Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2008 - 2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FAIR WORK BILL 2008
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Employment and Workplace
Relations, the Honourable Julia Gillard MP)
LIST OF GOVERNMENT AMENDMENT SHEET NUMBERS
|PJ446 |Commencement |
|PA442 |Application of this Act |
|QU427 |National Employment Standards, Dealing with Disputes |
|RE403 |Other Safety Net Entitlements - Modern Awards, Minimum |
| |Wages, Equal Remuneration, Payment of Wages, Guarantee |
| |of Annual Earnings |
|PY414 |Outworkers |
|PJ444 |Greenfields Agreements |
|PT206 |Agreements |
|PT205 |Bargaining |
|QC301 |Transfer of Business |
|PT207 |Industrial Action |
|QW366 |Right of Entry |
|QC300 |Miscellaneous - General Protections, Unfair Dismissal, |
| |Workplace Determinations, Stand Down, Multiple Actions |
|PJ447 |Fair Work Information Statement, Functions of the Fair |
| |Work Ombudsman |
|PD364 |Fair Work Ombudsman, Fair Work Australia |
NOTES ON AMENDMENTS
1. In these notes on amendments, the following abbreviations are used:
|AIRC |Australian Industrial Relations Commission |
|FWA |Fair Work Australia |
|FWO |Fair Work Ombudsman |
|NES |National Employment Standards |
COMMENCEMENT
Item 1 - Clause 2
2. Item 1 replaces the table in clause 2, setting out when particular
clauses of the Bill may commence by proclamation. It provides, for
example, for clauses 573 to 718 of the Bill to commence on a single
proclamation day. This is intended to allow the new institutions
(FWA and the FWO) and Schedule 1 (transitional provisions about
early commencement) to be established before the rest of the Bill.
However, the substantive functions of the institutions, and
inspectors' powers, cannot commence before the Fair Work
(Transitional Provisions and Consequential Amendments) Bill receives
the Royal Assent.
APPLICATION OF THIS ACT
State or Territory anti-discrimination laws
Item 1 - Subclause 27(1)
Item 2 - Subclause 27(1)
3. Currently, paragraph 27(1)(a) of the Bill preserves the operation of
State or Territory laws dealing with discrimination and equal
employment opportunity in relation to national system employers and
national system employees, but not to the extent that they are, or
are contained in, a State or Territory industrial law (as defined in
subclause 26(2)).
4. Consistent with the idea of a national workplace relations system,
this limitation prevents States from regulating industrial matters
in discrimination laws. However, it raises issues about the extent
to which discrimination laws may be characterised as State or
Territory industrial laws, given that this definition includes laws
that have the main purpose (or one or more main purposes) of
providing rights and remedies for termination of employment or
conduct that adversely affects an employee in employment.
5. In order to avoid any uncertainty in this area, these items amend
clause 27 of the Bill to ensure that each of the named State and
Territory anti-discrimination and equal opportunity laws are not
excluded by clause 26 of the Bill.
Non-excluded matters
Item 3 - Paragraph 27(2)(l)
6. Paragraph 27(2)(l) of the Bill currently preserves the operation of
State or Territory laws dealing with regulation of employer and
employee organisations and their members. Organisation is a defined
term in clause 12.
7. This item replaces the reference to organisation with association,
which has a broader meaning than organisation and gives State and
Territory laws in this area greater scope to operate.
Interaction of modern awards etc with State and Territory laws
Item 4 - Subclause 29(2)
8. This item ensures that modern awards and enterprise agreements apply
subject to all non-excluded State or Territory laws, including:
. the named State and Territory discrimination laws set out in item 1;
and
. laws dealing with rights and remedies that are incidental to all the
non-excluded State or Territory laws.
Technical correction
Item 5 - Paragraph 34(3)(a)
9. Paragraph 34(3) enables the regulations to extend the application of
the Bill beyond the exclusive economic zone and continental shelf in
relation to certain persons.
10. This item makes a minor technical correction to paragraph 34(3)(a),
adding the word 'and' to make clear that regulations extending the
application of the Bill in this way may be made in relation to any
Australian employer and any Australian-based employee.
Prescribed extensions beyond the EEZ and continental shelf
Item 6 - Subclause 34(3A)
11. Paragraphs 33(1)(d) and 34(1)(b) currently extend the Bill to ships
operated or chartered by Australian employers that use Australia as
a base in the exclusive economic zone, the waters of the continental
shelf and beyond. For this purpose, subclauses 33(2) and 34(2)
provide that references in relevant provisions of the Bill to an
employer and an employee are deemed to mean an Australian employer
(as defined in clause 35) and an employee of an Australian employer.
. The definition of Australian employer provides the necessary
jurisdictional connection to Australia to underpin the Bill's
extraterritorial application, consistent with international law.
12. Subclause 34(3) enables regulations to extend the Bill (or parts of
the Bill) beyond the continental shelf to Australian employers and
Australian-based employees. This item inserts a new provision which
ensures that, similar to subclauses 33(2) and 34(2), references to
employer and employee in the Bill, as extended by such regulations,
are deemed to mean (respectively):
. Australian employer, and employer of an Australian-based employee; and
. Australian-based employee, and employee of an Australian employer.
Regulations excluding application of Act
Item 7 - Clause 35A
13. Clause 32 and subclauses 33(4) and 34(4) of the Bill currently
enable the regulations to modify the application of the Bill in
relation to the territorial sea, Christmas Island and the Cocos-
Keeling Islands, the exclusive economic zone, the continental shelf
and beyond.
14. This item inserts a new provision to clarify that the regulations
can also exclude the application of the Bill in these areas.
. For example, regulations may be made to exclude from the Bill's
operation foreign-flagged ships engaged in innocent passage across the
territorial sea between an overseas port and an Australian port.
NATIONAL EMPLOYMENT STANDARDS, DEALING WITH DISPUTES
Base rate of pay for pieceworkers
Item 2 - Clause 16
Item 3 - Clause 16
15. These items relate to the definition of 'base rate of pay' in clause
16 of the Bill.
16. Item 3 adds a power to allow regulations to be made to prescribe, or
provide for the determination of, a base rate of pay for
pieceworkers for the purposes of the protections provided in clause
206 of the Bill.
. Clause 206 provides that an employee's base rate of pay under an
enterprise agreement must not be less that the modern award rate or the
national minimum wage order rate.
17. Special provision is required for pieceworkers because the general
meaning of base rate of pay in subclause 16(1) excludes bonuses and
incentive-based payments.
18. This amendment will enable the protection in clause 206 to work as
intended for this category of employees.
19. Item 2 is consequential upon item 3.
Interaction between NES and modern awards and enterprise agreements
Item 4 - Subclause 55(4)
20. This item amends subclause 55(4) of the Bill to make clear that a
modern award or enterprise agreement may include terms that are
ancillary or incidental to, or which supplement, the NES, but only
to the extent that such a term is not detrimental to an employee in
any respect.
21. The intention of this amendment is to ensure that if a term of an
enterprise agreement or modern award that is ancillary or incidental
to, or supplements, the NES contains an element that is detrimental
when compared to the NES, then only the detrimental element of the
term is of no effect. The remainder of the term will operate.
Item 5 - Subclause 55(5)
22. This item omits existing subclause 55(5) and inserts new subclauses
55(5)-(7).
23. These provisions explain the interaction of enterprise agreements
and modern awards with the NES.
24. The amendments make clear that an enterprise agreement can include
terms that are the same (or substantially the same) as an NES
entitlement. These could be terms which simply replicate the NES or
terms that make ancillary or supplementary provision in relation to
the NES and subsume the NES entitlement. This means that an employer
can make a comprehensive enterprise agreement with the employer's
employees.
25. Such terms operate in parallel with the NES entitlement, and do not
confer a double entitlement. The same applies to terms of modern
awards that are ancillary or supplementary to a NES entitlement.
This means that a NES entitlement can be sourced both in the NES and
in an enterprise agreement or modern award and can be enforced as an
entitlement under either. Also, the mechanisms contained in the
agreement are available to resolve any dispute about the
entitlement.
26. This means, for example, that an enterprise agreement could include
provisions about requests for flexible work arrangements (as
provided for by Division 4 of the NES), and disputes about whether
or not an employer had reasonable business grounds for refusing an
application could be dealt with by FWA (or an alternative dispute
resolution provider) under the dispute procedure in the agreement,
even though dispute resolution about this issue is generally not
available (see clauses 739 and 740 of the Bill).
27. Items 17 and 19 insert new notes to clauses 739 and 740 to make this
clear (see further below).
28. The amendments made by this item also make clear that where:
. an enterprise agreement contains terms that are the same or
substantially the same as a NES entitlement, or terms that are
ancillary or incidental to, or which supplement, a NES entitlement; or
. a modern award contains terms that are ancillary or incidental to, or
which supplement, a NES entitlement,
the provisions in the NES that relate to that entitlement (e.g., in
relation to rate of accrual of leave, or what notice must be given
to access an entitlement) apply to the entitlement in the award or
agreement (as a minimum standard) to the extent that the award or
agreement entitlement is the same as the NES guaranteed entitlement.
29. As the note to subclause 55(6) makes clear, this means, for example,
that if an enterprise agreement provides 6 weeks' annual leave, the
accrual rules and rules about taking of leave will operate as a
minimum standard in relation to the NES entitlement (4 weeks'
leave), but not in relation to the additional leave. This provision
is designed to ensure the integrity of the NES, while allowing
flexibility in relation to 'above-NES' entitlements. In the case of
an agreement with 6 weeks' annual leave, it would be possible for
the parties to agree that the additional two weeks would be provided
in a 'lump sum' at the end of a year, rather than accruing
progressively under the NES.
Item 6 - Clause 61
30. The amendment to clause 61 of the Bill made by this item is a
consequence of the amendments made by item 5 described above. This
amendment confirms that the NES is a set of minimum standards that
cannot be displaced, even where an enterprise agreement includes
terms that have the same effect as the NES (as will be permitted by
new subclause 55(5)).
Dealing with disputes
Item 12 - Clause 186
Item 13 - Clause 186
Item 17 - Clause 739
Item 19 - Clause 740
31. Under subclauses 65(5) and 76(4) of the Bill, an employer may refuse
a request for flexible working arrangements or an extension to a
period of unpaid parental leave on reasonable business grounds. The
Bill does not permit FWA (or another person) to deal with a dispute
to the extent that it is about whether an employer had reasonable
business grounds under the NES (subclauses 739(2) and 740(2)).
32. These items insert legislative notes after subclauses 186(6), 739(2)
and 740(2), consequential upon the amendments made by item 5, to
make clear that FWA, or another person, may deal with a dispute
relating to a term of an enterprise agreement that has the same or
similar effect as subclauses 65(5) or 76(4) (that is, a term of an
enterprise agreement that provides that a request for flexible
working arrangements or to extend unpaid parental leave may be
refused on reasonable business grounds).
Item 14 - Clause 738
33. Item 14 will allow FWA to deal with a dispute about the NES or a
safety net contractual entitlement where the parties have agreed,
not only though an enterprise agreement or contract of employment
(as is currently provided), but also via any other written
agreement.
Item 15 - Clause 739
34. Item 15 provides that a determination under the Public Service Act
1999 may also authorise FWA or an alternative dispute resolution
(ADR) provider to deal with a matter arising under the determination
or in relation to the NES.
35. Determinations under the Public Service Act 1999 are made by the
Agency Head and a determination therefore cannot authorise FWA or an
ADR provider to arbitrate a dispute. However, parties to a
determination could make a written agreement to authorise an
arbitrated outcome. Similarly, parties that are covered by a modern
award could make a written agreement to confer arbitral powers on
FWA or an ADR provider.
Item 16 - Clause 739
Item 18 - Clause 740
36. Items 16 and 18 will allow parties (which may include
award/agreement free employees or award employees) to consent to FWA
or an ADR provider dealing with disputes about whether an employer
had reasonable business grounds under subclauses 65(5) (refusing
requests for flexible working arrangements) or 76(4) (refusing
extension of unpaid parental leave) of the Bill. Such consent could
be provided in advance under an enterprise agreement, a contract of
employment or otherwise by written agreement.
LONG SERVICE LEAVE
Item 1 - Clause 12
Item 7 - Clause 113
37. Item 7 amends the NES entitlement to long service leave. The
amendment set out in this item replaces clause 113 in the Bill.
Subclauses 113(1)-(3) are to the same effect as existing clause 113.
38. An employee is entitled to long service leave under clause 113 in
accordance with applicable award-derived long service leave terms
(subclause 113(1)).
39. This clause preserves the effect of long service leave terms in pre-
modernised awards (i.e., awards as they stood immediately before
commencement of the NES).
40. The legislative note after this subclause explains that the Bill
does not exclude State and Territory laws dealing with long service
leave, except in relation to employees entitled to long service
leave under the NES.
41. To determine whether there are applicable award-derived long service
leave terms, it is necessary to consider the award that would have
applied to the employee's current employment if the employee had
been in that employment immediately before commencement
(paragraph 113(3)(a)). (This test applies to existing employees and
employees that start employment after commencement of the NES.)
42. When making the assessment under paragraph 113(3)(a), the effect of
the types of agreements, and other instruments, referred to in
subclause 113(2) on the award-derived entitlement is ignored.
43. The fact that an employee's award-derived entitlement does not apply
because of the operation of subclause 113(2) does not mean that the
employee does not have an award-derived NES entitlement (and such an
employee could not, for example, become covered by an agreement-
derived NES entitlement under subclause 113(4)).
44. The legislative note after subclause 113(2) explains that where an
agreement or instrument referred to in this subclause ceases to
apply, the employee will be entitled to long service leave in
accordance with any applicable award-derived long service leave
terms.
45. Subclauses 113(4) to (6) are new provisions, and have been included
to establish a process under which agreement-derived long service
leave terms may be preserved as an employee's long service leave NES
entitlement in certain limited circumstances.
46. The effect of clauses 27 and 29 of the Bill, in relation to long
service leave, is that new enterprise agreements must comply with
legislation in any State or Territory in which the agreement
applies. This is a new requirement. Currently, long service leave
can be dealt with in agreements in a way that is inconsistent with
such legislation and the terms in the agreement prevail over the
State/Territory legislation. The standards that have applied in
State/Territory legislation have varied over the years.
47. Some employers that operate in more than one State or Territory have
developed collective agreement-based long service leave
arrangements, which have been able to operate nationally.
48. The new provisions inserted by this item are intended to allow
existing collective agreement-based long service leave arrangements
to form an employee's NES entitlement if:
. the terms are included in a collective agreement that applies beyond a
single State or Territory;
. there are no award-derived long service leave terms for the employee
(meaning that State or Territory long service leave legislation would
otherwise apply); and
. FWA has made an order that it is satisfied that the long service leave
arrangements in the agreement are, considered overall, no less
beneficial to employees than the long service leave entitlements that
would otherwise apply under State or Territory law - this is intended
to be a global (rather than line by line) test.
49. This mechanism is only available where such a scheme exists in a
collective agreement before commencement of the NES. This approach
reflects the transitional nature of the NES long service leave
arrangements, which will apply pending development of a national
long service leave scheme.
50. Item 1 makes a consequential amendment to insert a definition of
applicable agreement-derived long service leave terms that directs
readers to subclause 113(5).
Item 7 - New clause 113A
51. Item 7 also inserts a new clause 113A. Clause 113A provides for the
situation where an employee is covered by a collective or individual
agreement, or other specified instrument (such as a workplace
determination), on commencement of the NES that expressly excludes
the employee's long service leave entitlements.
52. Long service leave entitlements are based on an employee's length of
service - they do not allow for 'discounting' of any periods during
which an agreement or other instrument excludes the entitlement. In
effect, this means that where an agreement or other specified
instrument that excluded long service leave ceases to operate, the
terms of the scheme then begin to apply (e.g., under State or
Territory legislation) and operate to provide a full entitlement to
the employee, despite the purported period of exclusion.
53. Clause 113A provides a one-off opportunity for an enterprise
agreement made after commencement of the NES (referred to in clause
113A as the 'replacement agreement') to recognise in an ongoing way
the effect of the exclusion of long service leave in an agreement,
or other specified instrument, that applied on commencement
(referred to as the 'first instrument'). It does this by allowing a
replacement agreement to provide that some or all of the period of
service during which the first agreement applied does not count as
service for the purposes of determining long service leave
entitlements.
54. In relation to this provision:
. the ability for a replacement agreement to discount periods of service
does not apply where long service leave entitlements may have been
excluded by implication - the exclusion must be in express terms;
. the period of service that may be discounted in an enterprise agreement
may not exceed the period during which the first instrument applied
(i.e., the effect of previous agreements cannot be included);
. the replacement agreement must commence immediately after the first
instrument for the exclusion to have effect.
55. Where an enterprise agreement includes such a provision, the period
of service is taken not to count, and never to count, for the
purpose of determining long service leave entitlements under either
the NES or under State or Territory law, despite clauses 27 and 29
(which provide for the continued effect of State and Territory long
service leave legislation). However, a period of service that is
taken never to count for calculation of long service leave
entitlements can be reinstated by subsequent agreement. This
agreement need not be by way of an enterprise agreement but could
occur, for example, through a contract of employment.
The following summarises the operation of the long service leave (LSL) NES
and the rules for how LSL is dealt with in enterprise agreements after
commencement of the NES.
The LSL NES preserves pre-commencement award-derived LSL entitlements.
The LSL NES also establishes a process under which employees' agreement-
derived LSL entitlements may be preserved as their NES entitlements. (The
intention is to enable parties to preserve genuine and fair agreement-based
national LSL schemes.)
If an employee does not have an award or agreement-derived entitlement,
then applicable State and Territory LSL legislation applies. (This is the
effect of the coverage provisions in the Bill - see clauses 27 and 29.)
LSL terms in agreements that are in operation at the time the NES commences
are not disturbed by the commencement of the NES and will continue to apply
until the agreement is terminated or replaced.
Where an enterprise agreement is made after commencement of the NES:
. the agreement cannot exclude the LSL NES, but may supplement the NES
subject to the requirement that such terms not cause any detriment to
an employee (see clause 55 of the Bill);
. for employees without an award or agreement-derived entitlement,
enterprise agreements will operate subject to State/Territory LSL laws
(see clauses 27 and 29 of the Bill).
An enterprise agreement may include terms that 'discount' the period of
service that is counted for the purposes of determining long service leave
entitlements in limited circumstances, namely:
. where the enterprise agreement replaces an agreement (or other
specified instrument) that applied when the NES came into operation;
. where the agreement being replaced expressly excluded long service
leave.
Notice of termination
Item 8 - Paragraph 117(2)(b)
56. This item replaces paragraph 117(2)(b) in the Bill to put beyond
doubt that when an employer elects to pay an employee in lieu of
providing notice of termination, this payment must include payments
made on behalf of the employee, such as superannuation
contributions.
Item 11 - Paragraph 123(3)(a)
57. This item deletes paragraph 123(3)(a) from the Bill.
Paragraph 123(3)(a) had provided that an employee was not entitled
to notice of termination under the NES where they had not completed
a specified period of continuous service with their employer at the
time of termination, or notice of termination (whichever was
earlier).
58. The effect of this amendment is that all employees (unless otherwise
excluded) are entitled to minimum notice of termination,
irrespective of how long they have been employed.
Redundancy pay
Item 9 - Clause 121
Item 10 - Clause 121
59. This item amends clause 121 to insert additional subclauses.
60. Subclause 121(2) allows a modern award to specify situations in
which clause 119 (redundancy pay) does not apply to the termination
of an employee's employment.
61. Under subclause 121(3), where a modern award includes such a term,
an enterprise agreement may incorporate that award term in the
agreement by reference (paragraph 121(3)(a)) and the agreement may
provide that the incorporated term covers some or all of the
employees who are covered by the award term.
62. Item 9 amends clause 121 of the Bill as a consequence of the
amendment set out in item 10.
Extended entitlements
Item 20 - Clause 758
Item 21 - Paragraph 771(c)
Item 22 - Clause 784
63. Clauses 758, 771 and 784 of the Bill set out the objects of Division
3 in Part 6-3 and Divisions 2 and 3 in Part 6-4. These objects
refer to Australia's international treaty obligations.
64. The amendments made by these items make technical amendments to
clauses 758, 771 and 784 to include additional references to the
international standards that underpin the provisions in these
Divisions.
MODERN AWARDS
Item 1 - Clause 12
Item 2 - New clause 140A
Item 3 - New clause 145A
Item 4 - Clause 154
65. This is a group of amendments to the modern awards content
provisions.
Industry-specific redundancy schemes
66. Item 1 amends the definition of industry specific redundancy scheme
in clause 12 of the Bill. This amendment makes clear that the full
range of industry specific redundancy schemes can be included in
modern awards.
Long distance transport employees
67. Item 2 enables modern awards to include terms relating to the
conditions under which an employer may employ employees to undertake
long distance transport work. This provision reflects concerns that
certain industry specific health and safety provisions currently in
State awards would not be able to be included in a modern award. For
example, this clause is intended to enable a modern award dealing
with long distance transport work to include terms that:
. require transport operators to develop and comply with safe driving
plans;
. allow for the inspection of safe driving plans;
. require transport operators to ensure that employees undertaking long
distance transport work receive safety awareness training; and
. require transport operators to develop and implement a written drug and
alcohol policy.
Consultation and representation
68. The amendment in item 3 requires modern awards to include a term
providing for consultation with, and representation of, employees in
situations where an employer has decided to introduce major changes
that are likely to have a significant effect on the employees.
State-based differences
69. Item 4 is designed to make clear that the requirement that terms of
modern awards be expressed to operate in each State and Territory,
does not necessarily mean that the terms will always have effect in
each State or Territory because of circumstances specific to that
State or Territory.
. For example, a modern award could contain a provision that allowed for
the payment of a remote location allowance or tropical allowance even
if such a provision would not have effect in a particular State or
Territory.
MINIMUM WAGES
Operation of national minimum wage orders
Item 5 - Clause 287
70. Clause 287 provides that national minimum wages orders to come into
operation on 1 July each year. There is no capacity for the effect
of an order to be delayed.
71. Item 5 provides FWA with a limited capacity to set different wages
or casual loadings in the national minimum wage order and to delay
the commencement of wage variations. FWA is only able to do this
where there are exceptional circumstances, and only to the extent
that is necessary because of the particular situation to which the
exceptional circumstances relate.
72. The effect of this provision is that, although generally the
national minimum wage and casual loading included in the minimum
wage order must be set at the same level for all employees and
variations in wage rates commence on 1 July, FWA may provide a
different rate, or for variations to take effect later in the
financial year, where exceptional circumstances justify this. The
scope for any such different treatment is limited, and must not
extend beyond the scope of the exceptional circumstances.
73. Similar provision is made in relation to classes or subclasses of
employees to whom special national minimum wages apply. However,
this provision does not limit the capacity of FWA to set different
rates for different classes of employees covered by a special
national minimum wage. So, for example, FWA will be able to:
. set different rates for different classes of junior employees (e.g.,
based on age or experience);
. provide that different pay rates apply to employees undertaking
different classes of training arrangement; and
. provide a method for calculating wage rates for disabled workers that
takes account of productive capacity,
. without being required to find that exceptional circumstances exist.
Publication of submissions
Item 6 - Clause 289
74. Item 6 amends clause 289 (which requires FWA to publish submissions
made to an annual wage review). These amendments provide FWA with
discretion as to how it publishes submissions received as part of an
annual wage review where submissions contain confidential or
commercially sensitive information. This will enable FWA to publish
submissions in a way that does not disclose confidential or
commercially sensitive information.
EQUAL REMUNERATION
Item 7 - Clause 306
75. The amendment in this item clarifies the intended relationship
between equal remuneration orders and modern awards, enterprise
agreements and FWA orders.
76. An equal remuneration order will prevail over a term of a modern
award, an enterprise agreement or an FWA order, to the extent that
the term of the modern award, enterprise agreement or FWA order is
less beneficial to the employee than the equal remuneration order.
PAYMENT OF WAGES
Item 8 - Clause 324
Item 9 - Clause 324
77. These items amend clause 324 of the Bill to provide additional
protections for employees when authorising deductions from their
wages.
78. The amendments made by these items require an employee authorisation
to specify the amount of the deduction, and require any variation to
the amount of the deduction to be authorised by the employee in
writing.
79. The amendments also make clear that an authorisation may be
withdrawn in writing by the employee at any time.
Item 10 - Clause 326
Item 11 - Clause 326
80. These amendments extend the protection provided by clause 326 of the
Bill. Clause 326 provides that certain terms of a modern award,
enterprise agreement or contract of employment that allow an
employer to deduct an amount from an employee's wages, or require an
employee to make a payment to an employer or another person, are of
no effect.
81. The amendments ensure that a term of a modern award, enterprise
agreement or contract of employment will be of no effect if either
of the following applies:
. the deduction or payment is for the benefit of the employer, or a party
related to the employer, and is unreasonable in the circumstances; or
. an employee is under 18 and the employee's parent or guardian has not
agreed, in writing, to the deduction.
82. Even if the employee's parent or guardian consents to the deduction,
it may still be of no effect if it is an unreasonable deduction for
the benefit of the employer, or a party related to the employer.
HIGH INCOME THRESHOLD
Item 12 - Clause 333
Item 13 - Clause 333
83. Clause 333 of the Bill provides that the high income threshold is
the amount prescribed by, or worked out in the manner prescribed by,
the regulations. It is intended that the high income threshold will
be $100,000 per annum for full time employees, indexed from
27 August 2007 (the date this policy was announced) and then
annually from 1 July each year.
84. The amendments made by these items ensure that the amount of the
high income threshold cannot be reduced from one year to another.
85. A regulation will have no effect to the extent that it would reduce
the amount of the high income threshold (proposed subclause 333(2)).
86. If the calculation of the high income threshold in the manner
prescribed in the regulations would result in a reduction in the
amount of the threshold, the high income threshold is taken to be
the same as the amount of the threshold in the previous year.
GUARANTEE OF ANNUAL EARNINGS
Item 14 - New clause 333A
87. This item inserts a new provision which ensures that a prospective
employee may be offered and may accept a guarantee of annual
earnings before commencing employment.
88. An employer or prospective employer must comply with all of the
requirements in relation to a guarantee of annual earnings as if the
prospective employee were an employee. However, an employer's
obligations under a guarantee will not take effect until the
prospective employee commences employment with the employer.
OUTWORKERS
Designated outworker terms
Item 1 - Clause 12
Item 5 - New clause 57A
Item 7 - Clause 186
Item 9 - Clause 253
Item 10 - Clause 272
89. This group of amendments enhances protection for outworkers in the
textile, clothing and footwear (TCF) industry. These amendments
acknowledge the unusual nature of longstanding provisions in the TCF
industry award in relation to outworkers.
90. The award creates a regulatory framework that applies to employers
and other entities that arrange for work to be carried out by
employee and non-employee outworkers. The obligations include
record keeping in relation to these arrangements and ensuring claims
for payment can be recovered from outworker entities that do not
themselves directly employer or engage outworkers. In addition, the
award extends minimum terms and conditions to non-employee
outworkers.
91. These provisions are maintained in the modern award (see Schedule D
to the Textile, Clothing, Footwear and Associated Industries Award
2010).
92. This group of amendments has the effect that designated outworker
terms (most outworker terms relating to TCF outworkers) cannot be
modified in bargaining. The effectiveness of these terms depends on
them applying uniformly to all employers and other entities covered
by the award. If particular employers could modify or remove them
in bargaining, the protections for workers in the industry would be
undermined.
93. Clause 57 of the Bill provides that an enterprise agreement
displaces a modern award in relation to an employer and employee. It
displaces the modern award for an outworker employee but the
employee must have the protection of non-detrimental outworker terms
in the enterprise agreement (see clause 200).
94. Item 5 adds clause 57A to the Bill to make an exception to clause 57
in relation to designated outworker terms in a modern award. It
provides that designated outworker terms continue to apply to an
employer even where an enterprise agreement applies to the employer
(and to the employees to whom the enterprise agreement applies and
the organisations covered by the modern award). Coupled with this,
items 7 and 9 amend clauses 186 and 253 of the Bill to provide, in
effect, that an enterprise agreement cannot include designated
outworker terms.
95. Designated outworker terms are terms that relate to outworkers in
the TCF industry that regulate minimum work conditions of contract
outworkers, that regulate liabilities of employers and outworker
entities in relation to outwork or that impose conditions in
relation to giving out work of a kind often performed by outworkers
(see the definition to be added to clause 12 by item 1). Designated
outworker terms cover the sort of terms that are proposed to be
included in the modern award for the TCF industry relating to
outworkers, with the exception of terms that regulate conditions of
employee outworkers directly in the traditional way in which awards
provide conditions to employees.
96. The effect of clause 57A and amended clauses 186 and 253 is that
designated outworker terms in a modern award cannot be bargained
away and continue to apply to an employer despite entry into an
enterprise agreement. An employer therefore remains subject to any
obligations under the designated outworker terms in relation to
employee outworkers with whom the employer has made an enterprise
agreement. The employer also remains subject to award obligations in
relation to others of the employer's employees who are outworkers
and any award obligations imposed on the employer in its capacity as
an outworker entity in relation to contract outworkers or outworkers
employed by another employer.
97. Item 10 amends clause 272 of the Bill to make complementary
provision in relation to workplace determinations. A workplace
determination cannot include designated outworker terms and there
can therefore be no question of displacement of those terms by a
workplace determination.
Definition of outworker and outworker entity
Item 2 - Clause 12
98. This item makes a technical amendment to the definition of outworker
entity to clarify the link required with work in a Territory.
Item 3 - Clause 27
99. Paragraph 27(2)(d) preserves the operation of State and Territory
laws dealing with matters relating to outworkers. This item gives
the term outworker its ordinary meaning (which is broader than the
definition of outworker in clause 12 of the Bill) to give State and
Territory laws in this area broader scope to operate.
Description of outworker terms
Item 6 - Clause 140
100. This item amends the definition of outworker terms in clause 140 of
the Bill. The amendment provides greater clarity about the terms
that may be included in a modern award.
101. An award may include terms relating to the conditions under which an
outworker entity may arrange for work to be performed for the entity
(either directly or indirectly) where the work is of a kind that is
often performed by outworkers.
102. In order for such a term to apply to an outworker entity, it is not
necessary for the entity to know or intend that work will actually
be undertaken by an outworker; nor is it necessary that work for the
particular entity is likely to be performed by outworkers. Rather,
all that is required is that the work is of a kind that is normally
undertaken by outworkers.
Enterprise agreement outworker terms
Item 8 - Clause 200
103. Clause 200 of the Bill requires outworker terms to be included in an
enterprise agreement that covers an outworker employee where a
modern award that covers the employee includes outworker terms. The
terms of the enterprise agreement cannot be detrimental to the
employee compared with the outworker terms in the modern award.
104. This amendment clarifies that the agreement cannot be detrimental to
the employee in any respect, and not just better off overall, when
compared with the award. The amendments in relation to designated
outworker terms (see items 1, 5, 7, 9 and 10 above) mean that, in
any case, certain outworker terms may not be included in enterprise
agreements.
Enforcement
Item 4 - Clause 46
Item 13 - Clause 548
Item 14 - Clause 548
Item 17 - Clause 682
Item 11 - Clause 545
Item 12 - Clause 547
Item 15 - Clause 679
Item 16 - Clause 682
105. This group of amendments ensure that modern award terms that deal
with outworkers can be enforced in the same ways as terms dealing
with employees by providing that:
. modern award terms that deal with outworkers can be enforced through
small claims proceedings;
. outworkers can be represented in proceedings by the FWO; and
. outworker entities can be ordered by eligible State or Territory courts
to pay amounts (including interest) to, or on behalf of, outworkers if
such amounts were payable under a modern award and were not paid in
breach of a civil remedy provision.
106. Clause 46 of the Bill deals with when an award applies to an
employee. Modern award terms do not directly 'apply' to contract
outworkers (as the terms impose obligations on outworker entities in
relation to such outworkers). However, outworkers have standing to
enforce such terms under Part 4-1. An amendment to the note under
clause 46 makes this clear.
GREENFIELDS AGREEMENTS
107. This group of items provides for amendments to the Bill in relation
to greenfields agreements. These items:
. remove the requirement that employers notify relevant employee
organisations of their intention to make a greenfields agreement;
. remove the provisions that would enable bargaining representatives be
appointed in relation to greenfields agreements;
. make clear that an employer does not have to make a greenfields
agreement with all relevant employee organisations;
. clarify the operation of the better off overall test in respect of
greenfields agreements, ensuring consistency with the application of
the test to non-greenfields agreements;
. insert additional approval requirements for greenfields agreements to
ensure these agreements are made by organisations that represent the
majority of the relevant employees and are in the public interest.
108. The remaining amendments proposed by this Schedule are consequential
to these measures.
Item 1 - Clause 12, definition of appointment
Item 2 - Clause 12, definition of bargaining representative
109. These items are minor technical amendments consequential to item 6
which omits clause 177.
Item 3 - Clause 172
Item 4 - Clause 172
110. These items amend subparagraphs 172(2)(b)(ii) and 172(3)(b)(ii) to
clarify that an employer or employers can make a greenfields
agreement where they have employed employees in relation to a
genuine new enterprise, provided those employees will not be covered
by the greenfields agreement.
111. For example, an employer may employ a manager to assist in the start-
up of the enterprise who would not be covered by an agreement. This
amendment makes clear that a greenfields agreement can be made in
situations such as these.
Item 5 - Clause 175
112. This item omits clause 175 with the effect that there will no longer
be a requirement for an employer to notify relevant employee
organisations of the employer's intention to make a greenfields
agreement.
Item 6 - Clause 177
Item 7 - Paragraph 178(2)(b)
Item 8 - Paragraph 178(2)(c)
113. Item 6 omits clause 177 with the effect that bargaining
representatives are no longer to be appointed in relation to
greenfields agreements. Items 7 and 8 are technical amendments
consequential to the removal of clause 177 by item 6.
Item 9 - Subclause 182(3)
114. This item amends subclause 182(3) to clarify that an employer is not
required to make a greenfields agreement with all the relevant
employee organisations.
Item 10 - Subclause 182(4)
115. This item is an amendment consequential to the omission of clause
175 by item 5.
Item 11 - Clause 185
116. This item inserts a new subclause 185(1A) into the Bill to make
clear that an application for FWA's approval of a greenfields
agreement must be made by either an employer or a relevant employee
organisation covered by the agreement. This amendment is
consequential on the fact that there will no longer be bargaining
representatives for greenfields agreements.
Item 12 - Clause 187
117. This item inserts a new subclause 187(5) that contains additional
requirements in relation to greenfields agreements about which FWA
must be satisfied before it approves the agreement. The
requirements are that:
. the relevant employee organisations that will be covered by the
agreement are (taken as a group) entitled to represent the industrial
interests of a majority of the employees in relation to work to be
performed under the agreement; and
. it is in the public interest to approve the agreement.
118. In assessing the public interest, it would be expected that FWA
would take into account the objects of the Act, and the need to
ensure that the interests of employees who are to be employed under
the agreement are appropriately represented.
Item 13 - Clause 193
119. This item amends subclause (3) of clause 193 to clarify that a
greenfields agreement will pass the better off overall test if FWA
is satisfied that each prospective employee would be better off
overall under the agreement. This amendment ensures that the same
test applies in respect of greenfields agreements as applies to
agreements that are not greenfields agreements.
Item 14 - Subclause 207(4)
120. This item amends subclause 207(4) to ensure that a greenfields
agreement can only be varied where one or more persons have been
employed and are covered by the agreement.
Item 15 - Subclause 219(3)
121. This item amends subclause 219(3) to ensure that a greenfields
agreement can only be terminated by agreement where one or more
persons have been employed and are covered by the agreement.
AGREEMENTS
Better off overall test
Item 1 - Clause 193
122. This item inserts subclause 193(7) into the Bill to clarify how the
better off overall test operates. Subclause 193(7) ensures that in
satisfying itself that each employee is better off overall FWA may
consider the circumstances of classes of employees. Subclause
193(7) establishes an evidentiary presumption that, in the absence
of any evidence to the contrary, the better off overall test does
not require FWA to enquire into each employee's individual
circumstances.
123. Subclause 193(7) is intended to recognise that, although the
enterprise agreement must pass the better off overall test in
relation to each employee and prospective employee, FWA may group
employees into classes in order to apply the test. It ensures that
the test provides a guarantee that the agreement does not undercut
the safety net but is also able to be applied by FWA efficiently and
without causing undue delay in the agreement approval process.
124. The phrase 'class of employees' is intended to refer to a group of
employees covered by the enterprise agreement who share common
characteristics that enable them to be treated as a group when FWA
applies the better off overall test. An example is where the
employees are in the same classification, grade or job level, with
the same working patterns.
Illustrative Example
Wreck Resolve Limited (WRL) is a chain of automotive repairers. WRL makes
an enterprise agreement that covers employees working in its workshops and
head office. WRL seeks approval of the agreement from FWA. Amongst the
employees covered by the agreement are mechanics of different levels of
qualification whose classifications under the agreement align with three
classifications in the relevant modern award. The agreement covers
employees within each of these classifications in the same way.
Accordingly, all of the employees falling within each classification may be
considered as a 'class of employees' by FWA when it assesses whether the
agreement passes the better off overall test. In the absence of any
evidence to the contrary, FWA is not therefore required to enquire into the
individual circumstances of each employee within the class.
Variation of enterprise agreements
Item 2 - Subclause 207(5)
125. This item omits subclause 207(5). The effect of this amendment is
that an agreement that does not pass the better off overall test but
is approved by FWA under clause 189 of the Bill will be able to be
varied. The agreement as varied will be required to pass the better
off overall test.
Item 3 - Clause 211
Item 4 - Clause 211
126. Item 2 omits paragraph 211(1)(c) and inserts a new clause to ensure
that when considering whether to approve a variation to an agreement
FWA must not do so if there are serious public interest grounds for
not approving the variation. Item 3 is consequential to the removal
of paragraph 211(1)(c).
Item 5 - Clause 211
Item 6 - Clause 211
Item 7 - Clause 211
127. Item 7 inserts subclause 211(3)(ha) to clarify that when considering
whether to approve an application for variation of an agreement FWA
must consider whether the enterprise agreement as proposed to be
varied, rather than the variation itself, passes the better off
overall test and does not contravene the NES.
128. These items also include technical amendments to clarify the
modification requirements in clause 211 in light of this change.
Item 8 - New clause 217A
129. This item inserts clause 217A into the Bill to provide a mechanism
for FWA to deal with disputes about a proposed variation to an
enterprise agreement. The good faith bargaining requirements do not
apply to bargaining in respect of a variation of an enterprise
agreement. This clause provides a mechanism whereby an employer or
employee organisation covered by the agreement or an affected
employee for the variation can seek assistance from FWA if the
employer and affected employees are unable to resolve a dispute
about the proposed variation. FWA may deal with such a dispute by
mediation or conciliation or by making a recommendation or
expressing an opinion (see clause 595). However, FWA must not
arbitrate the dispute.
Description of employees
Item 9 - New clause 256A
130. This item inserts clause 256A into the Bill to clarify how
employees, employers and employee organisations are to be described
in instruments referred to in Part 2-4 (Enterprise Agreements). The
amendment clarifies that when a provision of Part 2-4 requires or
permits an instrument to specify the employees covered by an
enterprise agreement or other instrument, the employees may either
be specified by class or by name. This is a technical amendment to
ensure that the provisions do not require employees to be
individually named.
131. The item also makes clear that where a provision requires an
employer or employee organisation to be specified, the employer or
employee organisation must be specified by name.
BARGAINING
132. This group of items sets out amendments to the Bill in relation to
the bargaining process. The key amendments:
. specifically provide for the revocation of the appointment of
bargaining representatives;
. remove the civil penalty provision in clause 179 of the Bill and
instead insert into the good faith bargaining requirements in clause
228 a requirement that bargaining representatives recognise and bargain
with other bargaining representatives for an agreement;
. amend the operation of the 'fairly chosen' criterion in majority
support determinations and scope orders to require FWA to be satisfied
in all cases that the group of employees is fairly chosen.
133. The remaining items in this group are consequential to these changes
or deal with technical amendments relating to other aspects of the
bargaining process.
Bargaining representatives
Item 2 - Clause 176
Item 3 - Clause 176
134. These items amend subclauses 176(1) and (2) respectively to reflect
that an employee organisation cannot be a bargaining representative
for an employee if the employee has notified the employer under new
clause 178A that the organisation is not his or her bargaining
representative.
Item 4 - New clause 178A
135. This item inserts new clause 178A into the Bill to specifically
provide that an employee or employer can revoke the appointment of
their bargaining representative for an enterprise agreement by
written instrument.
136. Subclause 178A(2) provides that if an employee organisation is a
bargaining representative for an employee because of the operation
of paragraph 176(1)(b) or subsection 176(2), the employee may revoke
by written instrument that organisation's status as the employee's
bargaining representative.
137. Subclause 178A(3) requires an employee to provide a copy of the
revocation instrument to the employer. If an employer revokes the
appointment of its bargaining representative, the revocation
instrument must be given to the bargaining representative and on
request to a bargaining representative of an employee.
138. Subclause 178A(4) enables the regulations to prescribe matters
relating to the content or form of the instrument of revocation or
the manner in which the copy of the instrument may be given.
Good faith bargaining
Item 5 - Clause 179
139. This item omits clause 179. The obligation for an employer not to
refuse to recognise or bargain with another bargaining
representative for a proposed enterprise agreement will instead be
included as a good faith bargaining requirement in subclause 228(1).
The key consequence of this is that the obligation will apply to
bargaining representatives generally (see item 7).
Item 7 - Clause 228
140. This item inserts an additional good faith bargaining requirement in
subclause 228(1), being the requirement that a bargaining
representative must recognise and bargain with other bargaining
representatives for a proposed enterprise agreement.
Item 13 - Clause 539, table item 5
141. This item removes the reference to clause 179 from the table of
civil remedy provisions that is set out in clause 539. This
amendment is consequential to item 5 which omits clause 179.
Fairly chosen
Item 6 - Subclause 186(3)
142. This item omits subclause 186(3) of the Bill and substitutes two
further subclauses that require FWA to be satisfied that before
approving an enterprise agreement, first, the group of employees
covered by the agreement was fairly chosen and second, that if the
agreement does not cover all of the employer's employees, FWA must,
in deciding whether the group of employees was fairly chosen, take
into account whether the group of employees is geographically,
operationally or organisationally distinct.
Item 9 - Clause 237
Item 10 - Clause 237
Item 11 - Clause 238
Item 12 - Clause 238
143. Item 9 omits paragraph 237(2)(c) and substitutes a new paragraph
requiring FWA to be satisfied before making a majority support
determination that the group of employees to be covered by the
proposed enterprise agreement was fairly chosen. Item 10 inserts
new subclause 237(3A), which provides that if the proposed agreement
will not cover all of the employer's employees, FWA must take into
account whether the group of employees is geographically,
operationally or organisationally distinct in deciding whether the
group of employees was fairly chosen.
144. Items 11 and 12 make similar changes in relation to the matters of
which FWA is required to be satisfied before it makes a scope order
under clause 238. Item 11 also makes clear that the agreement being
referred to is the one that is the subject of the scope order, not
the one that triggered the application.
Other technical amendments
Item 1 - Clause 174
145. This item inserts a new subclause in clause 174 to enable the
regulations to prescribe other matters relating to the content or
form of the notice of employee representational rights or the manner
in which employers may give the notice to employees.
Item 8 - Clause 229
146. This item is a technical amendment that omits subclause 229(5) and
substitutes a new subclause that makes clear that FWA may consider
an application for a bargaining order even if the application does
not comply with paragraph 229(4)(b) or (c) if FWA is satisfied it is
appropriate in the circumstances to do so.
TRANSFER OF BUSINESS
Item 1 - Clause 318
Item 2 - Clause 319
147. These items amend paragraphs 318(3)(d) and 319(3)(d) of the Bill by
inserting additional matters that FWA must take into account when
deciding whether to make an order under subclauses 318(1) and
319(1). These items are intended to ensure that, in deciding what
instruments should cover the new employer and its employees, FWA has
regard to the new employer's situation as well as the existing
factors in subclauses 318(3) and 319(3) (such as whether employees
would be disadvantaged). This includes the efficient operation of
the new employer's enterprise and the degree of fit between any
transferable instrument and arrangements that already exist in the
new employer's enterprise.
Illustrative example
Albury-Wodonga Banking Corporation (ABC) employs a number of employees to
maintain its IT systems. The employees are covered by the ABC Award (a
named employer award). That is, the award covers banking work generally as
well as ABC's IT staff.
ABC decides to outsource the maintenance of its IT systems to Sydney Tech
Systems (STS), a general IT services company. STS agrees to offer
employment to certain employees of ABC who performed the maintenance work
in-house. STS is covered by an enterprise agreement that relates
specifically to IT services.
Clause 313 has the effect that ABC's award will cover STS and the
transferring employees. However, STS makes an application to FWA under
clause 318 for an order that ABC's award not cover it or the transferring
employees and that STS's enterprise agreement cover the transferring
employees instead. In deciding whether to make the order, FWA is required
to consider, among other things, the degree of 'business synergy' between
ABC's award and STS's existing instruments. FWA is also required to
consider whether the employees would be disadvantaged. Although the terms
and conditions in STS's enterprise agreement are different from those in
the ABC Award, overall, the employees would not be disadvantaged.
Therefore, FWA decides to make the order sought by STS for reasons
including that ABC's award, which is focused on applying to banking work,
is less suitable to the work performed by the transferring employees than
STS's enterprise agreement.
Item 3 - Clause 320
148. This item amends subclause 320(2) to insert an additional ground on
which FWA may vary a transferable instrument. This item permits FWA
to vary a transferable instrument to enable it to operate in a way
that is better aligned to the working arrangements of the new
employer's enterprise.
Illustrative example
Wood Weather Systems Pty Ltd (Wood) acquires the business of Fahrenheit Co
and offers employment to employees of Fahrenheit Co. These employees were
covered by the Fahrenheit Co Enterprise Agreement (Agreement). The
Agreement provides that employees' ordinary hours are 37½ hours each week.
Wood's existing employees all work ordinary hours of 38 hours each week.
Wood applies to FWA to vary the term of the Agreement dealing with ordinary
hours so that the transferring employees can work ordinary hours of 38
hours a week, to enable them to be better integrated into Wood's business.
Wood also proposes that the pay rates under the Agreement be adjusted to
reflect the slightly longer working week. FWA agrees to the proposed
variations because it better aligns the terms of the Agreement to the
working arrangements in place at Wood.
Item 4 - Clause 320
149. This item amends clause 320 to include additional matters that FWA
must take into account when deciding whether to make a variation
under subclause 320(1). This is intended to ensure that FWA has
regard to the new employer's financial position, the efficient
operation of the new employer's enterprise and the degree of fit
between any transferable instrument and arrangements that already
exist in the new employer's enterprise.
INDUSTRIAL ACTION
150. Part 3-3 of the Bill deals with industrial action, including
processes for protected action ballots, and restrictions on payments
to employees relating to periods of industrial action (strike pay).
The key items in this group of amendments:
. make clear that industrial action is not protected if it occurs whilst
a serious breach declaration is in operation;
. amend clause 426 of the Bill to modify the threshold that FWA is to
apply when considering whether to suspend protected industrial action
because the action is threatening to cause significant harm to a third
party; and
. amend the strike pay provisions to clarify the operation of the rules
about deduction of pay in the context of overtime bans and partial work
bans.
The remaining amendments are technical in nature.
Meaning of employee claim/employer response action
Item 1 - Clause 12
Item 2 - Clause 12
151. These items amend the meaning of employee claim action and employee
response action by including a cross-reference to
paragraphs 471(4A)(c) and (d) respectively. They are consequential
to the amendment proposed by item 19.
Item 3 - Clause 19
152. This item inserts a legislative note at the end of clause 19 to make
clear to the reader that in this clause (which defines the meaning
of industrial action) employer and employee are to have their
national system meanings.
Protected industrial action
Item 4 - Subclause 409(1)
Item 5 - Subclause 409(1)
153. These items are technical amendments to subclause 409(1) to clarify
that the industrial action organised or engaged in for the purpose
of supporting or advancing claims must only be about, or reasonably
believed to only be about, permitted matters.
Item 7 - Subclause 413(7)
Item 8 - Subclause 413(7)
154. Items 7 and 8 are technical amendments to subclause 413(7) to
clarify that if the order or declaration suspends or terminates any
protected industrial action in relation to the agreement then no
other action can be engaged in during that time.
Item 6 - Subclause 413(7)
Item 9 - Subclause 413(7)
155. Item 9 inserts a new paragraph 413(7)(c) into the Bill to ensure
that industrial action will not be protected if a serious breach
declaration made by FWA under clause 235 is in operation in relation
to the proposed enterprise agreement. Item 6 is a technical
amendment consequential to item 9.
Item 10 - Subclause 417(2)
Item 11 - Subclause 417(2)
156. These items are technical amendments to subclause 417(2) to provide
that the subclause identifies persons 'covered' by the agreement or
determination.
Item 12 - Clause 426
Item 13 - Clause 426
Item 14 - Clause 426
157. These items amend clause 426 to modify the threshold that is
necessary for threatened harm before FWA must make an order
suspending the protected industrial action. More particularly,
these items amend subclause 426(4) so that the matters FWA may take
into account when considering if the action is threatening to cause
significant harm include the extent to which the action threatens
to:
. damage the ongoing viability of an enterprise carried on by a person;
. disrupt 'for an extended period' the supply of goods or services to an
enterprise;
. 'significantly' reduce the person's capacity to fulfil a contractual
obligation; or
. cause other 'serious' economic loss to a person.
Item 15 - Clause 426
158. This item inserts new subclause 426(4A), which requires that where
industrial action is threatening to cause significant harm to a
third party, that harm must be imminent.
Protection action ballot orders
Item 16 - Subclause 438(1)
159. This item is a technical amendment to subclause 438(1) to provide
that it operates if one or more enterprise agreements 'cover' the
employees.
Non-payment for overtime bans
Item 17 - Subclause 470(4)
160. This item is a technical amendment that restructures
subclause 470(4) of the FW Bill (that deals with protected overtime
bans) to make its operation clearer. That subclause provides that a
deduction may only be made under the provisions in relation to 'a
period of overtime to which the ban applies' (i.e., a period of
overtime an employee is required or requested to work, but refuses
to work because of the imposition of protected overtime bans). This
means that no deduction may be made from ordinary time earnings.
161. Additionally the prohibition on the payment of strike pay does not
apply if the employee refuses to work overtime under an applicable
modern award, enterprise agreement or contract of employment. For
example, a term of an agreement might allow an employee to decline a
request to work overtime on the ground of family responsibilities.
If an employee declines to work overtime and complies with that
term, the prohibition on the payment of strike pay does not apply
because the employee has not engaged in industrial action.
Item 18 - Clause 471
162. This item substitutes a new paragraph 471(4)(c) which deals with non-
payment for protected partial work bans.
163. The provision currently provides that an employer may withhold
payments from an employee (who engages in protected partial work
bans) in relation to an industrial action period, providing that the
employer has given the employee a valid notice of non-payment
(subclause 471(4)).
164. The amendment makes it clear that, in these circumstances, payments
may only be withheld for the industrial action period if the
employer gives the employee a written notice stating that, because
of the ban:
. the employee will not be entitled to any payments; and
. the employer refuses to accept the performance of any work by the
employee until the employee is prepared to perform all of his or her
normal duties.
165. It is intended that an employer's refusal to accept the employee's
work in these circumstances would not constitute industrial action.
Item 19 - Clause 471
166. This item inserts a new subclause 471(4A) which is consequential to
the amendments made by item 18.
167. The amendment specifies an employee's legal status during a period
of non-payment under subclause 471(4). For that period, the failure
or refusal of an employee to attend for work, or perform any work
(i.e., not just the banned duties) if he or she does attend for
work, would be either:
. employee claim action-even if it does not satisfy ballot and notice
requirements under subclauses 409(2) and 413(3) respectively; or
. employee response action-even if it does not satisfy ballot
requirements under subclause 413(4),
depending on the nature of the original protected partial work bans.
In effect, the employee's refusal or failure would be taken to be a
continuation of the original protected industrial action.
Item 20 - Clause 474
168. This item is a technical amendment that clarifies the application of
the strike pay rules for overtime bans that are not protected
industrial action (by inserting new subclause 474(2A)).
169. In particular, the new subclause clarifies that the total duration
of the industrial action (i.e., for which payment must be withheld)
is, or includes, any period of overtime that an employee has been
required or requested to work, but has refused to work, pursuant to
an unprotected overtime ban. If payment must be withheld for the
minimum period of four hours on a day (i.e., under
paragraph 474(1)(b)), then that period would include any period of
overtime an employee has been required or requested to work, but has
refused to work, pursuant to an overtime ban that is not protected.
For example, if an employee refuses to work two hours' overtime on a
day (when requested by their employer) pursuant to an overtime ban
that is not protected, then the employer must withhold payments for
that two-hour overtime period, plus a further two hours (taking the
deduction to the minimum four hours' pay).
Protected industrial action
Item 21 - Clause 539, item 14
170. This item is a technical amendment to clause 539, item 14, paragraph
(c), second column to provide that it is the employee organisation
'covered' by the enterprise agreement or workplace determination
concerned that has standing in respect to clause 417. Item 21 is
consequential on items 7 and 8.
RIGHT OF ENTRY: TCF OUTWORKERS
171. These amendments are intended to ensure that permit holders who are
entitled to represent workers in the textile, clothing and footwear
(TCF) industry can enter premises for investigation or discussion
purposes.
172. In particular, these changes acknowledge the need to ensure the
effective operation of longstanding provisions in awards applying in
the TCF industry (which are maintained in the modern award - see
Schedule D to the Textile, Clothing, Footwear and Associated
Industries Award 2010).
Item 17 - New Subdivision AA of Division 2 of Part 3-4
173. The Bill currently allows permit holders to enter workplaces to
investigate a suspected breach of the FW Bill or a fair work
instrument if the breach relates to a member who works on the
premises. In the TCF industry permit holders may not be able to
meet these requirements due to the low rate of union membership
amongst TCF workers and not knowing whether a TCF outworker performs
work on the premises.
174. The nature of the TCF outworker industry means that investigating a
breach will invariably require entry to premises other than where
TCF workers perform work (e.g., where relevant documents may be
kept).
175. Item 17 inserts a new Subdivision AA in Division 2 of Part 3-4 of
the Bill to address these issues.
176. New clause 483A sets out particular rights of entry to premises for
contraventions that relate to TCF outworkers. There are two types
of entry set out in this clause.
177. The first is set out in paragraph 483A(1)(a) and is to investigate a
suspected contravention of the Bill or a term of a fair work
instrument where the contravention relates to or affects a TCF
outworker who performs work on the premises.
178. The second is set out in paragraph 483A(1)(b) and is to investigate
a suspected contravention of a designated outworker term that is in
an instrument that relates to TCF outworkers.
179. The types of entry are dealt with separately as entry to investigate
a suspected contravention of a designated outworker term does not
require the permit holder to have a reasonable suspicion that a
contravention has occurred or is occurring or have the burden of
proving a suspicion is reasonable. These requirements do apply to
entry under paragraph 483A(1)(a) and are set out in subclauses
483A(2) and (3).
180. Designated outworker term will be defined in clause 12 - see item 1
in PY414 (Outworkers).
181. In both types of entry under this clause the permit holder's
organisation must be entitled to represent the industrial interests
of TCF outworkers. However, entry under paragraph 483A(1)(b) would
not require the presence or identification of a particular
outworker. This recognises the fact that designated outworker terms
in the TCF award create a regulatory framework that applies to
employers and other entities that arrange for work to be carried out
by employee and non-employee outworkers. Some of these obligations
are imposed irrespective of whether a particular employer or entity
directly engages or employs outworkers.
182. Subclause 483A(5) defines designated outworker terms entry as
meaning entry provided for in paragraph 483A(1)(b) to investigate a
suspected contravention of a designated outworker term. This term
is used in various other clauses to refer to entry under paragraph
483A(1)(b).
183. Clause 483B sets out the rights a permit holder can exercise once on
premises. These rights are the same as those that can be exercised
by permit holders entering premises to investigate suspected
contraventions under clause 482 (as proposed to be amended).
184. An occupier of premises or an affected employer who is required by a
permit holder to allow the inspection and copying of records or
documents must comply with that requirement (see subclause 483B(4)).
This subclause is a civil remedy provision under Part 4-1 (Civil
remedies).
185. Subclause 483B(3) sets out who is an affected employer in relation
to the types of entry onto premises authorised by clause 483A.
Generally, a person is an affected employer in relation to TCF
outworker entry if:
. she or he employs a TCF outworker whose industrial interests the permit
holder's organisation is entitled to represent;
. the TCF outworker performs work on the premises; and
. the suspected contravention relates to or affects the TCF outworker.
186. However, for a designated outworker terms entry, a person is an
affected employer if she or he is covered by a TCF award. This
reflects the distinctive nature of investigating such terms,
particularly the fact that a person who has obligations under the
award and holds relevant documents may not be in any direct
employment or contractual relationship with any relevant TCF
outworkers.
187. Clause 483C allows a permit holder to require an occupier or
affected employer to provide documents or records at a later time -
i.e., after the permit holder has visited the premises. This
provision generally replicates the rights and requirements regarding
later access to records or documents set out in existing clause 483.
However, the rights and requirements set out in clause 483C also
apply to occupiers of premises to address the fact that, for TCF
outworker entry, there may not always be an affected employer who
holds the relevant documents.
188. Clause 483D authorises entry to premises where TCF outworkers do not
work but at which documents that are directly relevant to a
suspected contravention affecting TCF outworkers are kept. This
right of entry to 'other' premises is required because TCF
outworkers may work at premises other than an employer's place of
business, where documents relevant to the suspected contravention
may be kept.
189. In order to be able to enter other premises under clause 483D, a
permit holder must meet the requirements for entry onto premises
under paragraph 483A(1)(a). The permit holder must also reasonably
suspect that records or documents that are directly relevant to the
suspected contravention relating to a TCF outworker are kept on the
other premises, or are accessible from a computer that is kept on
those premises.
190. While on the other premises, the permit holder can require the
occupier of the premises to give him or her access to the records or
documents (subclause 483D(2)), unless the documents or records are
protected by another law of the Commonwealth or a law of a State or
Territory (subclause 483D(3)).
191. Subclause 483D(4) is a civil remedy provision which provides that
the occupier must comply with a requirement to provide documents or
records.
192. Clause 483E allows a permit holder to require the occupier of those
other premises to provide documents or records that are directly
relevant to a suspected contravention at a later time after the
permit holder has visited the other premises. This provision
generally replicates the rights and requirements regarding later
access to records or documents set out in clause 483C.
193. It is important to note that clauses 483D and 483E operate subject
to clause 493 which prevents a permit holder from entering premises
used mainly for residential purposes.
194. The mandatory requirements applying to permit holders when
exercising or attempting to exercise rights in Subdivision C of
Division 2 apply to entry under new Subdivision AA.
Item 1 - clause 12
Item 4 - clause 12
Item 5 - clause 12
Item 6 - clause 12
Item 7 - clause 478
Item 8 - clause 478
Item 9 - clause 480
195. These amendments are consequential to the general TCF outworker
right of entry amendments.
196. Items 5 and 6 insert two new definitions in clause 12. The
definition of TCF award refers to an instrument prescribed by the FW
regulations. It is intended that the Textile, Clothing, Footwear
and Associated Industries Award 2010 will be prescribed.
197. The definition of TCF outworker refers to persons who perform work
that is within the scope of a TCF award. This ensures that the TCF-
specific entry right exists only with respect to employers within
the TCF industry.
Item 38 - Clause 518
198. This amendment provides specific entry notice requirements for entry
to investigate suspected contraventions relating to TCF outworkers.
The different requirements are based on the circumstances of the
specific types of TCF outworker entry.
199. In particular, as designated outworker terms entry under clause 483A
does not require the presence of a particular outworker at the
premises, the entry notice only needs to contain a declaration by
the permit holder that his or her organisation is entitled to
represent the industrial interests of TCF outworkers in general (see
paragraph 518(2)(cb)).
Item 19 - Clause 484
Item 20 - Clause 486
Item 21 - Clause 487
Item 22 - Clause 487
Item 23 - Clause 489
Item 24 - Clause 489
Item 25 - Clause 489
Item 26 - Clause 489
Item 27 - Clause 490
Item 28 - Clause 490
Item 30 - Clause 502
Item 35 - Clause 518
Item 36 - Clause 518
Item 37 - Clause 518
Item 39 - Clause 518
Item 40 - Clause 518
Item 41 - Clause 518
Item 42 - Clause 519
Item 43 - Clause 519
Item 44 - Clause 539
200. These amendments are consequential to the general TCF industry
amendments to Part 3-4 of the FW Bill. They ensure that the entry
rights conferred on officials of organisations, and the associated
requirements and prohibitions, also apply to permit holders entering
premises in relation to workers in the TCF industry.
RIGHT OF ENTRY: PROTECTION OF EMPLOYEE INFORMATION
Item 10 - Clause 482
Item 11 - Clause 482
Item 14 - Clause 483
201. Paragraph 482(1)(c) and subclause 483(1) of the Bill allow permit
holders to require occupiers or employers to produce records or
documents relevant to a suspected breach while the permit holder is
on the premises or at a later time. These amendments make it clear
that only documents that are directly relevant to the suspected
contravention can be inspected or copied. This ensures that permit
holders only collect information that is closely aligned to, and
directly achieves, the intended purpose of the collection.
202. The requirement that documents and records be directly relevant to
the suspected contravention is replicated in the proposed new
clauses 483B, 483C, 483D and 483E. These clauses deal with entry to
investigate suspected contraventions relating to TCF outworkers (see
item 17).
Item 12 - Clause 482
Item 16 - Clause 483
203. These amendments to the legislative notes after subclauses 482(1)
and 483(5) clarify what protections apply to information or
documents collected under the right of entry provisions.
204. Note 1 directs the reader to clause 504. Clause 504 prohibits any
person from disclosing information obtained by a permit holder for a
purpose not related to rectifying the suspected contravention or in
other limited circumstances. Note 2 highlights that the use or
disclosure of personal information collected by a permit holder
under these amended clauses is also covered by the Privacy Act 1988.
Item 13 - Clause 482
Item 15 - Clause 483
205. These amendments insert new subclauses 482(1A) and 483(1A) to
provide that occupiers and employers are not required to provide
permit holders with access to documents or records that are
protected by another law of the Commonwealth or by a law of a State
or Territory.
206. These amendments are intended to ensure that obligations under
Commonwealth, State or Territory laws prohibiting the disclosure of
sensitive information are not overridden by the right of entry
provision. An example of such a law is section 58 of the Child
Support (Registration and Collection) Act 1988 (the Child Support
Act), which provides that an employer must not divulge information
about the deduction of child support from an employee's wages.
These new subclauses mean that an employer will not have to disclose
information in a record or document to a permit holder if that
disclosure would otherwise amount to a breach of section 58 of the
Child Support Act.
207. Proposed new clauses 483B, 483C, 483D and 483E, dealing with entry
to investigate contraventions relating to TCF outworkers, also adopt
this approach.
Item 31 - Clause 504
208. This item replaces current clause 504 of the Bill, which deals with
the use or disclosure of documents in contravention of National
Privacy Principle 2 (NPP2) in Schedule 3 to the Privacy Act 1988.
New clause 504 is broader than the existing provision. It protects
against the unauthorised use or disclosure of not just employee
records but other information, including business plans or other
sensitive information of employers.
209. The new provision prohibits permit holders from using or disclosing
any information or document collected in the course of investigating
a suspected contravention (including personal information within the
meaning of the Privacy Act 1988) unless the use or disclosure is for
a purpose related to the investigation or rectifying the suspected
contravention. The new provision also sets out a number of
circumstances where the use or disclosure of such information for a
purpose other than rectifying the contravention is not prohibited
(paragraphs 504(a)-(e)). These exceptions are based on the
exceptions that are provided for in NPP2 in relation to the
disclosure of personal information under the Privacy Act 1988.
210. These exceptions include where the disclosure is:
. necessary to lessen or prevent a serious threat to public health and
safety;
. required or authorised by or under law; and
. with the consent of the individual whose information is being
disclosed.
211. Clause 504 continues to be a civil remedy provision under Part 4-1
(Civil remedies).
Item 32 - Clause 510
Item 33 - Clause 510
Item 45 - Clause 539
212. These amendments are consequential to the amendments to clause 504.
Item 34 - Clause 510
213. This amendment is consequential to the amendments to clause 504 and
to the general TCF industry amendments to Part 3-4 of the Bill
(Right of entry).
OTHER RIGHT OF ENTRY AMENDMENTS
Item 18 - Clause 484
214. This item clarifies that when a permit holder enters premises under
clause 484, the entry must be for the purpose of holding
discussions with employees or TCF outworkers who:
. perform work on the premises;
. are entitled to be represented by the permit holder's organisation; and
. wish to participate in those discussions.
215. While entry must be for the purpose of holding discussions with this
class of workers, it does not mean that if other workers choose to
attend or participate in discussion that the entry is invalid or
contrary to the Act.
216. The amendment also makes clear that the proviso that employees must
wish to participate in discussions operates after entry - i.e., it
ensures that an employee cannot be required or otherwise compelled
to participate in the discussions. However, it does not mean that a
permit holder must demonstrate before entry that there is a
particular employee on the premises who wishes to talk to the permit
holder.
Item 29 - Clause 495
217. Clause 495 currently requires a permit holder exercising a right of
entry under State or Territory OHS legislation to notify both the
occupier of the premises and any affected employer when seeking
access to employee records. An affected employer is defined as a
person whose employees work on the premises. This has the
unintentional consequence that on sites with multiple employers,
every employer has to be notified even if the permit holder only
wishes to view records held by one employer.
218. Consistent with the intent of the provision, the amendment changes
the definition of affected employer to persons who employ employees
to whom the relevant records relate. This amendment ensures that
only employers of employees whose records a permit holder wishes to
inspect need to be notified.
Item 2 - Clause 12
Item 3 - Clause 12
219. These amendments are consequential to the amendment in item 29.
GENERAL PROTECTIONS
Item 1 - Clause 12
Item 3 - Clause 12
Item 6 - Clause 351
Item 7 - Clause 351
Item 8 - Clause 351
Item 9 - Clause 351
220. Paragraph 351(2)(a) of the Bill (together with paragraph 342(3)(a)),
currently provide that action is not discriminatory if it is
authorised by or under a Commonwealth, State or Territory anti-
discrimination law. This exception is intended to ensure that where
action is not unlawful under a relevant anti-discrimination law
(e.g., because of the application of a relevant statutory exemption)
then it is not adverse action under subclause 351(1). The word
'authorised' may not capture all action that is not unlawful under
anti-discrimination legislation, especially if the legislation does
not specifically authorise the conduct but has the effect that the
conduct is not unlawful. These amendments ensure the exception
operates as intended.
221. Item 8 also clarifies that the exception in paragraph 351(2)(a) only
relates to laws applying in the place where the action occurred.
This means that the exception cannot operate to authorise action in
one State (e.g., Queensland) because the action is authorised under
the provision of an anti-discrimination law in another State (e.g.,
Victoria).
Item 5 - Clause 347
222. Under paragraph 347(b)(vi) of the Bill, a person engages in
industrial activity if he or she pays a fee (however described) to
an industrial association.
223. However, paragraph 347(b)(vi) does not expressly deal with payments
made to other persons 'in lieu of an industrial association' (e.g.,
where an industrial association is collecting or demanding fees
through another entity). Item 7 ensures such payments are captured.
WORKPLACE DETERMINATIONS
Description of employees
Item 4 - Clause 281A
224. This item inserts clause 281A into the Bill to clarify how
employees, employers and employer organisations are to be described
in instruments referred to in Part 2-5 (Workplace Determinations).
The amendment clarifies that when a provision of Part 2-5 requires
or permits an instrument to specify the employees covered by a
workplace determination or other instrument, the employees may
either be specified by class or by name. This is a technical
amendment to ensure that the provisions do not require each employee
to be individually named.
225. The item also makes clear that where a provision requires an
employer or employee organisation to be specified, the employer or
employee organisation must be specified by name.
REINSTATEMENT BY ASSOCIATED ENTITIES
Item 2 - Clause 12
Item 10 - Clause 391
Item 11 - Clause 391
226. Item 10 inserts a new subclause (1A) into clause 391 to enable FWA
to make a reinstatement order applying to an associated entity of
the person's previous employer if there has been a corporate
restructure in the period since the employee was unfairly dismissed.
227. Item 11 ensures that FWA can make an order under paragraph 391(2)(b)
to maintain the person's continuous service with the associated
entity if relevant.
228. Item 2 amends clause 12 to include a definition of reinstatement,
defined to include appointment by an associated entity where
subclause 391(1A) applies.
STAND DOWN
Item 12 - Clause 524
Item 13 - Clause 524
229. This item adds another legislative note following clause 524 of the
Bill. The note explains that an enterprise agreement or contract of
employment may make additional provision in relation to stand downs,
including requirements relating to consultation or notice periods.
This reinforces the notion that the stand down provisions under the
Bill are default provisions, and may be replaced in certain
circumstances by stand down provisions under an enterprise agreement
or contract of employment (i.e., to the extent the provisions deal
with each of the circumstances provided for under subclause 524(1)
of the Bill).
230. This item is a technical amendment as a consequence of the amendment
made by item 13.
MULTIPLE ACTIONS
Item 14 - Clause 734
Item 15 - Clause 734
Item 16 - Clause 734
231. Clause 734 of the Bill is an 'anti-double dipping' provision which
prevents a person from making a general protections court
application in relation to conduct that does not involve dismissal,
if the person has made an application or complaint in relation to
that conduct under another law.
232. Items 14 and 15 limit the scope of this provision so that it only
applies to applications or complaints made under an anti-
discrimination law and not applications for remedies under different
sorts of legislative frameworks (e.g., workers compensation).
233. Item 16 inserts an equivalent prohibition on a person making an
application or complaint under an anti-discrimination law in
relation to conduct where a general protections court application
has already been made.
FAIR WORK INFORMATION STATEMENT
Item 1 - Clause 124
234. This item provides that the FWO (rather than FWA) must prepare and
publish the Fair Work Information Statement. In addition to the
matters identified in the Bill, the Statement must include
information about:
. termination of employment;
. individual flexibility arrangements; and
. right of entry (including the protection of personal information by
privacy laws).
235. Subclause (3) states that the Fair Work Information Statement is not
a legislative instrument. This provision is included to assist
readers, as the Statement is not a legislative instrument as defined
by section 5 of the Legislative Instruments Act 2003.
236. Subclause (4) allows regulations to be made dealing with other
matters relating to the content or form of the Statement, or the
manner in which employers may give the Statement to employees.
FUNCTIONS OF THE FAIR WORK OMBUDSMAN
Item 2 - Clause 576
Item 3 - Clause 682
Item 4 - Clause 682
Item 5 - Clause 682
Item 6 - Clause 682
Item 7 - Clause 682
237. The amendments to clause 682 (Functions of the Fair Work Ombudsman)
in items 4 and 5 would amend the functions of the FWO to include:
. promoting harmonious, productive and cooperative workplace relations
(item 4); and
. producing best practice guides to workplace relations or workplace
practices (item 5).
238. Best practice guides could cover the following topics:
. workplace privacy;
. work and family;
. young workers' toolkit;
. use of individual flexibility agreements;
. improving workplace productivity in bargaining;
. effective dispute resolution;
. managing underperformance;
. consultation and cooperation in the workplace; and
. pay equity.
239. The amendments to clause 682 in items 3, 6 and 7 are consequential
amendments. The amendment made by item 7 requires the FWO to
consult with FWA in producing guidance material that relates to the
functions of FWA. The amendment to clause 576 (Functions of FWA) in
item 2 reflects the intention that the FWO is the primary source of
information, assistance and advice within the institutional
framework to be established by the Bill. It ensures FWA's education
functions are focused on providing assistance and advice that
directly relate to its functions and activities.
FAIR WORK OMBUDSMAN, FAIR WORK AUSTRALIA
Definitions
Item 1 - Clause 12
240. Clause 12 of the Bill contains a definition of magistrates court.
State and Territory legislation sets out the requirements for the
appointment of magistrates in each jurisdiction. This item amends
paragraph (b) of the definition of magistrates court so that it
simply means a court constituted by an industrial magistrate.
Early commencement
Item 2 - New clause 574A
241. This item adds a new clause 574A giving effect to Schedule 1 (see
item 27).
Compliance notice
Item 3 - Clause 539
242. This item amends a note about the interaction between compliance
notices and applications for orders (see item 26).
Underpayments
Item 4 - Clause 544
Item 5 - Clause 544
Item 6 - Clause 545
243. Clause 545 sets out the orders that can be made by particular
courts, including orders that require an employer to remedy an
underpayment. Item 6 amends clause 545 to provide that a court must
not make an underpayment order that relates to a period that is more
than six years before the proceedings commenced. Item 5 adds a note
to clause 544 to alert the reader that there is a time limit on
orders relating to underpayments.
Functions of FWA
Item 8 - Clause 576
Item 9 - Clause 576
244. These items amend clause 576 to confer the following additional
functions on FWA:
. providing administrative support to the Federal Court and the Federal
Magistrates Court in accordance with an agreement entered into by the
General Manager with the relevant Court - Item 8. The amendment in
item 18 empowers the General Manager to enter into such arrangements;
. providing mediation services on referral from the Fair Work Divisions
of the Federal Court and Federal Magistrates Court - item 9. The
Courts can refer matters for mediation, either to a Registrar of the
Federal Court or, in some cases, to a private mediator. This amendment
enables (but does not require) the Courts to refer matters to FWA for
mediation.
Representation by lawyers
Item 10 - Clause 596
245. This item amends clause 596 to enable lawyers employed by an
association of employers that is not registered under the Fair Work
(Registered Organisations) Act to represent their members before FWA
without the need to seek permission from FWA. This amendment
maintains the current position in the Workplace Relations Act 1996
(section 100) and Workplace Relations Regulations 2006 (regulation
3.4).
Delegation by President
Item 11 - Clause 625
Item 12 - Clause 625
246. These items amends clause 625 to enable the President to delegate
the following additional functions or powers of FWA to the General
Manager, SES staff or acting SES staff, or a member of the staff who
is in a prescribed class:
. publishing the results of a protected action ballot under proposed
clause 457(2); and
. any function or power as prescribed by the regulations. This would
include any functions or powers conferred on FWA by other Commonwealth
legislation as well as functions or powers under the Fair Work Bill.
Report by General Manager
Item 14 - Clause 653
Item 15 - Clause 653
Item 16 - Clause 653
Item 17 - Clause 653
Item 23 - Clause 658
247. Items 14-17 amend clause 653 to also require the General Manager of
FWA to conduct research into, and report on:
. the extent to which individual flexibility arrangements under modern
awards and enterprise agreements are being utilised; and
. the provisions of the NES relating to requests for flexible working
arrangements and extensions of unpaid parental leave. This would
include the circumstances in which employees make such requests, the
outcome of such requests and the circumstances in which such requests
are refused.
248. Item 23 makes a consequential amendment to clause 658 which ensures
that, in undertaking this additional research and report, the
General Manager is not subject to the direction of the President.
Functions of General Manager
Item 7 - Clause 573
Item 13 - Heading to Division 7 of Part 5-1
Item 18 - New clause 653A
Item 20 - Clause 657
Item 21 - Clause 657
Item 22 - Clause 657
Item 24 - Clause 671
249. These items confer additional powers and functions on the General
Manager of FWA.
250. Item 18 inserts a new clause 653A, which empowers the General
Manager to enter into arrangements with the Federal Court or Federal
Magistrates Court under which FWA staff would provide administrative
support to the Fair Work Division of the relevant Court. This could
include accepting lodgement of documents and performing other non-
judicial activities on behalf of the Court. The amendments in items
7 and 13 are consequential upon the amendment made by item 18.
251. Item 20 adds subclause 657(1A) to ensure the General Manager can
perform functions conferred on him or her by:
. a fair work instrument, for example a modern award may require the
General Manager to establish and chair a Board of Reference;
. a law of the Commonwealth, for example the Fair Work (Registered
Organisations) Act or the Fair Work (Transitional Provisions and
Consequential Amendments) Act.
252. A legislative note alerts the reader to the General Manager's review
function under clause 653 and power to enter into arrangements with
the courts for the provision of administrative support under clause
653A. Items 21, 22 and 24 contain technical amendments
consequential to the changes made by item 20. In particular item 24
makes it clear that the General Manager may also delegate his or her
functions under proposed new clause 653A and subclause 657(1A) to
members of the staff of FWA.
Disclosure of information by FWA
Item 19 - Clause 655
253. Clause 655 currently permits FWA to disclose information including
where necessary or appropriate to do so in the course of performing
functions or exercising powers under the Fair Work Bill. It is
envisaged that functions may also be conferred on FWA by other
Commonwealth legislation, for example the Fair Work (Registered
Organisations) Act or the Fair Work (Transitional Provisions and
Consequential Amendments) Act, including the Workplace Relations Act
1996 as preserved by the latter Act. The amendment in item 19 makes
it clear that the President may disclose information in the course
of FWA exercising or performing any of its powers or functions, not
just those under the Fair Work Bill.
Self-incrimination
Item 25 - Clause 713
254. Item 25 provides that any record or document that is inspected or
copied by an inspector on premises or any information, document or
thing obtained as a direct or indirect consequence of an inspector
exercising that power is not admissible against an individual in
criminal proceedings, whether or not the person has provided the
documents to the inspector.
Compliance notice
Item 26 - Clause 716
255. Item 26 prevents an inspector from instituting proceedings to
enforce a contravention if the inspector has already given the
person a notice in relation to the contravention and:
. the notice has not been withdrawn, and the person has complied with the
notice; and/or
. the person has applied to the Federal Court, Federal Magistrates Court
or an eligible State or Territory Court under clause 717 of the Bill to
have the notice reviewed.
256. This item also provides that a person who complies with a notice is
not taken to have admitted to the contravention or to have been
found to have contravened the alleged contravention specified in the
notice.
Schedule 1 - Transitional provisions
Item 27 - New Schedule 1 to Bill
257. Item 27 adds a new Schedule 1 to the Bill containing transitional
provisions that enable FWA and the Office of the FWO to commence
before the operative provisions of the Bill. The Schedule allows for
early appointments to FWA and FWO for administrative purposes (not
to perform substantive functions).
Clause 1 - Definitions
258. Clause 1 provides that expressions used in Schedule 1 would
generally be defined by reference to the Workplace Relations Act
1996, unless the expression is also defined in the Bill and it is
clear from the context that the latter definition should apply.
Clause 2 - Appointments to FWA
259. Clause 2 deals with the appointment of all primary AIRC members as
initial members of FWA. Until the AIRC is abolished, these members
will hold dual appointments to the AIRC and FWA. This clause
provides that:
. the President of the AIRC is taken to be appointed as the President of
FWA at the time that Part 5-1 of the Bill commences; and
. all other Presidential Members and Commissioners of the AIRC (other
than acting members of the AIRC and members of a prescribed State
industrial authority who hold secondary appointments as members of the
AIRC) are taken to be appointed as Deputy Presidents and Commissioners
of FWA, respectively, by a subsequent proclamation.
260. Subclause 2(3) enables the initial members of FWA to hold dual
appointments as members of the AIRC notwithstanding the provisions
of the Workplace Relations Act 1996 (including sections 66, 69 and
83) or the Bill (including subclause 628(2) and clauses 632 and
633).
Clause 3 - Terms and Conditions
261. Clause 3 of the Schedule provides that the terms and conditions of
the initial members of FWA will continue to be governed by the
Workplace Relations Act 1996 rather than the Bill. This ensures
that:
. a single set of terms and conditions (e.g., remuneration and leave)
apply to dual appointees; and
. the terms and conditions of former AIRC members are preserved.
Presidential Members of the AIRC who become FWA Members retain the same
rank, status and precedence as a Judge, are entitled to be styled 'The
Honourable' and continue to be eligible for a judicial pension. An FWA
Member previously entitled to the designation as a Judge of the Federal
Court is entitled to retain that designation.
Clause 4 - Seniority of FWA Members
262. As the initial members of FWA will all be taken to have been
appointed at the same time, clause 4 preserves the seniority those
members enjoyed as members of the AIRC under section 65 of the
Workplace Relations Act 1996.
Clause 5 - Procedural Rules
263. Clause 5 permits the President of FWA to make procedural rules prior
to the appointment of any other FWA Members notwithstanding the
consultation requirement in subclause 609(1) of the Bill.
Clause 6 - Transfer of assets and liabilities
264. Clause 6 requires:
. the Director of the AFPC Secretariat and the Industrial Registrar to
transfer their assets and liabilities to FWA; and
. the Workplace Authority Director and the Workplace Ombudsman to
transfer their assets and liabilities to the Office of the FWO.
265. Assets and liabilities would be transferred on a specified default
date, expected to be the day on which the Workplace Relations Act
1996 is repealed (the WR Act repeal day). However, the Minister
may, before that date, determine that some or all assets and
liabilities are to be transferred to a different body, or on a
different day, or according to regulations made for the purposes of
this item.
266. For the avoidance of doubt, subclause 6(3) clarifies that a
Ministerial determination specifying a different cessation time for
a WR Act body or office is not a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act 2003. This
provision is declaratory of the law and does not amount to an
exemption from the Legislative Instruments Act 2003.
267. Subclause 6(4) clarifies that records or any other information in
the custody or control of a WR Act body will transfer to FWA or the
Office of the FWO in accordance with the asset transfer rules.
Clause 7 - Additional function and power of the General Manager
268. Clause 7 empowers the General Manager of FWA to enter into
arrangements with the Industrial Registrar, the Workplace Authority
Director and the Director of the AFPC Secretariat to provide
assistance to those office holders in the period between the WR Act
repeal day and the cessation time for the body or office.
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