Secretariat:

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 41

(a) during a vacancy in the office of the Director of the

Secretariat (whether or not an appointment has previously

been made to the office); or

(b) during any period, or during all periods, when the Director of

the Secretariat is absent from duty or from Australia, or is,

for any reason, unable to perform the duties of the office.

(2) Anything done by or in relation to a person purporting to act under

an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the

appointment; or

(d) the occasion to act had not arisen or had ceased.

Subdivision D--Staff and consultants

7ZT Staff

(1) The staff of the AFPC Secretariat are to be persons engaged under

the Public Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

(a) the Director of the Secretariat and the staff of the AFPC

Secretariat together constitute a Statutory Agency; and

(b) the Director of the Secretariat is the Head of that Statutory

Agency.

7ZU Consultants

The Director of the Secretariat may, on behalf of the

Commonwealth, engage persons having suitable qualifications and

experience as consultants to the AFPC or the AFPC Secretariat.

The terms and conditions of the engagement of a person are those

determined by the Director of the Secretariat in writing.

11 Section 33

Repeal the section, substitute:

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42 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

33 Exercise of Commission powers

(1) The Commission may perform a function or exercise a power on

its own initiative.

(2) Despite subsection (1), the Commission must not perform a

function or exercise a power under a provision of this Act on its

own initiative if:

(a) the function is to be performed, or the power exercised, on

application by a specified person or class of persons; and

(b) the function is not also expressed to be able to be performed,

or the power exercised, on the Commission's own initiative.

12 Subsection 36(3)

Repeal the subsection.

13 Section 39

Repeal the section.

14 At the end of Division 2 of Part II

Add:

41A Co-operation with the States by President

The President may invite the heads of State industrial authorities to

meet with the President to exchange information and discuss

matters of mutual interest in relation to workplace relations.

41B Co-operation with the States by Registrar

The Industrial Registrar may invite the principal registrars of State

industrial authorities to meet with the Industrial Registrar to

exchange information and discuss matters of mutual interest in

relation to workplace relations.

15 Subsection 42(3)

Repeal the subsection, substitute:

(3) A party (including an employing authority) may be represented by

counsel, solicitor or agent if:

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 43

(a) all parties have given express consent to that representation;

and

(b) the Commission grants leave for the party to be so

represented.

(3A) A party (including an employing authority) may be represented by

counsel, solicitor or agent if:

(a) the party applies to the Commission to be so represented; and

(b) the Commission grants leave for the party to be so

represented.

(3B) In deciding whether or not to grant leave under subsection (3), the

Commission must have regard to the following matters:

(a) whether being represented by counsel, solicitor or agent

would assist the party concerned to bring the best case

possible;

(b) the capacity of the particular counsel, solicitor or agent to

represent the party concerned;

assist the Commission in performing the Commission's

functions under this Act.

(3C) In deciding whether or not to grant leave under subsection (3A),

the Commission must have regard to the following matters:

(a) the matters referred to in paragraphs (3B)(a), (b) and (c);

(b) the complexity of the factual and legal issues relating to the

proceeding;

that the party concerned be represented by counsel, solicitor

or agent.

(3D) An appeal to a Full Bench under section 45 may not be made in

relation to a decision under subsection (3) or (3A) to grant leave or

not to grant leave.

16 At the end of paragraphs 42(7)(a) and (b)

Add "or".

17 At the end of subsection 42(7)

Add:

; or (e) a bargaining agent.

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44 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

18 Subsection 43(1)

Omit "(1)".

19 Subsection 43(2)

Repeal the subsection.

20 After Division 3 of Part II

Insert:

Division 3A--General matters relating to the powers and

procedures of the Commission

Subdivision A--General matters Commission to take into

account

44A Commission to take into account the public interest

(1) In the performance of its functions, the Commission must take into

account the public interest, and for that purpose must have regard

to:

(a) the objects of this Act; and

(b) the state of the national economy and the likely effects on the

national economy of any order that the Commission is

considering, or is proposing to make, with special reference

to likely effects on the level of employment and on inflation.

(2) To the extent that the Commission is performing its functions in

relation to matters arising under the Registration and

Accountability of Organisations Schedule, the Commission must

take into account the public interest, and for that purpose must

have regard to:

(a) Parliament's intention in enacting that Schedule; and

(b) the state of the national economy and the likely effects on the

national economy of any order that the Commission is

considering, or is proposing to make, with special reference

to likely effects on the level of employment and on inflation.

(3) This section does not apply to the performance of a function under

Part VC or Part VI.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 45

44B Commission to take into account discrimination issues

In the performance of its functions, the Commission must take into

account the following:

(a) the need to apply the principle of equal pay for work of equal

value without discrimination based on sex;

(b) the need to prevent and eliminate discrimination because of,

or for reasons including, race, colour, sex, sexual preference,

age, physical or mental disability, marital status, family

responsibilities, pregnancy, religion, political opinion,

national extraction or social origin.

44C Commission to take account of Racial Discrimination Act, Sex

Discrimination Act, Disability Discrimination Act and

Age Discrimination Act

In the performance of its functions, the Commission must take

account of the principles embodied in the Racial Discrimination

Act 1975, the Sex Discrimination Act 1984, the Disability

Discrimination Act 1992 and the Age Discrimination Act 2004

relating to discrimination in relation to employment.

44D Commission to take account of Family Responsibilities

Convention

(1) In performing its functions, the Commission must take account of

the principles embodied in the Family Responsibilities Convention,

in particular those relating to:

(a) preventing discrimination against workers who have family

responsibilities; and

(b) helping workers to reconcile their employment and family

responsibilities.

(2) This section does not apply to the performance of a function under

Part VC.

44E Safety, health and welfare of employees

(1) In performing its functions, the Commission must take into account

the provisions of any law of a State or Territory relating to the

safety, health and welfare of employees in relation to their

employment.

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46 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(2) This section does not apply to the performance of a function under

Division 2 of Part VIA.

44F Commission to act quickly

The Commission must perform its functions as quickly as

practicable.

44G Commission to avoid technicalities and facilitate fair conduct of

proceedings

The Commission must perform its functions in a way that avoids

unnecessary technicalities and facilitates the fair and practical

conduct of any proceedings under this Act or the Registration and

Accountability of Organisations Schedule.

Subdivision B--Particular powers and procedures of the

Commission

44H Procedure of Commission

(1) In a proceeding under this Act or the Registration and

Accountability of Organisations Schedule:

(a) the procedure of the Commission is, subject to this Act, the

Registration and Accountability of Organisations Schedule

and the Rules of the Commission, within the discretion of the

Commission; and

(b) the Commission is not bound to act in a formal manner and is

not bound by any rules of evidence, but may inform itself on

any matter in such manner as it considers just; and

conscience and the substantial merits of the case, without

regard to technicalities and legal forms.

(2) The Commission may determine the periods that are reasonably

necessary for the fair and adequate presentation of the respective

cases of the parties to the proceeding and require that the cases be

presented within the respective periods.

(3) The Commission may require evidence or argument to be

presented in writing, and may decide the matters on which it will

hear oral evidence or argument.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 47

44I Particular powers of Commission

(1) The Commission may do any of the following in relation to a

proceeding under this Act or the Registration and Accountability of

Organisations Schedule:

(a) inform itself in any manner that it thinks appropriate;

(b) take evidence on oath or affirmation;

purposes of, procedural matters relating to the proceeding;

(d) vary or revoke an order, direction or decision of the

Commission;

(e) dismiss a matter or part of a matter on the ground:

(i) that the matter, or the part of the matter, is trivial; or

(ii) that further proceedings in relation to the matter are not

necessary or desirable in the public interest;

(f) determine the proceeding in the absence of a person who has

been summoned or served with a notice to appear;

(g) sit at any place;

(h) conduct the proceeding, or any part of the proceeding, in

private;

(i) adjourn the proceeding to any time and place;

(j) refer any matter to an expert and accept the expert's report as

evidence;

(k) direct a member of the Commission to consider a particular

matter that is before the Full Bench and prepare a report for

the Full Bench on that matter;

(l) allow the amendment, on any terms that it thinks appropriate,

of any application or other document relating to the

proceeding;

(m) correct, amend or waive any error, defect or irregularity

whether in substance or form;

(n) summon before it any persons whose presence the

Commission considers would assist in relation to the

proceeding;

(o) compel the production before it of documents and other

things for the purpose of reference to such entries or matters

as relate to the proceeding;

(p)

make

interim

decisions;

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48 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(q)

make a final decision in respect of the matter to which the

proceeding relates.

(2) The Commission may, in writing, authorise a person (including a

member of the Commission) to take evidence on its behalf, with

any limitations as the Commission directs, in relation to the

proceeding, and the person has all the powers of the Commission

to secure:

(a) the attendance of witnesses; and

(b) the production of documents and things; and

(3) The following provisions do not apply to the performance of a

function under Part VC:

(a)

paragraph

(1)(e);

(b)

paragraph

(1)(j);

(c)

paragraph

(1)(k).

(4) The following provisions do not apply to the performance of a

function under Division 2, 3 or 4 of Part VIA:

(a)

paragraph

(1)(a);

(b)

paragraph

(1)(e);

(c)

paragraph

(1)(k);

(d)

paragraph

(1)(p);

(e)

paragraph

(1)(q);

(f)

subsection

(2).

(5) Paragraph (1)(j) does not apply to the performance of a function

under Division 3 of Part VIA.

(6) If a provision of this Act specifies a time or a period in respect of

any matter or thing, the Commission must not extend the time or

the period specified unless this Act expressly permits the

Commission to do so.

(7) If a provision of the Registration and Accountability of

Organisations Schedule specifies a time or a period in respect of

any matter or thing, the Commission must not extend the time or

the period specified unless the Registration and Accountability of

Organisations Schedule expressly permits the Commission to do

so.

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 49

(8) For the purposes of paragraph (1)(d), order does not include an

award or an award-related order.

44J Reference of proceedings to Full Bench

(1) If a proceeding is before a member of the Commission, a party to

the proceeding or the Minister may apply to the member to have

the proceeding dealt with by a Full Bench because the subject

matter of the proceeding is of such importance that, in the public

interest, the proceeding should be dealt with by a Full Bench.

(2) If an application is made under subsection (1) to a member of the

Commission other than the President:

(a) the member must refer the application to the President to be

dealt with; and

(b) the President must confer with the member about whether the

application should be granted.

(3) If the President is of the opinion that the subject matter of the

proceeding is of such importance that, in the public interest, the

proceeding should be dealt with by a Full Bench, the President

must grant the application.

(4) If the President grants an application under subsection (1), the Full

Bench must (subject to subsection (5)) hear and determine the

proceeding to which the application relates.

(5) If the President grants an application under subsection (1), the Full

Bench may do either or both of the following:

(a) have regard to any evidence given, and any arguments

adduced, in the proceeding before the Full Bench began to

deal with it;

(b) refer a part of the proceeding to a member of the

Commission to hear and determine.

(6) The President may, before a Full Bench has been established for

the purpose of dealing with a proceeding under this section,

authorise a member of the Commission to take evidence for the

purposes of the proceeding, and the Full Bench must have regard to

the evidence.

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50 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

(7) The President or a Full Bench may, in relation to the exercise of

powers under this section, direct a member of the Commission to

provide a report in relation to a specified matter.

(8) The member must, after making such investigation (if any) as is

necessary, provide a report to the President or the Full Bench, as

required.

(9) In this section:

proceeding includes a part of a proceeding.

44K President may deal with certain proceedings

(1) The President may, whether or not another member of the

Commission has begun to deal with a particular proceeding, decide

to deal with the proceeding.

(2) If the President decides to deal with the proceeding, the President

must:

(a) hear and determine the proceeding; or

(b) refer the proceeding to a Full Bench.

(3) If the President refers an application to a Full Bench, the Full

Bench must (subject to subsection (4)) hear and determine the

proceeding.

(4) If the President refers the proceeding to a Full Bench, the Full

Bench may refer a part of the proceeding to a member of the

Commission to hear and determine.

(5) The President or the Full Bench may, in dealing with the

proceeding, have regard to any evidence given, and any arguments

adduced, in the proceeding before the President or the Full Bench,

as the case may be, began to deal with it.

(6) The President or a Full Bench may, in relation to the exercise of

powers under this section, direct a member of the Commission to

provide a report in relation to a specified matter.

(7) The member must, after making such investigation (if any) as is

necessary, provide a report to the President or a Full Bench, as the

case may be.

(8) In this section:

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 51

proceeding includes a part of a proceeding.

44L Review on application by Minister

(1) The Minister may apply to the President for a review by a Full

Bench of an award or order, or a decision relating to the making of

an award or order, made by a member of the Commission (whether

under this Act, the Registration and Accountability of

Organisations Schedule or otherwise) if it appears to the Minister

that the award, order or decision is contrary to the public interest.

(2) If an application is made to the President under subsection (1), the

President must establish a Full Bench to hear and determine the

application.

(3) The Full Bench must, if in its opinion the matter is of such

importance that, in the public interest, the award, order or decision

should be reviewed, make such review of the award, order or

decision as appears to it to be desirable having regard to the

matters referred to in the application.

(4) Subject to subsection (5) of this section, subsections 45(4) to (8)

apply in relation to a review under this section in the same manner

as they apply in relation to an appeal under section 45.

(5) Subsections 45A(4) to (8) apply in relation to a review under this

section in relation to a matter arising under the Registration and

Accountability of Organisations Schedule in the same manner as

they apply in relation to an appeal under section 45A.

(6) In a review under this section:

(a) the Commission must take such steps as it thinks appropriate

to ensure that each person and organisation bound by the

award or otherwise with an interest in the review is made

aware of the review; and

(b) the Minister may intervene in the proceeding.

(7) Each provision of this Act relating to the performance of the

Commission's functions in relation to awards extends to a review

under this section.

(8) Nothing in this section affects any right of appeal or any power of

a Full Bench under section 45, and an appeal under that section and

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52 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

a review under this section may, if the Full Bench thinks

appropriate, be dealt with together.

(9) Nothing in this section affects any right of appeal or any power of

a Full Bench under section 45A, and an appeal under that section

and a review under this section may, if the Full Bench thinks

appropriate, be dealt with together.

44M Compulsory conferences

(1) For the purpose of the performance of a function, or the exercise of

a power, of the Commission under this Act or the Registration and

Accountability of Organisations Schedule, a member of the

Commission may, on the initiative of the member or on application

made by a party to, or intervener in, the proceeding, direct a person

to attend, at a specified time and place, a conference to be presided

over by a member of the Commission or another person nominated

by the President.

Note: Contravening

direction may be an offence under section 300.

(2) A direction may be given to anyone whose presence at the

conference the member considers would help in the performance of

a function under this Act or the Registration and Accountability of

Organisations Schedule.

(3) The conference must be held in private except to the extent that the

person presiding over the conference directs that it be held in

public.

(4) This section does not apply to the performance of a function under

Part VC.

44N Power to override certain laws affecting public sector

employment

(1) In so far as the performance of its functions under this Act or the

Registration and Accountability of Organisations Schedule

involves public sector employment, the Commission may, where it

considers it proper to do so, make an award or order that is not, or

in its opinion may not be, consistent with a relevant law of the

Commonwealth or of an internal Territory.

(2) In this section:

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Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005 53

enactment means an ordinance made under the Northern Territory

(Administration) Act 1910 and continued in force by the Northern

Territory (Self-Government) Act 1978.

relevant law means a law of the Commonwealth or an internal

Territory relating to matters pertaining to the relationship between

employers and employees in public sector employment, other than:

(a)

the

Safety, Rehabilitation and Compensation Act 1988, the

Long Service Leave (Commonwealth Employees) Act 1976,

the Superannuation Act 1976 or the Superannuation Act

1990; or

(b) a prescribed Act or enactment, or prescribed provisions of an

Act or enactment.

(3) This section does not apply to the performance of a function under

Part VIA.

44O State authorities may be restrained from dealing with matter

that is before the Commission

(1) If it appears to a Full Bench that a State industrial authority is

dealing or is about to deal with a matter that is the subject of a

proceeding before the Commission under this Act or the

Registration and Accountability of Organisations Schedule, the

Full Bench may make an order restraining the State industrial

authority from dealing with the matter.

(2) The State industrial authority must, in accordance with the order,

cease dealing or not deal, as the case may be, with the matter.

(3) An order, award, decision or determination of a State industrial

authority made in contravention of the order of a Full Bench under

this section is, to the extent of the contravention, void.

44P Joint sessions of Commission

If:

(a) the President considers that a question is common to 2 or

more proceedings before the Commission; and

(b) the Commission is not constituted by the same person or

persons for the purposes of each proceeding;

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54 Workplace Relations Amendment (Work Choices) Bill 2005 No. , 2005

the President may direct that the Commission constituted by all the

persons who constitute the Commission for the purposes of the

proceedings may take evidence or hear argument, or take evidence

and hear argument, as to the question for the purposes of both or all

of the proceedings.

44Q Revocation and suspension of awards and orders

(1) An organisation, a person interested or the Minister may apply to

the President, and a member of the Commission or a Registrar may

refer a matter to the President, for action by a Full Bench under this

section.

(2) If an application is made to the President under subsection (1), the

President must establish a Full Bench to hear and determine the

application.

(3) If a matter is referred to the President under subsection (1), the

President may establish a Full Bench to hear and determine the

matter.

(4) If it appears to the Full Bench:

(a) that an organisation has contravened this Act, the

Registration and Accountability of Organisations Schedule or

an award or order of the Commission; or

(b) that a substantial number of the members of an organisation

refuse to accept employment either at all or in accordance

with existing awards or orders; or

Commonwealth of Australia Bills

WORKPLACE RELATIONS AMENDMENT (WORK CHOICES) BILL 2005