1998-99

The Parliament of the
Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999

No. , 1999

(Employment, Workplace Relations and Small Business)

A Bill for an Act to amend the law relating to workplace relations, and for related purposes

Part 1—Amendments concerning renaming and restructuring of the Australian Industrial Relations Commission 7

Part 3—Amendments to alter references to the Industrial Registrar or a Deputy Industrial Registrar 20

Part 4—Amendment of other Acts concerning renaming and restructuring of the Australian Industrial Relations Commission 31

Builders Labourers’ Federation (Cancellation of Registration—Consequential Provisions) Act 1986 31

Part 5—Amendment of other Acts consequential on the renaming of the Australian Industrial Relations Registry, the Industrial Registrar and the Deputy Industrial Registrar 37

Part 1—Amendment of the Workplace Relations Act 1996 concerning relevant and designated awards 174

A Bill for an Act to amend the law relating to workplace relations, and for related purposes

1 Short title

This Act may be cited as the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Act 1999.

2 Commencement

(1) Sections 1, 2 and 3 and Schedules 2 and 3 commence on the day on which this Act receives the Royal Assent.

(2) Subject to this section, the items of the other Schedules commence on a day or days to be fixed by Proclamation.

(3) If an item of a Schedule does not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

(4) If the Public Service Act 1999 commences before or on the commencement of item 1 of Schedule 5 to this Act, then item 7 of that Schedule commences immediately after the commencement of item 6 of that Schedule. If the Public Service Act 1999 commences after the commencement of item 1 of Schedule 5 to this Act, then item 7 of that Schedule commences immediately after the commencement of that Act.

(5) Items 68 and 69 of Schedule 8 commence immediately after the commencement of item 34 of Schedule 11.

(7) Items 7 to 10 of Schedule 10 commence immediately after the commencement of item 17 of Schedule 8.

(8) Item 7 of Schedule 15 commences immediately after the commencement of the items in Schedule 8 that amend section 170MB.

(9) If item 964 of Schedule 1 to the Public Employment (Consequential and Transitional) Amendment Act 1999 commences before or on the commencement of item 1 of Schedule 9 to this Act, then items 21 and 22 of that Schedule never commence. Otherwise, those items commence at the same time as item 1 of Schedule 9.

3 Schedule(s)

Subject to section 2, 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—Object of the Workplace Relations Act

(ca) enabling employers and employees to choose the most appropriate jurisdiction for the regulation of their employment relationship; and

(ii) to ensure that awards act as a safety net by providing basic minimum wages and conditions of employment in respect of appropriate allowable award matters to help address the needs of the low paid; and

(iii) to ensure that awards do not provide for wages and conditions of employment above that safety net; and

(ea) recognising that industrial action that is not protected under Division 8 of Part VIB is inconsistent with the purposes of this Act and providing mechanisms enabling the Commission and courts to stop or prevent such action in an effective and timely manner where the action is happening or in prospect; and

(eb) ensuring that decisions about the taking of protected industrial action are supported by the employees directly concerned through the holding of fair and democratic secret ballots; and

(h) enabling the Commission to prevent and settle disputes about allowable award matters, demarcation and, in exceptional circumstances, other matters by exercising compulsory powers of conciliation and, as a last resort, by arbitration; and

(ha) enabling the Commission to use voluntary conciliation to assist the resolution of other industrial disputes and to assist the negotiation of agreements at the workplace level; and

(hb) recognising that the facilitation of agreements at the workplace or enterprise level, and the resolution of certain industrial disputes and individual grievances may be dealt with effectively by voluntary mediation conducted separately from the Commission; and

(b) awards act as a safety net providing basic minimum wages and conditions of employment in respect of appropriate allowable award matters to help address the needs of the low paid; and

(ba) awards do not provide for wages and conditions of employment above the safety net; and

(2) In performing its functions under this Part, the Commission must ensure that awards act as a safety net providing basic minimum wages and conditions of employment in respect of appropriate allowable award matters, having regard to:

(a) the need to provide fair minimum standards for employees in the context of living standards generally prevailing in the Australian community; and

(c) economic factors, including levels of productivity and inflation, and the desirability of attaining a high level of employment.

88C Commission not to have regard to relativities within awards

Consistent with ensuring that awards act as a safety net providing basic minimum conditions of employment in respect of appropriate allowable award matters to help protect the low paid, in performing its functions under this Part the Commission must not have regard to the maintenance of relativities between classification rates of pay within individual awards.

Schedule 2—Renaming of the Australian Industrial Relations Commission etc. and restructuring of the Commission

Part 1—Amendments concerning renaming and restructuring of the Australian Industrial Relations Commission

Omit “Australian Industrial Relations Commission”, substitute “Australian Workplace Relations Commission”.

Omit “, a Vice President, a Senior Deputy President or a Deputy President”, substitute “or a Vice President”.

Part ll—Australian Workplace Relations Commission

Omit “Australian Industrial Relations Commission”, substitute “Australian Workplace Relations Commission”.

Note: Section 25B of the Acts Interpretation Act 1901 deals with the effect the change of name of a body has on the body and references to the body in documents.

(3A) A Presidential Member, or a former Presidential member, may elect to be styled “Justice” if, before the person’s appointment as a Presidential Member, the person:

(c) had been enrolled as a legal practitioner of the High Court, or the Supreme Court of a State or Territory, for at least 5 years.

(2) The Governor-General may only appoint a person as a Vice President if the person:

(a) has been a Judge of a court created by the Parliament or a court of a State or Territory, or has been enrolled as a legal practitioner of the High Court, or the Supreme Court of a State or Territory, for at least 5 years; or

(b) has had experience at a high level in industry or commerce or in the service of:

(i) a peak council or another association representing the interests of employers or employees; or

(c) has, at least 5 years previously, obtained a degree of a university or an educational qualification of a similar standard after studies in:

(ii) some other field of study considered by the Governor-General to have substantial relevance to the duties of a Vice President;

and is, in the opinion of the Governor-General, because of skills and experience in the field of workplace relations, a suitable person to be appointed as a Vice President.

Omit “A member”, substitute “Subject to subsections (1A) and (2), a member”.

(1A) Subject to subsection (1C), a member of the Commission (other than the President) may be appointed for a period of 7 years but is eligible for reappointment.

(1B) A member of the Commission appointed under subsection (1A) holds office in respect of the appointment until:

(1C) A person who has attained the age of 65 years must not be appointed or reappointed as a member. A person must not be appointed or reappointed as a member for a period that extends beyond the date on which the person will attain the age of 65 years.

Omit “Deputy President” (wherever occurring), substitute “Vice President”.

Note: The heading to section 18 is altered by omitting “Deputy” and substituting “Vice”.

18A Acting Commissioners

(1) The Governor-General may appoint a person qualified to be appointed as a Commissioner to act as Commissioner for a specified period (including a period that exceeds 12 months) if the Governor-General is satisfied that the appointment is necessary to enable the Commission to perform its functions effectively.

(2) Anything done by or in relation to a person purporting to act under subsection (1) is not invalid because:

(3) For the purposes of subsection (1) only, a person is not disqualified from appointment as a Commissioner merely because the person has attained the age of 65.

19A President to develop training and professional development program for members

(1) In respect of each financial year, the President must develop an annual training and professional development program for members of the Commission during that year.

(2) The program must relate to matters that the President considers relevant to members in the performance of their duties under this Act.

20 Duty of Commission members

(a) keep acquainted with developments in workplace relations and conditions; and

(b) each financial year, participate in the training and professional development program developed by the President under section 19A to the extent necessary to ensure that the member acquires or maintains the full range of skills necessary for the effective performance of the member’s duties under this Act.

Omit “70% of the annual rate of salary payable to a Deputy President”, substitute “66.5% of the annual rate of salary payable to a Vice President”.

Omit “subsection 21(2G), the Commissioner or former Commissioner is to be paid an amount equal to 70%”, substitute “subsection 21(2E), the Commissioner or former Commissioner is to be paid an amount equal to 66.5%”.

35 Commission divided in opinion

(a) the persons constituting the Commission for the purposes of any proceeding are divided in opinion as to the decision to be given; and

(d) where the President is not a member—the opinion of the most senior member.

Omit “Australian Industrial Relations Commission”, substitute “Australian Workplace Relations Commission”.

(1A) In making new Rules after the commencement of this subsection, the President must:

(a) have regard to the needs of employers, employees and organisations dealing with the Commission and the Registry; and

(5) Within 18 months after the commencement of this subsection, the President must complete a review of the Rules. The review must recommend changes to the Rules that can be made to improve the practices and procedures of the Commission and the Registry having regard to the needs of employers, employees and organisations dealing with the Commission.

(1) The President must, as soon as practicable after the end of each financial year, prepare and provide to the Minister a report of the operations of the Commission and the Registry during that year. In particular, the report should, in respect of that year:

(a) include such information as is prescribed about the performance and efficiency of the Commission and the Registry; and

(b) describe the training and professional development program developed by the President under section 19A; and

Omit “Australian Industrial Relations Commission”, substitute “Australian Workplace Relations Commission”.

Workplace Relations Registry means the Australian Workplace Relations Registry.

Part IV—Australian Workplace Relations Registry

Division 1—Establishment and functions of Australian Workplace Relations Registry

Note: The heading to section 62 is altered by omitting “Industrial Registry” and substituting “Workplace Relations Registry”.

Omit “Industrial Registry” (twice occurring), substitute “Workplace Relations Registry”.

(1AA) In performing its functions under this Act, the Registry must, to the maximum extent possible, employ systems and procedures that facilitate access to the services of the Registry and the Commission by employers, employees and organisations.

Omit “Industrial Registry” (twice occurring), substitute “Workplace Relations Registry”.

Omit “Industrial Registry” (wherever occurring), substitute “Workplace Relations Registry”.

Note: The heading to section 63 is altered by omitting “Industrial Registry” and substituting “Workplace Relations Registry”.

Omit “Industrial Registry” (wherever occurring), substitute “Workplace Relations Registry”.

98A Commission to avoid technicalities

(a) avoids unnecessary technicalities and facilitates the fair and practical conduct of any proceedings under this Act; and

(b) to the maximum extent possible, employs systems and procedures that facilitate access to the services of the Commission by employers, employees and organisations.

62 Subsection 170WHB(4) (paragraph (b) of the definition of Registry official)

Note: The heading to section 280 is altered by omitting “Industrial Registry” and substituting “Workplace Relations Registry”.

Part 3—Amendments to alter references to the Industrial Registrar or a Deputy Industrial Registrar

Registrar means the Workplace Relations Registrar or a Deputy Workplace Relations Registrar.

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

Omit “Industrial Registrars”, substitute “Workplace Relations Registrars”.

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

Omit “Industrial Registrars”, substitute “Workplace Relations Registrars”.

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

Omit “Industrial Registrar” (wherever occurring), substitute “Workplace Relations Registrar”.

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

Omit “Industrial Registrar” (wherever occurring), substitute “Workplace Relations Registrar”.

Omit “Industrial Registrar”, substitute “and in managing the administrative affairs of the Australian Workplace Relations Registry, the Workplace Relations Registrar”.

(4AA) The President and the Workplace Relations Registrar must cooperate to ensure that the systems and procedures employed by the Commission and the Registry are such as to facilitate access to the services of the Commission and the Registry by employers, employees and organisations as required by subsection 63(1AA) and section 98A.

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

Omit “Industrial Registrar” (wherever occurring), substitute “Workplace Relations Registrar”.

Note: The heading to section 67 is altered by omitting “Industrial Registrar” and substituting “Workplace Relations Registrar”.

Omit “Industrial Registrar” (wherever occurring), substitute “Workplace Relations Registrar”.

Note: The headings to sections 68 and 69 are altered by omitting “Industrial Registrar” and substituting “Workplace Relations Registrar”.

Omit “the Industrial Registrar shall not, except with the consent of the Minister”, substitute “the Workplace Relations Registrar must not, except with the consent of the President”.

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

Note: The heading to section 70 is altered by omitting “Industrial Registrar” and substituting “Workplace Relations Registrar”.

(1) The Workplace Relations Registrar must give written notice to the President of all direct or indirect pecuniary interests that the Workplace Relations Registrar has or acquires in any business or in any body corporate carrying on any business.

Omit “Industrial Registrar” (wherever occurring), substitute “Workplace Relations Registrar”.

Note: The heading to section 71 is altered by omitting “Industrial Registrar” and substituting “Workplace Relations Registrar”.

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

(2) The President may grant the Workplace Relations Registrar leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the President, with the approval of the Minister, determines.

Note: The heading to section 72 is altered by omitting “Industrial Registrar” and substituting “Workplace Relations Registrar”.

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

Note: The headings to sections 73 and 74 are altered by omitting “Industrial Registrar” and substituting “Workplace Relations Registrar”.

Omit “Industrial Registrars”, substitute “Workplace Relations Registrars”.

Omit “Industrial Registrar” (twice occurring), substitute “Workplace Relations Registrar”.

Omit “Industrial Registrar” (wherever occurring), substitute “Workplace Relations Registrar”.

Note: The heading to section 75 is altered by omitting “Industrial Registrars” and substituting “Workplace Relations Registrars”.

(1) The President may appoint a person to act in the office of Workplace Relations Registrar:

(a) during any vacancy in the office (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the Workplace Relations Registrar is absent from duty or from Australia or is, for any other reason, unable to perform the functions of the office.

Note: The heading to section 76 is altered by omitting “Industrial Registrar” and substituting “Workplace Relations Registrar”.

Omit “Industrial Registrar” (wherever occurring), substitute “Workplace Relations Registrar”.

Note: The headings to section 77 is altered by omitting “Industrial Registrars” and substituting “Workplace Relations Registrars”.

77A Appointment of persons employed in State Registries as Deputy Workplace Relations Registrars or Acting Deputy Workplace Relations Registrars

(1) The Minister may, after consulting the President, enter into an agreement with the appropriate authority of a State to enable a person employed in the Registry of the State industrial body referred to in that agreement to be appointed, subject to the terms of the industrial law of that State and to the terms of that agreement:

(a) by the Governor-General, under section 75, as a Deputy Workplace Relations Registrar; or

(b) by the Workplace Relations Registrar, under section 77, to act in the office of a Deputy Workplace Relations Registrar.

(2) To be appointed in accordance with an agreement referred to in subsection (1), a person need not be employed as Registrar or Deputy Registrar (however described) in the Registry of the State industrial body concerned.

(3) The terms and conditions of the person’s appointment as a Deputy Workplace Relations Registrar or as an acting Deputy Workplace Relations Registrar in accordance with an agreement made under this section are to be as specified in the agreement. Section 83 does not apply in relation to a person who is so appointed.

(4) The appointment of a person in accordance with an agreement made under this section:

terminates if the appointee ceases to be employed in the registry of the State industrial body concerned.

(5) The Minister may, at any time, terminate the appointment of a person appointed in accordance with an agreement made under this section without the agreement of the appropriate authority of the State concerned. This subsection is in addition to, and not in substitution for, the right to terminate the appointment that is vested in the appointing authority by virtue of the operation of subsection 33(4) of the Acts Interpretation Act 1901.

Omit “Industrial Registrars”, substitute “Workplace Relations Registrars”.

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

126 Subsection 170WHB(4) (paragraph (a) of the definition of Registry official)

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

127 Subsection 170WHB(4) (paragraph (b) of the definition of Registry official)

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

Omit “Industrial Registrar” (twice occurring), substitute “Workplace Relations Registrar”.

Note: The heading to section 170WHC is altered by omitting “Industrial Registrar” and substituting “Workplace Relations Registrar”.

Omit “Industrial Registrar” (twice occurring), substitute “Workplace Relations Registrar”.

Note: The heading to section 172 is altered by omitting “Industrial Registrar” and substituting “Workplace Relations Registrar”.

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

Omit “Industrial Registrar” (wherever occurring), substitute “Workplace Relations Registrar”.

Omit “Industrial Registrar” (twice occurring), substitute “Workplace Relations Registrar”.

Omit “Industrial Registrar’s”, substitute “Workplace Relations Registrar’s”.

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

Omit “Industrial Registrar’s” (twice occurring), substitute “Workplace Relations Registrar’s”.

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

Note: The heading to section 203 is altered by omitting “Industrial Registrar” and substituting “Workplace Relations Registrar”.

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

Omit “Industrial Registrar” (twice occurring), substitute “Workplace Relations Registrar”.

141 Subsection 208(11) (paragraph (b) of the definition of appropriate authority)

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

Omit “Industrial Registrar” (twice occurring), substitute “Workplace Relations Registrar”.

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

Note: The heading to section 220 is altered by omitting “Industrial Registrar” and substituting “Workplace Relations Registrar”.

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

Note: The heading to section 224 is altered by omitting “Industrial Registrar” and substituting “Workplace Relations Registrar”.

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

Note: The heading to section 316 is altered by omitting “Industrial Registrar” and substituting “Workplace Relations Registrar”.

Omit “Industrial Registrar, the Deputy Industrial Registrars”, substitute “Workplace Relations Registrar, the Deputy Workplace Relations Registrars”.

Omit “industrial Registrar” (wherever occurring), substitute “Workplace Relations Registrar”.

Part 4—Amendment of other Acts concerning renaming and restructuring of the Australian Industrial Relations Commission

Omit “Australian Industrial Relations Commission”, substitute “Australian Workplace Relations Commission”.

Note: The heading to section 8A is altered by omitting “Australian Industrial Relations Commission” and substituting “Australian Workplace Relations Commission”.

Omit “Australian Industrial Relations Commission”, substitute “Australian Workplace Relations Commission”.

Builders Labourers’ Federation (Cancellation of Registration—Consequential Provisions) Act 1986

Omit “Australian Industrial Relations Commission”, substitute “Australian Workplace Relations Commission”.

Omit “Australian Industrial Relations Commission” (twice occurring), substitute “Australian Workplace Relations Commission”.

Omit “Australian Industrial Relations Commission”, substitute “Australian Workplace Relations Commission”.

Omit “the Vice President, a Senior Deputy President or a Deputy President of the Commission appointed under section 9 of the Industrial Relations Act 1988”, substitute “a Vice President appointed under section 9 of the Workplace Relations Act 1996”.

Omit “Australian Industrial Relations Commission”, substitute “Australian Workplace Relations Commission”.

172 Subsection 6(1) (paragraph (b) of the definition of office to which this section applies)

Omit “Australian Industrial Relations Commission”, substitute “Australian Workplace Relations Commission”.

Omit “Senior Deputy President or a Deputy President of the Australian Industrial Relations Commission”, substitute “Vice President of the Australian Workplace Relations Commission”.

Omit “Australian Industrial Relations Commission”, substitute “Australian Workplace Relations Commission”.

Omit “Senior Deputy President or Deputy President of the Australian Industrial Relations Commission”, substitute “Vice President of the Australian Workplace Relations Commission”.

Omit “Australian Industrial Relations Commission”, substitute “Australian Workplace Relations Commission”.

Note: The heading to section 50A is altered by omitting “Australian Industrial Relations Commission” and substituting “Australian Workplace Relations Commission”.

Omit “Australian Industrial Relations Commission”, substitute “Australian Workplace Relations Commission”.

Note: The heading to section 5B is altered by omitting “Australian Industrial Relations Commission” and substituting “Australian Workplace Relations Commission”.

Omit “Australian Industrial Relations Commission”, substitute “Australian Workplace Relations Commission”.

194 Subsection 87AA(2) (paragraph (a) of the definition of industrial authority)

Omit “Australian Industrial Relations Commission”, substitute “Australian Workplace Relations Commission”.

Part 5—Amendment of other Acts consequential on the renaming of the Australian Industrial Relations Registry, the Industrial Registrar and the Deputy Industrial Registrar

Omit “Industrial Registrar” (twice occurring), substitute “Workplace Relations Registrar”.

Omit “Industrial Registrar and Deputy Industrial Registrars”, substitute “Workplace Relations Registrar and Deputy Workplace Relations Registrars”.

Omit “Industrial Registrar”, substitute “Workplace Relations Registrar”.

Omit “Industrial Registrar” (twice occurring), substitute “Workplace Relations Registrar”.

Deputy President has the same meaning as it had in the Principal Act immediately before the commencing day.

(a) held an appointment to the Commission on the day before the commencing day; and

Senior Deputy President has the same meaning as it had in the Principal Act immediately before the commencing day.

are not affected by the change to the Commission’s name, or any other amendment, made by this Schedule.

(1) On the commencing day, original members who, immediately before that day, held appointments as Senior Deputy Presidents or as Deputy Presidents become Vice Presidents by force of this item.

(2) The tenure of each of those original members as Vice President is taken for all purposes to have been continuous with the member’s appointment as a Senior Deputy President or a Deputy President (as the case may be) immediately before the commencing day.

(1) Original members of the Commission who were Senior Deputy Presidents or Deputy Presidents become Vice Presidents on the commencing day (see item 202). Original members of the Commission who were Vice Presidents continue in that office.

(2) When applying section 11 of the Principal Act on or after the commencing day to determine the seniority of original members who were Vice Presidents, Senior Deputy Presidents or Deputy Presidents, account must be taken of the seniority of the original members in relation to each other. This is to be done in accordance with subitem (3).

(3) The seniority of original members who were, before the commencing day, Vice Presidents, Senior Deputy Presidents or Deputy Presidents is to be determined in accordance with the following order of precedence:

(a) the Vice Presidents, according to the days on which their commissions took effect, or, if their commissions took effect on the same day, according to the precedence assigned to them by their commissions;

(b) the Senior Deputy Presidents, according to the days on which their commissions took effect, or, where the commissions of 2 or more of them took effect on the same day, according to the precedence assigned to them by their commissions;

` (c) the Deputy Presidents, according to the days on which their commissions took effect, or, where the commissions of 2 or more of them took effect on the same day according to the precedence assigned to them by commissions.

Note: Once the order of seniority under subsection (3) has been determined, section 11 of the Principal Act as amended by this Act operates to determine the relative seniority of original members in relation to members appointed to the Commission on or after the commencing day.

An original member who, immediately before the commencing day, held an appointment as a Vice President, is, on and after that day, to be paid:

(a) salary at an annual rate equal to 103% of the annual rate of salary payable to a Judge of the Court; and

If the Minister had, before the commencing day, consented under subsection 70(1) of the Principal Act to the Workplace Relations Registrar engaging in paid employment outside the duties of his or her office and that consent was still in force immediately before that day, that consent continues to have effect, on and after that day, as if it were the consent of the President given under that subsection of that Act as amended by this Schedule.

(1) If the Workplace Relations Registrar has, before the commencing day, given written notice under subsection 71(1) of the Principal Act to the Minister of any direct or indirect pecuniary interests that the Registrar has in any business or body corporate, that notice has effect, on and after that day, as if it had been given to the President under that subsection of that Act as amended by this Schedule.

(2) The Minister must, at the earliest practicable time after the commencement of this item, give the President any written notice of direct or indirect pecuniary interests that has been given to the Minister by the Registrar before the commencing day in compliance with subsection 71(1) of the Principal Act.

Any leave of absence granted by the Minister under subsection 72(2) of the Principal Act before the commencing day that has not been taken before that day has effect, on and after that day, as if it were leave granted by the President under that subsection of that Act as amended by this Schedule.

(a) before the commencing day, the Minister had appointed a person under subsection 76(1) of the Principal Act to act in the office of Workplace Relations Registrar; and

the appointment has effect, on and after that day, as if it were an appointment made by the President under that subsection of that Act as amended by this Schedule.

The Chairperson of the Pharmaceutical Benefits Remuneration Tribunal does not cease to hold that office only because the Chairperson’s appointment as a Senior Deputy President of the Australian Industrial Relations Commission (as it was then called) was changed under item 202 to that of a Vice President of the Australian Workplace Relations Commission.

Schedule 3—Employment advocate

Omit “(the entrusted person) must not disclose protected information that the entrusted”, substitute “must not disclose protected information that the”.

(b) the disclosure is required or permitted by this Act or by another Act or by regulations made under an Act;

protected information, in relation to a person, means information that the person acquired:

(b) from an AWA official who disclosed the information as permitted or required by this Act, by another Act or authorised by regulations made under an Act; or

(5) A reference in this section to an AWA includes a reference to a proposed AWA.

Schedule 4—Conciliation

compulsory conciliation means conciliation by the Commission under Part VI, Subdivision B, D or E of Division 3 of Part VIA, or section 170MX.

Omit “conciliation”, substitute “voluntary conciliation and compulsory conciliation”.

voluntary conciliation means conciliation by the Commission under Part VA.

(a) voluntary conciliation by the Commission constituted by a single member has commenced; and

the President must appoint another member of the Commission to conciliate the matter.

Part VA—Voluntary conciliation

88AA Object of this Part

The object of this Part is to provide for voluntary conciliation by the Commission.

88AB Parties may request conciliation

(b) a matter arising under an award, certified agreement or AWA by which the parties are bound (including in relation to a dispute settling procedure in the award or agreement);

then those parties may apply to the Commission requesting the Commission to conciliate the matter.

(d) be accompanied by $500, or such other fee as is prescribed by the regulations, for the conciliation.

(3) The Commission may request the parties to provide further information about the matter.

88AC Decision whether to conciliate

(1) Upon receiving an application under subsection 88AB(2) for conciliation on a matter, the Commission must determine whether the matter is covered by paragraph 88AB(1)(a), (b) or (c).

(2) The Commission must conciliate the matter if the Commission determines that the matter is covered by one or more of those paragraphs.

(a) the Commission determines that the matter is not covered by one or more of those paragraphs; or

(b) the Commission is satisfied that voluntary conciliation would be in breach of the dispute settling procedure in an award or agreement by which the parties requesting the conciliation are bound.

(4) If the Commission refuses to conciliate the matter, the fee paid by the parties for the conciliation must be refunded to them.

88AD Powers and procedures of the Commission

(1) If a matter is before the Commission for voluntary conciliation, the Commission must take such action as is appropriate to assist the parties to resolve the matter by conciliation.

(a) arranging conferences of the parties or their representatives at which the Commission is present; and

(b) arranging for the parties or their representatives to confer among themselves at conferences at which the Commission is not present.

(d) in accordance with any dispute settling procedure in an award or agreement by which the parties who requested the conciliation are bound.

(4) Despite Part VI, the Commission does not have power to compel a person to do anything when conciliating a matter under this Part, and, to avoid doubt, does not have power to make an award or order in relation to the matter.

(5) If, when conciliating a matter under this Part, the parties request the Commission to make recommendations about particular aspects of the matter about which they are unable to reach agreement, then the Commission may make recommendations about those aspects of the matter.

(6) Subsection (5) does not prevent the Commission from making recommendations in other circumstances under this Part.

(7) Section 90 (Commission to take into account the public interest) does not apply to the performance by the Commission of its functions under this Part.

88AE Conciliation to be in private and information not to be used

(2) Any information or document that is given to the Commission in relation to the conciliation must not:

88AF When conciliation is completed

(b) a party who requested the conciliation has informed the Commission that the party no longer wishes the conciliation to continue; or

(c) the Commission is satisfied that it is unlikely that, within a reasonable period, further conciliation under this Part will resolve the matter; or

(d) the Commission determines that, because it has spent a reasonable period conciliating the matter, further conciliation under this Part should not be proceeded with; or

(e) the Commission determines, after having regard to a dispute settling procedure in an award or agreement by which the parties who requested the conciliation are bound, that further conciliation under this Part should not be proceeded with.

After “dispute” (first occurring), insert “(other than a demarcation dispute)”.

Omit all the words after “matter”, substitute “by voluntary conciliation or compulsory conciliation, or further conciliation, by the Commission”.

Omit “and agreement”, substitute “, agreement, mediation and voluntary conciliation”.

Omit “or the relevant Presidential Member otherwise becomes aware of the existence of an alleged industrial dispute”.

(1A) If the Commission determines that the alleged industrial dispute is an industrial dispute, the Commission must:

(1B) If the Commission determines that the industrial dispute consists only partly of one or more of the things referred to in paragraphs (4)(a), (b) and (c), then, while that determination is in force:

(a) the part of the industrial dispute that consists of those things is taken to be a separate industrial dispute that the Commission has determined is a Part VI dispute; and

(b) the part of the industrial dispute that does not consist of those things is taken to be a separate industrial dispute that the Commission has determined is not a Part VI dispute.

(1C) The Commission must cease to deal with an industrial dispute under this Part if the dispute is not a Part VI dispute. However, the Commission must inform the parties that the dispute may be dealt with by mediation or voluntary conciliation (see Part VA).

(4) For the purposes of this section, a Part VI dispute is an industrial dispute that consists wholly of one or more of the following:

(b) a matter that is allowed to be included in an industrial dispute because of subsection 89A(7);

Note: The heading to section 102 is altered by inserting “compulsory” after “for”.

Note: The heading to section 103 is altered by inserting “compulsory” after “of”.

Omit “if a party to the arbitration proceeding objects”, substitute “unless the parties to the arbitration proceeding consent”.

(aa) in the case of a proceeding in relation to an industrial dispute that is alleged to be a Part VI dispute (within the meaning of subsection 101(4))—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; or

(3A) An application under paragraph (2)(aa) may be accompanied by an application under paragraph (2)(b), to be dealt with if the application under paragraph (2)(aa) is granted and there is a finding that the industrial dispute is a Part VI dispute (within the meaning of subsection 101(4)).

(aa) if the application was accompanied by an application under paragraph (2)(aa) that was granted—the Full Bench must, if it considers that the industrial dispute is a Part VI dispute (within the meaning of subsection 101(4)), record its findings under section 101; and

After “granted”, insert “and the Full Bench finds that there is a Part VI dispute”.

(a) the Full Bench must, if it considers that the industrial dispute is a Part VI dispute (within the meaning of subsection 101(4)), record its findings under section 101; and

(b) if the application was accompanied by an application under paragraph (2)(b) that was granted—the Full Bench must, subject to subsection (9), hear and determine the industrial dispute or the part of the industrial dispute.

Omit “an industrial dispute”, substitute “a Part VI dispute (within the meaning of subsection 101(4))”.

(1F) The Commission does not have powers under this section in relation to an industrial dispute if it is conciliating the dispute under Part VA (about voluntary conciliation).

Add “(but does not include voluntary conciliation by the Commission under Part VA)”.

and (d) the parties pay $500, or such other fee as is prescribed by the regulations, for the hearing and recommendations;

or (ca) a matter that is the subject of voluntary conciliation by the Commission; or

(cb) if a matter is one that could be the subject of voluntary conciliation by the Commission—the matter is the subject of mediation;

Omit “an industrial dispute”, substitute “a Part VI dispute (within the meaning of subsection 101(4))”.

Note: The heading to section 132 is altered by inserting “compulsory” after “about”.

After “this Act”, insert “(other than Part VA (about voluntary conciliation))”.

Note: The heading to section 170CF is replaced by the heading “Compulsory conciliation”.

Add “, through negotiation, mediation and voluntary conciliation rather than compulsory conciliation or arbitration”.

(1) The Commission has the powers in relation to matters mentioned in subsections 170MX(2) and (3) that it would have under Part VI if that Part applied to compulsory conciliation and arbitration in relation to the matters instead of in relation to industrial disputes.

Omit “arbitration powers”, substitute “powers in relation to compulsory conciliation and arbitration”.

Note: The heading to section 170N is replaced by the heading “No compulsory conciliation or arbitration by the Commission during the bargaining period”.

Note: When negotiating an agreement under this Part (including during a bargaining period) the parties may seek voluntary conciliation by the Commission under Part VA or mediation.

357A The way the Commonwealth pays fees

(1) The Commonwealth is not liable to pay a fee that is payable under section 88AB or 111AA. However, it is the Parliament’s intention that the Commonwealth should be notionally liable to pay such a fee.

(2) The Minister for Finance and Administration may give such written directions as are necessary or convenient for carrying out or giving effect to subsection (1) and, in particular, may give directions in relation to the transfer of money within an account, or between accounts, operated by the Commonwealth.

(3) Directions under subsection (2) have effect, and must be complied with, despite any other Commonwealth law.

(a) an Agency (within the meaning of the Financial Management and Accountability Act 1997); and

(b) a Commonwealth authority (within the meaning of the Commonwealth Authorities and Companies Act 1997);

357B Waiver of fees

The Commission may, on application in writing by a person, waive all or part of a fee payable, or notionally payable, under section 88AB or 111AA if satisfied that payment of the fee by the person would cause the person hardship.

(1) The amendments made by Part 1 apply in relation to an industrial dispute that is notified under section 99 of the Principal Act on or after the commencement of this Part.

(2) The amendments made by Part 1 also apply in relation to an industrial dispute that was notified under section 99 of the Principal Act before the commencement of this Part, but only if the Commission had not made a finding or determination under section 101, 107 or 108 of the Principal Act in relation to the dispute before the commencement. It does not matter whether the Commission had begun to consider the dispute before the commencement.

(3) This item applies despite any dispute settling procedure in an award that provides for conciliation by the Commission.

60 Treatment of industrial disputes where a finding is made before the commencement

(1) If the Commission had made a finding or determination under section 101, 107 or 108 of the Principal Act in relation to an industrial dispute before the commencement of this Part, then, despite the amendments made by Part 1, the Principal Act applies during the transitional period in relation to the dispute as if the amendments had not been made.

(2) After the end of the transitional period, the Principal Act, as amended by Part 1, applies in relation to the industrial dispute.

(a) before the end of the transitional period, conciliation had started on the dispute but had not been completed; and

(b) the Commission determines that the dispute consists wholly of one or more of the following:

(ii) a matter that is allowed to be included in an industrial dispute because of subsection 89A(7) of the Principal Act;

then the dispute is to be treated as being a Part VI dispute (within the meaning of subsection 101(4) of the Principal Act) after the end of the transitional period.

(4) For the purposes of subitem (3), if the Commission determines that the industrial dispute consists only partly of one or more of the things referred to in subparagraphs (3)(b)(i), (ii) and (iii), then:

(a) the part of the industrial dispute that consists of those things is taken to be a separate industrial dispute that the Commission has determined under subitem (3) consists wholly of those things; and

(b) the part of the industrial dispute that does not consist of those things is taken to be a separate industrial dispute that the Commission has determined under subitem (3) does not consist of those things.

(5) If the Commission determines under subitem (3) that the industrial dispute does not consist wholly of one or more of the things referred to in subparagraphs (3)(b)(i), (ii) and (iii), then the dispute is to be treated as not being a Part VI dispute (within the meaning of subsection 101(4) of the Principal Act) after the end of the transitional period. The Commission must inform the parties that the dispute may be dealt with by mediation or voluntary conciliation.

(6) This item applies despite any dispute settling procedure in an award that provides for conciliation by the Commission.

61 Application of Part 1 if dispute settling procedures in awards or agreements provide for conciliation

(b) has a dispute settling procedure that provides for conciliation by the Commission;

then, after the end of the transitional period, the reference in the dispute settling procedure to conciliation by the Commission is taken to be a reference to voluntary conciliation by the Commission.

then the Commission may, until the nominal expiry date, conciliate, or continue to conciliate, a matter under that procedure as if the amendments in Part 1 had not been made.

(a) the reference in the dispute settling procedure in the certified agreement or AWA to conciliation by the Commission is taken to be a reference to voluntary conciliation by the Commission; and

62 Application of Part 1 to negotiations in relation to certified agreements

(1) The amendments made by Part 1 apply in relation to a matter arising under Part VIB of the Principal Act on or after the commencement of this Part, even if negotiations in relation to an agreement had begun under Part VIB of the Principal Act before the commencement.

(2) The amendments made by Part 1 also apply in relation to a matter arising under Part VIB of the Principal Act before the commencement of this Part, but only if conciliation under section 170NA of the Principal Act on the matter had not begun before the commencement.

(3) If conciliation under section 170NA of the Principal Act had begun on the matter before the commencement of this Part, then, despite the amendments made by Part 1, the Principal Act applies during the transitional period in relation to the matter as if the amendments had not been made.

(4) After the end of the transitional period, the Principal Act, as amended by Part 1, applies in relation to the matter.

(5) However, this item does not apply in relation to a matter arising under Part VIB of the Principal Act if subitem 61(2) applies in relation to the matter.

Schedule 5—Mediation

accredited workplace relations mediator means a workplace relations mediator that is accredited under Division 5 of Part IVB.

approved mediation agency means a person or body approved under Division 3 of Part IVB.

competency standards for accredited workplace relations mediators means the standards determined by the Mediation Adviser under Division 4 of Part IVB.

Register of Accredited Workplace Relations Mediators means the Register established under Division 6 of Part IVB.

Part IVB—Mediation

Division 1—Objects of the Part

83C Objects of the Part

(a) to encourage the use of voluntary mediation to resolve differences and issues that arise in relation to certain workplace relations matters covered by this Act; and

(b) to facilitate high quality mediation in relation to those workplace relations matters; and

(c) to assist people in choosing an appropriate mediator by providing for a Register of Accredited Workplace Relations Mediators whilst recognising that people are free to choose their own mediator and make their own arrangements relating to costs.

Division 2—The Mediation Adviser

83D The Mediation Adviser

83E Functions of the Mediation Adviser

(a) to establish and maintain the Register of Accredited Workplace Relations Mediators;

(c) to determine competency standards for accredited workplace relations mediators, in consultation with approved mediation agencies;

(d) to promote the use of voluntary mediation by accredited workplace relations mediators to resolve workplace differences and issues;

(e) to provide advice to employers, employees and organisations about the use of mediation to resolve workplace differences and issues covered by this Act;

(f) to carry out such other functions as are conferred on the Mediation Adviser by this Act and any other law of the Commonwealth.

83F Powers of the Mediation Adviser

The Mediation Adviser has power to do all things necessary or convenient to be done for, or in connection with, the performance of the Mediation Adviser’s functions.

83G Minister’s directions to the Mediation Adviser

(1) The Minister may, by notice published in the Gazette, give directions specifying the manner in which the Mediation Adviser must exercise or perform the powers or functions of the Mediation Adviser.

(3) A direction by the Minister is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

83H Annual report of the Mediation Adviser

(1) The Mediation Adviser must, as soon as practicable after the end of each financial year, prepare and give to the Minister a report on the operations of the Mediation Adviser during that financial year.

(2) The report must include details of directions given by the Minister during the financial year under section 83G.

(3) The Minister must cause a copy of the report to be laid before each House of the Parliament.

83J Appointment of the Mediation Adviser

(2) The Mediation Adviser holds office on a full-time basis for the period specified in the appointment. However, if the person appointed is not appointed or employed under the Public Service Act 1922, the period must not exceed 5 years.

Division 3—Approved mediation agencies

83K Approved mediation agencies

(1) The Mediation Adviser may, in writing, approve a person or body as an approved mediation agency if the Mediation Adviser is satisfied that the person or body:

(b) uses explicit, transparent and verifiable procedures to assess mediators for accreditation and for removal of accreditation; and

(2) The Mediation Adviser may, in writing, determine that a person or body ceases to be an approved mediation agency if the Mediation Adviser is satisfied that the person or body no longer meets the criteria referred to in subsection (1).

Division 4—Competency standards for accredited workplace relations mediators

83L Competency standards for accredited workplace relations mediators

(1) The Mediation Adviser may, in writing, determine competency standards for accredited workplace relations mediators.

(2) A competency standard for accredited workplace relations mediators takes effect on the day on which the determination is made or on such later day as is specified in the determination. The standard continues to have effect until it is revoked.

(3) The Mediation Adviser may, in writing, vary or revoke a competency standard for accredited workplace relations mediators.

(4) The Mediation Adviser must not determine or revoke a competency standard for accredited workplace relations mediators without first consulting, as far as practicable, with all approved mediation agencies.

(5) The Mediation Adviser must not vary a competency standard for accredited workplace relations mediators without first consulting, as far as practicable, with all approved mediation agencies, unless the Mediation Adviser considers that the variation is of a minor technical nature.

(6) If the Mediation Adviser determines, varies or revokes a competency standard for accredited workplace relations mediators, the Adviser must, as soon as practicable:

(a) publish a notice, using an appropriate medium (for example, the Internet) that:

(ii) summarises the purpose and effect of the determination, variation or revocation of the standard; and

(b) take reasonable steps to ensure that approved mediation agencies and the public:

(ii) are able to access the current text of the standard (including on the Internet).

(7) A failure to comply with subsection (6) does not affect the validity of a determination, variation or revocation of a competency standard for accredited workplace relations mediators.

Division 5—Accredited workplace relations mediators

83M Accredited workplace relations mediators

(1) An approved mediation agency may determine that a person or body is an accredited workplace relations mediator if the approved mediation agency is satisfied that the person or body:

(a) satisfies all of the competency standards for accredited workplace relations mediators; and

(b) satisfies any other standards the approved mediation agency applies to the accreditation of mediators; and

(2) If the approved mediation agency makes a determination under subsection (1) in relation to a person or body, then the approved mediation agency must inform the Mediation Adviser in writing that the person or body is an accredited workplace relations mediator.

83N Duration of accreditation

(1) An approved mediation agency that has determined that a person or body is an accredited workplace relations mediator under subsection 83M(1) may later determine that the person or body ceases to be an accredited workplace relations mediator if the approved mediation agency is satisfied that the person or body does not satisfy:

(b) any other standards the approved mediation agency applies to the accreditation of mediators.

(2) If an approved mediation agency makes a determination under subsection (1) relating to a person or body, the approved mediation agency must inform, in writing, the Mediation Adviser and the person or body of the determination.

(a) an approved mediation agency determines that a body or person is an accredited workplace relations mediator under subsection 83M(1); and

(b) at a later time, the approved mediation agency ceases to be an approved mediation agency; and

(c) no other approved mediation agency determines that the body or person is an accredited workplace relations mediator within 12 months after the first approved mediation agency ceased to be an approved mediation agency;

then, at the end of the 12 months, the person or body ceases to be an accredited workplace relations mediator.

Division 6—The Register of Accredited Workplace Relations Mediators

83P The Register of Accredited Workplace Relations Mediators

The Mediation Adviser must establish and maintain a register of all accredited workplace relations mediators, which is to be known as the Register of Accredited Workplace Relations Mediators (the Register).

83Q Information on the Register

(b) the Australian Company Number of each accredited workplace relations mediator that is a company;

83R Maintenance of the Register

(1) The Mediation Adviser must maintain the Register in such a form as to enable information on it to be accessed by the public.

(2) The Register may be kept electronically and the information on the Register may be made available on the Internet.

Omit “appointed or employed under the Public Service Act 1922”, substitute “engaged under the Public Service Act 1999”.

Schedule 6—Awards

After “means”, insert “an employment agreement (within the meaning of section 489) and”.

Omit all the words after “bereavement”, substitute “leave and compassionate leave”.

(ga) ceremonial leave for Aboriginal and Torres Strait Islander people, and other like forms of leave, to meet cultural obligations;

(i) observance of days declared by the Government of a State or Territory to be observed generally within that State or Territory, or a region of that State or Territory, as public holidays by employees who work in that State, Territory or region, and entitlements of employees to payment in respect of those days;

(ii) responsibilities or skills that are not taken into account in rates of pay for employees; or

(iii) disabilities associated with the performance of particular tasks or work in particular conditions or locations;

(3A) Matters that are not covered by subsection (2) include, but are not limited to, the following:

(b) training or education (except in relation to leave and allowances for trainees or apprentices);

(f) rights of an organisation of employers or employees to participate in, or represent, the employer or employee in the whole or part of a dispute settling procedure, unless the organisation is the representative of the employer’s or employee’s choice;

(h) the number or proportion of employees that an employer may employ in a particular type of employment or in a particular classification;

(i) prohibitions (directly or indirectly) on an employer employing employees in a particular type of employment or in a particular classification;

Omit all the words after “incidental”, substitute “to an allowable award matter provided for in the award and are essential for the purpose of making a particular provision operate in a practical way”.

(6A) To avoid doubt, the Commission may include machinery provisions in awards, such as definitions, titles and commencement provisions.

(8A) Nothing in this section prevents the Commission from including in an award provisions that are permitted by subsection 143(1C).

Omit all the words after “award that”, substitute “are objectionable provisions (within the meaning of section 298Z)”.

Note: The heading to section 94 is altered by omitting “discrimination and preference” and substituting “objectionable provisions”.

101A When Commission must not make findings under section 101

If a party (the initiator) notifies an alleged industrial dispute under section 99 on the grounds that another party has not agreed to the demands set out in a log of claims that the initiator served on the other party, then the Commission must not make any findings under section 101 in relation to that dispute unless the Commission is satisfied that:

(a) the log of claims was accompanied by a notice containing information of the kind prescribed by the regulations when it was served; and

(b) the dispute was notified under section 99 at least 28 days after the log of claims was served; and

(c) at least 28 days before the day fixed for the initial proceedings in relation to the dispute, the initiator served each person alleged to be a party to the dispute with a notice specifying the time and place fixed for the proceedings; and

(ii) an objectionable provision (within the meaning of section 298Z) be included in an award or agreement; or

(1) If a State award, State employment agreement or relevant contract of employment governs the wages and conditions of employment of particular employees whose wages and conditions are the subject of an industrial dispute, the Commission must cease dealing with the industrial dispute in relation to those employees, whether or not the Commission began to deal with, or has dealt with, the industrial dispute before the commencement of this subsection.

(1A) However, the Commission may continue to deal with the industrial dispute if:

(a) a party to the dispute applies to the Commission requesting the Commission to continue dealing with the industrial dispute; and

(b) the Commission determines that exceptional circumstances exist for the Commission doing so.

Omit all the words from and including “determining” to and including “consideration”, substitute “considering whether to continue to deal with the industrial dispute, the Commission may have regard”.

relevant contract of employment means a contract of employment underpinned by minimum conditions set under any of the following:

(3A) If an application is made to vary an award to make a safety net wage adjustment, the Commission must not vary the award to make the adjustment until the award has been reviewed in accordance with Part 2 of Schedule 6 to the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Act 1999.

Omit “, unless the order relates to a single business (within the meaning of Part VIB)”.

(i) employers, employees and organisations of employees to whom the award applies may enter into certified agreements under Part VIB; and

(ii) employers and employees to whom the award applies may enter into AWAs under Part VID; and

(2) If an award is drawn to the attention of a member of the Commission under subsection (1), the member must, as far as is practicable, within 6 months:

(ii) if the member determines that the award should be cancelled—any operative provisions of the award should be included in another award; and

(b) if the member determines that the award should be cancelled—cancel the award; and

(c) if the member determines that operative provisions in the award should be included in another award—include those provisions in the other award.

Note: The heading to section 529 is altered by omitting “, 526 and 528” and substituting “and 526”.

Note: Subsection 24(3) of the Employee Relations Act 1992 of Victoria was repealed by section 5 of the Employee Relations (Amendment) Act 1994 of Victoria.

529A Exclusion of certain agreements from sections 524, 525, 526 and 528

Sections 524, 525, 526 and 528 do not apply to an employment agreement that was taken to exist at any time before the commencement of this Division by:

(a) clause 22 of Schedule 6 to the Public Sector Management Act 1992 of Victoria; or

(b) section 19 of the Vocational Education and Training (College Employment) Act 1993 of Victoria;

(a) in relation to a provision of an award about long service leave—2 years beginning on the day on which Part 1 of this Schedule commences; and

(b) in any other case—6 months beginning on the day on which Part 1 of this Schedule commences.

termination time, in relation to special consent provisions, means the end of the period that is specified in the award under section 147 of the Principal Act.

(1) The Commission has the powers in relation to varying awards under this Division that it would have under Part VI of the Principal Act if that Part applied to compulsory conciliation and arbitration in relation to varying awards under this Division instead of in relation to industrial disputes.

(2) In exercising its powers under this Division, the Commission is to have regard to the desirability of assisting parties to awards to agree on appropriate variations to their awards, rather than have parts of awards cease to have effect under item 43 at the end of the interim period.

For the purposes of this Division, special consent provisions are provisions of an award that give effect to a decision of the Commission that is expressed to be made in accordance with one or more of the following principles:

(a) the Enterprise Bargaining Principle adopted by the Commission in the National Wage Case decision of October 1991 (Dec 1150/91, Print K0300);

(b) the Enterprise Awards Principle adopted by the Commission in its Review of the Wage Fixing Principles decision of October 1993 (Dec 1300/93, Print K9700);

(c) Principle 2.2 (Consent Award or Award Variation to Give Effect to an Enterprise Agreement), adopted by the Commission in its Review of the Wage Fixing Principles decision of August 1994 (Dec 1408/94, Print L4700) and incorporated without amendment in wages principles established by the Commission in its Safety Net Adjustment & Section 150A Review decision of October 1995 (Dec 2120/95, Print M5600).

(1) If one or more of the parties to an award apply to the Commission for a variation of the award under this item, the Commission may, during the interim period, vary the award so that it only provides for allowable award matters.

(2) Special consent provisions cannot be varied under this item before the termination time for those provisions.

(3) The Commission may only deal with the application by arbitration if it is satisfied that the applicant or applicants have made reasonable attempts to reach agreement with the other parties to the award about how the award should be varied and the treatment of matters that are not allowable award matters.

(ii) were made on the basis that they were not intended to operate as minimum rates of pay; and

(b) the application under this item seeks to have such rates of pay varied so that they are expressed as minimum rates of pay;

the Commission may vary the award so that it provides for minimum rates of pay consistent with sections 88A and 88B of the Principal Act and the limitation on the Commission’s power in subsection 89A(3) of that Act.

(5) If the Commission varies the award under subitem (4), it must include in the award provisions that ensure that overall entitlements to pay provided by the award are not reduced by that variation, unless the Commission considers that it would be in the public interest not to include such provisions.

(6) The Commission must review the award to determine whether or not it meets the following criteria:

(a) it does not include matters of detail or process that are more appropriately dealt with by agreement at the workplace or enterprise level;

(b) it does not prescribe work practices or procedures that restrict or hinder the efficient performance of work;

(c) it does not contain provisions that have the effect of restricting or hindering productivity, having regard to fairness to employees;

(d) it contains facilitative provisions that allow agreement at the workplace or enterprise level, between employers and employees (including individual employees), on how the award provisions are to apply;

(e) it contains provisions enabling the employment of regular part-time employees;

(f) it is expressed in plain English and is easy to understand in both structure and content;

(h) it provides support to training arrangements through appropriate trainee wages and a supported wage system for people with disabilities;

(i) it does not contain provisions that discriminate against an employee 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;

(j) it includes a provision indicating that employers and employees or organisations of employees to whom the award applies are free to enter into certified agreements under Part VIB of the Principal Act and that employers and employees are also free to make AWAs under Part VID of the Principal Act.

(7) If the Commission determines that the award does not meet the criteria set out in subitem (6), the Commission must, if it considers it appropriate, vary the award so that it does meet those criteria.

(1) At the end of the interim period, each award ceases to have effect to the extent that it provides for matters that are not allowable award matters, unless those matters:

(2) If the termination time for special consent provisions is after the end of the interim period, then this item and item 44 apply to the special consent provisions as if a reference to the end of the interim period were instead a reference to the termination time.

(1) As soon as practicable after the end of the interim period, the Commission must review each award that is in force and vary it to remove provisions that have ceased to have effect under item 43.

(2) When varying the award under subitem (1), the Commission may also vary the award so that, in relation to an allowable award matter, the award is expressed in a way that reasonably represents the entitlements of employees in respect of that matter as provided in the award as in force immediately before the end of the interim period.

(3) If, immediately before the end of the interim period, the award provided for rates of pay that, in the opinion of the Commission:

(b) were made on the basis that they were not intended to operate as minimum rates of pay;

(4) If the Commission varies the award under subitem (3), it must include in the award provisions that ensure that overall entitlements to pay provided by the award are not reduced by that variation, unless the Commission considers that it would be in the public interest not to include such provisions.

(5) The Commission must review the award to determine whether or not it meets the following criteria:

(a) it does not include matters of detail or process that are more appropriately dealt with by agreement at the workplace or enterprise level;

(b) it does not prescribe work practices or procedures that restrict or hinder the efficient performance of work;

(c) it does not contain provisions that have the effect of restricting or hindering productivity, having regard to fairness to employees;

(e) it contains provisions enabling the employment of regular part-time employees;

(f) it is expressed in plain English and is easy to understand in both structure and content;

(h) it provides support to training arrangements through appropriate trainee wages and a supported wage system for people with disabilities;

(6) If the Commission determines that the award does not meet the criteria set out in subitem (5), the Commission must, if it considers it appropriate, vary the award so that it does meet those criteria.

45 Reviews under Schedule 5 to the Workplace Relations and Other Legislation Amendment Act 1996

(b) the Commission is also required to review the award under item 51 (the old review item) of Schedule 5 to the Workplace Relations and Other Legislation Amendment Act 1996; and

then the Commission must review the award under item 42 or 44 of this Schedule and must not review, or continue to review, the award under the old review item.

(2) When reviewing the award under item 42 or 44, the Commission may have regard to any evidence given or submissions made in relation to a review under the old review item.

(a) a constitutional corporation is bound by an award in respect of an employee; and

(b) the award is varied under subitem 42(1) or wholly or partly ceases to have effect because of item 43; and

(c) as a result of the award being varied, or ceasing to have effect, as mentioned in paragraph (b), the corporation would (apart from this item) become bound by a State award in respect of the employee;

then the corporation is not bound by the State award in relation to the employee unless it becomes bound as a result of an application by the corporation to the relevant State industrial authority.

(2) Subitem (1) does not operate so that a State award, or part of a State award, prevails over an award of the Commission.

(1) After the commencement of this Division, a Full Bench may establish principles about varying awards under this Division.

(2) After such principles (if any) have been established, the power of the Commission to vary an award under this Division is exercisable only by a Full Bench unless the contents of the award:

A provision of an award does not discriminate against an employee for the purposes of paragraph 42(6)(i) or 44(5)(i) merely because:

(b) it discriminates, in respect of particular employment, on the basis of the inherent requirements of that employment; or

(c) it discriminates, in respect of employment as a member of the staff of an institution that is conducted in accordance with the teachings or beliefs of a particular religion or creed:

(a) an industrial dispute that the Commission began to deal with, or had dealt with, before the commencement of those items; and

(b) an industrial dispute that the Commission begins to deal with on or after the commencement of those items.

The amendment made by item 21 applies in relation to an alleged industrial dispute that is notified on or after the commencement of that item.

The amendment made by item 26 applies in relation to an application made on or after the commencement of that item.

52 Transitional—exceptional matters orders made before the commencement of item 27

(1) This item applies to an exceptional matters order that was made in accordance with section 120A of the Workplace Relations Act 1996 before the commencement of item 27.

(2) The order is taken, on and after the commencement of item 27, to have been made by a Full Bench in accordance with subsection 120A(4) of the Workplace Relations Act 1996 as amended by that item.

(1) This item applies in respect of proceedings in relation to a matter if, before the commencement of item 27:

(a) the substantive hearing of issues relating to the matter had begun but the matter had not been determined; and

(b) the Commission had begun to consider whether it is satisfied of the things set out in subsection 89A(7) of the Workplace Relations Act 1996.

(ii) make an exceptional matters order relating to the matter regardless of whether the Commission is constituted by a single member of the Commission or a Full Bench; and

(b) any exceptional matters order made under subparagraph (a)(ii) is taken to have been made by a Full Bench in accordance with subsection 120A(4) of the Workplace Relations Act 1996 as amended by item 27.

The amendment made by item 29 applies in relation to an award that is drawn to the attention of a member of the Commission on or after the commencement of the item.

Schedule 7—Termination of employment

contingency fee agreement means an agreement between a legal practitioner and a person under which:

(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.

legal practitioner means a legal practitioner (however described) of the High Court or of a Supreme Court of a State or Territory.

; and (e) the furnishing of security in respect of an application made under section 170CE.

After “employee”, insert “(other than an employee to whom subsection 170CB(1) applies)”.

(1B) For the avoidance of doubt, the reference in subsection (1A) to an employee to whom subsection 170CB(1) applies includes a reference to a person who is covered by subsection 170CB(1) although the person is, by virtue of the operation of any other provision of this Act or of the regulations made for the purposes of section 170CC, excluded from the operation of particular provisions of Division 3 of Part VIA.

170CCA Division to cover the field in certain cases

(1) The provisions of this Division, in so far as they relate to Commonwealth public sector employees covered by subsection 170CB(1) but not covered by an award that relates to termination of employment, apply to the exclusion of:

(b) the provisions of any law of a State or Territory or of any award made under such a law;

that relate to relief in respect of termination of the employment of such employees.

(2) The provisions of this Division, in so far as they relate to Territory employees covered by subsection 170CB(1) but not covered by an award that relates to termination of employment, apply to the exclusion of:

(b) the provisions of any law of the Territory in which the employees were employed or of any award made under such a law;

that relate to relief in respect of termination of the employment of such employees.

(3) The provisions of this Division, in so far as they relate to Federal award employees covered by paragraph 170CB(1)(c) or (d) but not covered by an award that relates to termination of employment, apply to the exclusion of:

(b) the provisions of any law of a State or Territory or of any award made under such a law;

that relate to relief in respect of termination of the employment of such employees.

(4) For the avoidance of doubt, a reference in this section to Commonwealth public sector employees covered by subsection 170CB(1), Territory employees covered by subsection 170CB(1), or Federal award employees covered by paragraph 170CB(1)(c) or (d), includes persons who are so covered even though they are, by virtue of the operation of any other provision of this Act, or of the regulations made for the purposes of section 170CC, excluded from the operation of particular provisions of Division 3.

Note: This section deals only with persons who are not covered by an award. In relation to those who are so covered see section 152.

170CDA Resignation not taken to be termination of employment at initiative of employer in certain circumstances

(1) For the purposes of this Division, the resignation of an employee is not taken to constitute the termination of the employment of that employee at the initiative of the employer unless the employee can establish:

(i) had indicated to the employee, either directly or indirectly, that the employee would be dismissed if he or she did not resign; or

(ii) had engaged in conduct, or in a course of conduct, that the employer intended would cause the employee to resign; and

(b) that the employee resigned because of that indication, conduct or course of conduct.

(b) the employee can make out a prima facie case that the conduct, or course of conduct, engaged in by the employer could reasonably be regarded as conduct or a course of conduct intended to force that employee so to resign;

the employer is taken, subject to subsection (3), to have that intention in relation to that conduct or course of conduct.

(3) Subsection (2) does not apply if the employer can prove, on the balance of probabilities, that the employer did not have that intention.

Note: Subsection 170CG(4) provides that if it is established that a termination was effected because of the operational requirements of the employer’s undertaking, establishment or service, the termination cannot be found to have been harsh, unjust or unreasonable.

(8) The Commission may accept an application that is lodged out of time only if the Commission is satisfied that it would be equitable to accept the application.

(8A) The Commission can only be satisfied that it would be equitable to accept the application if the applicant establishes that:

(b) there is an acceptable explanation for the delay in lodging the application; and

(c) the applicant took action of any kind to contest the termination of his or her employment within 21 days after the day the termination took effect; and

(d) prejudice would not be caused to the respondent by the accepting of the late application.

170CEA Motions for dismissal of application for want of jurisdiction

(1) A respondent may move for the dismissal of an application under section 170CE on the ground that the application is outside the jurisdiction of the Commission at any time, including a time before the Commission has begun dealing with the application. If the respondent so moves, the Commission must deal with the motion.

(2) If a respondent moves for dismissal of an application under section 170CE on the ground that the application is outside the jurisdiction of the Commission before the Commission has begun dealing with any proceeding relating to the application, the Commission must deal with the motion before taking any other action on that proceeding unless the respondent indicates in the motion that the motion can be dealt with at a later time.

(aa) if that ground or one of those grounds is the ground referred to in paragraph 170CE(1)(a)—must indicate to the parties whether or not the Commission considers, having regard to all matters before the Commission for the purposes of the conciliation, on the balance of probabilities, that the applicant’s claim in respect of the ground so referred to is likely to succeed; and

(b) if that ground or any such ground is not the ground referred to in paragraph 170CE(1)(a)—must indicate to the parties the Commission’s assessment of the merits of the application in so far as it relates to that ground or to each such ground; and

(a) identifies only the ground referred to in paragraph 170CE(1)(a) as a ground where conciliation is, or is likely to be, unsuccessful; but

(b) also indicates that the Commission considers, on the balance of probabilities, that the applicant’s claim in respect of the ground is likely to succeed;

the applicant must elect either to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable or not to proceed.

(a) identifies only the ground referred to in paragraph 170CE(1)(a) as a ground where conciliation is, or is likely to be, unsuccessful; and

(b) also indicates that the Commission considers, on the balance of probabilities, that the applicant’s claim in respect of the ground is not likely to succeed;

the applicant is not entitled to elect to proceed to arbitration and the application is taken, with effect from the date of the certificate, to have been dismissed.

(b) also indicates, in respect of the former ground, that the Commission considers, on the balance of probabilities, that the applicant’s claim in respect of the ground is likely to succeed;

(b) also indicates, in respect of the former ground, that the Commission considers, on the balance of probabilities, that the applicant’s claim in respect of the ground is not likely to succeed;

(c) is not entitled to elect to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable; but

(d) must elect either to begin proceedings in a court of competent jurisdiction for an order under section 170CR in respect of the alleged contravention of section 170CM or not to begin such proceedings.

(ii) the ground of an alleged contravention of one or more of sections 170CK, 170CL and 170CN;

(b) also indicates, in respect of the former ground, that the Commission considers, on the balance of probabilities, that the applicant’s claim in respect of the ground is likely to succeed;

(ii) a ground or grounds of an alleged contravention of one or more of sections 170CK, 170CL and 170CN;

(b) also indicates, in respect of the former ground, that the Commission considers, on the balance of probabilities, that the applicant’s claim in respect of that ground is not likely to succeed;

(c) is not entitled to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable; but

(d) must elect to begin proceedings in the Court for an order under section 170CR in respect of the alleged contravention, or of any one or more of the alleged contraventions, or not to begin such proceedings.

(iii) a ground or grounds of an alleged contravention of one or more of sections 170CK, 170CL and 170CN;

(b) also indicates, in respect of the former ground, that the Commission considers, on the balance of probabilities, that the applicant’s claim in respect of the ground is likely to succeed;

(iii) a ground or grounds of an alleged contravention of one or more of sections 170CK, 170CL and 170CN;

(b) also indicates, in respect of the former ground, that the Commission considers, on the balance of probabilities, that the applicant’s claim in respect of the ground is not likely to succeed;

(c) is not entitled to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable; but

(d) must elect to do either or both of the things permitted in subsection (4) or to do none of those things.

Omit “(3), (4) or (5)” (wherever occurring), substitute “(2A), (3), (3A), (4), (5) or (5A)”.

Omit “or to the operational requirements of the employer’s undertaking, establishment or service”.

(da) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and

(4) If the employment of a particular employee or group of employees is terminated on the ground of, or on grounds that include the ground of, the operational requirements of the employer’s undertaking, establishment or service, the termination is not to be taken to be harsh, unjust or unreasonable.

170CIA Representatives to disclose contingency fee agreements

(1) In a proceeding before the Commission, the Commission must ask a representative appearing on behalf of a party to the proceeding if the representative has been retained by the party under a costs arrangement as to the representative’s costs.

(2) In a proceeding before the Commission, the Commission must ask a legal practitioner appearing on behalf of a party to the proceeding if the practitioner has been retained by the party under a contingency fee agreement as to the practitioner’s costs.

(3) If the representative or legal practitioner has been retained under a costs arrangement or contingency fee agreement (as the case may be), the representative or practitioner must inform the Commission of that fact.

(4) This section does not affect the law relating to legal professional privilege.

(a) a person agrees to provide representation for another person before the Commission; and

(b) the payment of all, or a substantial proportion, of the representative’s costs is contingent on the outcome of the proceeding before the Commission in which the representative represents the person.

proceeding before the Commission means one of the following proceedings in respect of an application under section 170CE by an employee whose employment has been terminated on the ground, or on grounds that include the ground, that the termination was harsh, unjust or unreasonable:

(a) a proceeding for dismissal of the application on the ground that the application is outside jurisdiction;

representative means a person, other than a legal practitioner, appearing on behalf of a party to a proceeding before the Commission.

170CIB Commission may dismiss application if applicant fails to attend

If an applicant in a proceeding relating to an application under section 170CE fails to attend the proceeding, the Commission, after giving the applicant a reasonable opportunity to be heard, may dismiss the application under section 170CE.

(b) the first party did so in circumstances where it should have been reasonably apparent to the first party that there was not a substantial prospect of success in relation to the application or proceeding;

the Commission may, on an application under this section by the other party to the application or proceeding, make an order for costs against the first party.

(3) If the Commission is satisfied that a party (first party) to a proceeding relating to an application under section 170CE has acted unreasonably in failing:

(b) to agree to terms of settlement that could lead to the discontinuance of the application;

the Commission may, on an application under this section by the other party to the proceeding, make an order for costs against the first party.

(a) that a party (first party) to a proceeding relating to an application made under section 170CE caused costs to be incurred by the other party to the proceeding; and

(b) that the first party caused the costs to be incurred because of the first party’s unreasonable act or omission in connection with the conduct of the proceeding;

the Commission may, on an application by the other party under this section, make an order for costs against the first party.

(5) An application for an order for costs under this section must be made within 14 days after the determination, discontinuance, settlement or dismissal of the application under section 170CE or proceeding relating to an application under section 170CE (as the case may be).

(5A) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in respect of:

(8) For the purposes of this section, the following proceedings are examples of proceedings relating to an application under section 170CE in respect of which the Commission may make an order for costs:

(a) a “pre-conciliation” conference that parties are directed to attend by the Commission under paragraph 111(1)(t);

(b) a proceeding for dismissal of an application under section 170CE on the ground that the application is outside jurisdiction;

(e) an appeal to the Full Bench from an order of the Commission under section 170CH or a costs order under section 170CJ;

(f) a proceeding concerning an application for costs by one party in respect of another party’s application for costs.

170CJA Security

(1) The Commission may order an applicant under section 170CE to give security for the payment of costs that may be awarded against the applicant.

(2) The security may be of such amount, and given at such time and in such manner and form, as the Commission directs.

(3) The Commission may reduce or increase the amount of security ordered to be given and may vary the time at which, or manner or form in which, the security is to be given.

(4) If security, or further security, is not given in accordance with an order under this section, the Commission may order that the proceeding be dismissed.

Omit “must give to the Commonwealth Employment Service a written notice of the intended terminations that sets out”, substitute “must give to the body (if any) prescribed by regulations made for the purposes of this subsection, or, failing the prescription of such a body, to the Secretary to the Department, a written notice of the intended terminations, in a form prescribed by the regulations, that sets out”.

(7) The Court may accept an application that is lodged out of time only if the Court is satisfied that it would be equitable to accept the application.

(8) The Court can only be satisfied that it would be equitable to accept the application if the applicant establishes that:

(b) there is an acceptable explanation for the delay in lodging the application; and

170HBA No second applications under section 170CE concerning same termination to be made

An application must not be made under section 170CE in relation to a termination of employment of an employee where a previous application under section 170CE was made in respect of the same termination.

Subdivision G—Unmeritorious or speculative proceedings

170HD Definitions

(b) represents the applicant referred to in paragraph (a) in any proceeding relating to the application.

encourage, in relation to a course of action, means the direct or indirect promotion of that course of action as distinct from an attempt to dissuade from that course of action.

unfair termination application means an application, under section 170CE, by an employee whose employment has been terminated, on the ground, or on grounds that include the ground, that the termination was harsh, unjust or unreasonable.

170HE Advisers not to encourage applicants to make, or to pursue, certain applications

An adviser must not encourage an employee to make or pursue an unfair termination application if, on the facts that have been disclosed or that ought reasonably to have been apparent to the adviser, the adviser should have been, or should have become, aware that there was no reasonable prospect of success in respect of the application.

170HF Applications to the Court

(1) An application may be made to the Court for an order under section 170HJ in respect of a contravention of section 170HE.

(3) An application under this section for an order in respect of a contravention of section 170HE may only be made after the relevant unfair termination application has been determined, dismissed or discontinued.

(4) Nothing in this Subdivision implies that, for the purposes of an application under this section, the law relating to legal professional privilege is abrogated, or in any way affected.

170HG Burden of proof

In any proceedings for an order in respect of a contravention of section 170HE by an adviser, if the applicant for the order makes out a prima facie case that the course of action followed by the adviser contravened that section, the course of action will be taken to have contravened that section unless the adviser can establish to the contrary on the balance of probabilities.

170HH Evidentiary matters

In any proceeding for an order in respect of a contravention of section 170HE in respect of an unfair termination application, the Court must not determine that there was no reasonable prospect of success in respect of the application unless it has had regard:

(b) to the contents of any certificate issued by the Commission under subsection 170CF(2).

170HI Order that the Court may make

In respect of contraventions of section 170HE, the Court may, if the Court considers it appropriate in all the circumstances of the case, make an order imposing on the adviser who contravened that section a penalty:

The amendments of the Workplace Relations Act 1996 made by items 1, 2 and 26 apply to applications under section 170CE of that Act made on or after the date on which those items commence.

The amendments of the Workplace Relations Act 1996 made by items 3 and 30 apply to applications under section 170CE of that Act made on or after the date on which that item commences.

The amendment of the Workplace Relations Act 1996 made by item 8 applies in relation to applications under section 170CE of that Act made on or after the date on which that item commences.

The amendment of the Workplace Relations Act 1996 made by item 10 applies only in relation to applications under section 170CE of that Act made on or after the date on which that item commences.

If, under the rules of the Commission as in force before the date of commencement of item 11, a respondent has elected to have jurisdictional issues in relation to an application under section 170CE of the Workplace Relations Act 1996 determined but those issues have not been determined before that date, that election is to be treated, on and after that date, as if it were a motion for dismissal of the application made under section 170CEA of the Workplace Relations Act 1996 as amended by that item.

40 Application provision concerning certificates given under subsection 170CF(2)

Subsection 170CF(2) of the Workplace Relations Act 1996, as amended by item 12, applies only in relation to applications under section 170CE of that Act made on or after the date on which that item commences.

The amendments of the Workplace Relations Act 1996 made by items 23 and 25 apply only in relation to applications under section 170CE of that Act made on or after the date on which those items commence.

The amendment of the Workplace Relations Act 1996 made by item 24 applies only in relation to applications under section 170CE of that Act made on or after the date on which that item commences.

The amendments of the Workplace Relations Act 1996 made by items 27, 28 and 29 apply only in relation to a proceeding relating to an application under section 170CE of that Act made on or after the date on which those items commence.

The amendment of the Workplace Relations Act 1996 made by item 32 applies only in relation to applications under section 170CP of that Act made on or after the date on which that item commences.

45 Application provision concerning unmeritorious or speculative proceedings

Subdivision G of the Workplace Relations Act 1996, as inserted by item 34, applies only in relation to proceedings brought under that Subdivision in relation to applications under section 170CE of that Act made on or after the date on which that item commences.

Schedule 8—Certified agreements

anti-AWA provision means a provision in a certified agreement that directly or indirectly restricts the ability of an employer or an employee to offer, negotiate or enter into an AWA.

42A Limitation on representation by organisations etc.

Despite section 42, in a matter before the Commission that is an application under Division 2 or 3 of Part VIB for certification of an agreement, a party other than an organisation may be represented by:

(a) a member, officer or employee of an organisation of which the party is a member; or

(b) an officer or employee of a peak council to which an organisation of which the party is a member is affiliated;

only if the organisation could be granted leave to intervene in the matter under subsection 43(2).

81A Appeals related to certification by Workplace Relations Registrar

(1) This section applies in relation to appeals under section 81 in relation to decisions to certify agreements under section 170LMF.

(b) for an agreement that was made in accordance with section 170LK—at least the prescribed number of employees whose employment will be subject to the agreement; or

(3) The prescribed number is the number of employees worked out in accordance with the regulations.

(4) If a certified agreement stops operating as a result of an appeal and the amount worked out under paragraph (a) below is less than the amount worked out under paragraph (b) below, an employee whose employment was subject to the agreement is entitled to recover the shortfall from the employer in an eligible court (as defined by section 170NE):

(a) the total value of the entitlements to which the employee became entitled under the certified agreement for the period starting when the agreement was certified by the Workplace Relations Registrar and ending when the appeal was determined;

(b) the total value of the entitlements to which the employee would have been entitled for that period (if the certified agreement had not been made).

(5) No action in respect of a breach of an award, a certified agreement or an old IR agreement may be taken in relation to any action in the period starting when the agreement was certified by the Workplace Relations Registrar and ending when the appeal was determined where the action was in compliance with the certified agreement.

(6) Section 179A applies to a court exercising powers under subsection (4) in the same way as that section applies to a court exercising powers under subsection 178(6).

(7) Section 179B applies to a debt under a judgment or order made under subsection (4) in the same way as that section applies to a debt under a judgment or order made under section 179.

(8) Section 179C applies to a proceeding under subsection (4) that is started by a person in a magistrate’s court in the same way as that section applies to an action under section 179 that is started in a magistrate’s court.

81B No appeal against decision to refer certification to Commission

A person cannot make an appeal under section 81 in relation to a decision to refer an application for the certification of an agreement to the Commission under section 170LMG.

After “the agreement”, insert “, and a list containing the name of the employer concerned and all organisations bound by the agreement”.

(2) If no date is specified, or the date specified is more than 3 years after the date on which the agreement came into operation, the nominal expiry date is 3 years after the date on which the agreement came into operation.

(2) A person is an eligible employee in relation to an agreement at a particular time if, and only if:

(ii) in the case of the making or approval of an agreement—the person’s employment will be subject to the agreement immediately after the agreement is certified;

(iii) in the case of the approval of an extension or variation of an agreement—the person’s employment will be subject to the agreement immediately after the extension or variation.

(2) An application for certification may be made to either the Workplace Relations Registrar or the Commission. For an application to be made to the Workplace Relations Registrar, certain conditions must be satisfied. These are set out in subsection 170LM(5).

(b) for an agreement that was made in accordance with section 170LK—at least the prescribed number of employees whose employment will be subject to the agreement; or

(4) The prescribed number is the number of employees worked out in accordance with the regulations. The number prescribed for applications to the Workplace Relations Registrar may be different from the number prescribed for applications to the Commission.

(5) If an application to certify an agreement is made more than 21 days after an earlier application to certify the agreement was made, the later application is taken never to have been made.

(6) An application will be referred to the Commission by the Workplace Relations Registrar if he or she cannot certify the agreement or if an application is made to have the application referred (see section 170LMG).

(7) Certification of agreements by the Workplace Relations Registrar is covered by Division 2A. Certification by the Commission is covered by Division 4.

(a) all the persons whose employment will be subject to the agreement, and who are employed on the day 14 days before approval is given either have, or have ready access to, the agreement, in writing, at least 14 days before that approval is given; and

(aa) any person first employed less than 14 days before approval is given and whose employment will be subject to the agreement, either has, or has ready access to, the agreement, in writing, before that approval is given; and

(5) To avoid doubt, nothing prevents an employer making an agreement in accordance with this section with one or more organisations in respect of a single business, or part of a single business, if the employer could also have made the agreement under this section with one or more other organisations in respect of the same business or part of the business.

(a) all the persons whose employment will be subject to the agreement, and who are employed on the day 14 days before the agreement is made, have at least 14 days’ written notice of the intention to make the agreement; and

(b) any person whose employment will be subject to the agreement, and who is first employed less than 14 days before the agreement is made, has written notice of the intention to make the agreement before the agreement is made.

The agreement must not be made before the 14 days mentioned in paragraph (a) have passed.

Note: In some circumstances, the Commission may certify an agreement even if the requirements of subsection (8) are not complied with (see subsection 170LT(10)).

(a) if the agreement is made in accordance with section 170LJ—no later than 21 days after the day on which it is approved as mentioned in subsection 170LJ(2); or

(b) if the agreement is made in accordance with section 170LK or 170LL—no later than 21 days after the day on which it is made.

(3) However, if the circumstances in paragraphs 170LVA(1)(a), (b) and (c) apply, the application must be made no later than 21 days after the day on which the employees approved the purported agreement under subsection 170LJ(2).

(4) An application made under paragraph (2)(a) may continue to be dealt with if, apart from this subsection, the application could not have been made under that paragraph because the agreement had not been validly executed by one or more organisations.

(5) An application may be made to the Workplace Relations Registrar only if the conditions in all of the following paragraphs are met:

(i) if the agreement was made in accordance with section 170LJ—genuinely approved the agreement; or

(ii) if the agreement was made in accordance with section 170LK—genuinely made the agreement;

(d) explanation of the terms of the agreement to persons as mentioned in paragraph 170LJ(3)(b) or subsection 170LK(7) has taken place in ways that were appropriate, having regard to the persons’ particular circumstances and needs;

(e) if the agreement was made in accordance with section 170LK—the employer did not coerce, or attempt to coerce, any employee:

(iii) an injunction granted, or any other order made, by the Court under that Division;

(g) the agreement does not contain objectionable provisions within the meaning of section 298Z or any provisions that would, apart from section 298C, be objectionable provisions;

(h) the employer has not, in connection with negotiating the agreement, contravened section 170NB or Part XA (which deals with freedom of association);

(i) the employer has not caused a person or body to engage, in connection with negotiations for the agreement, in conduct that, had the employer engaged in the conduct, would be a contravention by the employer of section 170NB or Part XA;

(k) no provision of the agreement discriminates against an employee, whose employment will be subject to the agreement, 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; and

(l) the employer has not been notified of a claim by an organisation that the organisation did not validly execute the agreement; and

(m) there is a relevant award within the meaning of section 170X, or an award determined under subsection 170XF(2), in relation to all of the persons whose employment would be subject to the agreement.

(6) If an application is to be made to the Workplace Relations Registrar, the agreement should also:

(b) specify a date as the nominal expiry date of the agreement, and that the date is not more than 3 years after the date on which the agreement will come into operation.

Note 1: If an agreement does not include dispute prevention and settlement procedures, subsection 170LZA(2) will include a model procedure.

Note 2: If an agreement does not include a nominal expiry date, or the date specified is more than 3 years after the date on which the agreement came into operation, subsection 170LD(2) will provide the nominal expiry date.

(7) For the purposes of paragraph (5)(k), a provision of an agreement does not discriminate against an employee merely because:

(b) it discriminates, in respect of particular employment, on the basis of the inherent requirements of that employment; or

(c) it discriminates, in respect of employment as a member of the staff of an institution that is conducted in accordance with the teachings or beliefs of a particular religion or creed:

(8) An application by an employer to the Workplace Relations Registrar must be accompanied by a declaration by the employer, in a form prescribed by the regulations, stating:

(a) that the conditions in each of the paragraphs in subsection (5) are met; and

(9) An application, other than an application by an employer, to the Workplace Relations Registrar must be accompanied by a declaration by the applicant, in a form prescribed by the regulations, stating:

(a) that the conditions in each of paragraphs (5)(a) to (d), (f), (g), (k) and (m) are met; and

(b) that, to the best of the applicant’s knowledge, the conditions in each of paragraphs (5)(e), (h) to (j) and (5)(l) are met; and

(b) do so reckless as to whether the statement is false or misleading in a material particular.

Division 2A—Certification of agreements by Workplace Relations Registrar

170LMA When Division applies

This Division applies if an application for certification of an agreement is made to the Workplace Relations Registrar under section 170LM.

170LMB Notice of application to be given to persons who made agreement

(1) If the agreement was made in accordance with section 170LJ or 170LL, the applicant must, within 7 days after the application is made, give a copy of the application and the declaration under subsection 170LM(8) or (9) to each other person or organisation that made the agreement.

(2) If the agreement was made in accordance with section 170LK, and the applicant is not the employer, the applicant must, within 7 days after the application is made, give a copy of the application and the declaration under subsection 170LM(8) or (9) to the employer.

170LMC Application to be made available to employees subject to agreement

If the agreement was made in accordance with section 170LJ or 170LK, the employer must take reasonable steps to ensure that:

(a) within 14 days after the application is made, the application and the declaration under subsection 170LM(8) or (9) has been made available to each person who is employed at the time that the application for certification is made whose employment will be subject to the agreement; and

(b) arrangements are put in place to ensure that the application and the declaration under subsection 170LM(8) or (9) is made available as soon as is practicable to each person whose employment will be subject to the agreement who is first employed after the application is made; and

(c) arrangements are put in place to ensure that at the time that the application is made available to an employee, the information prescribed by the regulations about applying to have the application referred to the Commission is also made available to the employee.

Note: The only consequence of the employer not complying with this section is that the application for certification of the agreement will be referred to the Commission.

170LMD Declaration that requirements of sections 170LMB and 170LMC have been satisfied

(1) When the applicable requirements of sections 170LMB and 170LMC have been satisfied, the applicant must give the Workplace Relations Registrar a declaration to that effect.

(3) The declaration must be given to the Workplace Relations Registrar within 21 days after the application was made.

(b) do so reckless as to whether the statement is false or misleading in a material particular.

170LME Persons or organisations may request that application be referred to Commission

(1) An application may be made to the Workplace Relations Registrar for the application for certification of an agreement to be referred to the Commission. The application for referral must be made in the period starting when the application for certification is made to the Workplace Relations Registrar and ending 14 days after the latest date specified in the declaration under section 170LMD.

(b) at least the prescribed number of employees whose employment will be subject to the agreement; or

(d) an organisation that has given notification under subsection 170M(3) that it wants to be bound; or

(3) However, a person covered by paragraph (2)(e) may only apply if the conditions (if any) prescribed in the regulations in relation to applications by that person are satisfied.

(4) The prescribed number is the number of employees worked out in accordance with the regulations.

170LMF Certification of agreements

(a) an application, accompanied by a declaration under subsection 170LM(8) or (9) that meets the requirements of that subsection, has been made to the Workplace Relations Registrar for certification; and

(b) within 21 days after the application was made, the Workplace Relations Registrar has received a declaration under section 170LMD that meets the requirements of that section; and

Note: A declaration under section 170LMD must state that the applicable requirements of sections 170LMB and 170LMC have been satisfied.

(c) the Workplace Relations Registrar is satisfied that no application to certify the agreement has been made to the Commission before the end of 21 days after the application was made to the Workplace Relations Registrar; and

(d) the Workplace Relations Registrar has not been notified of a claim by an organisation that the organisation did not validly execute the agreement; and

(e) the Workplace Relations Registrar has not received any application under subsection 170LME(1) to refer an agreement to the Commission in the period specified in that subsection.

In any other case, the Workplace Relations Registrar must not certify the agreement.

Note: In any case in which the Workplace Relations Registrar does not certify the agreement, the agreement is referred to the Commission under section 170LMG and dealt with under Division 4.

(2) If the Workplace Relations Registrar has grounds to refuse to certify an agreement, the Workplace Relations Registrar may allow a person to amend an application or declaration made by that person in order to enable the Workplace Relations Registrar to certify the agreement. The requirements of sections 170LMB and 170LMC do not apply to the amended application or declaration.

(3) The Workplace Relations Registrar must not hold any hearings for the purpose of determining whether or not to certify an agreement.

170LMG Referral of agreements to Commission

The following table sets out cases in which the Workplace Relations Registrar must refer agreements to the Commission and when the referral must take place:

Referral of agreements to Commission
Item	Case	When referral must occur
1	Workplace Relations Registrar receives an application under section 170LME to refer an agreement to the Commission.	As soon as possible after the application is received.
2	Workplace Relations Registrar is notified of a claim by an organisation that the organisation did not validly execute the agreement.	As soon as possible after the Workplace Relations Registrar is notified of the claim.
3	The Workplace Relations Registrar does not certify the agreement because the requirements of paragraph 170LMF(1)(a), (b) or (c) are not met.	As soon as possible after the Workplace Relations Registrar decides not to certify the agreement.

Note: An agreement referred to the Commission under this section is dealt with under Division 4.

170LMH Publication of agreements

(1) Where the Workplace Relations Registrar certifies an agreement, the Workplace Relations Registrar must promptly:

(a) reduce the decision to certify the agreement to writing and sign and date the decision; and

(b) give to a Registrar:

(i) a copy of the decision; and

(ii) a copy of the agreement; and

(iii) a list specifying the employer and each organisation that is bound by the agreement.

(2) A Registrar who receives a copy of a decision under subsection (1) must promptly:

(a) provide a copy of the decision and the agreement to each person or organisation shown on the list; and

(b) ensure that copies of the decision and the agreement are available for inspection at each registry.

170LMI Delegation by Workplace Relations Registrar

The Workplace Relations Registrar may, by signed instrument, delegate to a Registrar all or any of the Workplace Relations Registrar’s powers under this Part.

27 Paragraph 170LR(2)(a)

Repeal the paragraph, substitute:

(a) all the persons whose employment will be subject to the agreement, and who are employed on the day 14 days before approval is given, either have, or have ready access to, the agreement, in writing, at least 14 days before that approval is given; and

28 Division 4 of Part VIB (heading)

Repeal the heading, substitute:

Division 4—Certification of agreements by Commission

29 Subsection 170LT(1)

After “or 3”, insert “, or referred to the Commission under section 170LMG,”.

30 After subsection 170LT(5)

Insert:

(5A) If, in relation to an agreement made in accordance with section 170LJ:

(a) a valid majority of the persons employed at the time whose employment will be subject to the agreement has approved the agreement; but

(b) at any time after the agreement was made and before the agreement is certified, at least one (but not all) of the organisations referred to in subsection 170LJ(1) claims that it has not validly executed the agreement;

the requirement of subsection (5) that a valid majority of persons employed at the time whose employment would be subject to the agreement have genuinely approved the agreement is taken to have been satisfied.

31 Subsection 170LT(8)

Repeal the subsection.

32 Subsection 170LT(10)

Repeal the subsection, substitute:

(10) Subsection 170LK(8) (which deals with variations of proposed agreements) does not prevent the Commission from certifying an agreement if:

(a) the proposed agreement was varied as mentioned in that subsection; and

(b) the requirements of that subsection were not satisfied; and

(c) the Commission is satisfied that no employee whose employment would be covered by the proposed agreement suffered detriment as a result of that failure.

33 After section 170LT

Insert:

170LTA Other matters that should be in agreements

(1) The agreement should include procedures for preventing and settling disputes between:

(a) the employer; and

(b) the employees whose employment will be subject to the agreement;

about matters arising under the agreement.

Note: If an agreement does not include such procedures, subsection 170LZA(2) will include a model procedure.

(2) The agreement should specify a date as the nominal expiry date of the agreement, and that date cannot be more than 3 years after the date on which the agreement will come into operation.

Note: If an agreement does not include a nominal expiry date, or the date specified is more than 3 years after the date on which the agreement came into operation, subsection 170LD(2) will provide the nominal expiry date.

34 Subsection 170LU(2A)

Omit all the words after “contains”, substitute “objectionable provisions within the meaning of section 298Z or any provisions that would, apart from section 298C, be objectionable provisions”.

35 Subsection 170LU(8)

Repeal the subsection, substitute:

(8) Despite section 170LT, the Commission must refuse to certify an agreement if the Commission is satisfied that the agreement contains an anti-AWA provision.

36 After section 170LV

Insert:

170LVA Commission may deal with purported agreements

(1) This section applies if the Commission is satisfied that:

(a) an officer or employee of an organisation of employees purporting to act with the authority of the organisation, has purported to make a written agreement (the purported agreement) with an employer in accordance with section 170LJ; and

(b) had the purported agreement been made, the requirements of subsections 170LJ(2) and (3) would have been satisfied in relation to it; and

(c) at any time before the certification of the purported agreement (whether that time is before, during or after the post-approval period), the organisation claims that it did not validly execute the agreement; and

(d) as at the end of the post-approval period, no organisation has validly executed the purported agreement.

(2) In subsection (1):

post-approval period, in relation to a purported agreement, means the 14 day period starting on the day on which the purported agreement was approved by a valid majority of the persons employed at the time whose employment will be subject to the proposed agreement.

(3) If an application to certify the purported agreement is made to the Commission in accordance with Division 2, or referred to the Commission in accordance with Division 2A, the Commission must deal (or, if subsection 170LM(4) applies to the application, continue to deal) with the application under Division 4 as if:

(a) it had been an application in relation to an agreement made in accordance with section 170LK; and

(b) the requirements of section 170LK were satisfied.

Note: Subsection 170M(3) applies to the application because the application is treated as an application in relation to an agreement made in accordance with section 170LK.

(4) To avoid doubt:

(a) the agreement is taken, for all purposes, to have been made in accordance with section 170LK between the employer and the valid majority of the persons employed at the time whose employment will be subject to the agreement who approved the purported agreement as required by subsection 170LJ(2); and

(b) nothing in this section causes industrial action taken during the bargaining period for the purported agreement to lose its status as protected action within the meaning of section 170ML.

37 Before section 170LW

Insert:

170LVB Hearings not required

(1) The Commission should make a decision to certify an agreement without holding a hearing unless the Commission is not satisfied that it can make that decision with the information available to it.

(2) However, the Commission should hold a hearing before deciding to refuse to certify an agreement.

38 Section 170LW

Repeal the section.

39 Paragraph 170LY(1)(a)

Omit “this section”, substitute “subsections (2), (2A) and (3)”.

Note: The heading to section 170LY is altered by adding at the end “etc.”.

40 After subsection 170LY(2)

Insert:

(2A) A certified agreement certified after the nominal expiry date of an award made under subsection 170MX(3) prevails, to the extent of any inconsistency, over the award if the employment of at least one employee is subject to both the award and the certified agreement.

41 At the end of subsection 170LY

Add:

(4) A certified agreement prevails, to the extent of any inconsistency, over an old IR agreement.

42 At the end of Division 5 of Part VIB

Add:

170LZA Procedures for preventing and settling disputes

(1) Procedures in a certified agreement for preventing and settling disputes, about matters arising under the agreement, between the employer and employees whose employment will be subject to the agreement may:

(a) provide for mediation by persons other than the Commission; or

(b) empower the Commission to exercise powers in accordance with Part VA (which deals with voluntary conciliation).

(2) If the agreement does not in fact include a dispute resolution procedure, the agreement is taken to include the model procedure that is prescribed by the regulations.

170LZB Provisions limiting AWAs are void

An anti-AWA provision in a certified agreement is void.

Note: Section 170MDB provides a procedure for such provisions to be removed from certified agreements.

43 Subsection 170M(3)

After “Commission” (wherever occurring), insert “or Workplace Relations Registrar”.

44 Paragraph 170MB(1)(d)

Before “the new employer”, insert “subject to any order of the Commission,”.

45 Paragraph 170MB(1)(f)

Before “a reference”, insert “subject to any order of the Commission made for the purposes of paragraph (d),”.

46 Paragraph 170MB(2)(d)

Before “the new employer”, insert “subject to any order of the Commission,”.

47 Paragraph 170MB(2)(f)

Before “a reference”, insert “subject to any order of the Commission made for the purposes of paragraph (d),”.

48 After subsection 170MB(2)

Insert:

(2A) The Commission may make an order for the purposes of this section that a new employer who is the successor, transmittee or assignee (whether immediate or not) of the whole or part of a business referred to in paragraph (1)(c) or (2)(c):

(a) is not bound by the certified agreement; or

(b) is bound by the certified agreement, but only to the extent specified in the order.

The order must specify the day from which the order takes effect. That day must not be before the day on which the order is made.

(2B) The Commission may make an order under this section on application by the employer bound by the agreement.

(2C) Before making an order under this section, the Commission must give the persons bound by the certified agreement an opportunity to make submissions.

(2D) However, an organisation that is bound by a certified agreement made in accordance with section 170LK may only make a submission if the organisation has at least one member:

(a) whose employment is subject to the agreement; and

(b) whose industrial interests the organisation is entitled to represent in relation to work that is subject to the agreement; and

49 Subsection 170MC(1)

Omit “certified agreement”, substitute “certified agreement made in accordance with section 170LJ or 170LK or Division 3”.

50 Paragraphs 170MC(1)(a) and (b)

Repeal the paragraphs, substitute:

(a) if the agreement was made in accordance with section 170LJ or Division 3—the employer and the one or more organisations bound by the agreement; or

(b) if the agreement was made in accordance with section 170LK—the employer;

51 After subsection 170MC(2)

Insert:

(2A) If one or more organisations are bound by an agreement made in accordance with section 170LK, the Commission must give each organisation an opportunity to make submissions before approving the extension.

(2B) However, such an organisation may only make a submission if the organisation has at least one member:

(a) whose employment is subject to the agreement; and

(b) whose industrial interests the organisation is entitled to represent in relation to work that is subject to the agreement; and

52 Subsection 170MC(5)

Repeal the subsection, substitute:

(5) This section does not apply to an agreement to which subsection 170LT(3) applied, in circumstances covered by the example in subsection 170LT(4) (short-term business crises).

53 Paragraphs 170MD(1)(a) and (b)

Repeal the paragraphs, substitute:

(a) if the agreement was made in accordance with section 170LJ or 170LL or Division 3—the employer and the one or more organisations bound by the agreement; or

(b) if the agreement was made in accordance with section 170LK—the employer;

54 After subsection 170MD(2)

Insert:

(2B) However, such an organisation may only make a submission if the organisation has at least one member:

(a) whose employment is, or will be, subject to the agreement; and

(b) whose industrial interests the organisation is entitled to represent in relation to work that is, or will be, subject to the agreement; and

55 Subsection 170MD(6)

Omit “certified agreement, by order vary a certified agreement”, substitute “certified agreement (other than an organisation bound by an agreement made in accordance with section 170LK), by order vary the agreement”.

56 Before paragraph 170MD(7)(a)

Insert:

(aa) section 170MB (which deals with succession, transmission and assignment of businesses); or

57 After paragraph 170MD(7)(c)

Insert:

(ca) section 170MDB (which deals with removal of anti-AWA provisions); or

58 Paragraph 170MD(7)(e)

Omit “preference clauses”, substitute “objectionable provisions”.

59 After section 170MDA

Insert:

170MDB Removal of provisions limiting AWAs from certified agreements

(1) Where, on application by a person mentioned in subsection (2), the Commission is satisfied that a certified agreement contains an anti-AWA provision, the Commission must vary the certified agreement so as to remove the anti-AWA provision.

(2) The application may be made by:

(a) a person or organisation bound by the certified agreement; or

(b) an employee whose employment is subject to the certified agreement; or

60 Subsection 170ME(2)

Omit “, after giving the persons who varied the agreement an opportunity to be heard,”.

61 Paragraphs 170MG(1)(a) and (b)

Repeal the paragraphs, substitute:

(a) if the agreement was made in accordance with section 170LJ or 170LL or Division 3—the employer and the one or more organisations bound by the agreement; or

(b) if the agreement was made in accordance with section 170LK—the employer;

62 After subsection 170MG(2)

Insert:

(2A) If one or more organisations are bound by an agreement made in accordance with section 170LK, the Commission must give each organisation or organisations an opportunity to make submissions before approving the termination.

(2B) However, such an organisation may only make a submission if the organisation has at least one member:

(a) whose employment is subject to the agreement; and

(b) whose industrial interests the organisation is entitled to represent in relation to work that is subject to the agreement; and

63 Paragraph 170MH(1)(c)

Before “an organisation”, insert “if the agreement was made in accordance with section 170LJ or 170LL or Division 3—”.

64 Paragraph 170MHA(2)(c)

Before “an organisation”, insert “if the agreement was made in accordance with section 170LJ or 170LL or Division 3—”.

65 After subsection 170MHA(3)

Insert:

(3A) If one or more organisations are bound by an agreement made in accordance with section 170LK, the Commission must give each organisation an opportunity to make submissions before approving the termination.

(3B) However, such an organisation may only make a submission if the organisation has at least one member:

(a) whose employment is subject to the agreement; and

(b) whose industrial interests the organisation is entitled to represent in relation to work that is subject to the agreement; and

66 At the end of Division 7 of Part VIB

Add:

170MHB Hearings not required

(1) The Commission should make a decision to extend, vary or terminate an agreement without holding a hearing unless the Commission is not satisfied that it can make that decision with the information available to it.

(2) However, the Commission should hold a hearing before deciding to refuse to extend, vary or terminate an agreement.

67 Paragraph 170MI(2)(b)

After “Division”, insert “2A or”.

68 Subsection 170MS(1)

After “agreement”, insert “(or purported agreement)”.

69 At the end of section 170MS

Add:

(3) However, if the circumstances in paragraphs 170LVA(1)(a), (b) and (c) apply, the time limit is 21 days after the day on which the employees approved the purported agreement under subsection 170LJ(2).

70 Section 170NG

Omit “grant an injunction”, substitute “, on application by any person, grant an injunction (including an interim injunction)”.

71 At the end of Division 11 of Part VIB

Add:

170NJ Signature on behalf of body corporate

An agreement or declaration may be signed on behalf of a body corporate by a duly authorised officer of the body corporate and need not be made under the body corporate’s seal.

170NK Agreements with Commonwealth employees

(1) A Secretary to a Department may act on behalf of the Commonwealth in relation to agreements with:

(a) employees in relation to whom the Secretary has the powers of Secretary; and

(b) organisations of employees representing such employees.

(2) A Secretary to a Department may delegate the Secretary’s powers under subsection (1) to a person holding, or performing the duties of, a Senior Executive Service office in the Department. A delegation must be in writing.

(3) In this section:

Secretary means a Secretary within the meaning of the Public Service Act 1922.

72 Section 170X (paragraph (b) of the definition of initial day)

After “Commission”, insert “or the Workplace Relations Registrar”.

Part 2—Further amendment

Workplace Relations Act 1996

73 Section 170NK

Repeal the section, substitute:

170NK Agreements with Commonwealth employees

(1) An Agency Head (within the meaning of the Public Service Act 1999) may act on behalf of the Commonwealth in relation to agreements with:

(a) persons in the Agency who are engaged under the Public Service Act 1999; and

(b) organisations of employees representing such persons.

(2) The Agency Head may delegate his or her powers under subsection (1) to an SES employee or an acting SES employee. A delegation must be in writing.

Part 3—Application

74 Application of items 1, 34 and 57 to 59

The amendments made by items 1, 34 and 57 to 59 apply on or after the commencement of this item in relation to any certified agreement whether certified before, on or after that commencement.

75 Application of items 2, 3, 5 to 11, 16 to 19, 21, 23 to 33, 36 to 38, 43, 67 to 69 and 72

The amendments made by items 2, 3, 5 to 11, 16 to 19, 21, 23 to 33, 36 to 38, 43, 67 to 69 and 72 apply in relation to any agreement where the application to certify the agreement is made on or after the commencement of this item. The amendments also apply in relation to the applications to certify those agreements.

76 Application of item 4

The amendment made by item 4 applies to decisions of the Commission made before, on or after the commencement of this item.

77 Application of items 12 to 15

The amendments made by items 12 to 15 apply in determining whether a valid majority has made or approved an agreement or approved an extension, variation or termination of a certified agreement on or after the commencement of this item.

78 Application of item 22

The amendment made by item 22 applies to requests made under subsection 170LK(4) of the Principal Act on or after the commencement of this item.

79 Application of item 35

The amendment made by item 35 applies to a decision made on or after the commencement of this item about whether to certify an agreement under Part VIB of the Principal Act in respect of applications for certification made under that Part before, on or after that commencement.

80 Application of section 170LZA

Section 170LZA of the Principal Act applies in relation to any agreement where the application to certify the agreement is made on or after the commencement of this item. The amendments also apply in relation to the applications to certify those agreements.

81 Application of section 170LZB

Section 170LZB of the Principal Act applies on or after the commencement of this item in relation to any certified agreement whether certified before, on or after that commencement.

82 Application of items 39 to 41

The amendments made by items 39 to 41 apply in relation to any agreement that is certified on or after the commencement of this item.

83 Application of items 49 to 55 and 60 to 66

The amendments made by items 49 to 55 and 60 to 66 apply to a decision made by the Commission on or after the commencement of this item about the extension, variation or termination of a certified agreement in respect of applications for the extension, variation or termination made on or after that commencement.

84 Meaning of Principal Act

In this Part:

Principal Act means the Workplace Relations Act 1996.

Schedule 9—AWAs

Part 1—Amendment

Workplace Relations Act 1996

1 Divisions 1, 2, 3, 4, 5 and 6 of Part VID

Repeal the Divisions, substitute:

Division 1—Preliminary

Subdivision A—Outline of Part

170VA Outline of Part

(1) This Part deals with the making, approval and operation of:

(a) Australian Workplace Agreements (AWAs); and

(b) agreements to extend, vary or terminate AWAs (ancillary agreements).

(2) Division 1 contains provisions dealing with the interpretation and scope of this Part.

(3) Division 2 sets out the requirements for making an AWA. Division 3 deals with the approval process for AWAs. Division 4 sets out the effect of an AWA on awards, agreements and laws. That Division also:

(a) sets out obligations breach of which may lead to a civil penalty; and

(b) deals with the conduct of industrial action by a party to an AWA during the AWA’s period of operation before its nominal expiry date.

(4) Division 5 deals with agreements to extend, vary or terminate AWAs. The Division contains the following Subdivisions:

(a) Subdivision A dealing with the making and approval of extension agreements;

(b) Subdivision B dealing with the making and approval of variation agreements;

(c) Subdivision C dealing with the making and approval of agreements to terminate AWAs and other mechanisms for terminating AWAs.

(5) Division 7 deals with enforcement and remedies in relation to AWAs and ancillary agreements.

(6) Division 9 contains miscellaneous matters in relation to AWAs and ancillary agreements.

Subdivision B—Interpretation

170VAA Definitions

In this Part, unless the contrary intention appears:

ancillary document means any of the following:

(a) a variation agreement;

(b) an extension agreement;

(d) a termination notice.

approval notice means an approval notice issued by the Employment Advocate under Division 3 or 5.

approved means approved under Division 3 or 5 by the Employment Advocate.

AWA has a meaning affected by section 170VAB and subsections 170VCB(4) and 170VEG(4).

AWA date means the date on which the employer and employee sign the AWA or, if they sign on different dates, the later of those dates.

bargaining agent means a person or group of persons duly appointed as a bargaining agent under section 170WAA.

constitutional trade or commerce means trade or commerce:

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

(b) between the States; or

eligible court means any of the following:

(a) the Federal Court of Australia;

(b) a Supreme Court of a State or Territory;

(d) a magistrate’s court.

employee has a meaning affected by section 170VAB.

employer has a meaning affected by section 170VAB.

existing employee, in relation to an AWA, means an employee who signed the AWA after commencing the employment to which the AWA relates.

extension agreement means an agreement to extend the nominal expiry date of an AWA.

new employee, in relation to an AWA, means an employee who signed the AWA before, or at the time of, commencing the employment to which the AWA relates.

no-disadvantage test means the no-disadvantage test set out in Part VIE.

nominal expiry date means the nominal expiry date that applies under section 170VBC.

party, in relation to an AWA or ancillary document, means the employer or employee.

period of operation, in relation to an AWA, means the period of operation as determined under section 170VBD.

refusal notice means a refusal notice issued by the Employment Advocate under Division 3 or 5.

relevant or designated award means the relevant or designated award that is used when applying the no-disadvantage test set out in Part VIE.

State agreement means an employment agreement made under, or for the purposes of, a law of a State.

termination agreement means an agreement to terminate an AWA.

variation agreement means an agreement to vary an AWA.

verified copy, in relation to a document, means a copy that is certified as being a true copy of the document.

170VAB Proposed AWAs and ancillary documents—interpretation

(1) So far as the context permits, a reference in this Part to an AWA or ancillary document includes a reference to a proposed AWA or ancillary document.

(2) In relation to a proposed AWA or ancillary document, a reference to the employer or employee is a reference to the person who will be the employer or employee when the AWA or ancillary document starts to operate.

Subdivision C—Scope of this Part etc.

170VAC Scope of this Part

An AWA is of no effect unless at least one of the following applies at the AWA date:

(a) the employer is a constitutional corporation;

(b) the employer is the Commonwealth;

(d) the employer is a waterside employer, the employee is a waterside worker and the employee’s employment is in connection with constitutional trade or commerce;

(e) the employee is a maritime employee and the employee’s employment is in connection with constitutional trade or commerce;

(f) the employee is a flight crew officer and the employee’s employment is in connection with constitutional trade or commerce.

170VAD AWAs and ancillary documents only have effect as provided by this Part

An AWA or ancillary document has effect as provided by this Part, and not otherwise.

Division 2—Making an AWA

170VB Employer and employee may make an AWA

(1) An employer and employee may make a written agreement, called an Australian workplace agreement, that deals with matters pertaining to the relationship between an employer and employee.

(2) The requirements set out in the following sections must be satisfied in relation to the AWA:

(a) section 170VBA (making an AWA);

(b) section 170VBB (content of an AWA).

(3) The AWA may be made before commencement of the employment.

170VBA Making an AWA

(1) An AWA must be signed and dated by the employer and the employee who are parties to it.

(2) The employee must genuinely consent to the terms and conditions in the AWA.

(3) The employer must give the employee a copy of the AWA.

Note: This section is a civil penalty provision (see section 170VV).

(4) Before the employee signs the AWA, the employer must:

(a) give the employee a copy of an information statement prepared by the Employment Advocate (see subsection (5)); and

(b) explain the effect of the AWA to the employee.

(5) The information statement prepared by the Employment Advocate for the purposes of paragraph (4)(a) must include information about the following matters, but may include other information:

(a) Commonwealth statutory entitlements;

(b) occupational health and safety law;

(d) bargaining agents.

(6) If the rate of the employee’s remuneration under the AWA as at the start of its period of operation is not more than $68,000 per year, the employee may withdraw his or her consent to the AWA by giving written notice of the withdrawal of consent to the employer before the end of the cooling-off period.

Note: The employee may withdraw his or her consent to the AWA even after the employer has applied to the Employment Advocate for approval of the AWA (see subsections 170VC(6) and (7)).

(7) The cooling-off period is the period of:

(a) 5 days after the day on which a new employee signs the AWA; and

(b) 14 days after the day on which an existing employee signs the AWA.

170VBB Content of AWA

Must be included

(1) The AWA must include the provisions relating to discrimination that are prescribed by the regulations. If the AWA does not in fact include those provisions, the AWA is taken to include those provisions.

(2) The AWA must include a dispute resolution procedure (which may include procedures about mediation and voluntary conciliation). If the AWA does not in fact include a dispute resolution procedure, the AWA is taken to include the model procedure that is prescribed by the regulations.

(3) A dispute resolution procedure that is included in an AWA under subsection (2), or prescribed by the regulations for the purposes of subsection (2), may provide for voluntary conciliation by the Commission under Part VA to settle disputes between the parties to the AWA about the application or interpretation of the AWA.

Must not be included

(4) The AWA must not include any provisions that prohibit or restrict disclosure of details of the AWA by either party to another person.

(5) The AWA must not include any objectionable provisions within the meaning of section 298Z.

170VBC Nominal expiry date of AWA

(1) An AWA may specify a date as its nominal expiry date. The date cannot be more than 3 years after the AWA date.

(2) If no date is specified, then the nominal expiry date is the third anniversary of the AWA date.

170VBD Period of operation of AWA

Subject to section 170VCE, an AWA for an employee starts operating on the later of:

(a) the AWA date; or

(b) the day specified in the AWA as the starting day; or

and stops operating at the earlier of the following times:

(d) if no application is made to the Employment Advocate to approve the AWA within the period of 60 days starting on the AWA date (or such longer period as the Employment Advocate allows)—the start of the day after the end of that period;

(e) the end of the day when a refusal notice is issued in relation to the AWA;

(f) the time when a termination under section 170VEN, 170VEO or 170VEQ takes effect;

(g) the time when another AWA between the employer and employee starts to operate.

Note: See also section 170VCA which deals with the effect of the employee’s withdrawal of consent to the AWA.

Division 3—Approval of AWAs

170VC Applications for approval of AWAs

(1) An employer must apply, in writing, to the Employment Advocate for approval of an AWA to which the employer is a party unless the employee withdraws his or her consent to the AWA before the end of the cooling-off period referred to in subsection 170VBA(7).

(2) The application must be made before the end of:

(a) the period of 60 days starting on the AWA date; or

(b) such longer period as the Employment Advocate allows.

Note: Section 170VCE sets out the consequences of failure to apply for approval by the deadline.

(3) An application must be accompanied by:

(a) a copy of the AWA; and

(b) any other information that the Employment Advocate requires, by notice published in the Gazette, for the purpose of performing his or her functions.

(4) If the rate of the employee’s remuneration under the AWA as at the start of its period of operation is more than $68,000 per year, an application may be accompanied by:

(a) a declaration signed by the employee and the employer that the remuneration is more than $68,000 per year; and

(b) if the application is accompanied by such a declaration—a request signed by the employee asking the Employment Advocate to apply the no-disadvantage test to the AWA.

Note: If a declaration, but not a request, is made, the AWA is taken to satisfy the no-disadvantage test (see subsection 170VCB(2)).

(5) Two or more agreements may be included in the same notice of application if the same employer is a party to all the agreements. The agreements need not be in the same terms.

(6) Before the end of the cooling-off period referred to in subsection 170VBA(7), an employee referred to in subsection 170VBA(6) may withdraw his or her consent to the AWA by giving to the employer and the Employment Advocate written notice of the withdrawal of consent.

(7) The employee must lodge the written notice of withdrawal of consent with the Employment Advocate within 7 days after giving notice of withdrawal to the employer.

170VCA Consequences for AWA of employee’s withdrawal of consent

If:

(a) an employee referred to in subsection 170VBA(6) or 170VC(6) withdraws his or her consent to the AWA before the end of the cooling-off period referred to in subsection 170VBA(7); and

(b) apart from this section, the AWA would have already started to operate;

the AWA is taken not to have started to operate.

170VCB Employment Advocate must approve, or refuse to approve, AWA

Must approve if AWA passes the no-disadvantage test etc.

(1) The Employment Advocate must approve an AWA if:

(a) the application for approval of the AWA is made in accordance with section 170VC; and

(b) the AWA satisfies the requirements of section 170VBA; and

(d) subject to subsection (2), the AWA passes the no-disadvantage test.

(2) An AWA is taken to pass the no-disadvantage test if, as at the start of the AWA’s period of operation, the employee’s rate of remuneration under the AWA is more than $68,000 per year and:

(a) the application for approval of the AWA is accompanied by a declaration referred in paragraph 170VC(4)(a); but

(b) the employee has not made the request referred to in paragraph 170VC(4)(b).

Approval if concerns resolved

(3) If the Employment Advocate has concerns about whether the AWA meets the requirements of subsection (1), the Employment Advocate must give the parties to the AWA an opportunity to:

(a) take any action (including giving undertakings); or

(b) give to the Employment Advocate any information sought by the Employment Advocate.

The Employment Advocate must approve the AWA if satisfied that, because of the action taken or information given, those concerns are resolved.

(4) An undertaking accepted by the Employment Advocate is taken to be included in the AWA.

Approval if no disadvantage to parties

(5) The Employment Advocate must approve the AWA if he or she:

(a) is not satisfied that the requirements of paragraphs (1)(a), (b) and (c) are met in all respects; but

(b) is satisfied that the failure to meet those requirements has not disadvantaged, and will not disadvantage, either party to the AWA.

However, this subsection does not apply to the requirements in subsections 170VBB(4) and (5).

Note: The AWA must pass the no-disadvantage test as required by paragraphs (1)(d).

Approval if not contrary to the public interest

(6) The Employment Advocate must approve the AWA (whether or not subsection (1), (3) or (5) requires the Employment Advocate to approve the AWA) if the Employment Advocate:

(a) is not satisfied that the AWA passes the no-disadvantage test; but

(b) is satisfied that it is not contrary to the public interest to approve the AWA.

(7) In deciding whether approval of an AWA is not contrary to the public interest, the Employment Advocate must apply the principles (if any) referred to in section 170VCC.

Otherwise, approval refused

(8) If the Employment Advocate is not required to approve the AWA, the Employment Advocate must refuse to approve it.

170VCC Principles for deciding whether approval of an AWA etc. is not contrary to the public interest

(1) The President may establish principles to provide general guidance to the Employment Advocate concerning whether approval of an AWA (or approval of an AWA as varied) is not contrary to the public interest.

(2) The President may establish principles:

(a) on his or her own initiative; or

(b) on application by the Employment Advocate.

(3) If the Employment Advocate applies to the President for the establishment of principles, the President must take such steps as the President considers appropriate to obtain the Employment Advocate’s views about the proposed principles.

170VCD Employment Advocate must issue approval or refusal notice

(1) If the Employment Advocate approves an AWA, the Employment Advocate must issue an approval notice to the employer.

(2) If the Employment Advocate refuses to approve an AWA, the Employment Advocate must issue a refusal notice to the employer.

(3) If a designated award applies to the AWA to which the approval notice or refusal notice relates, the Employment Advocate must identify the award in the notice.

(4) The Employment Advocate must also include in an approval notice a copy of each of the following:

(a) the provisions relating to discrimination referred to in subsection 170VBB(1) (if they are taken to be included in the AWA because of that subsection);

(b) the model procedure relating to a dispute resolution procedure referred to in subsection 170VBB(2) (if it is taken to be included in the AWA because of that subsection);

(c) a copy of each undertaking (if any) in relation to the AWA that is taken to be included in the AWA because of subsection 170VCB(4).

170VCE Consequences for AWA of failure to apply for approval, or refusal of approval

(1) If no application is made for approval of an AWA within the period of 60 days after the AWA date (or within such longer period as the Employment Advocate allows):

(a) if the AWA has already started operating—the AWA ceases to operate after the end of that period; and

(b) if the AWA has not already started operating—the AWA does not start to operate; and

(2) If the Employment Advocate issues a refusal notice in relation to the AWA:

(a) if the AWA has already started operating—the AWA ceases operating at the end of the day when the refusal notice is issued; and

(b) if the AWA has not already started operating—the AWA does not start to operate; and

170VCF Employer must give copies of documents to employee

(1) As soon as practicable after receiving from the Employment Advocate the approval notice or refusal notice, the employer must give the employee with whom the AWA was made a copy of:

(a) the notice; and

(b) any material that is taken to be included in the AWA because of subsections 170VBB(1) and (2) and subsection 170VCB(4).

Note: This subsection is a civil penalty provision (see section 170VV).

(2) The employer must give the employee any other document prescribed by the regulations, within the period required by the regulations.

Note: This subsection is a civil penalty provision (see section 170VV).

Division 4—Effect of an AWA

170VD Effect of AWA on awards and agreements

Awards

(1) During its period of operation, an AWA operates to the exclusion of any award (including an award made under subsection 170MX(3)) that would otherwise apply to the employee’s employment unless subsection (2) applies to the AWA.

Exceptional matters order

(2) An AWA does not operate to the exclusion of an exceptional matters order, but prevails over such an order to the extent of any inconsistency.

State award or State agreement

(3) During its period of operation, an AWA operates to the exclusion of any State award or State agreement that would otherwise apply to the employee’s employment.

Certified agreement or old IR agreement

(4) During its period of operation, an AWA operates to the exclusion of any certified agreement or old IR agreement that would otherwise apply to the employee’s employment, unless subsection (5) or (6) applies to the AWA.

(5) An AWA may expressly provide that it does not operate to the exclusion of a certified agreement or old IR agreement that would otherwise apply to the employee’s employment. In that case, the AWA prevails over the certified agreement or old IR agreement only to the extent of any inconsistency.

(6) A certified agreement that comes into operation after the nominal expiry date of an AWA may expressly provide that it prevails over the AWA to the extent of any inconsistency. In that case, the certified agreement prevails over the AWA only to the extent of any inconsistency.

170VDA Effect of AWA on other laws

State law

(1) Subject to this section, an AWA prevails over conditions of employment specified in a State law, to the extent of any inconsistency.

(2) Provisions in an AWA that deal with the following matters operate subject to the provisions of any State law that deals with the matter:

(a) occupational health and safety;

(b) workers’ compensation;

(d) any other matter prescribed by the regulations.

(3) If a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law), subsection (1) is not intended to affect the provisions of that law that provide that protection, so far as those provisions are able to operate concurrently with the AWA.

Prescribed conditions of employment

(4) To the extent of any inconsistency, an AWA prevails over prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations.

(5) In this section:

Commonwealth law means an Act or any regulations or other instrument made under an Act.

prescribed conditions means conditions that are identified by the regulations.

State law means a law of a State or Territory (including any regulations or other instrument made under a law of a State or Territory), but does not include a State award or State agreement.

170VDB Parties must not breach AWA

A party to an AWA must not breach the AWA.

Note: This section is a civil penalty provision (see section 170VV).

170VDC Industrial action etc. by party to AWA

(1) During the period of operation of an AWA before its nominal expiry date, the employee must not engage in industrial action in relation to the employment to which the AWA relates.

Note: This subsection is a civil penalty provision (see section 170VV).

(2) During the period of operation of an AWA before its nominal expiry date, the employer must not lock out the employee for the purpose of supporting or advancing claims in respect of the employee’s employment.

Note: This subsection is a civil penalty provision (see section 170VV).

170VDD Employer’s successor and AWA to which employer is a party

(1) If:

(a) an employee who is a party to an AWA becomes an employee of a new employer because the new employer is a successor to the whole or any part of the previous employer’s business or undertaking; and

(b) at the succession time at least one of the following applies:

(i) the new employer is a constitutional corporation;

(ii) the new employer is the Commonwealth;

(iii) the employee’s primary workplace is in a Territory;

(iv) the new employer is a waterside employer, the employee is a waterside worker and the employee’s employment is in connection with constitutional trade or commerce;

(v) the employee is a maritime employee and the employee’s employment is in connection with constitutional trade or commerce;

(vi) the employee is a flight crew officer and the employee’s employment is in connection with constitutional trade or commerce;

then, subject to any order of the Employment Advocate, the new employer replaces the previous employer as a party to the AWA from the succession time.

(2) The Employment Advocate may make an order for the purposes of this section that a new employer who is the successor (whether immediate or not) of the whole or part of a business or undertaking referred to in paragraph (1)(a):

(a) is not bound by the AWA; or

(b) is bound by the AWA, but only to the extent specified in the order.

The order must specify the day from which the order takes effect. That day must not be before the day on which the order is made.

(3) The Employment Advocate may make an order under this section on application by the employer bound by the agreement.

(4) Before making an order under this section, the Employment Advocate must give the parties to the AWA an opportunity to make submissions.

(5) The succession does not affect the rights and obligations of the previous employer that arose before the succession.

(6) In this section:

successor means a successor, transmittee or assignee.

Division 5—Extending, varying or terminating an AWA

Subdivision A—Extension agreements

170VE Agreement to extend AWA’s nominal expiry date

(1) An employer and employee may make a written agreement that extends the nominal expiry date of an AWA to which they are parties. The extended date cannot be more than 3 years after the AWA date.

(2) An extension agreement may only be made before the nominal expiry date of the AWA.

(3) An extension agreement is made when it is signed and dated by the employer and the employee who are parties to it.

(4) The employee must genuinely consent to making the extension agreement.

(5) Subject to section 170VEC, the extension agreement takes effect on the day on which the employer and the employee sign the agreement, or if they sign on different days, the later of those days.

170VEA Application for approval of extension agreement

(1) An employer must apply, in writing, to the Employment Advocate for approval of an extension agreement to which the employer is a party. An application for approval must be made within:

(a) the period of 60 days starting on the day when the agreement takes effect; or

(b) such longer period as the Employment Advocate allows.

Note: Subsection 170VEC(1) sets out the consequences of failure to apply for approval before the end of that period.

(2) An application must be accompanied by:

(a) a copy of the extension agreement; and

(b) any other information that the Employment Advocate requires, by notice published in the Gazette, for the purpose of performing his or her functions.

(3) Two or more extension agreements may be included in the same notice of application if the same employer is a party to all the agreements. The agreements need not be in the same terms.

170VEB Employment Advocate must approve, or refuse to approve, extension agreement

Approval if sections 170VE and 170VEA satisfied

(1) The Employment Advocate must approve the extension agreement if:

(a) the application for approval of the extension agreement is made in accordance with section 170VEA; and

(b) the extension agreement satisfies the requirements of section 170VE.

Approval if no disadvantage to parties

(2) The Employment Advocate must approve the AWA if he or she:

(a) is not satisfied that the requirements of paragraphs (1)(a) and (b) are met in all respects; but

(b) is satisfied that the failure to meet those requirements has not disadvantaged, and will not disadvantage, either party to the AWA.

Approval notice etc.

(3) If the Employment Advocate approves an extension agreement, the Employment Advocate must:

(a) issue an approval notice to the employer; and

(b) give a copy of the extension agreement as approved to the employer.

Refusal of approval and refusal notice

(4) If the Employment Advocate is not required to approve the extension agreement, the Employment Advocate must:

(a) refuse to approve the extension agreement; and

(b) issue a refusal notice to the employer.

Note: Subsection 170VEC(2) sets out the consequences of the issuing of a refusal notice.

Employer must give certain documents to employee

(5) As soon as practicable after receiving from the Employment Advocate the approval notice or refusal notice, the employer must give the employee with whom the extension agreement was made a copy of:

(a) the notice; and

(b) the extension agreement (if it was approved).

Note: This subsection is a civil penalty provision (see section 170VV).

(6) The employer must give the employee any other document prescribed by the regulations, within the period required by the regulations.

Note: This subsection is a civil penalty provision (see section 170VV).

170VEC Consequences for extension agreement of failure to apply for approval or refusal of approval

(1) If no application is made for approval of an extension agreement within the period of 60 days starting on the day when the agreement took effect (or within such longer period as the Employment Advocate allows):

(a) the extension agreement ceases to have effect after the end of that period; and

(b) the Employment Advocate cannot approve the extension agreement.

(2) If the Employment Advocate issues a refusal notice in relation to the extension agreement, the extension agreement ceases to have effect at the end of the day when the refusal notice is issued.

Subdivision B—Variation agreements

170VED Agreement to vary an AWA

(1) An employer and employee may make a written agreement varying an AWA. A variation agreement is made when it is signed and dated by the employer and the employee who are parties to it.

Note: A variation agreement may vary the AWA’s nominal expiry date. However, the extended date cannot be more than 3 years after the AWA date (see sections 170VBC and 170VE).

(2) If the rate of the employee’s remuneration under the AWA as varied is not more than $68,000 per year as at when the variation agreement takes effect, the employee may withdraw his or her consent to the variation agreement by giving written notice of the withdrawal of consent to the employer and the Employment Advocate before the end of the cooling-off period.

Note: The employee may withdraw his or her consent to the variation agreement even after the employer has applied to the Employment Advocate for approval of the variation agreement (see subsections 170VEE(6) and (7)).

(3) The cooling-off period is the period of 14 days after the day on which the employee signs the agreement.

(4) Subject to sections 170VEF and 170VEJ, the variation agreement takes effect on:

(a) the day on which the employer and employee sign the variation agreement, or if they sign on different days, the later of those days; and

(b) if a day is specified in the variation agreement as the date of effect and that day is later than the day under paragraph (a)—the day specified in the agreement.

(5) Sections 170VBA and 170VBB apply to the AWA as varied in the same way as those sections apply to the original AWA.

170VEE Applications for approval of variation agreements

(1) An employer must apply, in writing, to the Employment Advocate for approval of a variation agreement to which the employer is a party unless the employee withdraws his or her consent to the variation agreement before the end of the cooling-off period referred to in subsection 170VED(3).

(2) An application for approval must be made within:

(a) the period of 60 days starting on:

(i) the day on which the employer and the employee sign the variation agreement; or

(ii) if they sign on different days—the later of those days; or

(b) such longer period as the Employment Advocate allows.

Note: Subsection 170VEJ(1) sets out the consequences of failure to apply for approval by the deadline.

(3) An application must be accompanied by:

(a) a copy of the variation agreement; and

(b) any other information that the Employment Advocate requires, by notice published in the Gazette, for the purpose of performing his or her functions.

(4) If the rate of the employee’s remuneration under the AWA as varied is more than $68,000 per year as at when the variation agreement takes effect, an application may be accompanied by:

(a) a declaration signed by the employee and the employer that the remuneration is more than $68,000 per year; and

(b) if the application is accompanied by such a declaration—a request signed by the employee asking the Employment Advocate to apply the no-disadvantage test to the variation agreement.

Note: If a declaration, but not a request, is made, the AWA as varied is taken to satisfy the no-disadvantage test (see subsection 170VEG(2)).

(5) Two or more variation agreements may be included in the same notice of application if the same employer is a party to all the agreements. The agreements need not be in the same terms.

(6) Before the end of the cooling-off period referred to in subsection 170VED(3), an employee referred to in subsection 170VED(2) may withdraw his or her consent to the variation agreement by giving to the employer and the Employment Advocate written notice of the withdrawal of consent.

(7) The employee must lodge the written notice of withdrawal of consent with the Employment Advocate within 7 days after giving notice of withdrawal to the employer.

170VEF Consequences for variation agreement of employee’s withdrawal of consent

If:

(a) an employee referred to in subsection 170VED(2) or 170VEE(6) withdraws his or her consent to the variation agreement before the end of the cooling-off period referred to in subsection 170VED(3); and

(b) apart from this section, the variation agreement would already have taken effect;

the variation agreement is taken not to have taken effect.

170VEG Employment Advocate must approve, or refuse to approve, variation agreement

Approval if AWA, as varied, passes the no-disadvantage test etc.

(1) The Employment Advocate must approve a variation agreement if:

(a) the application for approval of the variation agreement is made in accordance with section 170VEE; and

(b) the variation agreement satisfies the requirements of section 170VBA as it applies to those agreements; and

(d) subject to subsection (2), the AWA, as varied, passes the no-disadvantage test.

(2) An AWA, as varied, is taken to pass the no-disadvantage test if, as at when the variation agreement takes effect, the employee’s rate of remuneration under the AWA as varied is more than $68,000 per year and:

(a) the application for approval of the AWA is accompanied by a declaration referred in paragraph 170VEE(4)(a); but

(b) the employee has not made the request referred to in paragraph 170VEE(4)(b).

Approval if concerns resolved

(3) If the Employment Advocate has concerns about whether the AWA meets the requirements of subsection (1), the Employment Advocate must give the parties to the AWA an opportunity to:

(a) take any action (including giving undertakings); or

(b) give to the Employment Advocate any information sought by the Employment Advocate.

The Employment Advocate must approve the AWA if satisfied that, because of the action taken or information given, those concerns are resolved.

(4) An undertaking accepted by the Employment Advocate is taken to be included in the AWA as varied.

Approval if no disadvantage to parties

(5) The Employment Advocate must approve the variation agreement if he or she:

(a) is not satisfied that the requirements of paragraphs (1)(a), (b) and (c) are met in all respects; but

(b) is satisfied that the failure to meet those requirements has not disadvantaged, and will not disadvantage, either party to the AWA.

Approval if not contrary to the public interest

(6) The Employment Advocate must approve the variation agreement (whether or not subsection (1), (3) or (5) requires the Employment Advocate to approve it) if the Employment Advocate:

(a) is not satisfied that the AWA as varied passes the no-disadvantage test; but

(b) is satisfied that it is not contrary to the public interest to approve the variation agreement.

However, this subsection does not apply to the requirements in subsections 170VBB(4) and (5) (as those subsections apply to variation agreements).

Note: The AWA, as varied, must pass the no-disadvantage test as required by paragraph (1)(d).

(7) In deciding whether approval of a variation agreement is not contrary to the public interest, the Employment Advocate must apply the principles (if any) referred to in section 170VCC.

Otherwise, approval refused

(8) If the Employment Advocate is not required to approve the variation agreement, the Employment Advocate must refuse to approve it.

170VEH Employment Advocate must issue approval or refusal notice

(1) If the Employment Advocate approves a variation agreement, the Employment Advocate must:

(a) issue an approval notice to the employer; and

(b) give a copy of the variation agreement as approved to the employer.

(2) If the Employment Advocate refuses to approve a variation agreement, the Employment Advocate must issue a refusal notice to the employer.

Note: Subsection 170VEJ(2) sets out the consequences of the issuing of a refusal notice.

170VEI Employer must give copies of documents to employee

(1) As soon as practicable after receiving from the Employment Advocate the approval notice or refusal notice, the employer must give the employee with whom the variation agreement was made a copy of:

(a) the notice; and

(b) the variation agreement as approved (if it was approved).

Note: This subsection is a civil penalty provision (see section 170VV).

(2) The employer must give the employee any other document prescribed by the regulations, within the period required by the regulations.

Note: This subsection is a civil penalty provision (see section 170VV).

170VEJ Consequences for variation agreement of failure to apply for approval or refusal of approval

(1) If no application is made for approval of a variation agreement before the end of the period referred to in subsection 170VEE(1):

(a) if the variation agreement has already taken effect—the variation agreement ceases to have effect after the end of that period; and

(b) if the variation agreement has not already taken effect—the variation agreement does not take effect; and

(2) If the Employment Advocate issues a refusal notice in relation to the variation agreement:

(a) if the variation agreement has already taken effect—the variation agreement ceases to have effect at the end of the day when the refusal notice is issued; and

(b) if the variation agreement has not already taken effect—the variation agreement does not take effect.

Subdivision C—Terminating an AWA

170VEK Terminating an AWA

This Subdivision sets out the 3 ways in which an AWA may be terminated:

(a) termination by a termination agreement (see sections 170VEL to 170VEN); and

(b) termination by the Employment Advocate (see section 170VEO); and

170VEL Termination agreement

(1) At any time, the employer and employee may make a written agreement to terminate the AWA.

(2) A termination agreement is made when it is signed and dated by the employer and the employee who are parties to it.

(3) The employee must genuinely consent to making the termination agreement.

(4) A termination agreement must be approved by the Employment Advocate under section 170VEN. If approved, the agreement takes effect:

(a) at the end of the day on which an approval notice is issued for the termination agreement; or

(b) if a time for termination is specified in the termination agreement and that time is later than the time under paragraph (a)—at the time specified in the termination agreement.

If the Employment Advocate refuses to approve the termination agreement, it does not take effect.

170VEM Application for approval of termination agreement

(1) An employer must apply, in writing, to the Employment Advocate for approval of a termination agreement to which the employer is a party.

(2) The application must be made within:

(a) the period of 60 days starting when the termination agreement is made; or

(b) such longer period as the Employment Advocate allows.

(3) An application must be accompanied by:

(a) a copy of the termination agreement; and

(b) any other information that the Employment Advocate requires, by notice published in the Gazette, for the purpose of performing his or her functions.

(4) Two or more termination agreements may be included in the same notice of application if the same employer is a party to all the agreements. The agreements need not be in the same terms.

170VEN Employment Advocate must approve, or refuse to approve, termination agreement

Approval if sections 170VEL and 170VEM are satisfied

(1) The Employment Advocate must approve the termination agreement if:

(a) the application for approval of the termination agreement is made in accordance with section 170VEM; and

(b) the termination agreement satisfies the requirements of section 170VEL.

Approval if no disadvantage to parties

(2) The Employment Advocate must approve the termination agreement if he or she:

(a) is not satisfied that the requirements of paragraphs (1)(a) and (b) are met in all respects; but

(b) is satisfied that the failure to meet those requirements has not disadvantaged, and will not disadvantage, either party to the AWA.

Approval notice

(3) If the Employment Advocate approves a termination agreement, the Employment Advocate must issue an approval notice to the employer.

Refusal of approval and refusal notice

(4) If the Employment Advocate is not required to approve the termination agreement, the Employment Advocate must:

(a) refuse to approve the termination agreement; and

(b) issue a refusal notice to the employer.

Employer must give certain documents to employee

(5) As soon as practicable after receiving from the Employment Advocate the approval notice or refusal notice, the employer must give the employee with whom the termination agreement was made a copy of:

(a) the notice; and

(b) the termination agreement (if it was approved).

Note: This subsection is a civil penalty provision (see section 170VV).

(6) The employer must give the employee any other document prescribed by the regulations, within the period required by the regulations.

Note: This subsection is a civil penalty provision (see section 170VV).

170VEO Termination by Employment Advocate

(1) After the nominal expiry date of an AWA, the Employment Advocate may, on application in writing by either party, terminate the AWA if the Employment Advocate considers that it is not contrary to the public interest to do so.

(2) Before making a determination for the purposes of subsection (1), the Employment Advocate must take such steps as he or she thinks appropriate to obtain the views of each of the parties to the AWA about whether the AWA should be terminated.

(3) The Employment Advocate must issue a copy of its determination to the parties.

(4) A termination under subsection (3) takes effect at the end of the day on which the Employment Advocate issues copies of its determination, or at such later time as is specified in the determination.

170VEP Termination in accordance with the AWA

(1) After the nominal expiry date of an AWA, the employer or the employee may apply, in writing, to the Employment Advocate for approval to terminate the AWA in a manner provided for in the AWA.

(2) As soon as practicable after making the application, the applicant must give written notice of the application to the other party to the AWA.

(3) An application must be accompanied by:

(a) details of the manner provided for in the AWA to terminate the AWA; and

(b) any other information that the Employment Advocate requires, by notice published in the Gazette, for the purpose of performing his or her functions.

(4) The termination of 2 or more AWAs may be covered by the same notice of application if:

(a) the applicant is the employer; and

(b) the employer is a party to all the AWAs.

The terminations need not be in the same terms.

(5) A termination referred to in subsection (1) must be approved by the Employment Advocate under section 170VEQ. If approved, the termination takes effect:

(a) at the end of the day on which an approval notice is issued in relation to the termination; or

(b) if a time for termination is specified in the application and that time is later than the time under paragraph (a)—at the time specified in the application.

If the Employment Advocate refuses to approve the termination, it does not take effect.

170VEQ Employment Advocate must approve, or refuse to approve, terminations under AWAs

Approval if section 170VEP etc. satisfied

(1) The Employment Advocate must approve an application made under section 170VEP if:

(a) the application is made in accordance with section 170VEP; and

(b) the applicant has notified the other party of the application; and

Approval if no disadvantage to parties

(2) The Employment Advocate must approve the termination if he or she:

(a) is not satisfied that the requirements of paragraphs (1)(a), (b) and (c) are met in all respects; but

(b) is satisfied that the failure to meet those requirements has not disadvantaged, and will not disadvantage, either party to the AWA.

Approval notice

(3) If the Employment Advocate approves the application, the Employment Advocate must issue an approval notice to the applicant.

Refusal of approval and refusal notice

(4) If the Employment Advocate is not required to approve the termination, the Employment Advocate must:

(a) refuse to approve the termination; and

(b) issue a refusal notice to the applicant.

Applicant must give certain documents to other party

(5) As soon as practicable after receiving from the Employment Advocate the approval notice or refusal notice, the applicant must give the other party to the AWA copy of the notice.

Note: This subsection is a civil penalty provision (see section 170VV).

(6) The applicant must give the other party to the AWA any other document prescribed by the regulations, within the period required by the regulations.

Note: This subsection is a civil penalty provision (see section 170VV).

2 At the end of subsection 170VV(1)

Add:

A contravention is not an offence.

Note: The heading to section 170VV is replaced by the heading “Civil penalties”.

3 Subsection 170VV(4) (definition of penalty provision)

Repeal the subsection, substitute:

(4) In this section:

penalty provision means:

(a) subsection 170VBA(3); or

(b) subsection 170VCF(1) or (2); or

(d) subsection 170VDC(1) or (2); or

(e) subsection 170VEB(5) or (6); or

(f) subsection 170VEI(1) or (2); or

(g) subsection 170VEN(5) or (6); or

(h) subsection 170VEQ(5) or (6); or

(i) subsection 170WAA(2) or (4); or

(j) subsection 170WF(1); or

(k) subsection 170WG(1) or (2); or

(l) section 170WH.

4 Subsection 170VV(3)

Repeal the subsection, substitute:

(3) An application for an order under subsection (1) that relates to an AWA or ancillary document may be made by:

(a) a party to the AWA or ancillary document; or

(b) the Employment Advocate; or

5 After section 170VV

Insert:

170VVA Eligible court may order employer to pay underpayment to employee

(1) If, in a proceeding against an employer under section 170VV, it appears to the eligible court that an employee of the employer has not been paid an amount that the employer was required to pay under the AWA, the court may order the employer to pay to the employee the amount of the underpayment.

(2) An order must not be made under subsection (1) in relation to so much of an underpayment as relates to any period more than 6 years before the commencement of the proceedings.

6 At the end of section 170VW

Add:

(3) This section does not apply to the extent that the amount of the loss or damage has been recovered by the employee who is a party to the AWA because of an order made under section 170VVA.

7 Section 170VX

Repeal the section, substitute:

170VX Compensation for shortfall in entitlements—AWA not operating

(1) If an AWA stops operating in the circumstances set out in subsection (2) and the amount worked out under paragraph (a) below is less than the amount worked out under paragraph (b) below, the employee is entitled to recover the shortfall from the employer in an eligible court:

(a) the total value of the entitlements to which the employee became entitled under the AWA for the period it was in operation;

(b) the total value of the entitlements to which the employee would have been entitled for that period (if the AWA had not been made) under the relevant award in respect of the employment to which the AWA relates.

(2) The circumstances are where the AWA stops operating because of one of the following:

(a) the employer’s failure to apply for approval of the AWA within the period of 60 days after the AWA date (or within such longer period as the Employment Advocate allowed);

(b) the issue of a refusal notice in relation to the AWA.

170VXA Compensation for shortfall in entitlements—AWA approved after employer’s action

(1) This section applies if:

(a) the Employment Advocate approved an AWA under subsection 170VCB(3) because the employer took action referred to in that subsection; and

(b) the AWA was operating before it was approved.

(2) If the amount worked out under paragraph (a) is less than the amount worked out under paragraph (b), the employee is entitled to recover the shortfall from the employer in an eligible court:

(a) the total value of the entitlements to which the employee became entitled under the AWA for the period it was operating before it was approved;

(b) the total value of the entitlements to which the employee would have been entitled for that period if the AWA, as given to the Employment Advocate for approval, had taken account of the action taken by the employer.

170VXB Compensation for shortfall in entitlements—variation agreement ceasing to have effect

(1) If a variation agreement ceases to have effect in the circumstances set out in subsection (2) and the amount worked out under paragraph (a) below is less than the amount worked out under paragraph (b) below, the employee is entitled to recover the shortfall in an eligible court:

(a) the total value of the entitlements to which the employee became entitled under the AWA, as varied, for the period during which the variation agreement had taken effect;

(b) the total value of the entitlements to which the employee would have been entitled for that period under the AWA before it was varied.

(2) The circumstances are where the variation agreement ceases to have effect because of one of the following:

(a) the employer’s failure to apply for approval of the variation agreement before the end of the period referred to in subsection 170VEE(2);

(b) the issue of a refusal notice in relation to the variation agreement.

170VXC Compensation for shortfall in entitlements—variation agreement approved after employer’s action

(1) This section applies if:

(a) the Employment Advocate approved a variation agreement under subsection 170VLB(2) because the employer took action referred to in that subsection; and

(b) the variation agreement had taken effect before it was approved.

(2) If the amount worked out under paragraph (a) is less than the amount worked out under paragraph (b), the employee is entitled to recover the shortfall from the employer in an eligible court:

(a) the total value of the entitlements to which the employee became entitled under the AWA, as varied, for the period during which the variation had taken effect;

(b) the total value of the entitlements to which the employee would have been entitled for that period if the variation agreement, as given to the Employment Advocate for approval, had taken account of the action taken by the employer.

8 Division 8 of Part VID

Repeal the Division.

9 Before section 170WF

Insert in Division 9:

170WAA Bargaining agents

(1) An employer or employee may appoint a person to be his or her bargaining agent in relation to the making, approval, variation or termination of an AWA. The appointment must be made in writing.

(2) Subject to subsection (3), an employer or employee must not refuse to recognise a bargaining agent duly appointed by the other party for the purposes of subsection (1).

Note: This subsection is a civil penalty provision (see section 170VV).

(3) Subsection (2) does not apply if the person refusing has not been given a copy of the bargaining agent’s instrument of appointment before the refusal.

(4) An employer or employee must not coerce, or attempt to coerce, the other party:

(a) to appoint, or not to appoint, a particular person as an authorised bargaining agent; or

(b) to terminate the appointment of an authorised bargaining agent.

Note: This subsection is a civil penalty provision (see section 170VV).

(5) In this section:

person includes a group of persons.

10 At the end of subsection 170WF(1)

Add:

Note: This subsection is a civil penalty provision (see section 170VV).

11 At the end of subsection 170WG(1)

Add:

Note: This subsection is a civil penalty provision (see section 170VV).

12 At the end of subsection 170WG(2)

Add:

Note: This subsection is a civil penalty provision (see section 170VV).

13 Section 170WH

Repeal the section, substitute:

170WH Information must not be false or misleading

A person must not give the Employment Advocate information for the purposes of this Part that the person knows, or ought reasonably to know, is false or misleading.

Note: This section is a civil penalty provision (see section 170VV).

14 Subsection 170WHA(1)

Omit “filing,”.

15 Sections 170WHB, 170WHC and 170WHD

Repeal the sections.

16 Subsection 170WI(1)

Omit “filed with”, substitute “given to”.

17 Subsection 170WI(1)

Omit “or Commission”.

18 Paragraph 170WI(2)(a)

Omit “filed”, substitute “given to the Employment Advocate”.

19 Paragraph 170WI(2)(b)

Omit “or Commission”.

20 Paragraph 170WI(2)(c)

Repeal the paragraph, substitute:

21 Subsection 170WK(1)

After “Secretary” (first occurring), insert “to a Department”.

22 After subsection 170WK(1)

Insert:

(1A) A Secretary to a Department may delegate the Secretary’s powers under subsection (1) to a person holding, or performing the duties of, a Senior Executive Service office in the Department. A delegation must be in writing.

23 Sections 524 and 525

Repeal the sections, substitute:

524 Restriction on protected action: employees

Subject to section 529, industrial action is not protected action for the purposes of Division 8 of Part VIB if an employee who is bound by an employment agreement organises or engages in the action:

(a) in the case of a collective employment agreement—at any time when the agreement is in force; or

(b) in the case of an individual employment agreement—at any time during the period of 3 years after the commencement of this Division.

525 Restriction on protected action: employers

Subject to section 529, a lockout is not protected action for the purposes of Division 8 of Part VIB if an employer who is bound by an employment agreement locks out an employee:

(a) in the case of a collective employment agreement—at any time when the agreement is in force; or

(b) in the case of an individual employment agreement—at any time during the period of 3 years after the commencement of this Division.

Part 2—Further amendment

Workplace Relations Act 1996

24 At the end of section 170WK

Add:

(2) The Agency Head may delegate his or her powers under subsection (1) to an SES employee or an acting SES employee. A delegation must be in writing.

Part 3—Application and saving provisions

25 Application of items 1, 3, 7, 9 and 13 to 20

Subject to item 26, the amendments made by items 1, 3, 7, 9 and 13 to 20 apply to AWAs, extension agreements, variation agreements and termination agreements made on or after the commencement of those items.

26 Application of new section 170VD

Section 170VD of the Workplace Relations Act 1996 as in force immediately after the commencement of this item applies to AWAs made on or after the commencement of item 1.

27 Application of items 4, 5 and 6

The amendments made by items 4, 5 and 6 apply to AWAs, extension agreements, variation agreements and termination agreements whether made before, on or after the commencement of those items.

28 Application of items 8 and 23

The amendments made by items 8 and 23 apply only in relation to industrial action after the commencement of those items.

29 Savings—AWAs

(1) This item applies to an AWA if the AWA:

(a) was approved under section 170VPB or 170VPG of the Workplace Relations Act 1996 as in force immediately before the commencement of this item; and

(b) was in force immediately before that commencement.

(2) The AWA has effect, after that commencement, as if it had been approved under section 170VCB of the amended Act.

30 Savings—extension agreements

(1) This item applies to an extension agreement for an AWA if:

(a) the extension agreement was approved under section 170VPD of the Workplace Relations Act 1996 as in force immediately before the commencement of this item; and

(b) the AWA was in force immediately before that commencement.

(2) The extension agreement has effect, after that commencement, as if it had been approved under section 170VEB of the amended Act.

31 Savings—variation agreements

(1) This item applies to a variation agreement in relation to an AWA:

(a) if the variation agreement was approved under section 170VPC or 170VPH of the Workplace Relations Act 1996 as in force immediately before the commencement of this item; and

(b) the AWA was in force immediately before that commencement.

(2) The variation agreement has effect, after that commencement, as if it had been approved under section 170VEG of the amended Act.

32 Savings—termination agreements

(1) This item applies to a termination agreement for an AWA if:

(a) the termination agreement was approved under section 170VPD of the Workplace Relations Act 1996 as in force immediately before the commencement of this item; and

(b) the AWA was in force immediately before that commencement.

(2) The termination agreement has effect, after that commencement, as if it had been approved under section 170VEN of the amended Act.

33 Savings—regulations made for purposes of former sections 170VG and 170VR

If:

(a) regulations were made for the purposes of the former provision referred to in column 2 of the table; and

(b) the regulations were in force immediately before the commencement of this item;

the regulations have effect, after that commencement, as if they had been made for the purposes of the new provision referred to in column 3.

Regulations continue to have effect
Column 1 Item	Column 2 Former provision	Column 3 New provision
1	subsection 170VG(1)	subsection 170VBB(1)
2	subsection 170VG(3)	subsection 170VBB(2)
3	subsection 170VR(4)	subsection 170VDA(4)

34 Savings—Gazette notices

If:

(a) a notice was published in the Gazette for the purposes of the former provision referred to in column 2 of the table; and

(b) the notice was in force immediately before the commencement of this item;

the notice has effect, after that commencement, as if it had been published in the Gazette for the purposes of the new provision referred to in column 3.

Gazette notices continue to have effect
Column 1 Item	Column 2 Former provision	Column 3 New provision
1	paragraph 170VO(1)(c)	paragraph 170VC(3)(b)
2	paragraph 170VO(3)(c)	paragraph 170VEE(3)(b)
3	paragraph 170VO(4)(b)	paragraph 170VEA(2)(b)
4	paragraph 170VO(5)(b)	paragraph 170VEM(3)(b)
5	paragraph 170VO(6)(b)	paragraph 170VEP(3)(b)

35 Savings—prescribed conditions

(1) This item applies to conditions identified by regulations if:

(a) the regulations were made for the purposes of the definition of prescribed conditions in subsection 170VR(5) of the Workplace Relations Act 1996 as in force immediately before the commencement of this item; and

(b) the regulations were in force immediately before that commencement.

(2) The regulations have effect, after that commencement, as if they had been made for the purposes of the definition of prescribed conditions in subsection 170VDA(5) of the amended Act.

36 Savings—appointment of bargaining agent

(1) This item applies to an appointment of a bargaining agent if:

(a) the appointment was made under subsection 170VK(1) of the Workplace Relations Act 1996 as in force immediately before the commencement of this item; and

(b) the appointment was in force immediately before that commencement.

(2) The appointment has effect, after that commencement, as if it had been made under subsection 170WAA(1) of the amended Act.

37 Definitions

In this Part:

amended Act means the Workplace Relations Act 1996 as amended by this Schedule.

former provision means a provision of the Workplace Relations Act 1996 as in force immediately before the commencement of this item.

new provision means a provision of the Workplace Relations Act 1996 as in force immediately after the commencement of this item.

Schedule 10—Relevant and designated awards

Part 1—Amendment of the Workplace Relations Act 1996 concerning relevant and designated awards

1 Section 170X (at the end of the definition of award)

Add:

; or (c) an old IR agreement.

2 Section 170X (definition of approving authority)

Omit all of the words and paragraphs after “purposes”, substitute “of this Part by the Minister for Education, Training and Youth Affairs.”.

3 Section 170X (definition of relevant award)

Repeal the definition, substitute:

relevant award, in relation to a person to whom an agreement applies, or will apply, means an award:

(a) that regulates or would regulate any term or condition of employment of the person to whom the agreement applies or will apply; and

(b) that, immediately before the initial day of the agreement, is binding on the person’s employer.

4 Subsection 170XE(1)

Omit “must”, substitute “may”.

5 After subsection 170XE(2)

Insert:

(2A) If:

(a) an employer applies for the approval of an AWA; and

(b) there is no relevant award in relation to the person with whom the AWA has been made; and

the Employment Advocate must determine, and inform the employer in writing, that an award or awards are appropriate for the purpose of deciding whether the agreement passes the no-disadvantage test.

6 Subsection 170XE(3)

Omit “subsection (2)”, substitute “subsections (2) and (2A)”.

7 Subsection 170XF(1)

Repeal the subsection, substitute:

(1) For the purpose of agreement-making under Part VIB, an employer, an organisation of employees, or a prescribed number of employees of a single business or part of a single business may, if there is no relevant award in relation to some or all of the persons to whom the agreement will apply, make application, in writing, to the Commission for an award or awards to be designated under subsection (2).

(1A) In subsection (1), the reference to the prescribed number of employees is a reference to a number fixed by regulations made for the purposes of that subsection.

8 Subsection 170XF(2)

Omit “employer or organisation”, substitute “ the applicant under subsection (1)”.

9 After subsection 170XF(2)

Insert:

(2A) If:

(a) an employer, an organisation of employees or a prescribed number of employees whose employment will be subject to the agreement applies to the Commission for the agreement to be certified; and

(b) there is no relevant award in relation to some or all of the persons to whom the agreement applies; and

the Commission must determine, and inform the applicant, that an award or awards are appropriate for the purpose of deciding whether the agreement passes the no-disadvantage test.

(2B) In subsection (2A), the reference to the prescribed number of employees is a reference to the number fixed by regulations made for the purposes of applications to the Commission under subsection 170LH(4).

10 Subsection 170XF(3)

Omit “subsection (2)”, substitute “subsections (2) and (2A)”.

Part 2—Application provisions

11 Application of items 1 to 3

The amendments of the Workplace Relations Act 1996 made by items 1 to 3 apply in relation to;

(a) applications for approval of AWAs under that Act made after the commencement of items 4 to 6; and

(b) applications for approval of certified agreements under that Act made after the commencement of items 7 to 10.

12 Application of items 4 to 6

The amendments of the Workplace Relations Act 1996 made by items 4 to 6 apply in relation to applications for approval of AWAs under that Act made after the commencement of those items.

13 Application of items 7 to 10

The amendments of the Workplace Relations Act 1996 made by items 7 to 10 apply to applications for approval of certified agreements under that Act made after the commencement of those items.

Schedule 11—Industrial action

Part 1—Amendments

Workplace Relations Act 1996

1 Subsection 4(1) (definition of boycott)

Repeal the definition.

2 Subsection 4(1) (definition of boycott conduct)

Repeal the definition.

3 Subsection 4(1)

Insert:

old IR agreement means an agreement certified or approved under:

(a) section 115, as in force immediately before the commencement of the Industrial Relations Amendment Act 1992; or

(b) Division 3A of Part VI, as in force immediately before the commencement of Schedule 2 to the Industrial Relations Reform Act 1993; or

(c) Part VIB, as in force immediately before the commencement of item 1 of Schedule 9 to the Workplace Relations and Other Legislation Amendment Act 1996.

4 Subsection 4(1A)

After “except in”, insert “section 187ABA and”.

5 At the end of section 4

Add:

(11) For the purposes of this Act, a reference to a nominal expiry date includes a reference to the end of the period of operation of an old IR agreement. The period of operation is:

(a) for a certified agreement covered by paragraph (a) of the definition of old IR agreement—the period specified in the agreement in accordance with subsection 115(2) (as in force immediately before its repeal); or

(b) for a certified agreement covered by paragraph (b) of the definition of old IR agreement—the period of the agreement as defined in subsection 134J(4) (as in force immediately before its repeal); or

(c) for a certified agreement covered by paragraph (c) of the definition of old IR agreement—the period of the agreement as defined in subsection 170MI(5) (as in force immediately before its repeal); or

(d) for an enterprise flexibility agreement covered by paragraph (c) of the definition of old IR agreement—the period of the agreement as defined in subsection 170NJ(5) (as in force immediately before its repeal).

6 Subsection 99(4)

Repeal the subsection.

7 Subsection 127(1)

Repeal the subsection, substitute:

(1) This section applies if it appears to the Commission that:

(a) industrial action by an employee or employees, or a lockout by an employer, that is not, or would not be, protected:

(i) is happening; or

(ii) is threatened, impending or probable; or

(iii) is being organised; and

(b) the industrial action or lockout is in relation to:

(i) an industrial dispute; or

(ii) the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB; or

(iii) work that is regulated by an award, a certified agreement or an old IR agreement.

(1A) This section also applies if it appears to the Commission that:

(a) industrial action by an employee or employees, or a lockout by an employer, that was not protected has happened within the previous 3 months; and

(b) the industrial action or lockout is in relation to:

(i) an industrial dispute; or

(ii) the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB; or

(iii) work that is regulated by an award, a certified agreement or an old IR agreement; and

(1B) If this section applies in relation to industrial action by an employee or employees, the Commission must make an order that the industrial action, and any other industrial action (whether or not of the same type) by that employee or those employees that is not, or would not be, protected action, stop, not occur and not be organised.

(1C) If this section applies in relation to a lockout by an employer, the Commission must make an order that the lockout, and any other lockout by the employer that is not, or would not be, protected action, stop, not occur and not be organised.

(1D) In directing that industrial action stop, not occur and not be organised, the Commission does not have to specify the particular industrial action.

(1E) If the Commission makes an order under subsection (1B) or (1C), the Commission must also decide whether or not to make an order under subsection (1F).

(1F) If the Commission makes an order under subsection (1B) or (1C), the Commission may also make an order preventing any other person or organisation from taking or organising any industrial action, or lockout, that would not be protected action.

8 Subsection 127(2)

Omit “such an order”, substitute “an order under this section”.

9 Paragraph 127(2)(b)

Omit “directly affected” (wherever occurring), substitute “affected (whether directly or indirectly)”.

10 Subsection 127(3)

Repeal the subsection, substitute:

(3) As far as practicable, the Commission must hear and determine an application for an order under this section within 48 hours.

(3A) If the Commission is unable to determine an application for an order under subsection (1B) within 48 hours of the application being made, the Commission must (within that 48 hour period) make an interim order to stop and prevent the taking of and organisation of:

(a) the industrial action; and

(b) any other industrial action (whether or not of the same type) by that employee or those employees that would not be protected action;

unless the Commission is satisfied that it would be contrary to the public interest to make such an interim order. The interim order is to have effect until the application is determined.

(3B) If the Commission is unable to determine an application for an order under subsection (1C) within 48 hours of the application being made, the Commission must (within that 48 hour period) make an interim order to stop the lockout and prevent the organisation of:

(a) the lockout; and

(b) any other lockout by the employer that would not be protected action;

unless the Commission is satisfied that it would be contrary to the public interest to make such an interim order. The interim order is to have effect until the application is determined.

(3C) However, an order may not be made under subsection (3B) if the employer’s conduct is based on the employer’s belief that the locked out employee’s employment had been terminated.

11 Subsection 127(4)

Omit “subsection (1)”, substitute “subsections (1B), (1C) and (1F)”.

12 At the end of subsection 127(4)

Add:

Note: Other provisions that deal with remedies available in relation to unprotected industrial action are:

(a) sections 127AAA and 127AAB (remedial orders and interim remedial orders); and

(b) section 187 (cancellation or suspension of terms of awards or orders); and

13 Subsection 127(5)

Omit “subsection (1)”, substitute “subsections (1B), (1C) and (1F)”.

14 Subsections 127(6) and (7)

Repeal the subsections.

15 After section 127

Insert:

127AAA Remedial orders

(1) This section applies if a person or organisation affected by an order of the Commission under section 127, whether final or interim, applies to an appropriate court for an order requiring another person or organisation (the respondent) to comply with the Commission’s order.

(2) If the appropriate court finds as a matter of fact that the respondent:

(a) has engaged in conduct that constitutes a contravention of the Commission’s order; or

(b) is proposing to engage in such conduct;

the court must make orders for the purpose of ensuring that the Commission’s order is complied with.

Note: Breach of an order made under this section may lead to cancellation of registration or orders in lieu of cancellation (see sections 294 and 295).

(3) The orders that an appropriate court may make include:

(a) an order directing industrial action or a lockout cease;

(b) an order directing that industrial action or a lockout not occur;

(4) Subsection (3) does not, by implication, limit subsection (2).

(5) In addition to an appropriate court’s powers under subsections (2) and (3), an appropriate court:

(a) has power, for the purpose of securing compliance with an order made under this section, to make another order directing any person or organisation to do or refrain from doing a specified act; and

(b) has power to make an order containing such ancillary or consequential provisions as the court thinks just.

(6) An appropriate court (being a court of a State) is invested with federal jurisdiction and, to the extent that the Constitution permits, jurisdiction is conferred on an appropriate court (being a court of a Territory), with respect to all matters arising under this section.

(7) The powers conferred on an appropriate court under this section are in addition to, and not in derogation of, any other powers of the court, whether conferred by this Act or otherwise.

(8) In this section:

appropriate court means the Federal Court of Australia or the Supreme Court of a State or Territory.

127AAB Interim remedial orders

(1) This section applies if a person or organisation applies to an appropriate court for an order under section 127AAA and an appropriate court is unable to determine the matter promptly.

(2) The appropriate court must, as soon as possible, make such interim orders as the court considers appropriate for the purpose of ensuring that the Commission’s order is complied with until the matter is determined unless the court is satisfied that such an interim order would cause serious prejudice to a person or organisation.

Note: Breach of an order made under this section may lead to cancellation of registration or orders in lieu of cancellation (see sections 294 and 295).

(3) The interim order is to be made:

(a) whether or not it appears to the court that the respondent intends to engage again, or to continue to engage, in conduct of the kind mentioned in subsection 127AAA(2); and

(b) whether or not the respondent has previously engaged in conduct of that kind; and

(c) whether or not there is an imminent danger of substantial damage to any person if the respondent engages, or continues to engage, in conduct of that kind.

(4) The orders that an appropriate court may make include:

(a) an order directing that industrial action or a lockout cease;

(b) an order directing that industrial action or a lockout not occur;

(5) Subsection (4) does not, by implication, limit subsection (2).

(6) In addition to an appropriate court’s powers under subsections (2) and (4), an appropriate court:

(b) has power to make an order containing such ancillary or consequential provisions as the court thinks just.

(7) An appropriate court (being a court of a State) is invested with federal jurisdiction and, to the extent that the Constitution permits, jurisdiction is conferred on an appropriate court (being a court of a Territory), with respect to all matters arising under this section.

(8) The powers conferred on an appropriate court under this section are in addition to, and not in derogation of, any other powers of the court, whether conferred by this Act or otherwise.

(9) In this section:

appropriate court means the Federal Court of Australia or the Supreme Court of a State or Territory.

16 Division 7 of Part VI

Repeal the Division.

17 Section 170LG

Repeal the section, substitute:

170LG When is an organisation of employees not engaging in pattern bargaining

(1) An organisation of employees that is a negotiating party to a proposed agreement in relation to a single business, or part of a single business, is taken not to have engaged in pattern bargaining for the purposes of this Part merely because the organisation is seeking the inclusion in the proposed agreement of terms and conditions which give effect to a Full Bench decision establishing national standards.

(2) An organisation of employees that is a negotiating party to a proposed agreement in relation to a single business, or part of a single business, is taken not to have engaged in pattern bargaining for the purposes of this Part if the Commission is satisfied that the terms and conditions sought by the organisation to be included in the proposed agreement are appropriate to the single business or part of the single business.

(3) In determining whether terms and conditions sought by the organisation to be included in the proposed agreement are appropriate to the single business or part of the single business, the Commission must have particular regard to the views of the employer who is a negotiating party to the proposed agreement.

(4) This section does not, by implication, limit the circumstances in which an organisation of employees that is a negotiating party to a proposed agreement is not engaging in pattern bargaining.

18 Subsection 170MI(1) (note)

Omit “subsections 170MW(10) and 170MZ(7)”, substitute “subsections 170MWA(4), 170MWI(4) and 170MZ(7)”.

19 Paragraph 170ML(2)(b)

After “employer”, insert “and whose employment will be subject to the proposed agreement”.

20 Subsection 170ML(2)

After “entitled,”, insert “solely”.

21 Subsection 170ML(3)

After “entitled,”, insert “solely”.

22 After subsection 170ML(3)

Insert:

(3A) The reference in paragraph (2)(e) and subsection (3) to supporting or advancing claims does not include supporting or advancing claims in respect of matters that cannot be included in a certified agreement.

Note: An example of a matter that cannot be included in a certified agreement is an anti-AWA provision.

23 Section 170MM

Repeal the section, substitute:

170MM Industrial action must not involve persons who are not protected for that industrial action

(1) Engaging in industrial action in relation to a proposed agreement is not protected action if:

(a) it is engaged in concert with one or more persons or organisations that are not protected persons for the industrial action; or

(b) it is organised other than solely by one or more protected persons for the industrial action.

(2) Organising industrial action in relation to a proposed agreement is not protected action if:

(a) it is organised in concert with one or more persons or organisations that are not protected persons for the industrial action; or

(b) it is intended to be engaged in other than solely by one or more protected persons for the industrial action.

(3) In this section:

protected person for industrial action in relation to a proposed agreement means:

(a) an organisation of employees that is a negotiating party to the proposed agreement; or

(b) a member of such an organisation who is employed by the employer and whose employment will be subject to the proposed agreement; or

(d) an employee who is a negotiating party to the proposed agreement.

24 Paragraph 170MN(1)(a)

After “agreement”, insert “or an old IR agreement”.

25 Subsection 170MN(1)

Omit “, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action.”, substitute:

whose employment is subject to the agreement or award must not organise or engage in industrial action. In addition, an organisation, officer or employee covered by subsection (2) must not organise industrial action by, or engage in industrial action with, such an employee.

26 Paragraph 170MN(2)(a)

Repeal the paragraph.

27 Paragraph 170MN(4)(a)

After “agreement”, insert “or an old IR agreement”.

28 Subsection 170MN(4)

Omit “, for the purpose of supporting or advancing claims in respect of the employment of employees whose employment is subject to the agreement or award, lock out such an employee”, substitute “lock out an employee whose employment is subject to the agreement or award”.

29 Paragraph 170MO(2)(b)

Omit “3”, substitute “5”.

30 Subparagraph 170MO(3)(a)(ii)

Omit “3”, substitute “5”.

31 Subparagraph 170MO(3)(b)(ii)

Omit “3”, substitute “5”.

32 Paragraph 170MO(4)(b)

Omit “3”, substitute “5”.

33 Subsection 170MO(5)

Repeal the subsection, substitute:

(5) A written notice or other notification under this section must state:

(a) the precise nature and form of the intended action; and

(b) the day, or days, on which it is intended the intended action will take place; and

34 Section 170MS

Repeal the section, substitute:

170MS What happens if application to certify agreement is not made within time limits

(1) Unless an application to the Commission is made within the time limits set out in this section, nothing that was done during the bargaining period by an employee whose employment is subject to the agreement, or by a person bound by it, is protected action.

(2) The time limits are as follows:

(a) if the agreement is made in accordance with section 170LJ—21 days after the day on which it is approved as mentioned in subsection 170LJ(2);

(b) if the agreement is made in accordance with section 170LK—21 days after the day on which it is made as mentioned in subsection 170LK(1);

(c) if the agreement is made in accordance with Division 3 of this Part—21 days after the day on which it is approved as mentioned in subsection 170LR(1).

35 After section 170MT

Insert:

170MTA Jurisdiction of Court to determine if action is protected action

(1) The Court may, on application by a person, or organisation, who is:

(a) engaging in, or organising, industrial action; or

(b) affected by industrial action;

determine whether the industrial action is or is not protected action or whether the action is covered by subsection 170MT(1) or (2).

(2) However, the Court must not grant a final or interlocutory injunction to prevent a person or organisation from instituting or pursuing an action under any law, whether written or unwritten, in force in a State or Territory in relation to the industrial action.

(3) The powers conferred on the Court under this section are in addition to, and not in derogation of, any other powers of the court, whether conferred by this Act or otherwise.

(4) This section does not prevent a court of a State or Territory, for the purposes of proceedings before that court, determining whether industrial action is or is not protected action or whether the action is covered by subsection 170MT(1) or (2).

36 Section 170MW

Repeal the section, substitute:

170MW Suspension of bargaining period (cooling off periods)

Industrial action that was, or is, protected action

(1) Subject to subsection (3), the Commission must, by order, suspend the bargaining period if:

(a) industrial action has been, or is being, taken during the bargaining period by:

(i) a negotiating party; or

(ii) an employee of the employer who is a negotiating party where the employee is a member of an organisation of employees that is a negotiating party whose employment will be subject to the proposed agreement; and

(b) the industrial action was, or is, protected action; and

(2) For the purposes of paragraph (1)(c), it does not matter whether:

(a) industrial action ceased at any time after it was first taken during the bargaining period; or

(b) industrial action has been authorised by protected action ballot under Division 8A beyond the time when the application for the order was made; or

No suspension order if suspension is not in public interest

(3) The Commission must not suspend the bargaining period if the Commission considers that it is in the public interest that the bargaining period continue.

Applicant

(4) The Commission may not make an order under subsection (1) except on application by a negotiating party.

(5) In determining the application, industrial action that is protected action that is taken by the applicant during the bargaining period is to be ignored.

(6) If the applicant is an organisation of employees, industrial action that is protected action is also to be ignored if it is taken during the bargaining period by members of the organisation who are employees of the employer whose employment will be subject to the proposed agreement.

Note: Section 170MWC deals with other matters that are relevant to this section.

170MWA Suspension or termination of bargaining period (industrial action that is not protected action)

Industrial action that was not, or is not, protected action

(1) The Commission must, by order, suspend or terminate the bargaining period if:

(a) any of the following has organised or has engaged in, or is organising or engaging in, industrial action during the bargaining period:

(i) a negotiating party;

(b) the industrial action was not, or is not, protected action.

(2) The Commission must, by order, terminate the bargaining period if:

(a) a bargaining period has previously been suspended under subsection (1) because of industrial action that is not protected action taken by a negotiating party; and

(b) industrial action that is not protected action is subsequently taken by:

(i) if the negotiating party is the employer—the employer; or

(ii) if the negotiating party is the organisation—the organisation or a member of the organisation who is employed by the employer and whose employment will be subject to the proposed agreement; or

(iii) if the negotiating party is an employee—the employee or another employee who is a negotiating party.

(3) The Commission must, by order, terminate the bargaining period if:

(a) a bargaining period has previously been suspended under subsection (1) because of industrial action that is not protected action taken by an employee referred to in subparagraph (1)(a)(ii); and

(b) any of the following has subsequently taken further industrial action that is not protected action:

(i) the employee;

(ii) the organisation of employees that is a negotiating party of which the employee is a member;

(iii) another employee of the employer where the employee is a member of the organisation that is a negotiating party whose employment will be subject to the proposed agreement.

Declaration

(4) If the Commission considers it to be in the public interest, an order under this section terminating a bargaining period may contain a declaration that, during a specified period beginning at the time of the termination, a specified negotiating party or employee of the employer:

(a) is not allowed to initiate a new bargaining period in relation to specified matters that are dealt with by the proposed agreement; or

(b) may initiate such a bargaining period only on conditions specified in the declaration.

Applicant

(5) The Commission may not make an order under this section except on application by a negotiating party.

(6) In determining an application for an order under subsection (1), industrial action that is not protected action that is taken by the applicant during the bargaining period is to be ignored.

(7) If the applicant is an organisation of employees, industrial action that is not protected action is also to be ignored if it is taken during the bargaining period by members of the organisation who are employees of the employer whose employment will be subject to the proposed agreement.

Note: Section 170MWC deals with other matters that are relevant to this section.

170MWB Suspension of bargaining period (danger to life etc.)

Danger to life etc.

(1) The Commission must, by order, suspend the bargaining period if the industrial action that is being taken to support or advance claims in respect of the proposed agreement threatens:

(a) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

(b) to cause significant damage to the Australian economy or an important part of it.

Extending the period of suspension

(2) The Commission may, by order, extend the period during which the bargaining period is suspended if the grounds on which the suspension was ordered continue to exist or would, but for the suspension under this section, be likely to continue to exist.

(3) If:

(a) the Commission suspends a bargaining period under subsection (1); and

(b) before the end of the period of suspension, the process for terminating the period is instituted under section 170MWF or 170MWH;

the Commission may, by order, extend the period of suspension so that the Commission can conduct hearings concerning the termination.

Instituting the process for an order

(4) The Commission may make an order under this section:

(a) on its own initiative; or

(b) on application by a negotiating party or the Minister.

Note: Section 170MWC deals with other matters that are relevant to this section.

170MWC Orders under sections 170MW, 170MWA and 170MWB

Interim orders in relation to applications under section 170MW or 170MWB

(1) If the Commission is unable to determine an application under section 170MW or 170MWB within 48 hours of the application being made, the Commission must (within that 48 hour period) make an interim order to suspend the bargaining period, unless the Commission is satisfied that it would be contrary to the public interest to make such an interim order. The interim order is to have effect until the application is determined.

Giving parties an opportunity to be heard

(2) Before deciding to make an order under section 170MW, 170MWA or 170MWB, the Commission must give the negotiating parties an opportunity to be heard. Before deciding whether or not to make an interim order under subsection (1) in relation to section 170MW or 170MWB, the Commission may give the negotiating parties an opportunity to be heard.

Period of suspension

(3) An order to suspend a bargaining period under section 170MW, 170MWA or 170MWB must specify a period, which the Commission considers is sufficient to resolve the matters at issue, during which the bargaining period is suspended.

Alternative resolution measures

(4) If the Commission makes an order under subsection (1) or section 170MW, 170MWA or 170MWB, the Commission:

(a) must inform the negotiating parties of the availability of voluntary conciliation and mediation services and of the role of the Mediation Adviser; and

(b) may, if the Commission considers it appropriate, make recommendations to the negotiating parties concerning voluntary conciliation and mediation.

Not protected action if done during suspension

(5) Anything done by a negotiating party or any other person in respect of the proposed agreement is not protected action if it is done while the bargaining period is suspended under subsection (1) or section 170MW, 170MWA or 170MWB.

Public interest

(6) For the purposes of determining what is in the public interest in relation to:

(a) whether to make an interim order under subsection (1); or

(b) an application under section 170MW;

the matters the Commission must take into account include the matters set out in subsection (7).

(7) The matters for the purposes of subsection (6) are:

(a) if the applicant is an employer—any economic damage that industrial action has caused, or if the action is allowed to continue, is likely to cause, the applicant; and

(b) if the applicant is an organisation of employees or an employee—any economic damage that a lockout has caused, or if the lockout is allowed to continue, is likely to cause, the employees of the employer who is a negotiating party; and

(c) whether the industrial action has had, or if allowed to continue, is likely to have, an adverse effect on the job security of the employees of the employer who is a negotiating party; and

(d) whether a negotiating party has failed to follow any recommendation of the Commission that relates to the proposed agreement.

170MWD Revocation of suspension order

(1) The Commission may, by order, revoke an order suspending a bargaining period under section 170MW, 170MWA or 170MWB, or subsection 170MWC(1), if the grounds for the suspension no longer exist.

(2) Before deciding whether or not to make an order under subsection (1), the Commission must give the negotiating parties an opportunity to be heard.

(3) The Commission may make an order under subsection (1):

(a) on application by a negotiating party (if the order is to revoke an order under section 170MW or 170MWA, or under subsection 170MWC(1) as it relates to either of those sections); or

(b) on its own initiative or on application by a negotiating party or the Minister (if the order is to revoke an order under section 170MWB, or under subsection 170MWC(1) as it relates to that section).

170MWE Industrial action without further protected action ballot after end of suspension of bargaining period

(1) This section applies if:

(a) before a bargaining period was suspended under section 170MW, 170MWA or 170MWB or under subsection 170MWC(1), industrial action was authorised by protected action ballot under Division 8A; and

(b) the ballot authorised industrial action:

(i) some or all of which had not been taken before the period of suspension began; or

(ii) that had not ended before the period of suspension began; or

(iii) beyond the period of suspension.

(2) After the period of suspension has ceased (whether because the period ended or was revoked):

(a) a relevant employee (within the meaning of Division 8A) may organise, or engage in, that industrial action without another protected action ballot; and

(b) a negotiating party that is an organisation of employees may organise, or engage in, that industrial action without another protected action ballot.

For the purposes of working out when that industrial action may be organised, or engaged in, the period of suspension (including any dates authorised by protected action ballot as dates on which action is to be taken) is to be ignored.

(3) However, that industrial action is not protected action unless, after the period of suspension, the organisation, or the employee, gives the employer at least 5 working days’ written notice of the intention to take the action. The notice must state:

(a) the precise nature and form of the intended action; and

(b) the day, or days, on which it is intended that the intended action will take place; and

(4) If, because of this section, industrial action starts on a particular day after the end of a period of suspension of a bargaining period, that day, and not an earlier day, is to be used to work out the period of 14 days for the purposes of paragraph 170MW(1)(c).

(5) Nothing in this section authorises industrial action after the end of the period of suspension that is different in type or duration from the industrial action that was authorised by the protected action ballot.

Example 1: A protected action ballot authorised strike action for 20 consecutive working days from a specified date. Fourteen working days into the strike, the bargaining period was suspended for one month.

Under this section, once the period of suspension ends, the initiating party could give 5 working days’ written notice, without another protected action ballot, of 6 further consecutive working days of strike action (the balance of the strike action authorised).

Example 2: A protected action ballot authorised the imposition of certain work bans every Monday, for a period of 8 consecutive weeks starting from a specified date. After 3 weeks, the bargaining period was suspended for a period of 2 weeks on the basis that, in conjunction with the work bans approved by the ballot, additional industrial action that is not protected action had been taken.

Under this section, once the period of suspension ends, the initiating party could give 5 working days’ written notice, without another protected action ballot, that the work bans authorised by the ballot will be imposed for 5 further consecutive Mondays (the balance of the industrial action authorised).

170MWF Termination of bargaining period

(1) The Commission must, by order, terminate the bargaining period if any of the circumstances set out in section 170MWG exists or existed. However, only a Presidential Member may determine whether or not the circumstance in subsection 170MWG(4A) exists.

(2) If the Commission makes an order under subsection (1), the Commission:

(a) must inform the negotiating parties of the availability of voluntary conciliation and mediation services and of the role of the Mediation Adviser; and

(b) may, if the Commission considers it appropriate, make recommendations to the negotiating parties concerning voluntary conciliation and mediation.

(3) The Commission may not make an order under subsection (1) except on application by a negotiating party.

(4) In determining the application, industrial action that is protected action that is taken by the applicant during the bargaining period is to be ignored.

(5) If the applicant is an organisation of employees, industrial action that is protected action is also to be ignored if it is taken during the bargaining period by members of the organisation who are employees of the employer whose employment will be subject to the proposed agreement.

Note: Section 170MWI deals with other matters that are relevant to this section.

170MWG Circumstances in which bargaining period must be terminated under section 170MWF

(1) This section sets out, for the purposes of section 170MWF, the circumstances in which the Commission must, by order, terminate a bargaining period under that section.

Not genuinely trying to reach agreement

(2) Subject to subsection (4), a circumstance is where, before or during the bargaining period:

(a) industrial action has been, or is being, organised or taken by a negotiating party; and

(b) that negotiating party has not been, or is not, genuinely trying to reach an agreement with the other negotiating parties.

(3) Subject to subsection (4), a circumstance is where, before or during the bargaining period:

(a) industrial action has been, or is being, organised or taken by an employee of the employer who is a negotiating party where the employee is a member of an organisation of employees that is a negotiating party and whose employment will be subject to the proposed agreement; and

(b) that organisation of employees has not been, or is not, genuinely trying to reach an agreement with the other negotiating parties.

(4) Subsections (2) and (3) do not apply to the extent that the Commission has already determined, for the purposes of an application for a protected action ballot under Division 8A, that the organisation of employees that is a negotiating party has been, or is, genuinely trying to reach an agreement with the other negotiating parties.

Pattern bargaining

(5) Subject to subsection (6), a circumstance is where an organisation of employees that is a negotiating party has engaged in, or is engaging in, pattern bargaining in relation to the proposed agreement in respect of which the bargaining period was initiated.

Note: For circumstances in which an organisation of employees that is a negotiating party is taken not to have engaged in, or not to be engaging in, pattern bargaining see section 170LG.

(6) Subsection (5) does not apply to the extent that the Commission has already determined, for the purposes of an application for a protected action ballot under Division 8A, that the organisation of employees that is a negotiating party has not engaged in, or is not engaging in, pattern bargaining.

Employee neither member of, nor eligible for membership of, organisation

(7) A circumstance is that industrial action is being organised or taken by:

(a) an organisation of employees that is a negotiating party; or

(b) a member of such an organisation who is employed by the employer and whose employment will be subject to the proposed agreement; or

against an employer to support or advance claims in respect of employees:

(d) whose employment will be subject to the agreement; but

(e) who are neither members, nor eligible to become members, of the organisation.

Demarcation dispute

(8) A circumstance is that industrial action that is being organised or taken by an organisation of employees that is a negotiating party:

(a) relates, to a significant extent, to a demarcation dispute; or

(b) contravenes an order of the Commission that relates, to a significant extent, to a demarcation dispute.

Initiating party not complying with award etc.

(9) If the bargaining period relates to employees employed in a part of a single business, a circumstance is that the initiating party is not complying with:

(a) an award or order; or

(b) a direction of the Commission; or

(d) an old IR agreement.

in relation to another part of the single business.

170MWH Termination of bargaining period (danger to life etc.)

(1) The Commission may, by order, terminate a bargaining period that has been suspended under subsection 170MWB(1) if:

(a) the period of suspension under that subsection has ceased; and

(b) one of the following applies:

(i) the grounds for suspension continue to exist;

(ii) the grounds for suspension would be likely to continue to exist but for an extension of the period of suspension under subsection 170MWB(2) or (3);

(iii) the grounds for suspension would be likely to continue to exist but for an interim order under subsection 170MWI(1); and

(2) The Commission may make an order under subsection (1):

(a) on its own initiative; or

(b) on application by a negotiating party (other than the initiating party) or the Minister.

An application may be made before the end of the period of suspension of the bargaining period.

Note: Section 170MWI deals with other matters that are relevant to this section.

170MWI Orders under sections 170MWF and 170MWH

Interim orders

(1) If the Commission is unable to determine an application under section 170MWH within 48 hours of the application being made, the Commission must (within that 48 hour period) make an interim order to suspend the bargaining period, unless the Commission is satisfied that it would be contrary to the public interest to make such an interim order. The interim order is to have effect until the application is determined.

Giving parties an opportunity to be heard

(2) Before deciding to make an order under section 170MWF or 170MWH, the Commission must give the negotiating parties an opportunity to be heard. Before deciding whether or not to make an interim order under subsection (1) in relation to section 170MWH, the Commission may give the negotiating parties an opportunity to be heard.

Not protected action if done during suspension

(3) Anything done by a negotiating party or any other person in respect of the proposed agreement is not protected action if it is done while the bargaining period is suspended under subsection (1).

Declaration

(4) If the Commission considers it to be in the public interest, an order under section 170MWF or 170MWH may contain a declaration that, during a specified period beginning at the time of the termination, a specified negotiating party or employee of the employer:

(a) is not allowed to initiate a new bargaining period in relation to specified matters that are dealt with by the proposed agreement; or

(b) may initiate such a bargaining period only on conditions specified in the declaration.

Public interest

(5) For the purposes of determining what is in the public interest in relation to whether to make an interim order under subsection (1), the matters the Commission must take into account include the matters set out in subsection (6).

(6) The matters for the purposes of subsection (5) are:

(a) if the applicant is an employer—any economic damage that industrial action has caused, or if the action is allowed to continue, is likely to cause, the applicant; and

(c) whether the industrial action has had, or if allowed to continue, is likely to have, an adverse effect on the job security of the employees of the employer who is a negotiating party; and

(d) whether a negotiating party has failed to follow any recommendation of the Commission that relates to the proposed agreement.

37 Subsection 170MX(1)

Omit “subsection 170MW(3) or (7)”, substitute “section 170MWH”.

Note: The heading to section 170MX is altered by omitting “subsection 170MW(3) or (7)” and substituting “section 170MWH”.

38 Section 187AA

Omit “period” (wherever occurring), substitute “day”.

39 Subsection 187AA(1)

After “in industrial action”, insert “(whether or not protected action)”.

40 After subsection 187AA(1)

Insert:

(1A) If:

(a) the industrial action is during a shift (or other period of work); and

(b) the shift (or other period of work) occurs partly on 1 day and partly on the next day;

then, for the purposes of subsection (1), the shift is taken to be a day and the remaining parts of the days are taken not to be part of that day.

Example: An employee engages in industrial action during a shift that runs from 10 pm on Tuesday until 8 am on Wednesday. That industrial action would prevent the employer from making a payment to the employee in relation to that shift, but would not prevent the employer from making a payment in relation to other work on either the Tuesday or the Wednesday.

(1B) For the purposes of subsection (1A), overtime is taken not to be a separate shift.

41 Paragraph 187AB(1)(a)

Omit “period”, substitute “day”.

42 After section 187AB

Insert:

187ABA Persons not to coerce people for payments in relation to periods of industrial action

(1) A person must not take, or threaten to take, action that would have the effect of directly or indirectly prejudicing the engagement, or possible engagement, of another person as an independent contractor with the intention of coercing the other person to make a payment to an employee of the other person in relation to a day on which the employee engaged or engages in industrial action.

(2) A contravention of subsection (1) is not an offence.

(3) In this section, a reference to an independent contractor is not confined to a natural person.

43 Subsection 187AC(1)

Omit “or 187AB”, substitute “, 187AB or 187ABA”.

44 After subsection 187AC(3)

Insert:

(3A) In the case of a contravention of section 187ABA, the application may also be made by the other person referred to in that subsection.

45 Paragraph 294(1)(d)

Omit “subsection 127(6) or (7)”, substitute “section 127AAA or 127AAB”.

46 Subsection 294(7)

Omit “127”, substitute “, 127AAA or 127AAB”.

Part 2—Consequential amendments

Trade Practices Act 1974

47 Subsection 76(1) (note)

Repeal the note.

48 Subsection 80(1) (note)

Repeal the note.

49 Sections 80AA and 80AB

Repeal the sections.

50 Section 87AA

Repeal the section.

Part 3—Application and transitional provisions

51 Application—items 4 and 42 to 44

The amendments made by items 4 and 42 to 44 apply in relation to acts or omissions after the commencement of this item.

52 Application—items 7 to 13

The amendments made by items 7 to 13 apply in relation to applications made after the commencement of this item.

53 Application—items 14, 15, 45 and 46

The amendments made by items 14, 15, 45 and 46 apply in relation to orders made by the Commission under section 127 of the Workplace Relations Act 1996 before, on or after the commencement of this item.

54 Application—repeal of section 166A

Despite the repeal of section 166A of the Workplace Relations Act 1996 by item 16 of this Schedule, that section continues to apply in relation to acts or omissions before the commencement of that item.

55 Application—items 19 to 23 and 35

The amendments made by items 19 to 23 and 35 apply to industrial action that is taken on or after the commencement of this item.

56 Application—items 25, 26, 28 and 38 to 41

The amendments made by items 25, 26, 28 and 38 to 41 apply in relation to industrial action taken on or after the commencement of this item.

57 Application—items 29 to 33

(1) The amendments made by items 29 to 33 apply to industrial action that is taken on or after the commencing day.

(2) However, the amendments do not apply in relation to industrial action if:

(a) the action is protected action (as identified in subsection 170ML(2) of the Workplace Relations Act 1996); and

(b) the requirements of sections 170MO and 170MR of that Act as in force immediately before the commencing day in relation to the action have been met before the commencing day; and

(3) In this item:

commencing day means the day on which this item commences.

58 Application—item 34

The amendment made by item 34 applies in relation to the certification of agreements on or after the commencement of this item.

59 Transitional—applications to Commission under section 127 of the Workplace Relations Act 1996

(1) This item sets out what happens in relation to applications to the Commission under section 127 of the Workplace Relations Act 1996 as in force immediately before the commencement of this item that have not been finalised before the commencement of this item.

(2) If the Commission has started to deal with the application before the commencement of this item, the Workplace Relations Act 1996 as in force immediately before the commencement of this item continues to apply in relation to the application.

(3) If the Commission has not started to deal with the application before the commencement of this item, the application is taken to have been made at the commencement of this item in accordance with section 127 of the Workplace Relations Act 1996 as amended by this Act.

60 Transitional—applications under subsection 127(6) or (7) of the Workplace Relations Act 1996

(1) This item sets out what happens in relation to applications under subsection 127(6) or (7) of the Workplace Relations Act 1996 as in force immediately before the commencement of this item that have not been finalised before the commencement of this item.

(2) If the Court has started to deal with the application before the commencement of this item, the Workplace Relations Act 1996 as in force immediately before the commencement of this item continues to apply in relation to the application.

(3) If the Court has not started to deal with the application before the commencement of this item, the application is taken to have been made at the commencement of this item in accordance with section 127AAA of the Workplace Relations Act 1996.

61 Transitional—notifications under section 157 of the Workplace Relations Act 1996

(1) This item sets out what happens in relation to notifications under section 157 of the Workplace Relations Act 1996 as in force immediately before the commencement of this item that have not been finalised before the commencement of this item.

(2) If the Commission has started to deal with the notification before the commencement of this item, the Workplace Relations Act 1996 as in force immediately before the commencement of this item continues to apply in relation to the application.

(3) If the Commission has not started to deal with the notification before the commencement of this item, the Commission must not deal with the notification.

62 Application—paragraph 170MW(1)(c)

The period of at least 14 days referred to in paragraph 170MW(1)(c) of the Workplace Relations Act 1996 as in force after the commencement of this item may have started before that commencement.

63 Transitional—proceedings under section 170MW of the Workplace Relations Act 1996

(1) This item sets out what happens in relation to proceedings that have been instituted under section 170MW of the Workplace Relations Act 1996 as in force immediately before the commencement of this item that have not been finalised before the commencement of this item.

(2) If the proceedings were instituted by the Commission on its own initiative and the Commission has not begun the substantive hearing of the matter before the commencement of this item, the Commission must decide:

(a) to dismiss the proceedings; or

(b) to continue the proceedings as if they had been instituted by the Commission on its own initiative under section 170MWB of the Workplace Relations Act 1996 as in force after the commencement of this item.

(3) If the proceedings were instituted by application and the Commission has not begun the substantive hearing of the matter before the commencement of this item, the Commission must give the applicant the opportunity to amend the application to enable it to be dealt with under the Workplace Relations Act 1996 as in force after the commencement of this item. If the applicant does not so amend the application, the Commission must dismiss the proceedings.

(4) If the Commission has begun the substantive hearing of the matter before the commencement of this item, the Workplace Relations Act 1996 as in force immediately before the commencement of this item continues to apply in relation to the proceedings.

Schedule 12—Secret ballots for protected action

Part 1—Amendments

Workplace Relations Act 1996

1 Subsection 134(5) (paragraphs (d) and (e) of the definition of prescribed premises)

Omit “136”, substitute “Division 8A of Part VIB”.

2 Subsection 135(2)

Repeal the subsection, substitute:

(2) The Commission must not order a vote of members of an organisation under subsection (1) if:

(a) the organisation has initiated a bargaining period (within the meaning of section 170MI) for an agreement with a particular employer; and

(b) the members are employees of the employer whose employment will be subject to the agreement.

3 Subsection 135(2B)

Repeal the subsection.

4 Subsection 135(3)

Omit “or (2)”.

5 Subsections 136(1), (2), (3), (4), (5), (6) and (7)

Repeal the subsections.

6 Paragraphs 136(8)(a) and (b)

Repeal the paragraphs, substitute:

(a) the Commission has made an order for a secret ballot under subsection 135(1); and

(b) before the vote is taken, the Commission forms the view that the secret ballot should not be proceeded with because the industrial dispute has been, or is about to be settled;

7 Subsections 136(8B), (9) and (10)

Repeal the subsections.

Note: The heading to section 136 is replaced by the heading “Revocation of order”.

8 Subsection 137(1)

Omit “, (2), (2A) or (2B) or 136(2)”, substitute “or (2A)”.

9 Subsection 138(1)

Omit “or 136”.

10 Subsection 138(2)

Repeal the subsection.

11 Subsection 138(5)

Omit “or 136”.

12 Subsection 138(6)

Repeal the subsection.

13 Section 139

Omit “, (2) or (2B) or section 136,”.

14 Section 140

Repeal the section.

15 After section 170MJ

Insert:

170MJA Initiating party who is employee may appoint agent

(1) A person referred to in paragraph 170MI(1)(c) who wishes to:

(a) initiate a bargaining period under section 170MI; or

(b) give notice to an employer under section 170MO;

without disclosing the person’s identity to the person’s employer may appoint an agent to initiate the bargaining period, or give the notice, on the person’s behalf.

(2) If a person has appointed an agent under subsection (1), the person’s notice to the Commission under subsection 170MI(2) must be accompanied by a document containing the person’s name.

(3) The regulations may make provision in relation to the qualifications and appointment of agents appointed under this section.

170MJB Identity of person who has appointed agent not to be disclosed

Disclosure by Commission prohibited

(1) The Commission must not disclose information that the Commission knows, or has reasonable grounds to believe, will identify a person who has appointed an agent under section 170MJA as:

(a) a person who has initiated a bargaining period under section 170MI; or

(b) a person who has given notice to an employer under section 170MO.

(2) Each of the following is an exception to the prohibition in subsection (1):

(a) the disclosure is required or permitted by this Act or by another Act, or by regulations made under an Act;

(b) the person whose identity is disclosed has, in writing, authorised the disclosure.

Disclosure by individual prohibited

(3) A person must not disclose protected information that the person knows, or has reasonable grounds to believe, will identify another person as a person referred to in paragraph 1(a) or (b).

Penalty: Imprisonment for 6 months.

(4) Each of the following is an exception to the prohibition in subsection (3):

(a) the disclosure is made by a person in the course of performing functions or duties:

(i) as a Registry official; or

(ii) of, or on behalf of, an authorised ballot agent;

(b) the disclosure is required or permitted by this Act or by another Act, or by regulations made under an Act;

(5) For the purposes of determining the burden of proof in proceedings for an offence against subsection (3), the exceptions in subsection (4) are taken to be part of the description of the offence.

(6) In this section:

protected information, in relation to a person, means information that the person acquired:

(a) in the course of performing functions or duties as a Registry official; or

(b) in the course of performing functions or duties as, or on behalf of, an authorised ballot agent; or

Registry official means;

(a) the Workplace Relations Registrar; or

(b) a member of the staff of the Workplace Relations Registry (including a Deputy Workplace Relations Registrar).

16 After subsection 170ML(2)

Insert:

(2A) Subsection (2) does not apply to an employee whose employment is subject to a state employment agreement, the last day of whose nominal period of operation, however described, has not passed.

Note: See section 170VU for a similar provision applying to employees who are parties to AWAs.

17 At the end of subsection 170ML(7)

Add “and to the provisions of Division 8A”.

18 Subsection 170MO(6)

Repeal the subsection, substitute:

(6) A written notice or other notification under this section cannot be given:

(a) if the notification relates to action that must, in order to be protected action, be authorised by a protected action ballot under Division 8A—before the declaration of the results of the ballot (see section 170NBDC); or

(b) if the notification relates to a lockout by an employer (whether the notification is to be given by the employer, an organisation of employees or an employee)—before the start of the bargaining period.

19 Subsections 170MP(1) and (2)

Repeal the subsections.

Note: The heading to section 170MP is altered by omitting “industrial action or”.

20 Paragraphs 170MP(3)(b) and (c)

Repeal the paragraphs, substitute:

(b) if the employees are negotiating parties—genuinely tried to reach agreement with the employees.

21 Section 170MQ

Repeal the section, substitute:

170MQ Industrial action must be authorised by ballot

Any action taken as mentioned in subsection 170ML(2) by:

(a) an organisation of employees; or

(b) a member of such an organisation; or

(d) an employee who is a negotiating party;

is not protected action unless:

(e) the action is in response to a lockout by the employer of employees whose employment will be subject to the proposed agreement; or

(f) the action has been authorised by a protected action ballot under Division 8A (see section 170NBDD).

22 After Division 8 of Part VIB

Insert:

Division 8A—Secret ballots on proposed protected action

Subdivision A—General

170NBA Object of Division and overview of Division

Object

(1) The object of this Division is to ensure that industrial action supporting or advancing claims by organisations of employees, or employees, can only be taken if the employees directly concerned have authorised the action in a fair and democratic secret ballot.

Overview of Division

(2) Under Division 8, industrial action by employees is not protected action unless it has been authorised by a secret ballot held under this Division (a protected action ballot). This Division establishes the steps that organisations of employees, or employees, who wish to organise or engage in protected action must take in order to:

(a) obtain an order from the Commission that will authorise a protected action ballot to be held; and

(b) hold a protected action ballot that may authorise the industrial action.

(3) The rule that industrial action by employees is not protected action unless it has been authorised by a protected action ballot does not apply to action in response to an employer lockout (see section 170MQ).

170NBAA Definitions

In this Division:

applicant means an applicant for a ballot order.

applicant’s agent means an agent appointed by an employee, or by a group of employees, under subsection 170NBB(4).

authorised ballot agent, in relation to a protected action ballot, means the ballot agent authorised by the Commission in the ballot order.

ballot agent means:

(a) the Australian Electoral Commission; or

(b) a person whose name appears on the register of ballot agents kept under section 170NBE.

ballot order means an order made under section 170NBCH requiring a protected action ballot to be held.

bargaining period has the meaning given in subsection 170MI(1).

joint applicant means a person who is participating, or has participated, in making a joint application under section 170NBBD.

negotiating party has the meaning given in subsection 170MI(3).

party, in relation to an application for a ballot order, means any of the following:

(a) the applicant;

(b) the employer of the relevant employees;

prescribed number, in relation to relevant employees, means:

(a) if there are less than 80 relevant employees—4;

(b) if there are not less than 80, but not more than 5,000, relevant employees—5% of the number of such employees; or

proposed agreement, in respect of a bargaining period, means the proposed agreement in respect of whose negotiation the bargaining period has been initiated.

protected action ballot means a ballot under this Division.

relevant employee, in relation to proposed industrial action against an employer in respect of a proposed agreement, means:

(a) if an organisation of employees is a negotiating party to the agreement—any member of the organisation who is employed by the employer and whose employment will be subject to the agreement; and

(b) if an employee is a negotiating party to the agreement—any employee who is a negotiating party to the agreement, other than an employee:

(i) who is a party to an AWA whose nominal expiry date has not passed; or

(ii) whose employment is subject to a state employment agreement, the last day of whose nominal period of operation, however described, has not passed.

roll of voters means a list compiled:

(a) by the Commission under section 170NBCL; or

(b) by a ballot agent in compliance with an order of the Commission under section 170NBCL.

Subdivision B—Application for order for protected action ballot to be held

170NBB Who may apply for a ballot order etc.

When application can be made

(1) A person referred to in subsection (2) may, during a bargaining period for the negotiation of a proposed agreement under Division 2 or 3 of this Part, apply to the Commission for an order for a ballot to be held to determine whether proposed industrial action has the support of relevant employees.

Note: For the duration of a bargaining period, see sections 170MK (when it begins) and 170MV (when it ends).

Who can apply

(2) The following people may apply:

(a) if the bargaining period was initiated by an organisation of employees—that organisation;

(b) if the bargaining period was initiated by an employee or employees—any employee who is a negotiating party to the proposed agreement, or a group of such employees acting jointly.

Note: For joint applications, see section 170NBBD.

Employee applications need support of prescribed number of employees

(3) An employee, or a group of such employees acting jointly, cannot make an application unless the application has the support of at least the prescribed number of relevant employees.

Note: Prescribed number is defined in section 170NBAA.

Employee applicants can appoint agent

(4) A person or persons referred to in paragraph (2)(b) who wish to make an application under this section without disclosing their identities to their employer may appoint an agent to represent them for all purposes connected with the application.

170NBBA Contents of application

The application must include details of the following:

(a) the bargaining period to which the proposed ballot relates;

(b) the types of employees who are to be balloted;

(i) if the applicant is an organisation of employees—the organisation; or

(ii) if the applicant is an employee, or a group of employees, represented by an applicant’s agent—the applicant’s agent; or

(iii) if the applicant is an employee, or a group of employees, not represented by an agent—the employee or each of those employees;

(d) the timetable proposed by the applicant for the ballot;

(e) the name of the ballot agent who is nominated by the applicant to conduct the ballot;

(f) the voting method proposed by the applicant for the ballot;

(g) the question or questions to be put to the relevant employees in the ballot, including:

(i) the precise nature and form of the proposed industrial action; and

(ii) the day, or days, on which it is proposed the proposed action will take place; and

(iii) the duration of the proposed action;

(h) the following information about the employer of the relevant employees:

(i) the employer’s name, business address, telephone and facsimile numbers; and

(ii) the address of the place, or places, where relevant employees work for the employer.

170NBBB Material to accompany application

(1) The application must be accompanied by:

(a) a copy of the notice given under subsection 170MI(2) to initiate the relevant bargaining period; and

(b) a copy of the particulars that accompanied that notice as required by section 170MJ; and

(2) If the applicant is an organisation of employees, the application must be accompanied by a written notice showing that the application has been duly authorised by a committee of management of the organisation or by someone authorised by such a committee to authorise the application.

(3) If the applicant is an employee, or a group of employees, represented by an applicant’s agent, the application must be accompanied by a document containing the name of the employee, or each of those employees.

(4) The applicant’s declaration must state that the industrial action to which the application relates is not for the purpose of supporting or advancing claims to include either of the following kinds of provision in the proposed agreement:

(a) an objectionable provision (as defined by subsection 298Z(5)); or

(b) an anti-AWA provision (as defined by subsection 4(1)).

(5) The declaration must be in the form prescribed by the regulations.

(6) A person must not, in a declaration under subsection (4):

(a) make a statement; and

(b) do so reckless as to whether the statement is false or misleading in a material particular.

Penalty: 20 penalty units.

170NBBC Notice of application

The applicant must give a copy of the application (but not the material referred to in section 170NBBB) to each other party within 24 hours after lodging the application with the Commission.

170NBBD Joint applications

(1) If the bargaining period for the proposed agreement was initiated by an employee, 2 or more employees who are negotiating parties may make a joint application for a ballot order.

(2) An employee who has participated in making a joint application may withdraw his or her name from the application before the application is determined but cannot do so after the application is determined by the Commission.

(3) If employees have made a joint application, the name of another employee who is a negotiating party may, before the application is determined, be joined to the application if the other applicants consent.

(4) The President may make rules:

(a) in the case of a provision of this Act permitting an applicant for a ballot order to do any thing—specifying how the provision is to apply to joint applicants; and

(b) in the case of a provision of this Act requiring an applicant for a ballot order to be given notice, or otherwise informed, of any thing—specifying how the requirement is to be fulfilled in relation to joint applicants.

(5) Rules made under this section are Rules of the Commission.

Note: Section 48 provides that Rules of the Commission are disallowable instruments and statutory rules.

Subdivision C—Determination of application and order for ballot to be held

170NBC Commission to notify parties of application

(1) As soon as practicable after an application for a ballot order is lodged with the Commission, the Commission must notify the parties of the procedure to be followed by the Commission in dealing with that application.

(2) Without limiting subsection (1), the Commission must notify the parties:

(a) that they may make submissions in relation to the application; and

(b) whether submissions are to be made to the Commission orally or in writing; and

170NBCA Commission to act quickly in relation to application etc.

(1) In exercising its powers under this Division, the Commission:

(a) must act as quickly as is practicable; and

(b) must, as far as is possible, determine all applications made under this Division within 4 working days of the Commission after the application is made.

(2) Paragraph 111(1)(g) does not apply to a proceeding under this Division.

Note: Paragraph 111(1)(g) allows the Commission to dismiss, refrain from further hearing etc. matters or parts of matters.

170NBCB Parties and relevant employees may make submissions and apply for directions

(1) A party or a relevant employee may make submissions, and may apply for directions, relating to:

(a) an application for a ballot order; or

(b) any aspect of the conduct of a protected action ballot.

(2) In spite of subsection 170NBCA(2), the Commission may decline to consider a person’s submission if the Commission is satisfied that the submission is vexatious, frivolous, misconceived or lacking in substance.

170NBCC Commission may give directions

The Commission may give directions in connection with:

(a) an application for a ballot order; or

(b) any aspect of the conduct of a protected action ballot.

170NBCD Submissions as to pattern bargaining

(1) If:

(a) an application for a ballot order is before the Commission for determination; and

(b) the employer who is a party to the application makes a submission to the Commission that the applicant is engaging in pattern bargaining;

the Commission must refer the question whether the applicant is engaging in pattern bargaining to the President.

Note: The meaning of pattern bargaining is affected by section 170LG.

(2) The President may:

(a) determine the question; or

(b) refer the question to another Presidential Member; or

(c) refer the question back to the Commission (as constituted for the purposes of determining the application for the ballot order) for determination.

(3) If a Presidential Member finds that the applicant is engaging in pattern bargaining, the President must direct the Commission (as constituted for the purposes of determining the application for the ballot order) to dismiss the application.

(4) If a Presidential Member finds that the applicant is not engaging in pattern bargaining, the President must report this finding to the Commission (as constituted for the purposes of determining the application for the ballot order).

(5) If the question is determined by the President or referred to another Presidential Member under subsection (2), the Commission must not determine the application until the President has given a direction or reported a finding to the Commission under subsection (3) or (4).

170NBCE Commission procedure regarding multiple applications

(1) If:

(a) more than one application for a ballot order is before the Commission for determination; and

(b) the applications relate to industrial action by employees of the same employer or by employees at the same place of work;

the Commission may determine the applications at the same time.

(2) If:

(a) the Commission has made an order requiring a ballot to be held in relation to industrial action by employees of an employer, or by employees at a place of work; and

(b) the Commission proposes to make another order requiring a ballot to be held in relation to industrial action against that employer, or at the same place of work; and

(c) the Commission considers that the level of disruption of the employer’s business, or at the place of work (as the case requires), could be reduced if the ballots were held at the same time;

the Commission may make, or vary, the relevant orders so as to require the ballots to be held at the same time.

170NBCF Application not to be granted unless certain conditions are met

Commission must be satisfied of various matters

(1) The Commission must not grant an application for a ballot order unless it is satisfied that:

(a) if:

(i) the applicant is an organisation of employees—the organisation has initiated a bargaining period to negotiate an agreement under Division 2 or 3 with the employer of relevant employees; or

(ii) the applicant is an employee, or a group of employees—an employee, or group of employees, have initiated a bargaining period to negotiate an agreement under Division 2 or 3 with the employer of relevant employees; and

(b) the bargaining period has begun (see section 170MK); and

(d) if the applicant is an employee, or a group of employees—the application is supported by the prescribed number of relevant employees; and

(e) the other parties have received a copy of the application as required by section 170NBBC; and

(f) all the following dates have passed:

(i) the nominal expiry dates of all certified agreements and old IR agreements applying to relevant employees;

(ii) the nominal expiry dates of all awards made under subsection 170MX(3) applying to relevant employees; and

(g) the manner in which the ballot will be conducted will ensure the secrecy and security of votes cast and will result in a fair and democratic ballot, to the extent that these matters are within the control of the applicant;

Note: If an application proposes a voting method other than a postal ballot, and the Commission believes that the proposed method will not meet the requirements of paragraph (g), the Commission may still grant the application for a ballot order but must order that the ballot be conducted as a postal ballot—see subsection 170NBCI(2).

(h) the ballot timetable proposed in the application is appropriate; and

(j) the question or questions to be put to the voters meet the requirements of paragraph 170NBBA(g); and

(k) the nominated ballot agent will conduct the ballot in accordance with this Division and any order or direction relating to the ballot made or given under this Division; and

(l) if the nominated ballot agent is not the Australian Electoral Commission—the ballot agent has consented to conduct the ballot; and

(m) if a party has submitted to the Commission that the applicant has not genuinely tried to reach agreement with the employer—there are not sufficient grounds for the Commission to accept the submission; and

(n) the requirements of any other matters prescribed by the regulations in relation to an application are met.

Applicant must be allowed to amend application in respect of some matters

(2) If the Commission is satisfied of all the matters in subsection (1) apart from paragraph (g), (h) or (k), the Commission must give the applicant the opportunity to amend the application in respect of the matters covered by those paragraphs.

Commission to consider whether it needs information from employer or applicant

(3) Before the Commission decides to grant the application, the Commission must consider the need to make an order under section 170NBCK in relation to the employer of the relevant employees, or in relation to the applicant.

Note: Section 170NBCK allows the Commission to order information relevant to compiling a roll of voters to be provided.

Pattern bargaining

(4) The Commission must not grant the application if the Commission (whether as constituted by a Presidential Member or otherwise) has determined that the applicant is engaging in pattern bargaining.

Note: For Commission consideration of pattern bargaining see section 170NBCD.

When Commission must grant application

(5) The Commission must grant the application:

(a) if it is satisfied of all the matters in subsection (1); and

(b) if it has considered the matter in subsection (3); and

(c) if the question of pattern bargaining has been considered by the Commission (whether as constituted by a Presidential Member or otherwise), the Commission has found that the applicant is not engaging in pattern bargaining.

Note: For Commission consideration of pattern bargaining see section 170NBCD.

When Commission has discretion to refuse application

(6) In spite of subsection (5), the Commission may refuse the application if it is satisfied that the applicant, or a relevant employee, has at any time contravened a provision of this Division or an order made or direction given under this Division.

Note: Orders that can be made under this Division are orders under sections 170NBCH and 170NBCK and paragraph 170NBCL(1)(b).

170NBCG Refusal of application

If the Commission refuses the application, the Commission must inform the applicant and the employer of the availability of voluntary conciliation and mediation services and of the role of the Mediation Adviser.

170NBCH Grant of application—order for ballot to be held

If the Commission grants the application, the Commission must order the applicant to hold a protected action ballot.

170NBCI Matters to be included in order

(1) An order for a protected action ballot to be held must specify the following:

(a) the name of:

(i) if the applicant is an organisation of employees—the organisation; or

(ii) if the applicant is an employee, or a group of employees, represented by an applicant’s agent—the applicant’s agent; or

(iii) if the applicant is an employee, or a group of employees, not represented by an applicant’s agent—the employee or employees;

(b) the types of employees who are to be balloted;

(d) the timetable for the ballot;

(e) the name of the ballot agent who is authorised to conduct the ballot;

(f) the question or questions to be put to the voters in the ballot, including:

(i) the precise nature and form of the proposed industrial action; and

(ii) the day, or days, on which it is proposed the proposed action will take place; and

(iii) the duration of the proposed action.

(2) The order must specify a postal ballot as the voting method unless:

(a) another voting method was proposed in the application; and

(b) the Commission, after considering any submissions about the voting method made to it under section 170NBCB, is satisfied:

(i) that the method proposed in the application is appropriate in the circumstances and will meet the requirements of paragraph 170NBCF(1)(g); and

(ii) that if the method proposed by the applicant is an attendance ballot—the voting can take place during the voters’ meal-time or other breaks, or outside their hours of employment.

(3) If the order specifies an attendance ballot as the voting method, it must specify that the voting must take place during the voters’ meal-time or other breaks, or outside their hours of employment.

170NBCJ Guidelines for ballot timetables

The President may develop guidelines in relation to appropriate timetables for the conduct of protected action ballots. The President may consult the Australian Electoral Commission, and any other ballot agent, in developing guidelines.

170NBCK Power of Commission to require information relevant to roll of voters

(1) The Commission may order the employer of the relevant employees, or the applicant, or both, to provide:

(a) a list of employees of the type described in the application; and

(b) any other information that it is reasonable for the Commission to require in order to assist in the compilation of a roll of voters for the proposed ballot.

(2) The order may require the list, or other information, to be provided to the Commission or to the authorised ballot agent.

(3) The order may require the list, or other information, to be provided in whatever form the Commission considers appropriate.

170NBCL Roll to be compiled by Commission or ballot agent

If the Commission makes a ballot order, it must:

(a) compile a list of the names of the persons who are eligible to be included on the roll of voters for the ballot and provide that list, as the roll of voters, to the authorised ballot agent; or

(b) order, by separate order, the authorised ballot agent to compile the roll of voters for the ballot.

170NBCM Eligibility to be included on the roll

(1) A person is eligible to be included on the roll of voters for the ballot if, and only if:

(a) if the applicant is an organisation of employees—the person:

(i) was a member of the organisation on the day the ballot order was made; and

(ii) was employed by the employer on the day the ballot order was made; and

(iii) will be subject to the agreement in respect of whose negotiation the bargaining period was initiated; or

(b) if the applicant is an employee, or a group of employees—the person:

(i) was employed by the employer on the day the ballot order was made; and

(ii) will be subject to the agreement in respect of whose negotiation the bargaining period was initiated.

(2) A person is not eligible to be included on the roll of voters for the ballot if, on the day the ballot order was made:

(a) the person was a party to an AWA whose nominal expiry date had not passed; or

(b) the person’s employment was subject to a state employment agreement and the last day of the nominal period of operation, however described, of that agreement had not passed.

170NBCN Adding or removing names from the roll

(1) If:

(a) a person requests the authorised ballot agent to include the person’s name on the roll of voters for a protected action ballot; and

(b) the ballot agent is satisfied that the person is eligible to be included on the roll; and

the ballot agent must add the person’s name to the roll.

(2) If:

(a) a person applies to the Commission for a declaration that the person is eligible to be included on the roll of voters for the ballot; and

(b) the Commission is satisfied that the person is eligible to be included on the roll; and

the Commission must make the declaration and direct the ballot agent to include the person’s name on the roll.

(3) If:

(a) a party, or a person whose name is on the roll of voters for a protected action ballot, applies to the Commission for a declaration that a person whose name has been included on the roll of voters for the ballot is not eligible to be so included; and

(b) the voting in the ballot:

(i) in the case of a postal ballot—has not yet finished; and

(ii) in any other case—has not yet started; and

the Commission must make the declaration and direct the ballot agent to remove the person’s name from the roll.

(4) If a person’s name is removed from the roll of voters for a postal ballot after the person has cast a vote, the ballot agent must take reasonable steps to ensure that the person’s ballot paper is not included in the count of the votes.

170NBCO Variation of order

Variation sought by applicant

(1) An applicant for a ballot order may apply to the Commission, at any time before the order expires, to vary the ballot order.

Variation sought by ballot agent

(2) The authorised ballot agent for a particular ballot may apply to the Commission, at any time before voting has ended, to vary:

(a) the voting method specified in the ballot order; or

(b) the timetable for the ballot specified in the ballot order.

Note: See also sections 170NBCB and 170NBCC (parties etc. may make submissions and Commission may give directions).

170NBCP Expiry and revocation of order

(1) If a ballot has not been held within the period specified in the ballot order, the order expires at the end of that period.

(2) An applicant for a ballot order may apply to the Commission, at any time before the order expires, to revoke the ballot order.

(3) If the applicant makes an application under subsection (2), the Commission must revoke the order.

170NBCQ Compliance with orders and directions

An organisation of employees or a person to whom an order or a direction under this Division is expressed to apply must comply with the order or direction.

170NBCR Commission to notify parties

As soon as practicable after making a ballot order, the Commission must ensure that a copy of the order is given to each party.

Subdivision D—Conduct and results of protected action ballot

170NBD Conduct of ballot

A ballot is not a protected action ballot unless it is conducted by the authorised ballot agent for the ballot.

170NBDA Form of ballot paper

The ballot paper must be in the prescribed form and must include the following:

(a) the name of the applicant or the applicant’s agent (as the case requires);

(b) the types of employees who are to be balloted;

(d) the question or questions ordered by the Commission to be put to the voters in the ballot, including:

(i) the precise nature and form of the proposed industrial action; and

(ii) the day, or days, on which it is proposed the proposed action will take place; and

(iii) the duration of the proposed action;

(e) the statement set out in Schedule 5; and

(f) instructions to the voter on how to complete the ballot paper.

170NBDB Who can vote

A person cannot vote in a protected action ballot unless the person’s name is on the roll of voters for the ballot.

170NBDC Declaration of ballot results

(1) As soon as practicable after the end of the voting, the ballot agent must, in writing:

(a) make a declaration of the results of the ballot; and

(b) inform the parties and the Workplace Relations Registrar of the result.

170NBDD Effect of ballot

Industrial action is authorised under this Division if:

(a) the action was the subject of a protected action ballot; and

(b) at least 50% of persons on the roll of voters for the ballot voted in the ballot; and

Note: Industrial action must be authorised under this Division if it is to be protected action under Division 8—see section 170MQ.

170NBDE Registrar to record questions put in ballot and results

(1) The Workplace Relations Registrar must, in relation to each protected action ballot that has been held, keep a record of:

(a) the questions put to voters in the ballot; and

(b) the results of the ballot declared by the ballot agent under section 170NBDC.

(2) The Workplace Relations Registrar must, as soon as practicable after being notified of the results of a ballot by the ballot agent under section 170NBDC, publish the results.

Subdivision E—Ballot agents

170NBE Register of ballot agents

(1) The Workplace Relations Registrar must keep a register of ballot agents who can be authorised by the Commission to conduct protected action ballots.

(2) The Workplace Relations Registrar must not enter the name of a person on the register unless satisfied that the person is a fit and proper person to conduct protected action ballots.

(3) In deciding whether a person is a fit and proper person, the Workplace Relations Registrar must have regard to the following factors:

(a) whether the person is capable of ensuring the secrecy and security of votes cast in a ballot conducted by the person, and ensuring that any such ballot will be fair and democratic;

(b) whether the person is likely to maintain appropriate confidentiality of records (including the roll of voters) kept in relation to protected action ballots;

(d) if the person is a body corporate—whether the body, or an officer or employee of the body, has contravened a prescribed law within the last 5 years.

(4) If a person has contravened a prescribed law within the last 5 years, the Registrar must not include the person on the register unless the person has been granted leave under section 170NBEA to seek to have the person’s name entered on the register.

(5) If a ballot agent that is a body corporate is authorised to conduct a protected action ballot, the body must not authorise a person to participate in the conduct of the ballot if the person has contravened a prescribed law within the last 5 years.

(6) In this section:

prescribed law means any of the following:

(a) a Commonwealth, State or Territory law whose contravention is punishable by imprisonment for 12 months or more;

(b) a Commonwealth, State or Territory law whose contravention involves dishonesty and is punishable by imprisonment for 6 months or more;

(d) a provision of Part XA;

(e) section 307, 308, 310, 313, 314, 314A, 315, 316, 317, 318, 332 or 332A.

170NBEA Leave to be included on register

(1) A person who has contravened a prescribed law (within the meaning of section 170NBE) within the last 5 years may apply to the Court for leave to seek to have the person’s name entered on the register of ballot agents kept under section 170NBE.

(2) When granting leave under this section, the Court may impose any conditions or restrictions that it thinks fit.

(3) The Court may at any time, on the application of the Workplace Relations Registrar, revoke leave granted by the Court under this section.

170NBEB Removal from register

(1) If the Workplace Relations Registrar is satisfied that a person whose name appears on the register is not a fit and proper person to conduct protected action ballots, the Registrar may remove the name from the register.

(2) Before removing a person’s name from the register, the Workplace Relations Registrar must:

(a) give the person notice of the intention to remove the name, and a written statement of reasons for the decision; and

(b) give the person a reasonable opportunity to make submissions to the Workplace Relations Registrar on the intended removal of the name.

Subdivision F—Funding of ballots

170NBF Liability for cost of ballot

(1) The applicant for a ballot order is liable for the cost of holding the ballot.

(2) If the application for the ballot order was made by joint applicants, each applicant is jointly and severally liable for the cost of holding the ballot.

170NBFA Partial reimbursement of cost of ballot

(1) If:

(a) the applicant notifies the Workplace Relations Registrar of the cost incurred by the applicant in relation to the holding of the ballot; and

(b) does so within a reasonable time after the completion of the ballot;

the Workplace Relations Registrar must determine how much (if any) of that cost was reasonably and genuinely incurred by the applicant in holding the ballot. The amount determined by the Workplace Relations Registrar is the reasonable ballot cost.

(2) The Commonwealth is liable to pay to the applicant 80% of the reasonable ballot cost.

(3) However, if the application for the ballot order was made by joint applicants, the Commonwealth is liable to pay to each person who was a joint applicant for the order at the time the order was made, the amount worked out under the following formula:

(4) The regulations may prescribe matters to be taken into account by the Workplace Relations Registrar in determining whether costs are reasonable and genuinely incurred.

Subdivision G—Miscellaneous

170NBG Identity of certain persons not to be disclosed by Commission

(1) The Commission must not disclose information that the Commission knows, or has reasonable grounds to believe, will identify a person as:

(a) an applicant who is represented by an applicant’s agent; or

(b) a relevant employee who was one of the prescribed number of employees supporting an application for a ballot order (as required by subsection 170NBB(3)); or

(d) a person who is a party to an AWA.

(2) Each of the following is an exception to the prohibition in subsection (1):

(a) the disclosure is required or permitted by this Act or by another Act, or by regulations made under an Act;

(b) the person whose identity is disclosed has, in writing, authorised the disclosure.

170NBGA Identity of certain persons not to be disclosed by individuals

(1) A person must not disclose protected information that the person knows, or has reasonable grounds to believe, will identify another person as a person referred to in paragraph 170NBG(1)(a), (b) or (c).

Penalty: Imprisonment for 6 months.

Note: See also section 83BS (which prohibits a person from disclosing the identity of a party to an AWA).

(2) Each of the following is an exception to the prohibition in subsection (1):

(a) the disclosure is made by a person in the course of performing functions or duties:

(i) as a Registry official; or

(ii) of, or on behalf of, an authorised ballot agent;

(b) the disclosure is required or permitted by this Act or by another Act or by regulations made under an Act;

(3) For the purposes of determining the burden of proof in proceedings for an offence against subsection (1), the exceptions in subsection (2) are taken to be part of the description of the offence.

(4) In this section:

protected information, in relation to a person, means information that the person acquired:

(a) in the course of performing functions or duties as a Registry official; or

(b) in the course of performing functions or duties as, or on behalf of, an authorised ballot agent; or

Registry official means:

(a) the Workplace Relations Registrar; or

(b) a member of the staff of the Workplace Relations Registry (including a Deputy Workplace Relations Registrar).

170NBGB Immunity if person acted in good faith on ballot results

(1) If:

(a) the results of a protected action ballot as declared by the authorised ballot agent purported to authorise particular industrial action; and

(b) an organisation or person, acting in good faith on the declared ballot results, organised or engaged in that industrial action; and

no action lies against the organisation or person under any law (whether written or unwritten) in force in a State or Territory in respect of the action unless the action involved:

(d) personal injury; or

(e) wilful or reckless destruction of, or damage to, property; or

(f) the unlawful taking, keeping or use of property.

(2) Subsection (1) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action.

170NBGC Preservation of ballot papers

If a ballot agent conducts a protected action ballot, the ballot agent must ensure that the roll of voters and all ballot papers, envelopes and other documents and records relevant to the ballot are kept for one year after the completion of the ballot.

170NBGD Conferral of function on AEC

(1) If the Australian Electoral Commission is the authorised ballot agent for a protected action ballot, it is a function of the Australian Electoral Commission to conduct the ballot.

(2) If the Australian Electoral Commission is:

(a) the ballot agent nominated in an application for a ballot order; or

(b) the authorised ballot agent for such a ballot;

the Australian Electoral Commission cannot make a submission or an application to the Commission seeking to cease having that status in relation to the ballot.

170NBGE Regulations

The regulations may make provision in relation to the following matters:

(a) the qualifications and appointment of applicant’s agents;

(b) procedures to be followed in relation to the conduct of a ballot, or class of ballot, under this Division;

(d) the entry and removal of names from the register of ballot agents referred to in subsection 170NBE(1);

(e) the manner in which ballot results are to be published under section 170NBDE.

Note: Other regulation-making powers are included in section 359.

23 After paragraph 170ND(d)

Insert:

(da) section 170NBCQ;

24 At the end of section 170NF

Add:

(8) An application for an order under subsection (1) that relates to a contravention of section 170NBCQ in respect of a protected action ballot may be made by:

(a) an employee who is eligible to be included on the roll of voters for the ballot; or

(b) an employer of employees referred to in paragraph (a); or

(d) an inspector; or

(e) any other person prescribed by the regulations.

25 After subsection 178(1)

Insert:

(1A) Subsection (1) does not apply to an order of the Commission made under Division 8A of Part VIB.

Note: Division 8A of Part VIB deals with protected action ballots. Breaches of orders made under Division 8A are dealt with under section 170ND.

26 At the end of sections 287 and 288

Add:

(2) This section does not apply to protected action ballots ordered under Division 8A of Part VIB.

Note: The right to vote in protected action ballots is provided for in Division 8A of Part VIB.

27 Section 307

Repeal the section, substitute:

307 False statement in application for protected action ballot order

A person must not, in an application for a ballot order under Division 8A of Part VIB:

(a) make a statement; and

(b) do so reckless as to whether the statement is false or misleading in a material particular.

Penalty: $1,000.

307A False statement in joint application for protected action ballot order

A person must not, in an application for a ballot order under Division 8A of Part VIB:

(a) join with other persons in making a statement; and

(b) do so reckless as to whether the statement is false or misleading in a material particular.

Penalty: $1,000.

28 After section 314

Insert:

314A Failure to preserve protected action ballot papers etc.

A person must not knowingly or recklessly contravene section 170NBGC.

Penalty: $500 or imprisonment for 6 months, or both.

29 Paragraph 317(5)(a)

Omit “or 136”.

30 Paragraph 317(5)(b)

After “Division 7”, insert “or 7A”.

31 At the end of section 317

Add:

(6) In subsections (2), (3) and (4):

ballot includes a ballot held under Division 8A of Part VIB.

32 After Schedule 4

Insert:

Schedule 5—Statement to be included on protected action ballot paper

Note: See section 170NBDA.

Your vote in this ballot is secret and you are free to choose whether or not to support the proposed industrial action. It is illegal for anyone to force you or pressure you to vote for or against the questions on the ballot.

You are not required to take industrial action even if the majority of people in the ballot agree to take action. It is illegal for anyone to force you or pressure you to take industrial action or not to take industrial action.
It is illegal for an employer to pay you wages while you are engaged in any form of industrial action.

If you believe any person has attempted to force you or pressure you to vote yes or no, or to take or not take industrial action you can contact the Office of the Employment Advocate to receive advice and assistance.

Part 2—Application and saving

33 Application of amendments

(1) The amendments made by this Schedule apply in relation to industrial action taken on or after commencing day.

(2) However, the amendments do not apply in relation to industrial action if:

(a) the action is protected action (as identified in subsection 170ML(2) of the Workplace Relations Act 1996); and

(b) the requirements of sections 170MO and 170MR as in force immediately before commencing day in relation to the action have been met before commencing day; and

(3) In this item:

commencing day means the day on which this item commences.

34 Saving

(1) In spite of item 33, if:

(a) an order made under subsection 135(2) or (2B) of the Workplace Relations Act 1996 is in force immediately before commencing day; and

(b) the results of the ballot taken, or to be taken, pursuant to the order are not known before commencing day;

then:

(d) Division 4 of Part VI of that Act continues to apply in relation to the order, and to any thing done under, or in connection with the order, as if the amendments made by this Schedule to that Division had not been made; and

(e) section 170MQ as in force immediately before commencing day applies in relation to industrial action that:

(i) has been the subject of a ballot ordered under a provision referred to in paragraph (a); and

(ii) starts within 14 days after the results of the ballot are known; and

(f) section 170MO as in force immediately after commencing day applies in relation to industrial action referred to in paragraph (e).

(2) In this item:

commencing day means the day on which this item commences.

Schedule 13—Entry and inspection of premises by organisations

Part 1—Amendments

Workplace Relations Act 1996

1 Subsection 127AA(1)

Omit “is unenforceable”, substitute “has no effect”.

2 Subsection 127AA(2)

Omit “285G”, substitute “285G or 285J”.

3 Before subsection 178(2)

Insert:

(1B) Subsection (1) does not apply to an order of the Commission made under Division 11A of Part IX.

Note: Division 11A of Part IX deals with entry and inspection of premises by organisations. Section 285F in that Division deals with breaches of orders made under that Division.

4 Subsections 285A(2), (3), (4), (5) and (6)

Repeal the subsections, substitute:

(2) However, if in considering an application the Registrar is satisfied that:

(a) a permit issued to the officer or employee in respect of whom the application has been made under this Division has been revoked or varied, or issued subject to a condition; or

(b) the officer or employee has been the subject of an order by the Commission under section 285G; or

(d) the officer or employee, or his or her organisation, is or has been the subject of an order of the Commission under section 285J;

the Registrar must refer the application to the Commission for determination.

(3) The Commission must, in determining the application, have regard to the matter referred to in subsection (2) that caused the Registrar to refer the application to the Commission.

(4) If the Commission determines that the application is to be granted, the Commission must direct the Registrar to:

(a) issue the permit; or

(b) issue the permit subject to the condition that the permit does not entitle the officer or employee to enter specified premises, or a specified part of premises, for a specified period.

(5) The permit:

(a) remains in force until it expires, or is revoked under section 285G; and

(b) expires at the earlier of:

(i) 3 years after the day on which it was issued; or

(ii) the time at which the person to whom it was issued ceases to be an officer or employee of the organisation concerned.

(6) A person to whom a permit has been issued under this section must return the document that had effect as the person’s permit to the Registrar within 14 days after it expires.

Note 1: This subsection is a civil penalty provision—see section 285F.

Note 2: If a permit is revoked, the document must also be returned to the Registrar—see section 285K.

(7) In this section:

penalty provision has the same meaning as in section 285F.

Note: Permits issued under this section may be varied or revoked—see sections 285G, 285H and 285J.

5 Subsection 285B(1)

Repeal the subsection, substitute:

(1) This section applies if a person who holds a permit in force under this Division:

(a) is an officer or employee of an organisation that has an invitation that meets the requirements of section 285CA; and

(b) the invitation specifies that its purpose is to invite entry to investigate a breach that is suspected to have occurred, or to be occurring, of:

(i) this Act; or

(ii) an award, an order of the Commission, a certified agreement or an old IR agreement, that is in force and binds the organisation of which the person is an officer or an employee.

6 At the end of subsection 285B(2)

Add:

Note: The person’s entitlement to enter premises may be affected if the person’s permit is subject to a condition—see subsection 285E(2).

7 Paragraph 285B(3)(a)

After “suspected breach”, insert “and relate to the employment of members of the organisation of which the person is an officer or employee”.

8 Paragraph 285B(3)(b)

After “suspected breach”, insert “and relates to the employment of members of the organisation of which the person is an officer or employee”.

9 Paragraph 285B(3)(c)

After “who are”, insert “willing to be interviewed and are”.

10 Subsection 285C(2)

Repeal the subsection, substitute:

(2) The person is only entitled to enter premises under subsection (1) if the organisation of which the person is an officer or employee has an invitation that:

(a) meets the requirements of section 285CA; and

(b) either:

(i) specifies that the purpose, or one of the purposes, of the invitation is to invite entry to hold discussions with employees; or

(ii) does not specify its purpose.

Note 1: The person’s entitlement to enter premises may also be affected if the person’s permit is subject to a condition—see subsection 285E(2).

Note 2: If an invitation does not specify its purpose, it is treated as inviting entry to hold discussions with employees—see section 285CB.

11 At the end of section 285C

Add:

(3) The person is only entitled to enter the premises during working hours.

12 After section 285C

Insert:

285CA Requirements of employee invitation to enter premises

(1) An organisation has an invitation that meets the requirements of this section in relation to entry to premises if the invitation:

(a) is in writing and is signed by at least one employee who works at the premises and is a member of the organisation; and

(b) is given to the organisation, or to an officer or employee of the organisation; and

(c) in the case of an invitation to enter to investigate a suspected breach of the kind referred to in section 285B—states that the employee who signed the invitation has reasonable grounds to believe that there is evidence at the premises relevant to the suspected breach; and

(d) is a current invitation.

(2) An invitation is a current invitation for the purposes of this section if, in relation to a proposed entry under section 285B or 285C, the invitation is:

(a) given to the organisation, or to an officer or employee of the organisation, no earlier than 28 days before the proposed entry; or

(b) certified under section 291B no earlier than 28 days before the proposed entry.

Note: An organisation must have an invitation that meets the requirements of this section before powers of entry can be exercised on behalf of the organisation—see subsections 285B(1) and 285C(2).

285CB Invitation may specify purpose

(1) An invitation that meets the requirements of section 285CA may specify that its purpose is to invite entry to investigate a suspected breach of the kind referred to in section 285B, or to hold discussions of the kind referred to in section 285C, or to do both.

(2) If the invitation does not specify its purpose, it is taken to be an invitation to enter for the purpose of holding discussions of the kind referred to in section 285C.

285CC Protection of inviting employee’s identity

(1) An invitation that meets the requirements of section 285CA may specify that the identity of the employee, or of each employee, giving the invitation is confidential.

(2) If the invitation does not so specify, the organisation to whom the invitation is given must ask the employee, or each employee, if he or she wishes his or her identity to be confidential.

Note: This subsection is a civil penalty provision—see section 285F.

(3) If an employee (the inviting employee) has informed the organisation that his or her identity in relation to the invitation is to be confidential, the organisation must not reveal the inviting employee’s identity to:

(a) the inviting employee’s employer; or

(b) the occupier of the premises to which the invitation relates.

Note: This subsection is a civil penalty provision—see section 285F.

13 Subsections 285D(1) and (2)

Repeal the subsections, substitute:

(1) If:

(a) a person seeks to enter, or is on, premises in accordance with section 285B or 285C; and

(b) the relevant employer, or the occupier of the premises, requests the person to:

(i) show his or her invitation; or

(ii) show his or her permit; or

(iii) in the case of an entry to investigate a suspected breach of the kind referred to in section 285B—provide particulars of the suspected breach;

the person must not, under section 285B or 285C, enter or remain on the premises unless he or she complies with the request.

Note: This subsection is a civil penalty provision—see section 285F.

(2) If the person is requested to show the invitation, the person complies with the request if he or she shows the person making the request a copy of the invitation or a copy of a certificate issued under section 291B in relation to the invitation.

(2A) Subsection (2) is not to be taken to limit the means by which a person is able to comply with the request referred to in that subsection.

(2B) If the person is requested to provide particulars of the suspected breach, the person must:

(a) state the following:

(i) the requirement of the Act, award, order or agreement that is suspected of being breached;

(ii) the person’s reasons for suspecting that a breach has occurred;

(iii) the person’s reasons for believing that there is evidence of the suspected breach on the premises; or

(b) show the person making the request a certificate issued under section 291B that contains a statement in relation to the suspected breach under subsection 291B(3), or a copy of such a certificate.

(2C) If:

(a) the person is requested to provide particulars of the suspected breach; and

(b) the person does not comply with the request in the manner set out in paragraph (2B)(b); and

(i) is not satisfied that the person has complied with the request; or

(ii) is not satisfied that the person has provided adequate particulars in relation to the request;

the person is taken not to have complied with the request.

Note: See also subsection 285E(2B).

(2D) A person must not seek to enter premises and exercise powers under section 285B or 285C unless:

(a) the person has given the relevant employer and the occupier of the premises at least 24 hours’ notice, in writing, of the person’s intention to do so; and

(b) the notice specifies the day on which entry is proposed.

Note: This subsection is a civil penalty provision—see section 285F.

14 At the end of section 285D

Add:

(4) In this section:

relevant employer means the employer of the employees who gave the invitation.

15 After section 285D

Insert:

285DA Interviews and discussions with employees under sections 285B and 285C

(1) A person may only interview employees under section 285B, or hold discussions with employees under section 285C, during the employees’ meal-time or other breaks.

(2) If:

(a) a person wishes to interview, or hold discussions with, employees under section 285B or 285C; and

(b) the employer of the employees, or the occupier of the premises concerned, requests the person to hold the interviews or discussions in a particular room or area of the premises that is recognised as an employee meeting room, or meeting area, for employees of the type the person wishes to interview or hold discussions with;

the person must not remain on the premises unless he or she complies with the request.

Note: This subsection is a civil penalty provision—see section 285F.

16 Subsections 285E(1) and (2)

Repeal the subsections, substitute:

(1) A person exercising, or seeking to exercise, powers under section 285B or 285C must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

Note: For examples of acting in an improper manner see subsection 285G(2).

(2) A person exercising, or seeking to exercise, powers under section 285B or 285C must do so subject to any condition applied to the person’s permit under this Division.

(2A) A person must not refuse or unduly delay entry to premises by another person who is entitled to enter the premises under section 285B or 285C.

(2B) An employer, or an occupier of premises, must not tell a person under subsection 285D(2C) that the employer or occupier is not satisfied in relation to either of the matters set out in that subsection, unless the employer or occupier has reasonable grounds for not being so satisfied.

Note: See also section 306—offence of obstructing inspection by a person exercising a power under section 285B or 285C.

17 At the end of section 285E

Add:

Note: Each subsection of this section is a civil penalty provision—see section 285F.

18 Subsection 285F(1) (definition of penalty provision)

Repeal the definition, substitute:

penalty provision means subsection 285A(6), subsection 285CC(2) or (3), 285D(1) or (2D), 285DA(2), 285E(1), (2), (2A), (2B), (3) or (4), paragraph 285K(b) or section 285L.

19 Subsection 285F(5)

Omit “grant an injunction”, substitute “, on application by any person, grant an injunction (including an interim injunction)”.

20 Section 285G

Repeal the section, substitute:

285G Commission may order variation or revocation of permit

(1) The Commission may, on application in accordance with the regulations, order the variation or revocation of a permit in force under this Division if it is satisfied that the person to whom the permit was issued has:

(a) in exercising or seeking to exercise powers under section 285B or 285C:

(i) intentionally hindered or obstructed any person; or

(ii) otherwise acted in an improper manner; or

(b) contravened subsection 285CC(2) or (3).

(2) Without limiting subparagraph (1)(a)(ii), a person is taken to have acted in an improper manner for the purposes of this Division if the person has done any of the following:

(a) sought to enter premises or remain on premises in spite of having failed to give notice as required under this Division in relation to entry to the premises;

(b) given notice of multiple entries without intending to make all those entries, so that either the employer or the occupier does not have genuine notice that the person will seek to enter premises on a particular day;

(c) continued to seek entry to premises, or remained on premises, in spite of having failed to comply with a request under paragraph 285D(1)(b) in relation to the premises;

(d) contravened subsection 285DA(2).

(3) The Commission may vary a person’s permit under this section by applying to the permit a condition that it does not entitle the person to enter specified premises, or a specified part of premises, for a specified period.

(4) If the Commission orders the revocation of a person’s permit, the Commission may also order that no further permit is to be issued to that person for a specified period, or that any further permit issued to that person is to be made subject to the condition referred to in subsection (3).

(5) The Commission may take into account conduct occurring before the commencement of this section for the purposes of paragraph (1)(a).

285H Variation or removal of condition on permit

(1) A person whose permit is subject to a condition applied to it under section 285A or 285G may apply to the Commission for an order varying or removing the condition.

(2) The Commission must not order the variation or removal of the condition unless the Commission is satisfied that the circumstances that led to the condition being imposed have altered in such a way that the condition is no longer appropriate.

285J Abuse of permit system

(1) If the Commission is satisfied that an organisation, or particular officers or employees of an organisation, have abused the permit system established by this Division, the Commission may make whatever orders it considers appropriate to restrict the powers of the organisation, or officers or employees of the organisation, under the permit system.

(2) Without limiting subsection (1), the Commission may order:

(a) that, for a specified period, no officer or employee of a particular organisation is entitled to exercise any powers under this Division; or

(b) that, for a specified period, a particular officer or employee of a particular organisation is not entitled to exercise any powers, in relation to specified premises, or a part of specified premises, under this Division.

(3) For the purposes of this section, the Commission may take into account conduct occurring before or after the commencement of this section.

(4) For the purposes of this section, action by an officer or employee of an organisation in exercising, or seeking to exercise, powers under section 285B or 285C is taken to be action by the organisation, as well as by the officer or employee.

(5) However, subsection (4) does not apply if a committee of management of the organisation, or a person authorised by the committee, has taken reasonable steps to prevent the action.

(6) The powers of the Commission under this section are exercisable by:

(a) the President; or

(b) a Presidential Member assigned by the President for the purposes of the matter concerned; or

(7) The Commission may make an order under this section of its own motion or on application in accordance with the regulations.

285K Variation or revocation of permit following Commission’s order

If the Commission makes an order under section 285G, 285H or 285J affecting the powers of a person under a permit in force under this Division:

(a) the document that was issued to the person as the permit ceases to have effect as the person’s permit on the day the order is made, or on any later day that is specified in the order; and

(b) the person must return the document referred to in paragraph (a) to the Registrar within 14 days after the order is made; and

Note: This paragraph is a civil penalty provision—see section 285F.

(c) if the order allows a person to continue to exercise some powers under the permit—the Registrar must issue to the person another document that specifies the condition to which the permit is subject as a result of the order; and

(d) the document referred to in paragraph (c) has effect as the person’s permit on the day the order is made or on any later day that is specified in the order.

285L Compliance with order

An organisation which is subject to an order under section 285J must comply with the order.

Note 1: This section is a civil penalty provision—see section 285F.

Note 2: An individual whose permit is affected by an order under section 285J must also comply with the order—see subsection 285E(2).

21 After section 291A

Insert:

291B Certificate as to invitation to enter premises

(1) If a Registrar is satisfied, on application by an organisation, that:

(a) an invitation to enter specified premises has been given to the organisation; and

(b) the invitation meets the requirements of paragraphs 285CA(a), (b) and (c);

the Registrar must issue a certificate to

Commonwealth of Australia Bills

WORKPLACE RELATIONS LEGISLATION AMENDMENT (MORE JOBS, BETTER PAY) BILL 1999

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Object of the Workplace Relations Act

88C Commission not to have regard to relativities within awards

Schedule 2—Renaming of the Australian Industrial Relations Commission etc. and restructuring of the Commission

Part ll—Australian Workplace Relations Commission

18A Acting Commissioners

19A President to develop training and professional development program for members

20 Duty of Commission members

35 Commission divided in opinion

Part IV—Australian Workplace Relations Registry

Division 1—Establishment and functions of Australian Workplace Relations Registry

98A Commission to avoid technicalities

77A Appointment of persons employed in State Registries as Deputy Workplace Relations Registrars or Acting Deputy Workplace Relations Registrars

Schedule 3—Employment advocate

Schedule 4—Conciliation

Part VA—Voluntary conciliation

88AA Object of this Part

88AB Parties may request conciliation

88AC Decision whether to conciliate

88AD Powers and procedures of the Commission

88AE Conciliation to be in private and information not to be used

88AF When conciliation is completed

357A The way the Commonwealth pays fees

357B Waiver of fees

Schedule 5—Mediation

Part IVB—Mediation

Division 1—Objects of the Part

83C Objects of the Part

Division 2—The Mediation Adviser

83D The Mediation Adviser

83E Functions of the Mediation Adviser

83F Powers of the Mediation Adviser

83G Minister’s directions to the Mediation Adviser

83H Annual report of the Mediation Adviser

83J Appointment of the Mediation Adviser

Division 3—Approved mediation agencies

83K Approved mediation agencies

Division 4—Competency standards for accredited workplace relations mediators

83L Competency standards for accredited workplace relations mediators

Division 5—Accredited workplace relations mediators

83M Accredited workplace relations mediators

83N Duration of accreditation

Division 6—The Register of Accredited Workplace Relations Mediators

83P The Register of Accredited Workplace Relations Mediators

83Q Information on the Register

83R Maintenance of the Register

Schedule 6—Awards

101A When Commission must not make findings under section 101

529A Exclusion of certain agreements from sections 524, 525, 526 and 528

Schedule 7—Termination of employment

170CCA Division to cover the field in certain cases

170CDA Resignation not taken to be termination of employment at initiative of employer in certain circumstances

170CEA Motions for dismissal of application for want of jurisdiction

170CIA Representatives to disclose contingency fee agreements

170CIB Commission may dismiss application if applicant fails to attend

170CJA Security

170HBA No second applications under section 170CE concerning same termination to be made

Subdivision G—Unmeritorious or speculative proceedings

170HD Definitions

170HE Advisers not to encourage applicants to make, or to pursue, certain applications

170HF Applications to the Court

170HG Burden of proof

170HH Evidentiary matters

170HI Order that the Court may make

Schedule 8—Certified agreements

42A Limitation on representation by organisations etc.

81A Appeals related to certification by Workplace Relations Registrar

81B No appeal against decision to refer certification to Commission

Division 2A—Certification of agreements by Workplace Relations Registrar

170LMA When Division applies

170LMB Notice of application to be given to persons who made agreement

170LMC Application to be made available to employees subject to agreement

170LMD Declaration that requirements of sections 170LMB and 170LMC have been satisfied

170LME Persons or organisations may request that application be referred to Commission

170LMF Certification of agreements

170LMG Referral of agreements to Commission