Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
WORKPLACE RELATIONS AMENDMENT (WORK CHOICES) BILL 2005
SUPPLEMENTARY EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment and Workplace
Relations, the Honourable Kevin Andrews MP)
NOTES ON CLAUSES
Clause 2 - Commencement
Item 1 - Clause 2, page 2 (after table item 2)
1. This item would insert table item 2A into the commencement table to
provide that Schedule 1A will commence on the day on which the Act
receives the Royal Assent.
Item 2 - Clause 2, page 2 (cell at table item 4)
2. This item would provide that Schedule 3 of the Bill commences on Royal
Assent.
Item 3 - Clause 2, page 2 (after table item 4)
3. This item would amend clause 1 of the Bill to provide that Schedule 3A
(redundancy pay by small business employers) commences on royal assent
Item 4 - Clause 3, page 3 (lines 4 to 8)
4. This item would omit and substitute proposed new clause 3, which would
provide that each Act and each regulation specified in a Schedule is
amended or repealed as set out in that Schedule. Other items operate
according to their terms. The amendment of any regulation does not
prevent the regulation, as so amended, from being amended or repealed by
the Governor-General.
Item 5 - Schedule 1, item 1, page 4 (lines 20 and 21)
5. This item would amend proposed section 3 which would set out the
principal object of the Act. Specifically, it amends subsection 3(d), by
omitting the reference to 'key minimum standards for agreement making'.
This reinforces the primacy of agreement making. This amendment more
closely mirrors existing subsection 3(b) which relates to the agreement
making process. The amendment also inserts the words 'as far as
possible' into the subparagraph. This language reflects words contained
in existing subparagraph 3(d)(i).
Item 6 - Schedule 1, item 2, page 7 (line 24)
6. This item would make a minor amendment to the definition of 'Australian
employer' in proposed section 4.
Item 7 - Schedule 1, item 2, page 18 (line 18)
7. This item would amend proposed subsection 4(2).
8. Subsection 4(2) provides that references to an independent contractor in
the freedom of association provisions is not confined to a natural
person.
9. This amendment would provide that references to 'independent contractor'
are not confined to a natural person in the awards provisions (Part VI)
and in regulations made under section 101D (prohibited content in
workplace agreements).
10. The effect of this amendment would be that:
* the prohibition on award terms that restrict the engagement of
independent contractors in section 116B would extend to terms
restricting the engagement of corporate contractors;
* prohibitions specified in the regulations against agreements
containing terms which restrict the engagement of independent
contractors would apply to both individual independent contractors
and corporate contractors.
Item 8 - Schedule 1, item 6, page 22 (after line 10)
New section 7AAA - Exclusion of persons insufficiently connected with
Australia
11. Proposed section 7AAA would authorise the making of regulations to
exempt persons or entities from any provision of the WR Act (including
the Registration and Accountability of Organisations Schedule and
regulations made under it) on the basis that the person or entity is
insufficiently connected with Australia. Before the Governor-General
could make such regulations, the Minister would need to be satisfied that
the provision in question should not apply to the person or entity
because there was not a sufficient connection between that person or
entity and Australia.
Item 9 Schedule 1, item 6, page 22 (after table item 4), insert
12. This item would insert a proposed item 4A in the table set out in
proposed section 7AA. The amendment would add to the table a reference
to proposed section 170AM. The table would set out certain provisions in
the amended WR Act which relate to extraterritorial application.
Item 10 - Schedule 1, item 6, page 23 (after line 8)
13. This item would add a further Note after Note 2 after proposed
subsection 7AA(1), explaining that Part VC (Industrial action) may extend
in relation to Australia's exclusive economic zone and continental shelf
in the way prescribed by regulations made under section 106C. Item 117
would insert proposed section 106C, which would authorise regulations to
be made to modify the way that Part VC (Industrial action) and the rest
of the WR Act (including the Registration and Accountability of
Organisations Schedule and regulations made under it) so far as it
relates to Part VC, apply in relation to Australia's exclusive economic
zone and Australia's continental shelf.
Item 11 - Schedule 1, item 8, page 24 (line 7)
Item 12 - Schedule 1, item 8, page 24 (after line 7)
Item 13 - Schedule 1, item 8, page 24 (line 10)
14. These items would amend proposed subsection 7B(2), and the Note
following it, to include proposed section 106C as one of the sections to
which Part 2.7 of the Criminal Code would be subject in its application
to offences against the WR Act. Part 2.7 of the Criminal Code is about
geographical jurisdiction in connection with offences, and would have
effect subject to section 106C (among other sections) because section
106C would deal with extraterritorial operation of the WR Act.
Item 14 - Schedule 1, item 9, page 24 (lines 29 and 30)
Item 15 - Schedule 1, item 9, page 25 (line 11)
15. This item would amend proposed paragraph 7C(1)(c) so that State or
Territory laws entitling trade union representatives to enter premises
would be included in the list of laws intended to be excluded by the WR
Act. However, item 15 would amend paragraph 7C(3)(c) so that entry of a
representative of a trade union to premises for a purpose connected with
occupational health and safety would be a non-excluded matter. Item 16
would also have the effect of adding entry of a representative of a trade
union to premises for a purpose connected with outworkers to the list of
non-excluded matters in subsection 7C(3).
16. The effect of items 14 and 15, and also item 16, would be that State or
Territory laws entitling trade union representatives to enter premises
would be intended to be excluded by the WR Act, except where they dealt
with entry for a purpose connected with occupational health and safety or
a purpose connected with outworkers.
Item 16 - Schedule 1, item 9, page 25 (after line 11)
17. This item would add matters relating to outworkers to the list of non-
excluded matters listed in subsection 7C(3), so that State or Territory
laws relating to outworkers would not be excluded by the WR Act. This
would include State or Territory laws dealing with entry of a trade union
representative to premises for a purpose connected with outworkers, and
this is discussed above in relation to Items 14 and 15.
Item 17 - Schedule 1, item 9, page 25 (lines 19 and 20)
18. This item would omit proposed paragraph 7C(3)(j) so that matters
relating to training or apprenticeships would be removed from the list of
non-excluded matters. State or Territory laws relating to training and
apprenticeships would be unlikely to apply to employment generally and so
would not fall within paragraph (b) of the definition of 'State or
Territory industrial law' in proposed section 4, and therefore would not
be covered by paragraph 7C(1)(a). The Government does not intend that
such laws be excluded by subsection 7C(1).
Item 18 - Schedule 1, item 9, page 25 (line 32)
19. This item would amend the Note following proposed section 7C, to make a
minor technical correction.
Item 19 - Schedule 1, item 9, page 26 (after line 4)
20. The item would insert a new subsection 7C(4A) to make it clear that
regulations made for the purposes of subsection 7C(4) could prescribe
certain laws even though those laws dealt with one or more of the non-
excluded matters listed in subsection 7C(3), or were otherwise covered by
subsection 7C(2). Where subsection 7C(2) applied to a law, subsection
7C(1) would be disapplied with the result that the law would not be
intended to be excluded by the WR Act by virtue of subsection 7C(1).
However, in this situation the law could nevertheless be intended to be
excluded by the WR Act because of regulations made under subsection
7C(4).
Item 20 - Schedule 1, item 9, page 26 (line 16)
21. This item would amend proposed subsection 7D(2) to allow regulations to
be able to be made prescribing certain State or Territory laws about
matters listed in subsection 7D(2). Where a State or Territory law
dealing with a matter was prescribed by regulations for the purposes of
subsection 7D(2), a term of an award or workplace agreement dealing with
that matter would not be subject to that State or Territory law.
Item 21 - Schedule 1, item 9, page 26 (line 19)
22. This item would amend proposed paragraph 7D(2)(c) so that a term of an
award or workplace agreement dealing with training arrangements would be
subject to a State or Territory law about training arrangements.
'Training arrangements' would include both apprenticeships and
traineeships.
Item 22 - Schedule 1, item 10, page 27 (line 6) to page 41 (line 28)
23. This item would omit item 10 from Schedule 1. New item 319 would
insert Part IA into a separate schedule (new Schedule 1A) with a separate
commencement date.
Item 23 - Schedule 1, item 20, page 45 (line 5)
24. This item would amend proposed section 44B, by deleting from paragraph
44B(a) the words 'without discrimination based on sex'. This amendment
is being made to ensure that the obligation upon the AIRC under paragraph
44B(a) to apply the principle of equal pay for work of equal value is
expressed in the same terms as the obligation upon the Australian Fair
Pay Commission under paragraph 90ZR(1)(a).
Items 24 - 26 - Schedule 1, item 43, page 57 (line 17, after "small
business")
25. The Bill as introduced provides, at proposed section 83BB, for new
functions for the Employment Advocate consistent with the new system for
the making of workplace agreements.
26. Proposed paragraphs 83BB(1)(a), (c) and (f) refer to the functions of
the Employment Advocate in relation to the provision of assistance,
advice, eduction and information to employees and employers in relation
to workplace agreements, awards and the Australian Fair Pay and
Conditions Standard.
27. This amendment would provide that the Employment Advocate is to also
have the function of providing assistance, advice, eduction and
information to organisations (within the meaning of the Act).
Item 27 - Schedule 1, item 43, page 58 (lines 22 and 23)
28. This item would make a minor technical correction to proposed paragraph
83BB(3)(b) in relation to the Employment Advocate having regard to the
need to prevent and eliminate discrimination.
Item 28
29. This item amends item 71 of Schedule 1 to repeal Part VIAAA - which is
inserted by Schedule 3A - on reform commencement.
Item 29 - Schedule 1, item 71, page 65 (after line 23)
Item 30 - Schedule 1, item 71, page 65 (line 26)
30. Items 29 and 30 would amend proposed section 89A to provide a process
for resolving disputes that concern the application of both the
Australian Fair Pay and Conditions Standard (the Standard) and a
workplace agreement.
31. Proposed section 89E in Part VA provides that the model dispute
resolution process applies with respect to a dispute about the non-wage
guarantees in the Standard. Proposed section 101A in Part VIB provides
that a workplace agreement must include a dispute resolution process,
which may be the model dispute resolution process or another process as
agreed.
32. Item 29 would insert a new subsection (2A) in section 89A. The
proposed subsection would provide that the dispute resolution process in
a workplace agreement applies to a dispute about whether or what 'more
favourable outcome' is provided by the Standard for an employee who is
subject to a workplace agreement.
33. The intention is that wherever a workplace agreement operates its
dispute resolution process would apply instead of the process that would
otherwise apply to a dispute about the operation of the Standard (section
89E refers).
34. Item 2 would make a consequential amendment to subsection 89A(3) to
allow regulations to be made for the purposes of proposed
subsection (2A). If necessary for the purposes of dispute resolution,
the regulations may prescribe how the Standard is to be compared to a
workplace agreement 'in a particular respect' and when the Standard
provides a more favourable outcome.
Item 31 - Schedule 1, item 71, page 66 (lines 14 to 30)
35. This item would omit proposed section 89C, which would have allowed
employees to be exempted by regulations from the operation of Part VA
(The Australian Fair Pay and Conditions Standard) on the basis of an
insufficient connection between the employee's employment and Australia.
Due to the new section 7AAA to be inserted by item 8, section 89C would
be redundant.
Item 32 - Schedule 1, item71, page 70 (after line 29)
36. The amendment to proposed section 90B would insert a definition of
frequency of payment provisions into the general definitions section of
Division 2 of Part VA (proposed section 90B). Frequency of payment
provisions would be defined to mean provisions that determine the
frequency with which an employee must be paid. For a pre-reform wage
instrument, they include provisions of that instrument or of another
instrument or law that are incorporated by reference. The legislative
note would make it clear that for a preserved APCS, the frequency of
payment provisions will (at least initially) be the same as those (if
any) for the pre-reform wage instrument from which the APCS is derived.
Item 33 - Schedule 1, item 71, page 75 (line 16)
Item 34 - Schedule 1, item 71, page 75 (lines 20 and 21)
Item 35 - Schedule 1, item 71, page 76 (line 5)
Item 36 - Schedule 1, item 71, page 76 (lines 8 and 9)
Item 37 - Schedule 1, item 71, page 76 (line 19)
Item 38 - Schedule 1, item 71, page 76 (lines 22 and 23)
These amendments are consequential upon the proposed amendment to proposed
section 90G.
Item 39 - Schedule 1, item 71, page 76 (line 24) to page 77 (line 26)
37. The proposed amendment would omit proposed section 90G and substitute
it with a new section 90G to define an employee's guaranteed hours for
the guarantee of basic periodic rates of pay in Section 90F(1), (3) and
(4).
38. New section 90G would define guaranteed hours for employees employed to
work a specified number of hours (eg full-time and part-time employees).
That definition would not apply to categories such as casual or APCS
piece rate employees, who by definition are not employed to work a
specified number of hours per week.
39. Subsection 90G(1) would set out the process for determining the
guaranteed hours for employees employed for work a specified number of
hours per week. Subject to subsection 90G(4), those specified weekly
hours form the starting point under paragraph 90G(1)(a) for determining
an employee's guaranteed hours.
40. Paragraph 90G(1)(b) would set out the hours that must be deducted from
an employee's specified weekly hours to ensure that the employee is not
paid for hours not worked because:
the employee is absent from work on deductible authorised leave, as defined
in subsection 90G(6) (subparagraph 90G(1)(b)(i));
the employer is prohibited by section 114 from paying 'strike pay' to the
employee (subparagraph 90G(1)(b)(ii)); or
the employee has been absent from the workplace without authority
(subparagraph 90G(1)(b)(iii)).
41. Paragraph 90G(1)(c) would require an adjustment to add any additional
hours that an employee is required or requested to work that are not
counted (under the terms and conditions of employment) towards the
specified number of hours. For example, hours required or requested to
be worked in addition to an employee's specified weekly hours, but not
subject to an averaging arrangement, would count as additional hours for
purposes of the paragraph.
42. The term 'required' is intended to capture situations where an employee
has not been expressly directed or requested to work additional hours,
but must do so in order to meet his or her employer's requirements. For
example, an employer may set a project deadline that requires employees
to work additional hours to meet that deadline, although the requirement
is not expressly stated. Those additional hours would be caught by the
additional hours provision.
43. The legislative note paragraph 90G(1)(c) make it clear that the
specified number of hours worked may vary form week to week. For
example, an averaging arrangement may enable hours worked to be averaged
over a period of time or work cycle (eg 152 hours per four weeks). At
the end of a work cycle (eg four weeks using the example above), the
averaging arrangement may enable any additional hours (ie any hours
worked over 152 hours during the work cycle) to be 'rolled over' as
credits towards hours worked in the next work cycle. Such hours would
not count towards the employee's guaranteed hours. If no such provision
is made, then any additional hours at the end of a work cycle would be
included as part of the employee's guaranteed hours (for which payment
would be due).
44. Subsection 90G(2) would, for the purposes of subsection 90G(1), deem
employees engaged on a full-time basis to be employed for 38 hours per
week where their terms and conditions of employment failed to specify
their hours or work. This provision would ensure that full-time
employees were guaranteed hours under the section, even if their
specified hours were not explicitly stated.
Illustrative Example
Lana is engaged as a full-time nursing assistant to work 152 hours averaged
over a four-week period (a non-week period) on an ongoing basis.
Under her flexible hours arrangement, Lana works a total of 162 hours over
a four-week period broken down as follows:
. Week 1: 38 hours
. Week 2: 50 hours
. Week 3: 36 hours
. Week 4: 38 hours
Lana is taken to be employed to work 38 hours per week (152 hours x 7 / 28
days) under the formula in proposed subsection 90G(3). Accordingly, she
takes home a weekly wage based on a 38-hour week.
At the end of the work cycle, Lana has worked 162 hours over four weeks,
which is 10 hours above her specified number of hours for that cycle.
Under Lana's terms and conditions of employment, however, these hours count
towards the specified number of hours worked for the next work cycle, so no
further payment is due for those hours at that time.
Lana decides to end her employment as a nursing assistant to start her own
business. Her last day will be three days into a seven-day period. For
that 'broken' period of service, Lana is only employed to work three days
out of her usual five, or 22.8 (38 x 3 / 5) hours per week. That will be
the starting point for determining her guaranteed hours that week.
Upon termination, Lana has a flexible hours 'credit' of 18 hours. These
are hours which she has been required or requested to work, but for which
she has not been paid. Because these hours cannot count towards her
specified number of hours during the next work cycle, she is entitled to
payment for those additional hours upon termination. (Had Lana been in
flexible hours 'debit', then her terms and conditions of employment would
determine the treatment of those hours upon termination.)
45. Subsection 90G(3) would provide a formula to determine the average
number of hours per week an employee is engaged for, where their actual
fixed period is not a week. For example an employee engaged to work 152
hours over a four-week cycle is taken (for the purpose of
subsection 90G(1)) to be engaged for 38 hours per week, averaged over a
four-week period.
46. Subsection 90G(4) would ensure that where APCS requires an employee to
whom a training arrangement applies to be paid his or her basic periodic
rate of pay for any hours attending off-the-job training that those hours
(paid training hours) are included as part of the employee's specified
hours of work. Where an employee's paid training hours are not included
as part their actual specified hours, then those specified hours are
taken to be increased to include the paid training hours.
47. Subsection 90G(6) would define the terms deductible authorised leave,
hour, and public holiday for purposes of the section.
48. Paragraphs (a) - (c) of the definition of deductible authorised leave
would define the term to mean any leave or an absence, whether paid or
unpaid that is authorised by the employer (eg annual or personal leave),
by or under a term or condition of the employee's employment (eg stand-
down or 'inclement weather' provisions), or by or under a law, or
instrument in force under a law, of the Commonwealth, a State or a
Territory (eg jury service). Hours of paid leave are deducted from the
guaranteed hours, because a separate entitlement to be paid would exist.
49. Paragraphs (d) and (e) would make it clear that authorised public
holidays and paid training hours are not forms of deductible authorised
leave.
50. A public holiday would be defined to mean a day declared as such by or
under State or Territory law, excluding union picnic days and any other
day, or kind of day, specified by the regulations. The definition would
enable another day to be substituted for a public holiday, providing that
substitution occurred under or in accordance with a state or Territory
law, an award or workplace agreement.
51. An hour would be defined to include part of an hour, so that an
employee's guaranteed hours may be a number of hours and part of an hour.
Item 40 - Schedule 1, item 71, page 77 (after line 26)
52. The amendment would insert proposed section 90GA at the end of
Subdivision B.
53. Proposed section 90GA would provide persons with disabilities (as
defined in proposed section 90B) with access to the Supported Wage System
(SWS) through workplace agreements made under the WR Act. The
legislative note to the section would define the SWS by reference to the
decision of the AIRC which established the test case provision for the
SWS in 1994 (Print L5723).
54. Under the SWS, an employee would be entitled to be paid the applicable
percentage of the minimum rate of pay prescribed in their APCS for the
class of work the employee was performing.
55. The section would only apply to those persons eligible for the
Supported Wage System, whose APCS did not include rate provisions
specific to employees with disabilities that included that employee.
While those conditions were met, subsection 90GA(2) would deem an SWS-
compliant rate in a workplace agreement (ie a rate not less than the rate
set in accordance with the SWS) to be the guaranteed basic periodic rate
of pay for the employee under subsection 90F(1).
Item 41 - Schedule 1, item 71, page 78 (lines 4 and 5)
56. The proposed amendment to paragraph 90H(1)(c) would make a minor
technical amendment to omit the phrase 'collective agreement or an AWA'
and substitute the term 'workplace agreement'.
Item 42 - Schedule 1, item 71, page 78 (lines 12 to 27)
57. The proposed amendment would omit subsection 90H(3) and substitute an
amended version of the omitted subsection. The provision would set out
the guaranteed casual loadings for casual employees guaranteed a basic
periodic rate of pay.
58. The proposed amendment would vary the guaranteed casual loading for
certain employees guaranteed a basic periodic rate of pay under proposed
section 90F, whose employment is not covered by a workplace agreement.
Under the omitted section, these employees would have been guaranteed the
casual loading under their APCS.
59. Item 2 of new subsection 90H(3) would ensure that employees who
employment is affected by subsection 103R(1) (Consequence of termination
of agreement-application of other industrial instruments) are guaranteed
the casual loading in their APCS, or the default casual loading,
whichever is higher.
60. Item 4 of the table would make it clear that that employees covered by
the standard FMW or a special FMW that are employed on a casual basis are
guaranteed the default casual loading percentage.
Item 43 - Schedule 1, item 71, page 79 (after line 10)
61. The proposed amendment would insert a new Subdivision CA-Guarantee of
frequency of payment after Subdivision C to establish a guarantee of
frequency of payment under the Division. It also sets out priority rules
to determine which frequency of payment provisions prevail for purposes
of the guarantee, and establishes a default entitlement in the absence of
such provisions.
62. Proposed subsection 90KA(1) would guarantee an employee frequency of
payments in accordance with their APCS.
63. Where an applicable APCS is silent on the required frequency of
payment, then subsection 90KA(2) guarantees frequency of payment in
accordance with the employee's workplace agreement or, if inapplicable,
any frequency of payment provisions in their contract of employment
(which must be in writing for the provision to apply). In the absence of
any relevant frequency of payment provisions, the employee would be
guaranteed fortnightly payments in arrears.
64. Where the employee is not covered by an APCS, subsection 90KA(3)
guarantees payment in accordance with the frequency of payment provisions
in the employee's workplace agreement or, if inapplicable, their contract
of employment. In the absence of any relevant frequency of payment
provisions, the employee would be guaranteed fortnightly payments, in
arrears.
Item 44 - Schedule 1, item 71, page 82 (lines 6 and 7)
65. The proposed amendment to paragraph 90N(4)(b) would be consequential
upon the omission and substitution of proposed subsection 90H(3).
Item 45 - Schedule 1, item 71, page 86 (line 32)
66. The proposed amendment to paragraph 90X(2)(c) would make a minor
technical amendment by omitting the words 'count as' and substituting the
word 'are'.
Item 46 - Schedule 1, item 71, page 86 (after line 33)
67. The proposed amendment to subsection 90X(2) would add 'frequency of
payment provisions' to the list of the kinds of provisions that an APCS
may contain. This would make it clear that an APCS may contain frequency
of payment provisions (as defined in section 90B).
Item 47 - Schedule 1, item 71, page 87 (line 1)
68. The proposed amendment to subsection 90X(3) would be consequential upon
the proposed amendment to insert new subsection 90ZD(3A). This would
enable an exception to be made to the operation of proposed
section 90X(3).
Item 48 - Schedule 1, item 71, page 91 (after line 15)
69. The proposed amendment to subsection 90ZD(1) would enable frequency of
payment provisions for a pre-reform instrument (whether of that
instrument or of another instrument or law) to be included as part of the
corresponding preserved APCS as part of the derivation process under
proposed section 90ZD.
Item 49 - Schedule 1, item 71, page 91 (line 19)
70. The proposed amendment to subsection 90ZD(3) would be consequential
upon the insertion of new subsection 90ZD(3A).
Item 50 - Schedule 1, item 71, page 91 (after line 25), after subsection
90ZD(3), insert:
71. The proposed amendment would insert new subsection 90ZD(3A) to create
an exception to the operation of section 90X(3), which prohibits 'self-
executing' rate or casual loading increases. Subsection 90(3A) would
ensure that preserved APCSs are taken to include any pre-reform wage
increases determined by the AIRC, or a State industrial authority, wholly
or partly on the ground of work value change or pay equity. The
subsection would only apply to allow the phasing-in of pay increases on
those grounds scheduled to occur after the reform commencement.
Item 51 - Schedule 1, item 71, page 97 (line 3)
72. This amendment would be required to accommodate the proposed amendments
to include pre-reform work value and pay equity increases as part of the
rate provisions of preserved APCSs (proposed subsection 90ZD(3A)).
Because such rate provisions may already factor in future Safety Net
Reviews (SNRs) of the AIRC, the proposed amendment to subsection 90ZN(2)
would provide that in adjusting APCSs to accommodate the 2005 Safety Net
Review wage increase (under section 90ZN), the AFPC would not be required
to adjust a particular APCS where the terms of a work value increase has
already factored in the 2005 SNR increase.
Item 52 - Schedule 1, item 71, page 100 (line 4)
73. This item would make a minor technical correction to proposed paragraph
90ZR(1)(e) in relation to the AFPC ensuring that its decisions do not
contain discriminatory provisions.
Item 53 - Schedule 1, item 71, page 100 (line 18)
74. This amendment would insert the words "or requested" after the word
"required" in proposed subsection 91C(1). The amendment will ensure that
the hours guarantee will apply to both hours which an employee is
required and requested by an employer to work.
Item 54 - Schedule 1, item 71, page 101 (lines 20 and 21)
75. This amendment would provide that an employer cannot require or request
an employee to work more than 38 hours per week, or 38 hours per week
averaged over a period of up to 12 months (the employee's averaging
period) as agreed between the employer and employee, and reasonable
additional hours. A week is to be given its ordinary meaning, being a
calendar week. The manner in which an employer and employee may agree to
an averaging period for the purpose of proposed subparagraph
91C(1)(a)(ii) will be a matter for them. For example, an employer and
employee could agree that the averaging period will be each calendar
year, or a 'rolling period' of any period up to 12 months during the
employment period.
76. In the absence of an averaging period as agreed between the employer
and employee, hours in excess of 38 hours per week will be regarded as
additional hours and an employer would need to demonstrate that those
hours were "reasonable additional hours" having regard to the factors set
out in s.91C(5) such as the operating requirements of the business.
Item 55 - Schedule 1, item 71, page 101 (line 23)
77. This amendment is a minor technical amendment to the note, consequent
on the proposed amendment to proposed subsection 91C(1).
Item 56 - Schedule 1, item 71, page 101 (line 25)
Item 57 - Schedule 1, item 71, page 101 (line 26)
78. These amendments would make minor technical changes.
Item 58 - Schedule 1, item 71, page 101 (line 29) to page 102 line 23
79. This amendment would omit subsections 91C(2) to (4) and insert new
proposed subsection 91C(2) and new proposed subsection 91C(3).
Subsection 91C(2) is a technical amendment consequent on the amendment to
proposed subsection 91C(1). Subsection 91C(3) would provide that an
averaging period that applies to the employee is taken not to include the
period before the employee started to work for the employer. For
example, if an employee commenced on 1 July, under a collective agreement
which provided for an averaging period of each calendar year, the
employee's averaging period would be the remaining 6 months of that year:
from 1 July until 31 December. Afterwards, the employee's averaging
period would be each complete calendar year.
Item 59 - Schedule 1, item 71, page 102 (line 26)
Item 60 - Schedule 1, item 71, page 102 (line 36)
Item 61 - Schedule 1, item 71, page 103 (line 1)
80. These amendments are consequential on the amendment to proposed
subsection 91C(1).
Item 62 - Schedule 1, item 71, page 103 (line 4)
81. This amendment is a minor drafting amendment.
Item 63 - Schedule 1, item 71, page 103 (after line 4)
82. This amendment would add two factors to the inclusive list of factors
in proposed subsection 91C(5). The factor in proposed paragraph
91C(5)(f) takes account of other amendments to the Standard, in relation
to public holidays. The factor in proposed paragraph 91C(5)(g) provides
that the employee's hours of work over a prior 4 week prior period may be
taken into account in determining whether particular additional hours are
reasonable.
Item 64 - Schedule 1, item 71, page 103 (before line 5)
83. This amendment would insert a definition of public holiday for the
purpose of this section.
Item 65 - Schedule 1, item 71, page 103 (line 29) to page 104 (line 22)
84. This item would omit the definition of nominal hours worked, including
the notes, in proposed section 92A and substitute a new definition which
would provide that nominal hours worked has the meaning given by section
92AA (to be inserted by proposed item 68). The definition is relevant
for annual leave accrual.
Item 66 - Schedule 1, item 71, page 104 (lines 25 to 32)
85. This item would repeal and replace the definition of public holiday in
proposed section 92A. The effect of the amendment is to add a new
paragraph (b) to the definition - to account for substitution of public
holidays.
86. As a result of this amendment, a public holiday would be defined as:
* a day declared by or under a law of a State or Territory as days
to be observed generally with that State or Territory, or a region
of that State or Territory, as a public holiday by employees who
work in that State, Territory or region. The definition would
exclude union picnic days or days excluded by the regulations
(this paragraph reflects the definition in the Bill);
* a day substituted for such a day under a law of a State or
Territory, or under an award or workplace agreement.
Item 67 - Schedule 1, item 71, page 104 (line 39)
87. This item would amend the definition of shift worker to delete the
words 'a Sunday or public holiday' and substitute 'Sundays and public
holidays'.
88. The effect of this would be to reflect the existing award standard.
Item 68 - Schedule 1, item 71, page 105 (after line 2)
89. This item would insert a new section 92AA which would explain the
meaning of nominal hours worked.
90. Subsection 92AA(1) would set out a method for calculating nominal hours
worked for employees who are employed for a specified number of hours
each week. This method would ensure that an employee who is engaged for
a specified number of hours per week is guaranteed to accrue leave
entitlements based on that specified number of hours, irrespective of the
actual number of hours actually worked during a settlement period. The
effect of this is that an employee who is employed for a specified number
of hours (eg, full-time for 38 hours per week) is guaranteed to accrue
annual leave on this basis, even if the employee occasionally works less
than the full number of hours (eg, because of a short period of reduced
work demand).
91. If an employee is employed to work a specified number of hours in an
employment period, the nominal hours worked for the employee would be
calculated by deducting periods:
* of leave which do not count as service, such as unpaid authorised
leave or unauthorised absences (subparagraph 92AA(1)(b)(i)); and
* for which an employer may not pay the employee because they were
engaged in industrial action (subparagraph 92AA(2)(b)(ii)),
from the specified number of hours set out under an award, workplace
agreement or contract of employment.
92. This amendment would not:
* prevent changes to working hours by agreement, or otherwise in
accordance with the terms of an award or agreement (providing it
did not increase above 38 per week); or
* otherwise change the relevant guarantee where an employee is not
engaged for a specified number of hours (that is, hours may
fluctuate) to ensure that employment arrangements can operate
flexibly.
93. Subsection 92AA(2) would ensure that if there is not a relevant award,
workplace agreement or contract of employment which sets out the number
of hours that constitute 'full-time' employment of an employee, an
employee who is a full-time employee is taken to be employed under his or
her contract of employment to work 38 hours per week for the purpose of
subsection 92AA(1).
94. Subsection 92AA(3) would set out a method for calculating nominal hours
worked per week where the specified number of hours for which an employee
is employed is expressed in relation to a period that is greater than a
week (eg, if the employment is for a specified number of hours per
fortnight).
95. Subsection 92AA(4) would set out a method for calculating the nominal
hours worked for an employee to which subsection 92AA(1) does not apply -
that is, the employee is not employed to work a specified number of
hours.
96. If an employee is employed to work variable hours, subsection 92AA(4)
provides a formula for working out the employee's nominal hours worked.
97. Subsection 92AA(5) would deem a reference to an hour to include a
reference to a part of an hour.
Item 69 - Schedule 1, item 71, page 106 (after line 30)
98. This item would insert a note under subsection 92E(1) to make clear
that any period of annual leave foregone under proposed section 92E is
deducted from the employee's accrued annual leave balance.
Item 70 - Schedule 1 item 71, page 107 (after line 4)
99. This item would insert a new subsection in proposed section 92E.
100. Section 92E allows employees to forego (or 'cash out') a period of
annual leave. The new provision would require an employer to give the
employee the amount of pay the employee is entitled to receive in lieu of
the amount of annual leave foregone within a reasonable time frame.
Item 71 - Schedule 1, item 71, page 109 (after line 9)
101. This item would ensure that that Commonwealth, or State or Territory,
legislation relating to workers' compensation would continue to apply
despite Division 4 of Part VA to the extent of any inconsistency in
relation to:
* the taking of annual leave while an employee is receiving workers'
compensation; or
* the accrual of annual leave while an employee is receiving
compensation.
102. The effect of this amendment would be that such limits in a
Commonwealth or State or Territory law would continue to apply.
Item 72 - Schedule 1, item 71, page 110 (lines 27 and 28)
Item 73 - Schedule 1, item 71, page 110 (lines 29 to 31)
Item 75 - Schedule 1, item 71, page 111 (after line 27)
103. These items would specify who may issue a certificate under the
personal/carer's leave scheme in Division 5 of Part VA.
104. Item 72 would be a minor technical amendment to omit the term medical
practitioner from the definition of medical certificate.
105. Item 73 would amend proposed section 93A to omit the definition of
medical practitioner.
106. Item 75 would amend proposed section 93A to provide a new definition
of registered health practitioner. A registered health practitioner
would mean a health practitioner registered or licensed under a law of a
State or Territory that provides for the registration or licensing of
health practitioners. This would include physical and mental health
professionals, such as a chiropractor, dentist, medical practitioner,
nurse or physiotherapist.
Item 74 - Schedule 1, item 71, page 110 (line 32) to page 111 (line 22)
107. This item would omit the definition of nominal hours worked, including
the notes, in proposed section 93A and substitute a new definition which
would provide that nominal hours worked has the meaning given by section
93AA. The definition is relevant for personal/carer's leave accrual.
Item 76 - Schedule 1, item 71, page 111 (line 32)
108. This item would insert a new section 93AA which would explain the
meaning of nominal hours worked.
109. The definition reflects that proposed in relation to annual leave
accrual (item 68).
Item 77 - Schedule 1, item 71, page 113 (line 35)
Item 78 - Schedule 1, item 71, page 114 (lines 15 and 16)
110. This item would change the heading of proposed section 93H to reflect
the changes proposed by items 79 and 80.
Item 79 - Schedule 1, item 71, page 114 (after line 21)
Item 80 - Schedule 1, item 71, page 114 (after line 21)
111. Item 80 would ensure that that Commonwealth, or State or Territory,
legislation relating to workers' compensation would continue to apply
despite Division 5 of Part VA to the extent of any inconsistency in
relation to:
* the taking of personal/carer's leave while an employee is
receiving workers' compensation; or
* the accrual of personal/carer's leave while an employee is
receiving compensation.
112. The effect of this amendment would be that such limits in a
Commonwealth or State or Territory law would continue to apply.
113. Item 24 would make an amendment consequential upon this change.
Item 81 - Schedule 1, item 71, page 115 (line 8)
114. These items would make a minor technical amendment to the examples
under proposed subsections 93F(2) and 93I(2). The amendments replace a
reference to '2 weeks' with a reference to '10 days'. This is consistent
with other provisions in the personal/carer's leave provisions (Division
5 of Part VA).
Item 82 - Schedule 1, item 71, page 117 (line 8)
115. Section 93N sets out the documentary requirements for a period of sick
leave taken by an employee.
116. This item would repeal and replace proposed section 93N to provide
that if it is not reasonably practicable for an employee to obtain a
medical certificate, then a statutory declaration may be provided to the
employer. For example, a statutory declaration could be used in
circumstances where an employee is unable to make an appointment with
their medical practitioner on a particular day.
117. This item would not change the ability of an employer to require a
declaration of the reason for the absence where they consider this
appropriate.
Item 83 - Schedule 1, item 71, page 118 (line 10) to page 119 (line 11)
118. Section 93P sets out the documentary requirements for a period of
carer's leave taken by an employee.
119. This item would repeal and replace proposed section 93P to provide
that an employee may provide a medical certificate or statutory
declaration in the case of injury or illness of a family member requiring
care and support. This would cover the situation where medical treatment
is not necessary (eg a child with asthma), and is consistent with the
conciliated position in the recent Family Provisions Case.
Item 84 - Schedule 1, item 71, page 119 (lines 23 to 33)
Item 85 - Schedule 1, item 71, page 120 (line 2)
Item 86 - Schedule 1, item 71, page 120 (line 3)
Item 87 - Schedule 1, item 71, page 120 (after line 7)
120. Item 84 would replace the compassionate leave provisions in 93Q(2).
This item would clarify the scope of the compassionate leave provisions
to make clear that an employee may only take one period of compassionate
leave for each permissible occasion when a member of his or her immediate
family or household is suffering from a serious personal injury or
illness.
121. Subsection 93Q(3) would provide that an employee is entitled to
compassionate leave the employee gives the employer reasonable evidence
or the illness, injury or death, if required.
122. Items 76 and 86 would make minor technical amendments to proposed
section 93R, consequential upon the change proposed by item 84, to
clarify that for each particular permissible occasion, two days of
compassionate leave may be taken in a manner as specified.
123. Item 87 would insert a new subsection at the end of proposed section
93R.
124. Subsection 93R(2) would provide that an employee entitled to a period
of compassionate leave may take the leave at any time while the illness
or injury persists.
Item 88 - Schedule 1, item 71, page 129 (line 8)
Item 89 - Schedule 1, item 71, page 129 (line 25)
125. These items would be minor technical amendments to the documentary
evidence provisions for special maternity leave to delete the reference
to '(or was)' and substitute 'was or will be'. These changes are
consistent with the references to medical certificates in sections 93N
and 93P of the personal/carer's leave provisions.
Item 90 - Schedule 1, item 71, page 160 (after line 3)
126. This item would insert a new Division 7 to Part VA to provide civil
remedies for contraventions of the Australian Fair Pay and Conditions
Standard in proposed Part VA. The Bill currently allows financial
penalties to be imposed on an employer for a breach of the Standard. It
also enables recovery of wages.
127. The changes mean the new Division would enable a court to prevent
further breaches, or to rectify the consequences of a breach, of one of
the conditions guarantees.
New Section 94ZZC ~ Definition
128. Proposed new section 94ZZC would define Court to mean the Federal
Court of Australia or the Federal Magistrates Court.
New Section 94ZZD ~ Civil Remedies
129. Proposed new section 94ZZD would provide that an employer must not
contravene a term of Divisions 3, 4, 5 or 6 of the Standard.
130. Subsection 94ZZD(2) would deem subsection 94ZZC(1) to be a civil
remedy provision.
131. Subsection 94ZZD(3) would provide that this Division applies in
relation to the extended application of Division 6, as set out in section
170KB.
New Section 94ZZE ~ Standing for civil remedies
132. Proposed new section 94ZZE would set out the parties who may apply to
the Court for an order under proposed new Division 7. The parties that
may bring an order would be:
* the employee affected by the contravention;
* an organisation of employees, subject to subsection 94ZZE(2);
* a workplace inspector.
133. Subsection 94ZZE(2) would provide that a member of an organisation may
apply on behalf of an employee for a remedy under proposed new Division 7
if:
* a member of the organisation is employed by the respondent
employer; and
* the contravention relates to or affects the member or the member's
work for the employer.
New Section 94ZZF ~ Court orders
134. Proposed new section 94ZZF would set out the orders that the Court may
make. Subsection 94ZZF(1) would provide that the Court may make orders
for:
* compensation; or
* any other others necessary to stop the contravention or rectify
its effects to place the employee concerned in the position the
employee would be if the contravention had not occurred.
135. For example, if an employee concerned has been dismissed in breach of
the return to work guarantee in the parental leave provisions (proposed
section 94R), it would be open to a Court to make an order to reinstate
the employee to the position that the employee occupied immediately
before the dismissal.
Item 91 - Schedule 1, item 71, page 160 (after line 12)
136. Proposed section 95 of the Bill would provide definitions of certain
terms for the purposes of Part VB. Proposed amendment would insert a
definition of verified copy into proposed section 95 of the Bill. For
the purposes of Part VB, verified copy would, in relation to a document,
mean a copy that is certified as being a true copy of the document.
137. This amendment would be consequential to item 115. Relevantly, item
115 would provide for the inclusion of proposed section 105M, which would
allow the Employment Advocate to issue verified copies of documents
relating to workplace agreements.
Item 92 - Schedule 1, item 71, page 161 (lines 21 to 30)
138. Proposed section 95C of the Bill would provide special arrangements
for AWAs relating to Commonwealth employees. This amendment would omit
section 95C. This would be consequential to item 115 which would provide
for proposed section 95C to be relocated to proposed section 105L in
Division 12 of Part VB.
Item 93 - Schedule 1, item 71, page 165 (lines 28 and 29)
139. Proposed section 97 of the Bill would set out the requirements needed
for a person to be a bargaining agent in relation to an employee
collective agreement or AWA. Item 93 would omit subsection 97(2) which
provides that a bargaining agent must meet any requirement specified in
the regulations. This amendment would be consequential to item 115.
Item 115 would provide for the inclusion of proposed section 105O, which
would allow the regulations to make provision for a range of matters
relating to workplace agreements, including the qualifications and
appointment of bargaining agents.
Item 94 - Schedule 1, item 71, page 173 (line 27)
140. Proposed section 100 of the Bill sets out the circumstances in which a
workplace agreement is in operation. Proposed subsection 100(2) would
provide that a workplace agreement comes into operation even if certain
requirements under the Bill are not met. Proposed item 94 would insert
the words "and section 99" into subsection 100(2). The effect of
proposed item 94 would be that a workplace agreement will come into
operation even if it lodged outside the 14 day deadline in proposed
section 99.
Item 95 - Schedule 1, item 71, page 176 (line 20)
141. Proposed section 101 of the Bill would provide the maximum nominal
expiry dates for workplace agreements. If an agreement does not specify
such a date or specified a date beyond the maximum provided in the Bill,
the Bill would prevail. Item 95 would substitute the words "a
greenfields agreement" in paragraph 101(1)(a) with "an employer
greenfields agreement." This would have the effect that employer
greenfields agreements may have a nominal expiry date of up to one year
from the date of lodgment, while all other workplace agreements
(including union greenfields agreements) would be able to have a maximum
nominal expiry date of five years from the date of lodgment.
Item 96 - Schedule 1, item 71, page 177 (line 3)
142. Proposed subsection 101(2) of the Bill would provide that where a
workplace agreement is varied to extend its nominal expiry date, the
maximum nominal expiry date must be no more than that specified in the
Bill. Item 96 would substitute the words "a greenfields agreement" in
paragraph 101(2)(a) with "an employer greenfields agreement." The effect
of this is that where an employer greenfields agreement is varied to
extend its NED, it can be extended to no more than one year from the date
the agreement was lodged. All other agreements (including union
greenfields agreements) would be able to be varied to extend their
nominal expiry date up to five years from the date the agreement was
lodged.
Item 97 - Schedule 1, item 71, page 178 (after line 3)
143. Proposed section 101B of the Bill would provide a mechanism by which
certain protected award conditions are automatically read into a
workplace agreement unless expressly excluded or modified. Proposed item
97 would insert subsection 101B(2A) into proposed section 101B.
Subsection 101B(2A) would provide that despite paragraph 101B(2)(c),
which allows workplace agreement to expressly exclude or modify protected
award conditions, those protected award conditions that are about
outworkers conditions have effect, despite any terms of a workplace
agreement that provide, in a particular respect, a less favourable
outcome for the outworker.
144. Subsection 101B(3) would define outworker conditions to mean
conditions for outworkers, other than pay, but only to the extent
necessary to ensure that their overall conditions of employment are fair
and reasonable in comparison with the conditions of employment specified
in a relevant awards or awards for employees who perform the same kind of
work at an employer's business or commercial premises. The definition of
outworker conditions in subsection 101B(3) is similar to the provisions
of paragraph 116(1)(b), which relates to allowable award matters.
145. The effect of item 97 would be that a workplace agreement could only
exclude or modify outworker conditions, as defined in subsection 101B(3),
if the agreement provided a more favourable outcome for the outworker
than the outworker conditions in the award.
Item 98 - Schedule 1, item 71, page 178 (after line 24)
146. Proposed subsection 101B(3) of the Bill would provide definitions for
the purposes of subsections 101B(1), 101B(2) and 101B(2A), which would
deal with protected award conditions. Relevantly, the definition of
protected allowable award matters would include paragraph 101B(3)(d) that
provides for the observance of days declared by or under a law of a State
or Territory to be observed as public holidays and entitlements to
payment in respect of those days. Proposed amendment Agt41 would insert
paragraph 101B(3)(da) into the definition of protected allowable award
conditions in subsection 101B(3). New paragraph 101B(3)(da) would
provide an equivalent to item 129 to include in the list of protected
allowable award matters a term of an award that provides for days to be
substituted, or a procedure for substituting, public holidays.
147. In addition, paragraph 101B(3)(da) would have the effect of making the
following protected allowable award matters:
* a term that enables a public holiday declared in a metropolitan
area to be substituted for a public holiday in a country or
regional area; and
* a procedure for agreement between an employer and an individual
employee with respect to taking an alternate day as the public
holiday in lieu of a day that would otherwise be the designated
public holiday because of paragraph 101B(3)(d).
Item 99 - Schedule 1, item 71, page 179 (line 3)
148. Proposed subsection 101B(3) of the Bill would provide a definition of
protected award conditions that would apply for the purposes of proposed
section 101B which allows such conditions to be read into a workplace
agreement unless expressly excluded or modified.
149. Proposed item 99 would make the definition of protected awards
conditions consistent with the operation of proposed section 116I of the
Bill by substituting paragraph 101B(3)(a). The substituted paragraph
101B(3)(a) would provide that protected award conditions includes terms
of an award that are:
* about protected allowable award matters (subparagraph
101B(3)(a)(i));
* incidental to protected allowable award matters that may be
included in an award because of proposed section 116I
(subparagraph 101B(3)(a)(ii)); or
* machinery provisions that relate to protected allowable award
matters and that may be included in an award because of proposed
section 116I (subparagraph 101B(3)(a)(iii)).
150. Proposed item 99 would ensure that protected award conditions fully
incorporate the relevant terms and conditions from awards (including
terms that are incidental and essential to the practical operation of
protected allowable award matters and machinery terms) and ensure that
they operate in a practical way.
Item 100 - Schedule 1, item 71, page 179 (line 5)
151. Proposed subparagraph 101B(b)(i) of the Bill would exclude from the
definition of protected award conditions terms of an award that are not
matters "mentioned in" section 116B. Proposed amendment Agt44 would
reword subparagraph 101B(3)(i) to say "matters that are not about
allowable award matters because of section 116B." This is a technical
amendment so that the language of subparagraph 101B(b)(i) is more
precise.
Item 101 - Schedule 1, item 71, page 179 (lines 25 to 30)
152. Proposed section 101C of the Bill would set out the circumstances in
which a new workplace agreement could 'call up' the terms of an award or
other workplace agreement.
153. As introduced, paragraph 101C(3)(b) would limit the calling up of a
workplace agreement to circumstances where, just before the new agreement
is made, the workplace agreement regulates the employment of at least one
person whose employment will be subject to the new workplace agreement
(paragraph 101C(3)(b)). Because paragraph 101C(3)(b) as introduced would
require at least one employee whose employment will be subject to the new
agreement to already be subject to the agreement being called up, it
would prevent an employer from being able to call up terms and conditions
from a workplace agreement that already applies in the workplace, when
engaging a new employee. In order to overcome this, proposed amendment
Agt45 would omit paragraph 101C(3)(b) and replace it with a new paragraph
101C(3)(b). Paragraph 101C(3)(b) would provide that a new workplace
agreement may call up another workplace agreement if, just before the new
agreement is made, the other workplace agreement is binding on the
employer.
154. The effect of item 101 would be to allow an employer to offer an AWA
that calls up a workplace agreement that is already operative in the
employer's workplace, when engaging a new employee on an AWA.
Item 102 - Schedule 1, item 71, page 185 (lines 23 and 24)
Proposed section 102A of the Bill would provide the time at which a
variation to a workplace agreement is made. As introduced paragraph
102A(e) would provide that a variation to an employer greenfields agreement
is made when it is lodged. Proposed amendment Agt50 would substitute
paragraph 102A(e) to provide that a variation to an employer greenfields
agreements would be made when it is approved in accordance with section
102F. Proposed amendment 102 would bring the time at which a variation to
an employer greenfields agreement is made into line with the time at which
variations to other collective agreements are made.
Item 103 - Schedule 1, item 71, page 188 (line 11)
155. The title to proposed section 102E of the Bill currently refers to a
prohibition from withdrawal from a union collective agreement. However,
the provisions of section 102E apply to both union collective agreements
and union greenfields agreements.
156. Item 103 would insert the words "or union greenfields agreement" into
the heading of proposed section 102E. This is a technical amendment so
that the heading of proposed section 102E matches the provisions of
proposed section 102E.
Item 104 - Schedule 1, item 71, page 191 (line 27)
157. Proposed section 102M of the Bill sets out the circumstances in which
a variation to a workplace agreement comes into operation. Proposed
subsection 102M(2) would provide that a variation to a workplace
agreement comes into operation even if certain requirements under the
Bill are not met. Proposed amendment 104 would insert the words "and
section 102H" into subsection 102M(2). The effect of proposed amendment
104 would be that a variation to a workplace agreement will come into
operation even if it is lodged outside the 14 day deadline in proposed
section 102H.
Item 105 - Schedule 1, item 71, page 191 (after line 28)
158. Proposed section 96F allows the Employment Advocate to authorise
employers to make multiple-business agreements. To ensure that this
authorisation process is complied with, subsection 100(3) prevents a
multiple-business agreement from coming into operation unless it has been
authorised by the Employment Advocate. However, there is no equivalent
provision in the Bill preventing a variation to a multiple-business
agreement coming into operation unless authorised by the Employment
Advocate.
159. Proposed amendment 105 would insert an equivalent of subsection 100(3)
to apply to variations of multiple-business agreements. Subsection
102M(3) would provide that a variation to a multiple-business agreement
comes into operation only if the variation has been authorised by the
Employment Advocate under proposed section 96F.
Item 106 - Schedule 1, item 71, page 194 (lines 1 and 2)
160. The title to proposed section 103D of the Bill refers to a prohibition
on withdrawal from a variation to a union collective agreement. However,
the provisions of section 103D apply to terminations of both union
collective agreements and union greenfields agreements.
161. Proposed amendment 106 would substitute the words "variation to union
collective agreement" in the heading of proposed section 103D with the
words "termination of union collective agreement or union greenfields
agreement." This is a technical amendment so that the heading of
proposed section 103D matches the provisions of proposed section 103D.
Item 107 - Schedule 1, item 71, page 197 (line 23)
162. Proposed section 103K would provide for a workplace agreement to be
terminated in accordance with its own terms after the agreement has
passed its nominal expiry date. As part of this process, subsection
103K(4) would require the person terminating the agreement to give at
least 14 days written notice of the termination. As introduced, proposed
section 103K does not specify whether the notice must be given before or
after the agreement's nominal expiry date has passed.
163. Proposed amendment 107 would insert the words "and after the nominal
expiry date of the agreement has passed" into subsection 103K(4). The
effect of the amendment would be to prohibit a person giving notice to
unilaterally terminate a workplace agreement in accordance with its terms
until after the agreement's nominal expiry date has passed.
Item 108 - Schedule 1, item 71, page 198 (line 28)
164. Proposed section 103L of the Bill would provide for workplace
agreements to be terminated on 90 days written notice after the agreement
has passed it nominal expiry date. As introduced, proposed section 103L
does not specify whether the notice must be given before or after the
agreement's nominal expiry date has passed.
165. Proposed amendment 108 would insert the words "and after the nominal
expiry date of the agreement has passed" into subsection 103L(4). The
effect of the amendment would be that a person cannot give notice to
unilaterally terminate a workplace agreement on 90 days written notice
until after the agreement's nominal expiry date has passed.
Item 109 - Schedule 1, item 71, page 202 (line 7)
166. Proposed section 103Q of the Bill would set out when a termination of
a workplace agreement takes effect.
167. Proposed amendment 109 would substitute the reference in paragraph
103Q(b) to paragraph 103(2)(a) with a reference to paragraph 103(1)(a).
This is a technical amendment to clarify that paragraph 103Q(b) refers to
a termination of a workplace agreement rather than a declaration to
terminate a workplace agreement.
Item 110 - Schedule 1, item 71, page 202 (line 7)
168. Proposed section 103Q of the Bill sets out the circumstances in which
a termination of a workplace agreement takes effect. Proposed section
103Q would provide that a termination takes effect even if certain
requirements under the Bill are not met. Proposed amendment 110 would
insert the words "and section 103G" into paragraph 103Q(a). The effect
of proposed amendment 110 would be that a termination of a workplace
agreement by approval will take effect even if it lodged outside the 14
day deadline in proposed section 103G.
Item 111 - Schedule 1, item 71, page 202 (lines 9 and 10)
169. Proposed section 103Q of the Bill would set out when a termination of
an agreement takes effect.
170. Proposed amendment 111 would substitute the reference in paragraph
103Q(c) to paragraph 103(2)(b) with a reference to paragraph 103(1)(b).
This is a technical amendment to clarify that paragraph 103Q(c) refers to
a termination of a workplace agreement rather than a declaration to
terminate a workplace agreement.
Item 112 - Schedule 1, item 71, page 203 (line 30)
171. Proposed section 103R of the Bill as introduced would provide that,
following the termination of a workplace agreement, certain industrial
instruments have no effect in relation to an employee whose employment
was subject to the workplace agreement that was terminated. Subsection
103R(3) specifies the industrial instruments as a workplace agreement
(paragraph 103R(3)(a)) or an award (paragraph 103R(3)(b)). The effect of
proposed section 103R would be that, following an agreement being
terminated, an employee's terms and conditions would be sourced from the
FPCS.
172. Proposed amendment 112 would substitute paragraph 103R(3)(b) so that
it refers to "an award, except to the extent to which it contains
protected award conditions as defined in section 101B (disregarding any
exclusion of modification of those conditions made by the agreement)."
The effect of proposed amendment 112 would be that, following termination
of a workplace agreement, an employee's terms and conditions would be
sourced from the FPCS and the protected award conditions.
Item 113 - Schedule 1, item 71, page 203 (line 11)
173. Proposed section 104 of the Bill would provide remedies against
coercion and duress in relation to workplace agreements and bargaining
agents.
174. Proposed amendment 113 would insert the word "section" into subsection
104(2). This is a technical amendment to repair a typographical error in
the Bill as originally drafted.
Item 114 - Schedule 1, item 71, page 203 (lines 25 to 28)
175. Subsection 104(6) of the Bill would provide an exception to what
constitutes duress in connection with an AWA.
176. Proposed amendment 114 would substitute subsection 104(6) to provide
that a person does not apply duress to another person in connection with
an AWA merely because the person requires another person to make an AWA
as a condition of engagement.
177. The effect of proposed amendment 114, would be to reinforce that the
intended effect of subsection 104(6) is to implement, rather than change,
the current judicial interpretation of duress as explained by Justice
Moore in Schanka v Employment National (Administration) Pty Ltd [1999]
FCA 1344. At paragraph 43 Justice Moore held that for conduct to
constitute duress:
"The conduct of the contravening party must involve illegitimate
pressure. I doubt that the mere fact that an employer offers
employment on the basis that an AWA in certain terms must be made is
illegitimate pressure. It would do no more than place the potential
employee in the position of either declining or accepting the
employment on those terms and regulated that way, that is by an AWA.
Something more is probably necessary and whether pressure is
illegitimate will ultimately depend on the factual context in which
the allegation of duress arises."
Item 115 - Schedule 1, item 71, page 209 (after line 15)
178. Proposed amendment 115 would insert a proposed Division 12 -
Miscellaneous into Part VB of the Bill. Part VB would deal with
workplace agreements.
179. Proposed amendment 115 would insert proposed sections 105L, 105M, 105N
and 105O into the Bill.
New section 105L - AWAs with Commonwealth employees
180. Proposed section 95C of the Bill would allow an agency head, or a
Secretary of a Commonwealth department, to act on behalf of the
Commonwealth in relation to AWAs with persons in the agency who are
engaged under the Public Service Act 1999 or the Parliamentary Service
Act 1999.
181. Relevantly, proposed amendment 115 would provide a new section 105L
which would replicate proposed section 95C of the Bill. This amendment
is consequential to proposed item 92. Proposed item 92 would omit
proposed section 95C from the Bill. The effect of these two amendments
is to shift the provision from Division 1 of Part VB (which sets out
preliminary matters relating to workplace agreements) to Division 12 of
Part VB (which sets out miscellaneous matters relating to workplace
agreements).
New section 105M - Evidence - verified copies
182. Proposed subsection 105M would allow the Employment Advocate to issue
verified copies of documents relating to workplace agreements, for
example, a declaration lodging a workplace agreement under proposed
section 99B(2). Such documents would be used for evidence in proceedings
brought under the Act as amended, for example, in proceedings alleging a
breach of a workplace agreement.
183. The note below proposed section 105M refers the reader to the
definition of verified copy provided in proposed section 95.
184. Proposed subsection 105M(2) would limit the persons to whom a verified
copy can be issued. Those are persons who are, or were, bound by the
workplace agreement to which the verified copy relates.
185. Proposed subsection105M(3) would allow verified copies issued by the
Employment Advocate to be used as evidence of the document in proceedings
before a Court.
186. Proposed subsection 105M(4) would provide that documents issued by the
Employment Advocate are to be treated as verified copies unless evidence
to the contrary is adduced.
New section 105N - certificates
187. Proposed subsection 105N would allow the Employment Advocate to issue
a certificate stating certain matters in relation to a workplace
agreement. Those certificates would be taken to be prima facie evidence
of the matters stated in the certificate in proceedings before a Court
(proposed section 105N(3)).
188. Proposed subsection 105N(2) would limit the persons to whom a
certificate can be issued. A certificate may only be issued to a person
who is, or was, bound by the workplace agreement to which the certificate
relates.
189. Proposed subsection 105N(4) would allow documents purporting to be
certificates issued by the Employment Advocate to be taken as such
certificates, unless evidence to the contrary is adduced.
New section 105O - Regulations relating to workplace agreements
190. Proposed section 105O would allow regulations to be made in relation
to the following matters:
* requiring an employer who is bound by a workplace agreement to
supply copies of prescribed documents to the employee or employees
bound by the workplace agreement (subsection 105O(a));
* the qualifications and appointment of bargaining agents
(subsection 105O(b));
* the required form of workplace agreements (including a requirement
that documents be in the English language) (subsection 105O(c));
* the witnessing of signatures on AWAs (subsection 105O(d));
* the signing of workplace agreements by parties to those agreements
(subsection 105O(e));
* the retention by employers of signed workplace agreements
(including the manner and period of retention) (subsection
105O(f));
* prescribing fees for the issue by the Employment Advocate of
certificates and verified copies(subsection 105O(g)).
191. Note 1 under proposed section 105L would refer the reader to section
359 which sets out the sanctions that the regulations may provide for a
breach of the regulations.
192. Note 2 under proposed section 105L would refer the reader to proposed
section 353A which would provide for the retention of records relating to
employees.
193. The inclusion of proposed subsection 105O(b) is consequential to
proposed amendment Agt03, which would omit proposed subsection 97(2) from
the Bill. This would have the effect of shifting the regulation making
power in relation to the qualifications and appointment of bargaining
agents from proposed section 97 of the Bill to proposed section 105O in
Division 12 of Part VB (which deals with miscellaneous measures relating
to workplace agreements).
Item 116 - Schedule 1, item 71, page 211 (line 25)
194. This amendment is to clarify that the definition of lockout set out in
subsection 106A is not intended to extend the meaning of that term beyond
its ordinary meaning.
Item 117 - Schedule 1, item 71, page 213 (after line 5)
New section 106C - Extraterritorial extension
195. Proposed section 106C would authorise regulations to be made to modify
the way that Part VC (Industrial action) and the rest of the WR Act
(including the Registration and Accountability of Organisations Schedule
and regulations made under it) so far as it relates to Part VC, apply in
relation to Australia's exclusive economic zone and Australia's
continental shelf. The modifications could include additions, omissions
and substitutions (subsection 106C(5)). The Note after subsection
106C(4) would explain that the regulations in relation to Australia's
continental shelf could prescribe different modifications relating to
different parts of the continental shelf, in order to give effect to
Australia's international obligations.
Item 118 - Schedule 1, item 71, page 216 (line 27)
196. This item corrects a typographical error in the Bill.
Item 119 - Schedule 1, Item 71, page 218 (line 11)
197. Proposed section 107G of the Bill sets out a range of circumstances in
which the AIRC must suspend or terminate a bargaining period. Subsection
107G(2) sets out the circumstances that that a negotiating party which is
taking or organising industrial action
* did not genuinely try to reach agreement with the other
negotiating parties before taking the action; or
* is not genuinely trying to reach agreement with the other
negotiating parties; or
* has failed to comply with any orders of directions of the
Commission made during the bargaining period about relating to the
proposed collective agreement or the negotiations for the
agreement or industrial action relating industrial action r.
198. This amendment ensures that a negotiating party could not itself
fulfil one of the circumstances (either deliberately or otherwise) and
then use its own conduct as the basis for an application to the AIRC for
a suspension or termination of the bargaining period under subsection
107G(2).
Item 120 - Schedule 1, Item 71, page 232 (line 30)
199. Proposed subsection 110(1) provides that industrial action must not be
organised or engaged in before the nominal expiry date of a collective
agreement or workplace determination. Proposed section 108E provides
that engaging in industrial action in contravention of section 110 (or
110A) is not protected action. This amendment ensures that section 108E
is consistent with subsection 110(1) by adding a reference to
'organising' (in relation to industrial action).
Item 121 - Schedule 1, Item 71, page 249 (line 20)
200. The Bill provides for the AIRC to make an order for a protected action
ballot and at proposed section 109N(1), sets out what the AIRC must
include in such an order, including at subparagraph 109N(2)(d)(ii) the
day on which the ballot is to close. This amendment adds to that
requirement that the AIRC must also include in the order a voting closing
time on the day on which the ballot is to close, for a postal ballot and
for an attendance ballot.
Item 122 - Schedule 1, Item 71, page 250 (line 10)
201. A postal ballot is to be the default voting method and this amendment
provides that the outer envelope which contains the declaration envelope,
which in turn contains the ballot paper, must be received by the ballot
agent before the voting closing time, on the day on which the ballot is
to close.
Item 123 - Schedule 1, Item 71, page 250 (lines 11 to 13)
202. Proposed subsection 109N(4) provides that if a ballot order made by
the AIRC provides for an attendance ballot as the voting method, it must
specify that voting must take place during the voters; meal time or other
breaks, or outside their hours of employment.
203. The amendment adds to this requirement that the AIRC must also specify
that the votes must be cast before the voting closing time and that the
AIRC may also specify other ules about when votes can be cast.
Item 124 - Schedule 1, Item 71, page 266 (line 33)
204. Proposed section 110 provides for a prohibition on engaging in or
organising industrial action before the nominal expiry date of a
collective agreement or workplace determination. Subsection 110(1)
refers to an employee, organisation or officer engaging in or organising
'industrial action affecting the employer'.
205. This amendment removes the reference to 'affecting the employer' - it
is unnecessary as the policy intention is that any industrial action
during the life of a collective agreement is prohibited.
Item 125 - Schedule 1, Item 71, page 268 (line 5)
Item 126 - Schedule 1, Item 71, page 268 (line 16)
206. These amendments would allow for a person who is affected by the
industrial action referred to in subsection 110(1) (industrial action
engaged in or organised by an employee, organisation or officer) or
subsection 110(3) (industrial action by an employer against an employee)
to commence action for breach of the prohibition.
Item 127 - Schedule 1, item 71, page 283 (line 27) to page 284 (line 7)
207. Item 127 would omit proposed section 115B, which would have allowed
employees to be exempted by regulations from the operation of Part VI
(Awards) on the basis of an insufficient connection between the
employee's employment and Australia. Due to the new section 7AAA to be
inserted by item 8, section 115B would also be redundant.
Item 128 - Schedule 1, item 71, page 285 (after line 31)
208. This item would add a new allowable award matter. This amendment
would enable an award to provide an entitlement for an employee to take
leave for the purpose of seeking other employment where they have been
given a notice of termination. A number of current awards include such a
term.
Item 129 - Schedule 1, item 71, page 286 (after line 6)
209. This item would add paragraph 116(1)(ea) to make allowable a term of
an award that provides for days to be substituted, or a procedure for
substituting, public holidays that may be included in an award (under
proposed paragraph 116(1)(e)). For example, where Christmas Day falls on
a Saturday or a Sunday, the award may provide that 27 December shall be
observed as a public holiday in lieu of 25 December.
210. In addition, paragraph 116(1)(ea) would make allowable an award term
that enables a public holiday declared in a metropolitan area to be
substituted for a public holiday in a country or regional area.
Paragraph 116(1)(ea) would also allow an award term to provide a
procedure for agreement between an employer and an individual employee
with respect to taking an alternate day as the public holiday in lieu of
a day that would otherwise be the designated public holiday because of
paragraph 116(1)(e).
Item 130 - Schedule 1, item 71, page 287 (line 33)
Item 131 - Schedule 1, item 71, page 288 (after line 3)
211. These items would insert a new subsection into proposed section 116A.
212. Proposed section 116A would ensure that each award contains the model
dispute resolution process contained in Part VIIA of the Bill.
213. This amendment would make clear that the model dispute resolution
process in an award may only be used to resolve disputes about matters
arising under the award and between persons bound by the award.
Item 132 - Schedule 1, item 71, page 288 (lines 13 to 14)
214. This item would delete proposed paragraph 116B(1)(b) from the Bill and
substitute a new paragraph.
215. As introduced, the Bill made non-allowable terms in awards that
prevent transfers from one form of employment to another. The intention
of this paragraph was to make non-allowable 'casual conversion' clauses
in awards. However, it would also have inadvertently made non-allowable
terms in awards that provide for part-time return to work after a period
of parental leave. This item would replace paragraph 116B(1)(b) in the
Bill with a new paragraph that is confined on its face to terms in awards
that provide for the conversion from casual employment to another type of
employment. This means that a term of an award that permits, or provides
a procedure for, a casual employee to convert to another type of
employment (such as full-time or part-time employment) would not be an
allowable award matter.
Item 133 - Schedule 1, item 71, page 288 (line 31)
216. This item would make clear that the prohibition on 'tallies' in
proposed paragraph 116B(1)(j) relates to tallies in the meat industry.
Item 134 - Schedule 1, item 71, page 288 (line 34)
217. This item would repeal proposed paragraph 116B(1)(m), which provides
for regulations to be made prescribing additional matters as non-
allowable.
Item 135 - Schedule 1, item 71, page 289 (after line 5)
218. This item would make a technical amendment to ensure that existing
award protections for outworkers are not inadvertently made non-
allowable. This item is one of a series of amendments designed to ensure
that the Bill does not diminish the protection that the federal workplace
relations system provides for outworkers.
219. New subsection 116B(2A) would ensure that the prohibition on awards
containing terms that restrict the engagement of independent contractors
(paragraph 116B(1)(g)) does not operate to limit the scope available to
include in an award terms that provide protection for outworkers under
paragraph 116(1)(m).
Item 136 - Schedule 1, item 71, page 289 (after line 18)
220. This item would insert a legislative note to section 116B,
consequential upon the amendment made by item 7. The note would remind
readers that in Part VI references to independent contractors are not
confined to natural persons.
Item 137 - Schedule 1, item 71, page 291 (after line 13)
221. This item would amend proposed section 116I, and is related to the
amendment proposed by item 135. The amendment proposed by this item is
one of a series of amendments designed to ensure that the Bill does not
diminish the protection that the federal workplace relations system
provides for outworkers.
222. Proposed new subsection 116I(2A) would make clear that the ability of
the AIRC to include terms in awards that are incidental and essential to
the allowable matter that permits an award to contain conditions for
outworkers (paragraph 116(1)(m)) is not affected by the limitation in
paragraph 116B(1)(g). The ability of the AIRC to include machinery
provisions is also unaffected.
Item 138 - Schedule 1, item 71, page 294 (line 3)
Item 139 - Schedule 1, item 71, page 294 (after line 24)
223. These items would amend section 117 of the Bill as introduced to make
clear that all the provisions in an award about the matters listed in
subsection 117(2) are encompassed by the expression preserved award term.
Item 140 - Schedule 1, item 71, page 295 (lines 3 and 4)
Item 141 - Schedule 1, item 71, page 295 (lines 11 to 13)
224. This item would make an amendment to proposed section 117, which
provides for the preservation of certain award terms.
225. Where a term of an award that deals with annual leave,
personal/carer's leave or parental leave is more generous than the
equivalent entitlement under the Standard, the award term applies.
Regulations can be made specifying in detail when a preserved award
entitlement dealing with these forms of leave will be considered to be
'more generous'.
226. Subsection 117(7) would enable regulations to be made to ensure that
particular specified elements of the Standard will apply despite the
terms of any award entitlement. This is designed to ensure that certain
entitlements provided by the Standard are not lost even if an award term
is 'more generous' than the Standard.
227. The effect of this amendment (and any regulations that were then made)
would be that the entitlement to transfer to a safe job, or access paid
leave, would apply independently of the 'more generous' assessment -
meaning that it would not be lost even if an award term is 'more
generous' than the Standard.
Item 142 - Schedule 1, item 71, page 302 (line 5)
228. Section 118I sets out who may be bound by an award made to give effect
to an award rationalisation process under Division 4 of Part VI. The
legislative note to subsection (1) reminds readers that Division 6 of
Part VI provides a process by which additional employers, employees and
organisations may become bound by an award.
229. This item would amend the legislative note to subsection 118I(1) to
direct readers to Division 6A of Part VI (to be inserted by item 153),
which would provide limited scope for additional eligible entities to
become bound by outworker terms in awards.
Item 143 - Schedule 1, item 71, page 303 (line 8)
Item 144 - Schedule 1, item 71, page 304 (line 8)
230. This item would amend subsection 118N(1) of the Bill to ensure that
the ability of the AIRC to establish principles for the review and
simplification of awards under section 118M is exercisable only by a Full
Bench.
Item 145 - Schedule 1, item 71, page 304 (line 11)
Item 146 - Schedule 1, item 71,page 304 (line 17)
231. These items would make technical amendments to section 118N to clarify
that the principles referred to in subsections (2) and (3) that may be
established by the AIRC are those mentioned in subsection (1).
Item 147 Schedule 1, item 71, page 304 (after line 25)
232. This item would add a new subsection to proposed section 118N to make
clear that principles established under subsection 118N(1) must be
consistent with, and cannot be such as to override, a provision of this
Act that relates to the variation of awards.
Item 148 - Schedule 1, item 71, page 308 (line 14)
Item 149 - Schedule 1, item 71, page 308 (line 16)
Item 150 - Schedule 1, item 71, page 308 (line 18)
Item 151 - Schedule 1, item 71, page 308 (line 23)
233. Section 119B(5) enables an award to be varied to update the list of
those bound to reflect name changes.
234. These items would amend subsection 119B(5) by removing references to
'employee', which are unnecessary as employees will not be not bound to
awards by name (rather they may be bound to an award by class).
Item 152 - Schedule 1, item 71, page 310 (after line 11)
235. These items would insert a legislative note under subsection 118J(4)
and subsection 120(1) (respectively) to remind readers that an award may
also be varied to bind eligible entities under Division 6A.
Item 153 - Schedule 1, item 71, page 313 (after line 11)
New Division 6A
236. This item would insert proposed Division 6A in Part VI to provide for
the binding of eligible entities to outworker terms in awards. This will
enable an entity that is not an employer of outworkers covered by the
award to be bound by the outworker terms in the award. (Such an entity
may employ other employees who do different work, such as working in a
retail store, that may be covered by other awards.)
New section 120G - Definitions
237. Proposed section 120G would set out definitions of eligible entity and
outworker term to apply in Division 6A.
New section 120H - Outworker terms may bind eligible entities
238. Proposed section 120H would enable eligible entities to be bound to
awards made (under section 118E) or varied (under section 118J) as part
of an award rationalisation process.
239. Under subsection 120H(2), the AIRC would be able to bind an eligible
entity to the outworker terms of an award that is made or varied as a
result of the award rationalisation process in circumstances where the
eligible entity does not employ any person that would do the work covered
by the award, but operates in the industry as part of the production
chain.
240. This provision would operate, for example, to enable the AIRC to bind
to the outworker terms of any relevant rationalised award a wholesaler or
retailer in the textile, clothing and footwear industry that outsources
the manufacture of the apparel, footwear or other items it then sells.
If so bound, the eligible entity would be obliged to comply with
outworker terms that provide for, for example, the maintenance of work
records, the preparation and filing of lists of those to whom work has
been outsourced, the manner in which payments may be claimed, the terms
of engagement of outworkers and registration requirements.
New section 120I - Binding additional eligible entities
241. Proposed section 120I would enable an organisation, employer or
eligible entity to apply to the AIRC for an order varying an award to
bind an employer or eligible entity, or class of new eligible entities,
to the outworker terms of an award (subsection 120I(1)).
242. This provision would enable employers or entities operating in an
industry in which outworkers are used (for example, the textile, clothing
and footwear industry) to be bound to applicable outworker provisions in
an award where the employer or entity is not otherwise bound by an award
that contains applicable outworker terms.
243. Subsections 120I(2) to (4) set out the process for dealing with, and
determining the application.
244. In determining an application, paragraph 120H(4)(c) requires the AIRC
to be satisfied that binding the employer or eligible entity to the
outworker terms of the award is consistent with the objective of
protecting the overall conditions of employment of outworkers.
Item 154 - Schedule 1, item 71, page 318 (after line 11), after the
definition of Court in section 122B
245. This amendment would insert a definition of 'instrument' for the
purposes of proposed Part VIAA to ensure the Part is read as transmitting
certain types of instruments only.
Item 155 - Schedule 1, item 71, page 331 (lines 6 to 13)
246. This amendment would delete proposed subsection 126A(2) and insert new
proposed subsections 126A(2) and 126A(3).
247. The Bill provides that, at the time of transmission, where the old
employer and any transferring employees were covered by an award, and the
new employer is bound by a collective agreement that would be capable of
applying on its terms to the transferring employees, then the
transmitting award would be immediately overtaken upon transmission by
the collective agreement so that it immediately applies to the employment
of the transferring employees with the new employer.
248. Proposed subsection 126A(2) would provide instead that the
transmitting award would apply to the employment of transferring
employees even if the new employer's collective agreement would be
capable of applying on its terms. This would ensure that the previous
instrument (ie the transmitting award) governs the transferring
employee's employment with the new employer for a maximum 12 month
period, unless agreed otherwise. This is consistent with what applies
where there are transmitting workplace agreements.
249. Proposed subsection 126A(3) would allow for a transferring employee to
elect to be covered by the new employer's existing collective agreement
rather than a transmitting award. This is to enable a transferring
employee to easily opt out of coverage by the transmitting award, and is
required because there is no general mechanism for awards to be
'terminated' as per workplace agreements. The effect of subsection
126A(3) would be that once a transferring employee elects to be covered
by the new employer's existing collective agreement, then the
transmitting award ceases to apply to that transferring employee, and
would not revive if, for example, the collective agreement was terminated
or otherwise ceased to apply.
Item 156 - Schedule 1, item 71, page 336 (lines 32 to 35)
250. Proposed paragraph 129(3)(f) provides that an employer must indicate
in a section 129 notice to a transferring employee, amongst other things,
what will dictate the terms and conditions contained in the transmitting
instrument when that instrument no longer applies to that transferring
employee. The provision refers to 'the source' for the new terms and
conditions.
251. In order to clarify the intent of the provision, the amendment would
identify what could be 'the source' for regulating those terms and
conditions under the WR Act, being the Australian Fair Pay and Conditions
Standard or another instrument.
Item 157 - Schedule 1, item 71, page 337 (after line 5)
252. This amendment would insert new proposed subsections 129(3A) and
129(3B).
253. Proposed subsection 129(3A) would create a new requirement that a new
employer provide a transferring employee with a copy of any existing
collective agreement or award that bound the new employer in respect of
its existing workforce (ie the employees employed by the new employer
prior to the transmission) with a section 129 notice.
254. Proposed subsection 129(3B) provides that the requirement to provide a
copy of an award or agreement under proposed subsection 129(3A) does not
apply where a transferring employee can easily access a copy, and the new
employer indicate in a section 129 notice how a transferring employee can
access it.
255. An example of how a new employer could fulfil the requirement in
proposed subsection 129(3B) (mentioned in the legislative note) is by
including a website address in a section 129 notice that was a link to a
copy of an applicable award or agreement.
Item 158 - Schedule 1, item 71, page 337 (lines 7 to 15)
256. This amendment is consequential to item TB2, which would provide for
an award to transmit for a maximum period of 12 months even if the new
employer's existing collective agreement is capable of applying to any
transferring employees on its terms.
257. Proposed subparagraph 129(4)(a)(i) removes the requirement for the new
employer to provide a section 129 notice to a transferring employee where
the new employer's existing collective agreement immediately over-rides a
transmitting award. Given that item TB2 removes this possibility,
subparagraph 129(4)(a)(i) is redundant. Proposed paragraph 129(4)(a)
reflects the existing provision of the Bill with that subparagraph
removed.
Item 159 - Schedule 1, item 71, page 339 (line 12)
258. This amendment is consequential to item TB4, which would insert a new
requirement for the new employer to provide a copy of any existing award
or collective agreement that binds the new employer and its employees
prior to transmission.
259. New proposed paragraph 129C(1)(b) adds a reference to the new
requirement (in proposed subsection 129(3A)) to indicate that breaching
the requirement would attract a civil remedy.
Item 160 - Schedule 1, item 72, page 343 (after line 4), after Division 1
of Part VIA, insert
New Division 1A of Part VIA - Entitlement to public holidays
260. Proposed item 160 would insert a proposed Division 1A - Entitlement to
public holidays, into Part VIA of the Bill.
New section 170AE - Definition of public holiday
261. Proposed section 170AE would insert a definition of public holiday.
This definition would only apply to Division 1A of Part VIA. Paragraph
170AE(a) would set out certain public holidays which are common to all
States and Territories. The definition would also include other public
holidays declared under a State or Territory law to be observed as a
public holiday, but not where the holiday is declared to be in
substitution for one of the days specifically mentioned in paragraph
170AE(a).
Illustrative example
In a particular year, Christmas Day falls on Saturday, 25 December. Under
the law of a State, the following Monday, 27 December, is declared as the
'Christmas Day' public holiday. The right to refuse, on reasonable
grounds, to work on Christmas Day would relate to 25 December, and not to
27 December.
New section 170AF - Entitlement to public holidays
262. Proposed subsection 170AF(1) would establish a statutory guarantee to
a day off on a public holiday, subject to proposed subsections 170AF(2) -
(3). This guarantee would apply to all employees within the definition
set out in proposed section 4AA(1).
263. Proposed subsection 170AF(2) would permit an employer to request an
employee to work on a particular public holiday. It is proposed that
such a request could be made verbally or in writing.
264. Proposed subsection 170AF(3) would provide that an employee may refuse
a request by the employee's employer to work on a particular public
holiday (and take the day off) if the employee has reasonable grounds for
refusing the request.
265. Proposed subsection 170AF(4) would provide that a term of a workplace
agreement or award is of no effect to the extent that it is contrary to
proposed subsections 170AF(1) - (3).
New section 170AG - Reasonableness of refusal
266. Proposed section 170AG would set out a number of matters to which
regard must be had in determining whether an employee has reasonable
grounds for refusing a request to work on a public holiday. They would
be:
* the nature of the work performed by the employee;
* the type of employment (for example, whether full-time, part-time,
casual or shift work);
* the nature of the employer's workplace or enterprise (including
its operational requirements);
* the employee's reasons for refusing the request;
* the employee's personal circumstances (including family
responsibilities);
* whether the employee is entitled to additional remuneration or
other benefits as a consequence of working on the public holiday;
* whether a workplace agreement, award, other industrial instrument,
contract of employment or written guidelines or policy that
regulate the employee's employment contemplate that the employer
might require work on public holidays, or particular public
holidays;
* whether the employee has acknowledged or could reasonably expect
that the employer might require work on public holidays, or
particular public holidays;
* the amount of notice in advance of the public holiday given by the
employer when making the request;
* the amount of notice in advance of the public holiday given by the
employee in refusing the request;
* whether an emergency or other unforeseen circumstances are
involved; and
* any other relevant factors.
Illustrative example
This example sets out a situation where refusing a request to work a public
holiday might be reasonable.
Rachel works part-time as a sales assistant in a chocolate shop. Rachel's
contract of employment requires her to work on Mondays, Wednesdays and
Saturday morning, but not public holidays. She does occasional extra
shifts, by agreement with her employer. Rachel's partner, Ali, is a nurse.
Ali works a shift roster. Rachel and Ali have 2 children.
3 days before the Queen's birthday public holiday, Rachel's employer tells
her that she must work on the public holiday at normal pay rates. She
refuses to do so. She tells her employer that the request is unreasonable
because:
. she has never been required to work a public holiday before (as the
shop has always closed on previous Queen's birthday public holidays);
. she has to look after her children as her partner, Ali, is rostered
to work on the public holiday;
. she has insufficient time to make alternative childcare arrangements.
Illustrative example
This example sets out a situation where refusing a request to work a public
holiday might be unreasonable.
Catriona works as a baker at Netty's Baked Treats. Under her workplace
agreement, she is required to work in accordance with a roster that is
published by the employer six weeks in advance. The workplace agreement
provides for penalty rates for working a public holiday.
Catriona receives her roster for the Easter period in late February. It
requires her to work on Good Friday. On 3 April, two days before Good
Friday, she tells her employer that she will no longer work that day, as
she is rostered off for the next two days and has decided to go away for
the long weekend.
Illustrative example
This example sets out a situation where refusing a request to work a public
holiday might be unreasonable.
Rosanne, Phil and Rob are specialist engineers who work for an electricity
distribution company. On any given day, the company requires at least one
specialist engineer to work. Under the terms of Rosanne's workplace
agreement, she is required to work a shift roster. The agreement states
that she will be required to work weekends and public holidays, in
accordance with the roster, in order to provide a constant electricity
service to customers. Under the agreement, shift loadings and penalty
rates for working weekends and public holidays are aggregated and included
in Rosanne's normal hourly rate. In mid-October, Rosanne receives her
November/December roster. She is rostered to work on Boxing Day. Phil is
rostered to work on Christmas Day. Rob is rostered to work on New Year's
Day. Two weeks prior to Boxing Day, Rosanne tells her supervisor, John,
that she will not work on Boxing Day. Neither Rob nor Phil is prepared to
work on Boxing Day instead.
New section 170AH - Model dispute resolution process
267. Proposed section 170AH would provide that the model dispute resolution
process applies to any dispute arising under Division 1A of Part VIA.
New section 170AI - Employer not to prejudice employee for reasonable
refusal
268. Proposed section 170AI would set out protection for employees by
providing that an employer must not, because an employee has refused on
reasonable grounds to work on a particular public holiday, do or threaten
to do any of the following:
* dismiss an employee;
* injure an employee in her or her employment;
* alter the position of an employee to the employee's prejudice.
New section 170AJ - Penalties etc. for contravention of section 170AI
269. Proposed section 170AJ would provide penalties and other remedies for
a breach of the civil remedy provision set out in proposed section 170AI.
270. The Federal Court or Federal Magistrates Court would be able to make
one of the following orders in relation to an employer who has
contravened section 170AI:
* an order imposing a pecuniary penalty of up to 300 penalty units
($33,000) for a body corporate or 60 penalty units ($6,600) for
any other person;
* an order requiring the employer to pay compensation to the
employee;
* any other appropriate order, including injunctions and an order
for reinstatement.
271. The following persons would be able to bring an application for
contravention of section 170AI:
* a workplace inspector;
* an employee affected by the contravention;
* an organisation of employees that is requested to act by an
employee, provided the organisation has a member employed by the
employer and is entitled to represent the employee's industrial
interests; and
* a person set out in the regulations.
New section 170AK - Burden of proof in relation to reasonableness of
refusal
272. Proposed section 170AK would provide that for the purposes of an
application under proposed section 170AJ, the applicant bears the burden
of proving that an employee's refusal to work on a particular public
holiday was on reasonable grounds.
New section 170AL - Proof not required of the reason for conduct
273. Proposed subsection 170AL(1) would provide that in an application
under proposed section 170AJ, a reverse burden of proof would apply.
Therefore, to avoid a finding that section 170AI has been breached, an
employer would be required to demonstrate that its reasons for engaging
in the impugned conduct did not include that the employee had refused on
reasonable grounds to work on a particular public holiday. If the
employer failed to discharge the burden of proof, then the employer's
conduct would be taken to be a breach of section 170AI.
274. A reverse burden of proof applies because an employer against whom an
application is brought would be in a better position than the applicant
to know, and to provide evidence of, its reasons for engaging in
particular conduct.
275. Subsection 170AL(2) would provide that the reverse burden of proof
would not apply in relation to an application for an interim injunction.
New section 170AM - Extraterritorial extension
276. Proposed subsection 170AM(1) would extend the application of the
Division (and related provisions of the WR Act) to certain employees
outside Australia and to their employers. The legislative note to
subsection 170AM(1) would note that, for the purposes of section 170AM,
Australia includes the Territory of Christmas Island, the Territory of
Cocos (Keeling) Islands and the coastal sea.
277. In Australia's exclusive economic zone, the Division would apply to
employees of Australia employers (as defined in subsection 4(1)), unless
regulations were made to dis-apply the Division to such an employee
(proposed paragraph 170AM(2)(a)). Regulations could also extend the
operation of provisions of the amended WR Act to other employees in the
exclusive economic zone (proposed paragraph 170AM(2)(b)). In making
regulations, account would be taken of Australia's international law
obligations in relation to foreign-flagged ships and foreign-registered
aircraft.
278. In relation to employees in, on or over Australia's continental shelf
beyond the exclusive economic zone, the Standard would apply only if
regulations prescribed the part of the continental shelf where the
employee was located and the employee met the requirements prescribed by
the regulations (proposed subsection 170AM(3)). In making regulations,
account would be taken of Australia's international law obligations in
relation to foreign-flagged ships and foreign-registered aircraft and its
obligations in relation to matters in, on or over the continental shelf
(including under agreements with other countries in relation to
particular areas of the continental shelf). The legislative note to
subsection 170AM(3) would make clear that the regulations could prescribe
different requirements for different parts of the continental shelf,
including for reasons connected with Australia's international
obligations.
279. Subsection 170AM(4) would provide a specific definition of this Act
for the purposes of section 170AM. This is because the definition of
this Act in proposed subsection 4(1) (which would otherwise apply) does
not include the Registration and Accountability of Organisations Schedule
and regulations made under it. The specific definition would ensure that
the extraterritorial extension under subsection 170AM(1) would apply to
that Schedule and those regulations so far as they relate to Division 1A
of Part VIA.
Item 161 - Schedule 1, item 74, page 344 (lines 25 and 26)
280. This item would amend the heading to proposed section 170BAC, so that
it reads 'Relationship of this Division to AFPC decisions and the
Australian Fair Pay and Conditions Standard', to more accurately describe
the effect of section 170BAC.
Item 162 - Schedule 1, item 74, page 344 (lines 29) to page 345 (line 4)
281. This item would delete proposed subsections 170BAC(2) and (3) and
replace them with proposed subsections 170BAC(2), (3), (4), (5), (6) and
(7). It is intended that this amendment will better reflect the policy
intent that decisions of the AFPC made on a national level should not be
undermined by the AIRC, while ensuring that Division 2 of Part VIA gives
effect or further effect to the:
* the Equal Remuneration Convention, 1951;
* the Convention on the Elimination of all Forms of Discrimination
against Women;
* the Convention concerning Discrimination in respect of Employment
and Occupation;
* Articles 3 and 7 of the International Covenant on Economic, Social
and Cultural Rights;
* the Equal Remuneration Recommendation, 1951, which the General
Conference of the International Labour Organisation adopted on 29
June 1951 and is also known as Recommendation No. 90; and
* the Discrimination (Employment and Occupation) Remuneration
Recommendation, 1958, which the General Conference of the
International Labour Organisation adopted on 25 June 1957 and is
also known as Recommendation No 111 (see section 170BA, and
definition of Anti-Discrimination Conventions in subsection 4(1)).
282. Proposed subsection 170BAC(2) would provide that the AIRC must not
deal with an application under Division 2 of Part VIA (an application for
an equal remuneration order), to the extent that the proposed equal
remuneration order relates to a basic periodic rate of pay, a basic piece
rate of pay or a casual loading if:
* the group of employees who would be covered by the proposed equal
remuneration order; and
* the comparator group of employees;
are both entitled to a rate of pay that is equal to the applicable
guaranteed rate of pay under the provisions of the Australian Fair Pay and
Conditions Standard.
283. The terms basic periodic rate of pay, basic piece rate of pay and
casual loading have the same meaning as in Division 2 of Part VA (see
proposed subsection 170BAC(7)).
284. The effect of the words 'to the extent to which the application is for
an order relating to a basic period rate of pay, a basic piece rate of
pay or casual loading' is that an application for an equal remuneration
order relating to some other form of remuneration (for example
superannuation contributions or allowances) may be dealt with by the AIRC
in relation to those other forms of remuneration.
285. Proposed subsection 170BAC(3) would provide that, to avoid doubt, the
limitation upon the AIRC's powers in subsection 170BAC(2) does not apply
to the extent that either:
* the group of employees who would be covered by the proposed equal
remuneration order; and
* the comparator group of employees;
are entitled to a rate of pay higher than the applicable guaranteed rate of
pay in the Australian Fair Pay and Conditions Standard.
286. Proposed subsection 170BAC(4) would provide that the AIRC must not
deal with an application under Division 2 of Part VIA (an application for
an equal remuneration order), to the extent that the proposed equal
remuneration order relates to a basic periodic rate of pay, a basic piece
rate of pay or a casual loading, if:
* the group of employees who would be covered by the proposed equal
remuneration order is entitled to a rate of pay that is higher
than the applicable guaranteed rate of pay under the provisions of
the Australian Fair Pay and Conditions Standard; and
* the comparator group of employees is entitled to a rate of pay
that is equal to the applicable guaranteed rate of pay under the
provisions of the Australian Fair Pay and Conditions Standard.
287. The terms basic periodic rate of pay, basic piece rate of pay and
casual loading have the same meaning as in Division 2 of Part VA (see
proposed subsection 170BAC(7)).
288. Proposed subsection 170BAC(5) would provide that, to avoid doubt, the
limitation upon the AIRC's powers in subsection 170BAC(2) does not apply
to the extent that the comparator group of employees is entitled to a
rate of pay higher than the applicable guaranteed rate of pay in the
Australian Fair Pay and Conditions Standard.
289. Proposed subsection 170BAC(6) would provide that the limitation upon
the AIRC's powers in subsections 170BAC(2) and (4) apply regardless of
the source of the employee's entitlement to be paid a particular rate of
pay (eg a workplace agreement under the Act, or a contract of
employment).
290. The term 'rate of pay' in proposed section 170BAC is intended to mean
a basic periodic rate of pay, a basic piece rate of pay and/or a casual
loading.
291. The term 'guaranteed rate of pay' is intended to mean whichever of the
rates in Division 2 of Part VA applies. This will mean:
* where the employee is covered by an APCS, is not engaged as casual
and is not an APCS piece rate employee -a basic periodic rate of
pay equal to the guaranteed basic periodic rate of pay referred to
in subsection 90F(1);
* where the employee is an APCS piece rate employee - a basic piece
rate of pay equal to the guaranteed basic piece rate of pay
referred to in subsection 90F(2);
* where the employee is not covered by an APCS and is not engaged as
casual - a basic periodic rate of pay equal to the guaranteed
basic periodic rate of pay referred to in subsection 90F(3) or
90F(4), as applicable;
* where the employee is covered by an APCS and is engaged as casual
-a basic periodic rate of pay equal to the guaranteed basic
periodic rate of pay referred to in subsection 90F(1), plus a
casual loading equal to the guaranteed casual loading percentage
of the employee's actual basic periodic rate of pay, as referred
to in section 90H; or
* where the employee is not covered by an APCS and is engaged as
casual -a basic periodic rate of pay equal to the guaranteed basic
periodic rate of pay referred to in subsection 90F(3) or 90F(4),
as applicable, plus a casual loading equal to the guaranteed
casual loading percentage of the employee's actual basic periodic
rate of pay, referred to in section 90H.
292. Proposed subsection 170BAC(7) would provide that for the purposes of
section 170BAC the terms basic periodic rate of pay, basic piece rate of
pay and casual loading have the same meaning as in Division 2 of Part VA.
293. Proposed subsection 170BAC(7) would also provide that for the purposes
of section 170BAC the term comparator group of employees means employees
whom the applicant for an equal remuneration order contends are
performing work of equal value to the work performed by employees who
would be covered by the proposed equal remuneration order.
Item 163 - Schedule 1, page 355 (after line 2), after line 105
294. This item would add a new subsection to section 170CD.
295. Proposed subsection 170CD(1C) would provide that, for the purposes of
the termination of employment provisions, an employee's resignation is
taken to constitute a termination at the initiative of the employer only
if the employee can prove, on the balance of probabilities, that he or
she did not resign voluntarily, but that he or she was forced to resign
because of the conduct (or a course of conduct) engaged in by the
employer.
296. Subsection 170CD(1C) is intended to reflect the common law doctrine of
'constructive dismissal', reinforcing that the onus of proof in a case of
alleged constructive dismissal rests upon the employee to demonstrate
that there was a termination at the initiative of the employer.
Item 164 - Schedule 1, item 113, page 356 (after line 13), after subsection
170CE(5E)
297. This item would create a new subsection 170CE(5EA). Proposed section
170CE(5E) provides an exclusion from unfair dismissal laws for employees
of employers with 100 employees or fewer.
298. The effect of proposed subsection 170CE(5EA) would be that, for the
purposes of the '100 employees or fewer' exclusion, the calculation of
employees employed by an employer would be the aggregate of those
employed by the employer and its related bodies corporate (subject to the
provisions of proposed subsections 170CE(5E) and (5F)).
299. The term related bodies corporate is defined by section 50 of the
Corporations Act 2001 to mean:
* a holding company of another body corporate; or
* a subsidiary of another body corporate; or
* a subsidiary of a holding company of another body corporate.
300. The terms body corporate, holding company and subsidiary are defined
by other provisions of the Corporations Act 2001 (sections 9 and 46 of
the Corporations Act 2001).
Item 165 - Schedule 1, item 114, page 357 (lines 4 to 5)
301. This amendment is a minor technical correction to ensure that the
language of proposed section 170CEA is consistent with the language of
proposed section 170CEB.
Item 166 - Schedule 1, item 114, page 357 (lines 6 to 7)
302. This amendment is a minor technical correction to ensure that the
language of proposed section 170CEA is consistent with the language of
proposed section 170CEB.
Item 167 - Schedule 1, item 114, page 357 (after line 8)
303. Proposed subsection 170CEA(5A) would provide that if a respondent has
filed a motion to dismiss an unfair dismissal application, alleging that
the AIRC does not have jurisdiction to hear and determine the application
because of:
* one of the exclusions in section 170CBA;
* the qualifying period of employment exclusion in subsection
170CE(5A); or
* the '100 employees or fewer' exclusion in subsection 170CE(5E):
and if the AIRC is not satisfied that the application should be dismissed
on those grounds, the AIRC must refuse the motion for dismissal.
Item 168 - Schedule 1, item 114, page 357 (line 10)
304. This item is consequential upon item 167 and would amend proposed
subsection 170CEA(6), to provide that the AIRC need not conduct a hearing
in relation to the making of an order under proposed subsection
170CEA(5A).
Item 169 - Schedule 1, item 115, page 357 (line 20)
305. This item would amend proposed paragraph 170CEB(1)(b), by omitting the
word 'an' and replacing it with 'the'. This is a minor technical
correction to clarify that the respondent's motion to dismiss must relate
to the application referred to in subsection 170CEB(1).
Item 170 - Schedule 1, item 115, page 357 (after line 31)
306. Proposed subsection 170CEB(1A) would provide that if:
* a respondent has filed a motion to dismiss an unfair dismissal
application, alleging that the application is frivolous, vexatious
or lacking in substance; and
* the AIRC is not satisfied that the application is frivolous,
vexatious or lacking in substance:
the AIRC must refuse the motion for dismissal.
Item 171 - Schedule 1, item 115, page 357 (line 33)
307. This item is consequential upon item 170 and would amend proposed
subsection 170CEB(2), to provide that the AIRC need not conduct a hearing
in relation to the making of an order under proposed subsection
170CEB(1A).
Item 172 - Schedule 1, item 115, page 358 (lines 19 to 20)
308. This item is consequential upon items 167 and 170. It would amend
proposed paragraph 170CED(1)(a) by omitting the words 'or 170CEB(1)' and
replacing them with 'or (5A) or 170CEB(1) or (1A)'. The effect of this
amendment is that the provisions of section 170CED for dealing with
papers 'on the papers' will apply to the making of orders either
upholding or refusing a motion to dismiss an application on the ground
referred to in subsections 170CEA(5) and 170CEB(1).
Item 173 - Schedule 1, item 115, page 359 (lines 25 to 26)
309. This item would provide that the AIRC may deal with certain matters
'on the papers' before conducting a hearing relating to the 'genuine
operational reasons' exclusion.
310. This item would amend proposed subsection 170CEE(1), by providing that
the AIRC must hold a hearing to deal with the 'genuine operational
reasons' exclusion before taking any further action in relation to an
unfair dismissal application, except for considering a motion to dismiss
an application 'on the papers' under proposed section 170CEA, 170CEB,
170CEC or 170CED.
311. The effect of this amendment is that the AIRC may consider a motion to
dismiss an unfair dismissal application 'on the papers' (if the motion to
dismiss is on the grounds referred to in subsection 170CEA(5) or section
170CEB), or consider an application for extension of time 'on the papers'
(section 170CEC) before dealing with the 'genuine operational reasons'
exclusion, but it may not take any other action (such as conducting a
conciliation or an arbitration) before dealing with the 'genuine
operational reasons' by conducting a hearing and making an appropriate
order under subsection 170CEE(2).
Item 174 - Schedule 1, item 115, page 359 (lines 30 to 31)
312. This amendment is a minor technical correction to ensure that the
language of proposed section 170CEE is consistent with the language of
proposed section 170CEB.
Item 175 - Schedule 1, item 115, page 359 (lines 32 to 33)
313. This amendment is a minor technical correction to ensure that the
language of proposed section 170CEE is consistent with the language of
proposed section 170CEB.
Item 176 - Schedule 1, item 115, page 360 (after line 2)
314. This item is consequential upon item 173. Proposed subsection
170CEE(3A) would provide that section 170CEE does not require the AIRC to
hold a hearing, regarding the 'genuine operational reasons' exclusion, in
relation to an unfair dismissal application that the AIRC has dismissed
under subsection 170CEA(5) (various jurisdictional grounds) or 170CEB(1)
(frivolous, vexatious or lacking in substance).
Item 177 - Schedule 1, page 360 (after line 11)
315. This item would replace proposed paragraph 170CFA(6)(b), adjusting the
time limit for the filing of a notice to proceed to arbitration or to
bring court proceedings, where the employee's application alleges a
breach of section 170CK.
316. Proposed paragraph 170CFA(6)(b) would provide that, where a
termination of employment application to the AIRC includes an allegation
of a breach of section 170CK, the employee will have 28 days to file a
notice to proceed to arbitration or to bring court proceedings. This 28
day time limit will be subject to extension by the AIRC - see proposed
subsection 170CFA(8A) (item 178). The 28 day time limit would apply to
all elements of applications where:
* the application's only ground is an alleged contravention of
section 170CK;
* the application alleges a contravention of section 170CK and one
or more other 'unlawful termination' provisions (contravention of
section 170CL and/or 170CM);
* the application alleges a contravention of section 170CK and that
the termination of employment was harsh, unjust or unreasonable
(unfair dismissal); or
* the application alleges a contravention of section 170CK, and one
or more other 'unlawful termination' provisions, and alleges that
the termination of employment was harsh, unjust or unreasonable.
317. Where a termination of employment application does not include an
allegation of a breach of section 170CK, the employee will have 7 days to
file a notice to proceed to arbitration or to bring court proceedings.
This 7 day time limit will not be subject to extension by the AIRC - see
proposed subsection 170CFA(8) (item 178).
318. The intent of this amendment is to allow employees who have sought
advice under the Government's scheme for employee assistance relating to
unlawful termination, and who are eligible to receive advice under that
scheme, time to consider that advice before deciding whether to proceed
to arbitration in the AIRC, bring court proceedings, or discontinue the
application.
Item 178 - Schedule 1, item 120, page 360 (lines 16 to 18)
319. This item would insert two subsections into proposed section 170CFA.
320. Proposed subsection 170CFA(8) would provide that the AIRC must not,
except as provided in subsection 170CFA(8A), extend the time limit for
filing a notice to proceed to arbitration or to bring court proceedings.
The effect of subsection 170CFA(8) is that the 7 day time limit for
filing a notice to proceed to arbitration or to bring court proceedings,
in relation to a termination of application that does not include an
allegation of a breach of section 170CK, will not be subject to extension
by the AIRC.
321. Proposed subsection 170CFA(8A) would provide that the AIRC may extend
the time limit for filing a notice to proceed to arbitration or to bring
court proceedings, if the termination of application includes an
allegation of a breach of section 170CK, and if the AIRC considers that
it would be unfair not to do so. The intent of this amendment is to
allow employees who have sought advice under the Government's scheme for
employee assistance relating to unlawful termination, and who are
eligible to receive advice under that scheme, time to consider that
advice before deciding whether to proceed to arbitration in the AIRC,
bring court proceedings, or discontinue the application.
Item 179 - Schedule 1, page 362 (after line 34)
322. Proposed subsection 170CK(4A) is intended to clarify one aspect of the
effect of paragraph 170CK(2)(h), which provides that an employer must not
terminate an employee's employment for the reason of, or reasons
including the reason of, the employee's absence from work during
maternity leave or other parental leave.
323. Subsection 170CK(4A) would provide that an employer will be taken to
have contravened paragraph 170CK(2)(h) in circumstances where:
* the employer has terminated the employee's employment;
* the reason, or a reason, for the termination is that the
employee's position no longer exists, or will no longer exist; and
* the reason, or a reason, that the employee's position no longer
exists (or will no longer exist) is the employee's absence, or
proposed or probable absence, during maternity leave or other
parental leave.
324. The protection provided by proposed subsection 170CK(4A), together
with paragraph 170CK(2)(h), is intended to supplement the civil remedy
provisions in proposed Division 7 of Part VA (item 90) and to facilitate
the effective operation of, but not to over-ride, the return to work
guarantee provided by proposed section 94R.
Illustrative example - Employee whose position is abolished because she is
absent on maternity leave
Kate is employed as Regional Sales Manager - Victoria/Tasmania, for
Argentum Products Pty Ltd. Kate is one of three Regional Sales Managers
employed by Argentum Products Pty Ltd - the other two are responsible for
Western Australia/South Australia/Northern Territory and Queensland/New
South Wales.
Kate becomes pregnant and takes maternity leave. While Kate is absent from
work on maternity leave, Argentum Products Pty Ltd rationalises its
operations and decides that it needs only needs two Regional Sales
Managers.
In deciding which Regional Sales Manager position to abolish, Steve (the
manager of Argentum Products Pty Ltd) takes into account that fact that
Kate will not be at work for some months. Steve decides to abolish the
Regional Sales Manager - Victoria/Tasmania position and to expand one of
the other Regional Sales Manager's role so that it covers Victoria,
Tasmania, Queensland and New South Wales.
Four weeks before her period of maternity leave ends, Kate informs Argentum
Products Pty Ltd that she intends to return to work in accordance with
proposed subsection 94R(1). Steve informs Kate that her position no longer
exists, that there are no other positions available which Kate is qualified
for and able to work in, and that therefore Argentum Products Pty Ltd will
terminate Kate's employment.
Under proposed subsection 94R(3), Kate is not entitled to return to her
original position, because it no longer exists. Nor is Kate entitled to
return to any other position under subsection 94R(5), because she is not
qualified for and able to work in any other position for her employer (Kate
is not able to work in the other Regional Sales Manager positions due to
geographic considerations).
However, Kate is entitled to bring an action against Argentum Products Pty
Ltd alleging a contravention of paragraph 170CK(2)(h), relying upon
proposed subsection 170CK(4A), arguing that the reason her position no
longer exists (and therefore the reason why her employment was terminated)
was because she was absent on parental leave. If the matter proceeds to
Court, a reverse onus of proof applies: section 170CQ.
Item 180 - Schedule 1, item 152, page 367 (after line 11)
Item 181 - Schedule 1, item 153, page 368 (after line 26)
325. These items would insert two subsections into each of proposed
sections 170HB and 170HC.
326. Proposed subsections 170HB(3A) and 170HC(4) would provide that,
without limiting proposed subsection 170HB(3) or 170HC(3) respectively,
an other termination proceeding includes an inquiry in respect of a
complaint under the Human Rights and Equal Opportunity Commission Act
1986 that relates to the termination of employment of an employee
(whether that complaint was contained in the original application or
added by a subsequent amendment).
327. These amendments would ensure that 'double-dipping' cannot occur with
discrimination proceedings relating to a termination of employment, such
as in Nott v Australian Postal Corporation [PR964228]. In that case, the
AIRC held that the lodging of a complaint with the Human Rights and Equal
Opportunity Commission (HREOC) under the Human Rights and Equal
Opportunity Act 1986 is not a 'proceeding ... for a remedy' within the
meaning of section 170HB, because the HREOC has no power or jurisdiction
to provide a remedy: paragraph [19] of Nott v Australian Postal
Corporation [PR964228]. Proposed subsections 170HB(3A) and 170HC(4)
would clarify that a complaint to the HREOC in respect of a termination
of employment is an other termination proceeding for the purposes of
proposed sections 170HB and 170HC.
328. Proposed subsections 170HB(3B) and 170HC(5) would provide that, for
the purposes of proposed sections 170HB and 170HC respectively, an
inquiry in respect of a complaint under the Human Rights and Equal
Opportunity Commission Act 1986 that relates to the termination of
employment of an employee is commenced when:
* if the complaint originally filed with the HREOC relates to a
termination of employment, when the employee makes the complaint
to the HREOC;
* if the complaint to the HREOC is subsequently amended to relate to
a termination of employment, when that amendment occurs.
329. In Nott v Australian Postal Corporation, the AIRC held that if a
complaint (that does not complain about a termination of employment) is
lodged with the HREOC before the applicant files an application with the
AIRC in respect of a termination of employment, then the applicant
subsequently amends the complaint to the HREOC to include a claim in
relation to the termination of employment, the complaint to the HREOC is
not a 'prior' proceeding within the meaning of section 170HB: paragraph
[10] of Nott v Australian Postal Corporation [PR964228]. Proposed
subsections 170HB(3B) and 170HC(5) would provide that the complaint to
HREOC is an other termination proceeding from the time of its amendment.
Item 182 - Schedule 1, item 168, page 372 (lines 1 to 3)
330. This item would omit proposed section 172, and substitute a new
proposed section 172. Proposed section 172 would confirm that none of
the dispute resolution processes that are enabled by this Act affect any
right that a party has to take court action in relation to the matter in
dispute.
Item 183 - Schedule 1, item 168, page 372 (lines 5 to 20)
331. This item would omit proposed section 173, and substitute a new
proposed section 173. Proposed section 173 would make clear that the
model dispute resolution process set out in Division 2 of Part VIIA only
applies in relation to a dispute as specifically provided in other Parts
of the Act. For example, proposed section 170AC provides that the model
dispute resolution process applies to a dispute about the meal breaks
entitlement contained in Division 1 of Part VIA.
332. The intended effect of this amendment is to confirm that the model
dispute resolution process only applies to those disputes that are
specified in the Act.
333. In addition, the legislative note is amended to include a reference to
disputes about public holidays (proposed section 170AH refers).
Item 184 - Schedule 1, item 168, page 375 (lines 14 to 16)
334. These items would include an additional ground upon which the
Commission must refuse to conduct dispute resolution under either the
model dispute resolution process.
335. The Commission must refuse to conduct dispute resolution if the matter
in dispute is currently the subject of proceedings, or has been settled
in proceedings, under a Commonwealth, State or Territory law relating to
the prevention of discrimination or equal opportunity.
336. This would mean that, for example, if a complaint about alleged
discrimination in the workplace is settled in conciliation before the
Human Rights and Equal Opportunity Commission, neither the employer nor
employee concerned could seek an additional settlement by pursuing the
same issue using the dispute resolution processes contained in this Part.
Item 185 - Schedule 1, item 168, page 381 (lines 21 and 22)
337. This item would omit and substitute paragraph 176L(2)(c). Proposed
section 176L would set out a process for invoking the Commission's
jurisdiction with respect to a dispute resolution process in a workplace
agreement. The new paragraph would only require an application to the
Commission to be signed by the applicant, and not to be countersigned by
the other party or parties to the dispute.
Item 186 - Schedule 1, item 168, page 385 (after line 15)
338. This item would insert a new section at the end of Division 6 of Part
VIIA. The proposed amendment would be similar to items 5 and 6, except
that this item addresses a dispute resolution process that is conducted
by a person other than the Commission.
Item 187 - Schedule 1, item 170, page 385 (after line 31), after paragraph
(b) of the definition of applicable provision in section 177A, insert
339. Proposed amendment RCPH3 would insert a proposed paragraph 177A(ba).
It would provide that section 170AF is an applicable provision for the
purpose of Part VIII-Compliance.
Item 188 - Schedule 1, item 171, page 387 (table item 3, third column),
after paragraph (d) insert
340. This item is a technical amendment.
Item 189 - Schedule 1, item 171, page 388 (after table item 6)
341. Proposed item RCPH5 would insert a proposed item 6A into the table in
subsection 177AA(1). The amendment would set out the persons having
standing to bring proceedings for a breach of proposed section 170AF.
Item 190 - Schedule 1, item 171, page 388 (line 1)
Item 191 - Schedule 1, item 171, page 388 (after line 4)
342. Both of these items insert a legislative note.
Item 192 - Schedule 1, item 171, page 388 (after line 4), after subsection
177AA(1)
343. These amendments provide that for a person to have standing to enforce
the relevant breaches of the applicable provisions described, that person
must be affected by the breach.
344. Proposed subsection 177AA(1A) deals with employee standing in respect
of the breach of an applicable provision of a term of the AFPCS, award,
collective agreement, of section 170AA (meal breaks), section 170KB
(entitlement to parental leave) and section 170AF (public holidays).
Subsection 177AA(1B) deals with employer standing in respect of breach of
a term of an award and collective agreement and subsection 177AA((1C)
deals with the standing of a person bound by an order of the AIRC.
Item 193 - Schedule 1, item 171, page 388 (after line 21), after paragraph
177AA(3)(c), insert
345. Proposed item RCPH8 would insert a proposed paragraph 177AA(3)(ca)
which would provide that an organisation of employees must not apply for
a penalty or other remedy under Division 2 of Part VIII-Compliance for a
breach of proposed section 170AF unless a member of the organisation is
employed by the respondent employer and the breach relates to, or
affects, the member or worked carried on by the member for the employer.
Item 194 - Schedule 1, item 193, page 403 (line 32)
Item 195 - Schedule 1, item 193, page 403 (after line 32)
346. These items would amend section 208 of the Bill, which deals with
right of entry for a permit holder to investigate a suspected breach of
the Workplace Relations Act 1996 or an industrial instrument. These
items would add paragraph 208(1)(ca) and, as a consequence of this
addition, the word "or" at the end of paragraph 208(1)(c).
Paragraph 208(1)(ca) would provide that a permit holder of an
organisation would have a right of entry to investigate a breach of an
employee collective agreement on behalf of a member of the organisation
who is bound to the agreement.
Item 196 - Schedule 1, item 193, page 411 (line 12)
347. This item would amend the definition of employment record in section
218 of the Bill. The amendment would provide that an employment record
means a record that relates to certain listed matters. This amendment is
intended to more tightly define the scope of employment record and to
make it clear that the definition does not include records such as a
licence to operate machinery or an employee's qualifications.
Item 197 - Schedule 1, item 193, page 429 (line 20)
Item 198 - Schedule 1, item 193, page 429 (lines 21 and 22)
Item 199 - Schedule 1, item 193, page 430 (line 10)
Item 200 - Schedule 1, item 193, page 430 (lines 11 and 12)
Item 201 - Schedule 1, item 193, page 431 (line 7)
Item 202 - Schedule 1, item 193, page 431 (lines 8 and 9)
348. These items would amend the references to 'registered organisation' in
proposed section 249 to 'organisation', for consistency with other
provisions of the WR Act.
Item 203 - Schedule 1, item 193, page 433 (after line 18), after subsection
252(3)
349. Proposed subsection 253(1) of the Work Choices Bill provides that an
employer must not engage in certain conduct for any of the prohibited
reasons set out in proposed section 254. One of those prohibited reasons
is that an employee is entitled to the benefit of an industrial
instrument, an order of an industrial body or the Australian Fair Pay and
Conditions Standard (proposed paragraph 254(1)(i).
350. This amendment would provide that an employer does not contravene
subsection 253(1) for the ground in paragraph 254(1)(i) unless that
ground is the sole or dominant reason for the conduct.
Item 204 - Schedule 1, item 193, page 434 (after line 3), at the end of
section 252
351. Proposed subsection 253(4) of the Work Choices Bill provides that a
person must not engage in certain conduct against an independent
contractor for any of the prohibited reasons set out in proposed section
254. One of those prohibited reasons is that the independent contractor
is entitled to the benefit of an industrial instrument, an order of an
industrial body or the Australian Fair Pay and Conditions Standard
(proposed paragraph 254(1)(i).
352. This amendment would provide that a person does not contravene
subsection 253(4) for the ground in paragraph 254(1)(i) unless that
ground is the sole or dominant reason for the conduct.
Item 205 - Schedule 1, items 210 and 210A, page 454 (line 20 to 22)
353. Section 353A(1) of the WR Act allows regulations to make provision in
relation to the keeping of employment records and the inspection of those
records, for persons employed under an award, a certified agreement or an
AWA. Subsection 353A(2) of the Act allows regulations to require
employers of employees employed under an award, certified agreement or
AWA to issue pays slips to those employees, containing such details as
the regulations set out.
354. Item 210 of the Bill proposed to replace the words a certified
agreement or an AWA with or a workplace agreement, to reflect the new
forms of agreements provided for in the Bill.
355. That amendment however would not be sufficient to cover the employment
of persons under the range of industrial instruments for which the Bill
provides (for example, incoming State instruments). This amendment will
therefore amend section 353A so that the regulations will be able to make
provision for records of employment of employees (employees being as
defined in proposed section 4AA of the Bill) and the issuing of payslips
to those employees.
Item 206 - Schedule 1, item 221, page 457 (lines 5 and 6)
356. This amendment provides for the expression of the maximum penalty for
criminal offences in the regulations in penalty units (10 penalty units
for a natural person - by the operation of subsection 4B(3) of the Crimes
Act 1914 the maximum penalty that could be imposed on a body corporate
would be a pecuniary penalty not exceeding an amount equal to 5 times the
amount of the maximum pecuniary penalty that could be imposed by the
court on a natural person convicted of the same offence).
357. This amendment also allows for the regulations to provide for civil
penalties with maximum pecuniary penalties of 5 penalty units for a
natural person or 25 penalty units for body corporate.
Item 207 - Schedule 1, item 240, page 461 (line 12)
358. This item would amend proposed subsection 491(1), to correct an
incorrect cross-reference.
Item 208 - Schedule 1, item 240, page 462 (line 8)
359. This proposed amendment would be consequential to the omission and
substitution of proposed section 90H(3).
Item 209 - Schedule 1, item 240, page 470, (line36)
Item 210 - Schedule 1, item 240, page 473 (after line 11)
360. This item would insert Division 5A into Part XV, extending the
application of proposed Division 1A of Part VIA (public holidays) [a new
Division to be inserted by item 160] to cover the employees (within the
meaning of section 489) and employers (within the meaning of section 489)
in Victoria.
New Division 5A - Public Holidays
New section 507A - Additional effect of Act-public holidays
361. Proposed section 507A would provide employees (within the meaning of
section 489) in Victoria the same public holiday entitlement as employees
(within the meaning of subsection 4AA(1)) would be provided by proposed
Division 1A of Part VIA.
362. The model dispute resolution process would apply to disputes about
this entitlement.
New section 507B - Additional effect of Act - enforcement of, and
compliance with, section 170AF
363. Proposed section 507B would extend the application of the compliance
provisions in proposed Part VIII to the public holiday entitlement (as it
applies because of section 507A) to an employee (within the meaning of
section 489) in Victoria.
364. For the purposes of this extended application, each reference in Part
VIII to an employee, an employer or employment (within the meaning of
Part VIII) is to be read as a reference to an employee, an employer or
employment (within the meaning of section 489) in Victoria. This means
that an employee (within the meaning of section 489) in Victoria can
enforce the public holiday entitlement (as it applies because of section
507A) in the same way as an employee within the meaning of subsection
4AA(1).
Item 211 - Schedule 1, item 240, page 475 (after line 18)
365. This item would insert a new Division 8A into Part XV, extending the
application of proposed section 353A (employee records and payslips) to
cover records and payslips relating to the employment (within the meaning
of section 489) of employees (within the meaning of section 489) by
employers (within the meaning of section 489) in Victoria.
New Division 8A - Employee records and payslips
New section 512A - Additional effect of Act-employee records and pay slips
366. Proposed section 512A would provide that section 353A also has effect
in relation to records and payslips relating to employment of employees
by employers in Victoria (as those terms are defined in section 489).
367. The terms employee, employer and employment within the meaning of
section 489 will be applied to the extended operation of section 353A
provided by section 512A in accordance with paragraph 23(b) of the Acts
Interpretation Act 1901, which provides that 'words in the singular
number include the plural and words in the plural number include the
singular'.
Item 212 - Schedule 1, item 240, page 481 (lines 11 to 24)
368. This item will delete proposed section 523.
369. Proposed section 523 would extend the application of section 353A to
allow regulations to be made for the making and retention of employee
records relating to persons employed under employment agreements (within
the meaning of section 515).
370. However, due to amendments proposed to be made to section 353A by item
205, and the extended application of section 353A proposed by section
507A (item 211), section 523 would be redundant.
Item 213 - Schedule 1, item 240, page 482 (line 26) to page 483 (line 14)
371. This item would omit proposed 527 and replace it with a new proposed
section 527, to more accurately reflect what Victorian laws will be
excluded by the Act in relation to employees and employers (within the
meaning of section 489). It is intended that the WR Act apply to the
exclusion of certain laws of Victoria, to the extent that those laws
relate to matters which are dealt with in proposed Part XV (or Parts in
various Schedules, dealing with matters relating to Victoria), in
relation to an employee or employer (within the meaning of section 489).
372. The laws of Victoria expressly excluded by proposed paragraph
527(1)(a) would be laws that apply to employment generally and which
relate to one or more of the following matters:
* agreements about matters pertaining to the relationship between an
employer or employers in Victoria and an employee or employees
(within the meaning of section 489) in Victoria;
* minimum terms and conditions of employment (within the meaning of
section 489), other than minimum wages, for employees (within the
meaning of section 489) in Victoria;
* setting and adjusting minimum wages (within the meaning of
subsection 4(7) of the Commonwealth Powers (Industrial Relations)
Act 1996 (Vic)) for employees (within the meaning of section 489)
in Victoria within a work classification (within the meaning of
section 496);
* termination, or proposed termination, of the employment (within
the meaning of section 489) of an employee (within the meaning of
section 489) in Victoria; and
* freedom of association, within the meaning of subsection 4(7) of
the Commonwealth Powers (Industrial Relations) Act 1996 (Vic).
373. The laws of Victoria excluded by section 527 would include statutes of
the Parliament of Victoria and legislative instruments (such as
regulations) made under such statutes.
374. The definition of the term applies to employment generally in proposed
subsection 4(1) would apply to section 527.
375. Paragraph 527(1)(b) would allow regulations to be made prescribing
additional laws of Victoria for the purposes of section 527.
376. Subsection 527(2)(a) would provide that subsection 527(1) does not
apply to a law of Victoria so far as the law deals with the prevention of
discrimination and is neither a State or Territory industrial law (see
proposed subsection 4(1)) nor contained in a State or Territory
industrial law.
377. Subsection 527(2)(b) would allow regulations to be made prescribing
additional laws of Victoria that would not be excluded by section 527.
378. Subsection 527(3) would provide definitions for the purposes of
section 527.
379. Proposed section 527 would not affect the operation of proposed clause
87 of Schedule 13 (item 359, page 575), which would provide that a common
rule that applies under Schedule 13 to an industry in Victoria is not
intended to exclude or limit the operation of a law of Victoria that is
capable of operating concurrently with the common rule.
Item 214 - Schedule 1, item 287, page 492 (line 5)
Item 215 - Schedule 1, item 289, page 493 (lines 20 and 21)
380. This item would amend proposed subsection 18A(3) to provide that an
employer association will remain federally registrable if it has a member
or members who were an employer when admitted to membership but who have
since ceased to be an employer. This amendment would make the Bill
consistent with existing provisions setting out the criteria for
registration of an employer organisation under Schedule 1B.
Item 216 - Schedule 1, page 502 (after line 20)
Item 217 - Schedule 1, page 502 (after line 33)
Item 218 - Schedule 1, page 503 (after line 17)
Item 220 - Schedule 1, page 511 (after line 17)
381. These items would insert a number of new items into the Work Choices
Bill in relation to withdrawal from amalgamations.
382. Division 2 of Part 3 of Chapter 3 of Schedule 1B deals with the
process for applying for, approval, and conduct of ballots to approve the
withdrawal from amalgamation of a constituent part of an amalgamated
organisation. At present, the Federal Court and the Registrar of the
Federal Court performs various functions, and have various powers, in
relation to such ballots.
383. Amendments made by these items would replace references to the Federal
Court in Division 2 with references to the Commission. These amendments
would have the effect that the AIRC would assume the functions and powers
currently exercised by the Federal Court. The Federal Court would retain
its other powers and functions under Chapter 3 of Schedule 1B, such as
dealing with post-ballot matters including the division of assets and
liabilities between the withdrawing part and the amalgamated
organisation.
384. Consequential to these amendments, item 4 would insert item 317M.
This item would replace the reference to the Registrar of the Federal
Court in section 99, which provides that the Registrar must notify the
AEC of any application for a ballot, with a reference to the Industrial
Registrar to reflect that the AIRC will now be the body to which
applications for a ballot are made.
385. Item 217 would also insert item 313A into the Bill which would correct
a typographical error in existing section subsection 93(1).
386. Item 220 would also insert item 317A, which would amend subsection
95(1), to require an applicant for a disamalgamation ballot to include in
his or her written outline of disamalgamation particulars of any proposal
in relation to the division of assets and liabilities.
387. Item 220 would also insert item 317C, which would insert new
subsections 95(3A), 95(3B) and 95(3C) into the Work Choices Bill.
388. Proposed subsection 95(3A) would provide that an applicant for a
disamalgamation ballot who has insufficient information to prepare the
outline of disamalgamation that is required to be filed under section 95,
may request the Industrial Registrar to:
* give to the applicant all information in the possession of the
Industrial Registrar that may be relevant to the outline (see
proposed paragraph 95(3A)(a)); or
* direct the amalgamated organisation to give to the applicant all
such information (see proposed paragraph 95(3A)(b)).
389. Proposed subsection 95(3B) would provide that the Industrial Registrar
may, if requested, provide the information or direct the amalgamated
organisation to do so.
390. Proposed subsection 95(3C) would provide that the amalgamated
organisation must, if directed to provide the information, comply with
that direction.
391. Item 6 would insert item 341A into the Work Choices Bill which would
insert a new paragraph 305(2)(ba) into the list of civil penalty
provisions in section 305. The consequence of this amendment is that a
person failing to comply with a direction by the Industrial Registrar
made under subsection 95(3C) would be liable for a civil penalty.
392. Item 220 would further insert:
* item 317V, which would insert section 108A into the Work Choices
Bill, to provide that any power or function of the AIRC under
Division 2 must be exercised by the President of the AIRC or a
Full Bench of the AIRC of which the President is a member; and
* items 317P, 317R and 317S, which would make consequential
amendments to subparagraph 100(1)(b)(ii) and paragraphs 106(2)(a)
and 107(1)(a).
Item 219 - Schedule 1, page 503 (after line 23)
393. This item would insert a number of new items into the Bill.
394. It would insert item 319A, which would amend subsection 109(2), to
require the Federal Court, when dividing assets and liabilities following
a disamalgamation, to have regard to the following matters in addition to
the matters it is already required to have regard to under section 109:
* any proposal for the division of such assets and liabilities made
by the withdrawn constituent part (proposed paragraph 109(2)(c));
and
* if the withdrawn part was a separately identifiable constituent
part, the proportion of the members of the amalgamated
organisation that were included in it (proposed paragraph
109(2)(d)).
395. Item 5 would also make various amendments section 111, which provides
for choice of membership following the withdrawal of a constituent part
of an organisation. Under the current provisions, a relevant member
remains a member of the amalgamated organisation unless he or she
specifically chooses to join the withdrawing part. The amalgamated
organisation is required to provide an information statement to relevant
members informing them of the withdrawal from amalgamation and setting
out their right to elect to remain a member of the amalgamated
organisation or join the withdrawing part and the consequences of not
making an election (ie they would remain a member of the amalgamated
organisation).
396. Item 5 would amend section 111 as follows:
* make a technical amendment to clarify that the section is
concerned with persons who were constituent members of the
withdrawn part (item 319C);
* amend subsection 111(2), to require a Registrar rather than the
amalgamated organisation to provide the written information
statement to relevant members informing them of the withdrawal
from amalgamation and their right to elect to remain a member of
the amalgamated organisation and the consequences of not making an
election (ie they would be a member of the withdrawing part) (Item
319B);
* amend subsections 111(7) and 111(9), to provide that persons who
were constituent members of the withdrawn part automatically
become members of the withdrawn part unless they expressly elect
to remain members of the amalgamated organisation within 28 days
of receiving the information statement from the Registrar (items
319D and 319F);
* amend paragraph 111(6)(a), to clarify when a person ceases to be a
member of the amalgamated organisation in the event he or she does
not elect to remain a member (item 319B); and
* make a consequential amendment to subsection 111(9) (item 319E).
Item 221 - Schedule 1, page 512 (after line 21)
397. This item would insert item 346A, which would insert a new paragraph
324(2)(oa) into the authorisation of financial assistance provisions
contained in section 324 of Schedule 1B.
398. The new paragraph would provide that a person who was a party to
proceedings under Part 3 of Chapter 3 of Schedule 1B may apply for
financial assistance. That assistance, if given, would be provided in
respect of costs incurred by the person in the proceedings. It would
only be granted where the Minister (who under the Administrative
Arrangements Order is the Attorney-General for the purposes of this
section) was satisfied that hardship is likely to be caused if the
application for assistance is refused and that in all the circumstances
it is reasonable that the application should be granted.
Item 222 - Schedule 1, page 515 (after line 18)
399. This item would insert item 348A, which would insert new paragraphs
(aa) to (ae) into subsection 340(1). These new paragraphs would provide
that a Full Court of the Federal Court (as opposed to a single member of
the Court) is to carry out the functions bestowed on the Federal Court in
Divisions 3 and 4 of Part 3 of Chapter 3 of Schedule 1B.
Item 223 - Schedule 1, item 358, page 516 (line 29)
400. This item would make a minor technical amendment.
Item 224 - Schedule 1, item 359, page 521 (lines 6 to 10)
401. This item would amend the definition of industrial dispute in proposed
subclause 2(1) of Schedule 13 (which provides transitional arrangements
for parties bound by federal awards who will not be covered by the new
system).
402. The amendment removes the express limitation on disputes about matters
pertaining to a transitional employer and a third party (such as an
independent contractor), to ensure that disputes about outworker terms in
a transitional award are able to be dealt with to the same extent as is
currently possible.
Item 225 - Schedule 1, item 359, page 522 (after line 32)
403. This item would amend proposed clause 2 of Schedule 13 to ensure that
references to an independent contractor in Schedule 13 are also not
confined to a natural person. The effect of this amendment would be that
the prohibition on award terms that restrict the engagement of
independent contractors in clause 18 would extend to terms restricting
the engagement of corporate contractors.
Item 226 - Schedule 1, item 359, page 524 (line 36)
404. Each of these amendments amends the definition of lockout in the
relevant parts of the Bill to the same effect as indact 10, that is to
clarify that the definition of lockout is not intended to extend the
meaning of that term beyond its ordinary meaning.
Item 227 - Schedule 1, item 359, page 525 (lines 9 to 12)
Item 229 - Schedule 1, item 359, page 525 (after line 25)
Item 230 - Schedule 1, item 359, page 525 (line 27)
Item 231 - Schedule 1, item 359, page 525 (line 29)
405. Proposed clause 4 provides for the continuing operation of awards in
force before the reform commencement as transitional awards and also
identifies those who are to be bound by the transitional awards. These
items would amend proposed subclauses 4(2) and (3) to ensure that non-
employing entities currently bound to a federal award continue to be
bound to that award as a transitional award after the reform
commencement. These amendments would ensure that these entities continue
to be covered by the outworker terms in the transitional award after
reform commencement.
Item 228 - Schedule 1, item 359, page 525 (lines 15 to 20)
406. This amendment is consequential to item 249.
407. This item would amend proposed subclause 4(2) by removing
paragraph 4(2)(b) from the Bill and substituting a new paragraph that
provides a cross reference to a new Part 6A of Schedule 13, which Part
sets out the applicable transmission of business rules when the whole, or
a part, of a transitional employer's business is transmitted to another
transitional employer.
Item 232 - Schedule 1, item 359, page 525 (line 35)
408. This item would make a technical amendment to proposed subclause 4(4)
to remove a typographical error.
Item 233 - Schedule 1, item 359, page 525 (after line 36)
409. This item would amend proposed clause 4 by adding a definition of
outworker term for the purposes of this clause.
Item 234 - Schedule 1, item 359, page 528 (line 20)
410. This item would make a minor technical correction to proposed Schedule
13, clause 9 in relation to the Commission ensuring that its decisions do
not contain discriminatory provisions.
Item 235 - Schedule 1, item 359, page 531 (after line 18)
411. This item would add a new allowable transitional award matter. This
amendment would enable an award to include a term that entitled an
employee to leave for the purpose of seeking other employment after they
had been given a notice of termination by their employer. A number of
current awards include such a term.
Item 236 - Schedule 1, item 359, page 531 (after line 25)
412. This item would add a new paragraph 17(1)(ia) to make allowable a term
of a transitional award that provides for days to be substituted, or a
procedure for substituting, public holidays that may be included in a
transitional award under proposed paragraph 17(1)(i).
413. For example, where Christmas Day falls on a Saturday or a Sunday, the
transitional award may provide that 27 December shall be observed as a
public holiday in lieu of 25 December. In addition, proposed
paragraph 17(1)(ia) would make allowable a transitional award term that
enables a public holiday declared in a metropolitan area to be
substituted for a public holiday in a country or regional area. Proposed
paragraph 17(1)(ia) would also allow a transitional award term to provide
a procedure for agreement between an employer and an individual employee
with respect to taking an alternate day as the public holiday in lieu of
a day that would otherwise be the designated public holiday because of
proposed paragraph 17(1)(i).
Item 237 - Schedule 1, item 359, page 533 (lines 14 and 15)
414. This item would delete proposed paragraph 18(1)(b) from the Bill and
substitute a new paragraph.
415. As introduced, the Bill made non-allowable terms in transitional
awards that prevent transfers from one form of employment to another.
The intention of this paragraph was to make non-allowable 'casual
conversion' clauses in transitional awards. However, it would also have
inadvertently made non-allowable terms in transitional awards that
provide for part-time return to work after a period of parental leave.
416. This item would therefore replace proposed paragraph 18(1)(b) in the
Bill with a new paragraph that is confined on its face to terms in
transitional awards that provide for the conversion from casual
employment to another type of employment.
417. This means that a term of a transitional award that permits, or
provides a procedure for, a casual employee to convert to another type of
employment (such as full-time or part-time employment) would not be an
allowable transitional award matter.
Item 238 - Schedule 1, item 359, page 533 (line 34)
418. This item would make clear that the prohibition on 'tallies' in
proposed paragraph 18(1)(j) relates to tallies in the meat industry.
Item 239 - Schedule 1, item 359, page 533 (line 37)
419. This item would repeal proposed paragraph 18(1)(m), which provides for
regulations to be made declaring additional matters to be not allowable
transitional award matters.
Item 240 - Schedule 1, item 359, page 534 (after line 7)
420. This item would make a technical amendment to ensure that existing
award protections for outworkers are not inadvertently made non-
allowable. This item is one of a series of amendments designed to ensure
that the Bill does not diminish the protection that the federal workplace
relations system provides for outworkers.
421. New subclause 18(2A) would ensure that the prohibition on awards
containing terms that restrict the engagement of independent contractors
(paragraph 18(1)(g)) does not operate to limit the scope available to
include in an award terms that provide protection for outworkers under
paragraph 17(1)(q).
Item 241 - Schedule 1, item 359, page 534 (after line 20)
422. This item would insert a legislative note to proposed clause 18,
consequential upon the amendment made by item 225. The note would remind
readers that in Schedule 13, references to independent contractors are
not confined to natural persons.
Item 242 - Schedule 1, item 359, page 535 (line 15)
Item 243 - Schedule 1, item 359, page 535 (after line 28)
423. These items would amend proposed clause 22 of the Bill as introduced
to make it clear that all the provisions in a transitional award about
the matters listed in proposed subclause 22(3) are encompassed by the
expression preserved award term.
Item 244 - Schedule 1, item 359, page 536 (after line 31)
424. This item would amend proposed clause 24, and is related to the
amendment proposed by item 240. The amendment proposed by this item is
one of a series of amendments designed to ensure that the Bill does not
diminish the protection that the federal workplace relations system
provides for outworkers.
425. Proposed new subclause 24(2A) would make clear that the ability of the
AIRC to include terms in awards that are incidental and essential to the
allowable transitional award matter that permits a transitional award to
contain conditions for outworkers (paragraph 17(1)(q)) is not affected by
the limitation in paragraph 18(1)(g). The ability of the AIRC to include
machinery provisions is also unaffected.
Item 245 - Schedule 1, item 359, page 546 (lines 13 and 14)
426. This item would make a technical amendment to proposed clause 40 to
substitute the present heading for this clause in the Bill as introduced
for a heading that reflects the provisions of the clause. This proposed
clause provides that a Full Bench of the AIRC may establish principles
about varying transitional awards in relation to each allowable
transitional award matter listed in proposed subclause 29(2) (the matters
that the AIRC may deal with for the purposes of varying a transitional
award).
Item 246 - Schedule 1, item 359, page 546 (line 18)
427. This item amends proposed subclause 40(2) to clarify that the
reference to principles in this subclause is a reference to the
principles established by a Full Bench under proposed subclause 40(1).
Item 247 - Schedule 1, item 359, page 546 (after line 31)
428. This item would add a new subclause to proposed clause 40 to make it
clear that principles established under subclause 40(1) must be
consistent with, and cannot be such as to override, a provision of the
Schedule that relates to the variation of transitional awards.
Item 248 - Schedule 1, item 359, page 564 (lines 22 to 27)
429. This amendment is consequential to item 249.
430. This item would amend proposed subclause 69(1) by removing
paragraph 69(2)(d) from the Bill and substituting a new paragraph that
provides a cross reference to a new Part 6A of Schedule 13, which Part
sets out the applicable transmission of business rules when the whole, or
a part, of a transitional employer's business is transmitted to another
transitional employer.
Item 249 - Schedule 1, item 359, page 565 (after line 23)
New Part 6A - Transmission of transitional awards
431. This item would insert a new Part 6A in Schedule 13, which Part sets
out the applicable provisions about the transmission of transitional
awards when the whole, or part, of a transitional employer's business is
transmitted to another transitional employer.
New Division 1 - Introductory
New clause 72A - Object
432. Proposed clause 72A would establish the object of the Part, which is
to provide for the transmission of transitional awards when the whole, or
a part, of a transitional employer's business is transmitted to another
transitional employer.
New clause 72B - Simplified outline
433. Proposed clause 72B would create a simplified outline detailing the
way that Part 6A is structured.
434. Subclause 72B(1) would provide that proposed Division 2 would describe
the transmission of business situation the Part is designed to deal with.
435. Subclause 72B(2) would provide that proposed Division 3 would deal
with the transmission of transitional awards from one transitional
employer to another upon a transmission of business.
436. Subclause 72B(3) would provide that proposed Division 4 would deal
with notification requirements for a transitional employer that becomes a
successor, transmittee or assignee to a business being transferred, as
well as lodgment of notices and civil remedy provisions relevant to the
notification requirements.
437. Subclause 72B(4) would provide that proposed Division 5 would allow
regulations to be made to deal with additional transmission of business
issues in relation to transitional awards.
New clause 72C - Definitions
438. Proposed clause 72C would set out the definitions of business being
transferred, Court, new transitional employer, old transitional employer,
operational reasons, time of transmission, transferring transitional
employee and transmission period to apply in the Part.
New Division 2 - Application of Part
439. This Division would define when Part 6A would apply and provide
definitions for key terms.
New clause 72D - Application of Part
440. Proposed clause 72D would outline the circumstances in which Part 6A
applies.
441. Subclause 72D(1) would provide that the Part applies if a person
becomes the successor, transmittee or assignee of the whole, or a part,
of a business of another person.
442. In this context the person who initially owned the business or part
being transferred is the old transitional employer and the person who
becomes the successor, transmittee or assignee is the new transitional
employer. The term 'person' is used in this definition so that Part 6A
also captures transmissions where the old transitional employer ceases to
be an employer (eg because it dismisses all of its employees) before, or
at the time the business transfers.
443. Subclause 72D(2) would define, for the purposes of Part 6A, the
business being transferred is the business, or part of the business, of
which the new transitional employer is the successor, transmittee or
assignee.
444. Subclause 72D(3) would define, for the purposes of Part 6A, the time
of transmission as the time at which the new transitional employer
becomes the successor, assignee or transmittee of the business being
transferred.
445. Subclause 72D(4) would define the transmission period as the period of
12 months from the time of transmission. This is the maximum period of
time that a new transitional employer may be bound by a transitional
award by operation of Part 6A.
New clause 72E - Transferring transitional employees
446. Proposed clause 72E would create a definition of transferring
transitional employee for the purposes of Part 6A.
447. Subclause 72E(1) would provide that a person is a transferring
transitional employee if the person is employed by the old transitional
employer immediately before the time of transmission and the person stops
being employed by the old transitional employer and is employed by the
new transitional employer in the business being transferred within 2
months of the time of transmission.
448. The proposed definition of transferring transitional employee seeks to
ensure that the operation of Part 6A cannot be avoided by the new
transitional employer delaying the employment of an employee of the old
transitional employer until after the time of transmission, rather than
at the time of transmission.
449. Subclause 72E(2) would provide that a person is also a transferring
transitional employee for the purposes of Part 6A if the person:
a) is employed by the old transitional employer at any time within the
period of 1 month before the time of transmission; and
b) the person's employment with the old transitional employer is
terminated because of, or for reasons that include, genuine
'operational reasons'; and
c) the person becomes employed by the new transitional employer in the
business being transferred within 2 months of the time of
transmission.
1. In light of the definition of this term set out in clause 72C,
operational reasons is attributed with the same meaning as in proposed
subsection 170CE(5D) of the Bill. Subsection 170CE(5D) would provide
that the definition of operational reasons are reasons of an economic,
technological, structural or similar nature relating to the employer's
undertaking, establishment, service or business, or to part of the
employer's undertaking, establishment, service or business.
2. This limb of the definition of transferring transitional employee is
also an anti-avoidance provision which is intended to ensure that the
effect of Part 6A could not be avoided by the old transitional employer
terminating the employment of the transitional employee shortly before
the time of transmission.
3. Accordingly, the transmission of business rules in proposed Part 6A
would extend to a situation where the old transitional employer made
transitional employees redundant in anticipation of a transmission of
business, or part of a business, close to the time of transmission and
the new transitional employer employs those employees.
4. Therefore, if a transitional employee's position is genuinely redundant
and the transitional employee's employment is terminated by the old
transitional employer within one month of the time of transmission, this
break in employment would not preclude the transitional employee from
being a transferring transitional employee for the purposes of Part 6A,
if the transitional employee is employed by the new transitional employer
within 2 months of the time of transmission.
5. Subclause 72E(3) would be a facilitative provision consequential upon
the inclusion of subclause 72E(2). The subclause enables Part 6A to
operate with respect to a transitional employee who is a transferring
transitional employee, but whose employment was terminated by the old
transitional employer within one month prior to the time of transmission
without the need for an additional reference or extension of the term
transferring transitional employee wherever it is used in the Part.
New clause 72F - Transferring transitional employees in relation to
particular transitional award
6. Proposed clause 72F would describe how a transitional employee is a
transferring transitional employee in relation to a particular
transitional award.
7. Subclause 72F(1) would provide that in order for a particular
transitional award to bind a new transitional employer there must be a
transferring transitional employee who was, immediately before the time
of transmission, bound or covered by a relevant transitional award.
Additionally, the transferring transitional employee's employment with
the new transitional employer must be capable of being covered by the
particular transitional award.
8. Subclause 72F(2) would provide that a transitional employee ceases to be
a transferring transitional employee in relation to a transitional award
where the transferring transitional employee ceases to be employed by the
new transitional employer after the time of transmission or the
transferring transitional employee's employment with the new employer
changes so that the transitional award is no longer capable of applying
to that employment. Additionally, the transferring employee ceases to be
a transferring transitional employee when the transmission period ends.
9. The term applying in these provisions is to encompass all the various
ways in which a transitional award may regulate a transitional employee's
terms and conditions of employment. Accordingly, the term should not be
read as a limitation on the scope of the provision.
New Division 3 - Transmission of transitional award
10. Proposed Division 3 would contain the transmission of business rules
about the transfer of transitional awards from an old transitional
employer to a new transitional employer.
New clause 72G - Transmission of transitional award
New transitional employer bound by transitional award
11. Proposed subclause 72G(1) would provide that where the old transitional
employer was, immediately before the time of transmission, bound by a
transitional award, and there is at least one transferring transitional
employee in relation to the transitional award, and the new transitional
employer would not otherwise be bound by the transitional award and the
new transitional employer is a transitional employer at the time of
transmission, this clause binds the new transitional employer to the
transitional award.
12. This means that a new transitional employer who is a successor,
transmittee or assignee to a business or part of a business, will be
bound by the transitional award that was binding on the old transitional
employer, in respect of a transitional employee if that employee is
employed by the new transitional employer within 2 months of the time of
transmission and the transitional award is capable of covering the
transitional employee's employment with the new transitional employer.
13. Proposed legislative note 1 would explain that proposed paragraph
72G(1)(c) (which requires that the new transitional employer is not
otherwise bound by the transitional award) is necessary as there are
circumstances where a transmitting award might already be binding on the
new transitional employer in respect of its own transitional employees
employed prior to the time of transmission. This is possible as a
transitional award can bind multiple transitional employers.
14. Proposed legislative note 2 would mention that where the transitional
award becomes binding on the new transitional employer by force of this
clause, the new transitional employer may have obligations imposed by
clauses 72J and 72K with respect to notification.
Period for which new transitional employer remains bound
15. Proposed subclause 72G(2) would establish the period of time the new
employer will be bound by the transitional award. It would identify the
five events, and if one were to occur (whichever occurs first), it would
have the effect that the new transitional employer ceases to be bound by
the transitional award in its entirety.
16. Firstly, the transitional award could be revoked (see proposed
clause 31). The AIRC can revoke a transitional award in limited
circumstances (ie, where the transitional award is obsolete or is no
longer operating), so that it is no longer binding on the new
transitional employer.
17. Secondly, the transitional award would cease to bind the new
transitional employer when there are no longer any transferring
transitional employees in relation to the transitional award. An example
of where this would apply is where all transferring transitional
employees either cease to be employed by the new transitional employer or
move to another position while working for the new transitional employer
that is not capable of being covered by the transitional award.
18. Thirdly, the transitional award would cease to bind the new
transitional employer if the new transitional employer ceases to be bound
by the transitional award under Part 5 of the Schedule, that is by
entering into a State employment agreement (see clause 57), by an order
of the AIRC if it is satisfied that the new transitional employer has
made genuine efforts to make a State employment agreement, but has been
unable to do so (see clause 58) and by order of the AIRC if it is
satisfied that it is not able to resolve a genuine industrial dispute
under the Schedule (see clause 59).
19. Fourthly, the transitional award would not be binding on the new
transitional employer once the transmission period ends. This means that
a new transitional employer would only be bound by the transitional award
by force of subclause 72G(1) for a maximum period of 12 months.
20. Finally, the transitional award would not be binding on the new
transitional employer once the transitional period (that is, the 5 year
period beginning on the reform commencement) ends. Therefore, if there
is less than 12 months between the time of transmission and the end of
the transitional period, the transmission period will not extend beyond
the end of the transitional period on the basis that all transitional
awards will cease to operate at the end of the transitional period (see
clause 6).
New transitional employer bound only in relation to employment of
transferring transitional employees
21. Proposed subclause 72G(3) would provide that a new transitional
employer is bound by the transitional award in respect of transferring
transitional employees only. Therefore, the transitional award cannot
bind the new transitional employer, by force of subclause 72G(1), in
relation to its employees who are not transferring transitional
employees.
Commission order
22. Proposed subclause 72G(4) would provide that proposed subclauses 72G(1)
and (2) have effect subject to any order of the AIRC.
23. Proposed subclause 72G(5) would ensure that the AIRC cannot make an
order which would extend the transmission period for more than 12 months.
Old transitional employer's rights and obligations that arose before time
of transmission not affected
24. Proposed subclause 72G(6) would provide that this clause does not
affect the rights and obligations of the old transitional employer in
respect of a transferring transitional employee that arose before the
time of transmission. It is not intended that subclause 72G(1) operates
to transfer liability for employee entitlements that accrued prior to the
time of transmission from an old transitional employer to a new
transitional employer.
New clause 72H - Interaction rules
Transmitted award
25. Proposed subclause 72H(1) would provide that this clause applies if
subclause 72G(1) applies to a transitional award (to be referred to as a
transmitted award).
Division 3 pre-reform certified agreement
26. Proposed subclause 72H(2) would provide that a transmitted award, to
the extent that it relates to the transferring transitional employee's
employment with the new transitional employer, prevails over a Division 3
pre-reform certified agreement (within the meaning of Schedule 14) to the
extent of any inconsistency with that certified agreement. This rule
applies in circumstances where:
* the new transitional employer is bound by a Division 3 pre-reform
certified agreement;
* a transferring transitional employee in relation to a transmitted
award was not bound by that certified agreement immediately before
the time of transmission; and
* the certified agreement would, but for this subclause, apply to
the transferring employee's employment with the new transitional
employer and would prevail over the transmitted award to the
extent of any inconsistency with the transmitted award.
27. Proposed subclause 72H(3) would provide that subclause 72H(2) would
have effect despite section 170LY of the pre-reform Act that is applied
by clause 2 of Schedule 14.
New Division 4 - Notice requirements and enforcement
New clause 72J - Informing transferring transitional employees about
transmitted award
28. Proposed clause 72J would create notification obligations for a
transitional employer with respect to a transferring transitional
employee. The effect of the provisions would be to inform the
transferring transitional employee about the operation of a transmitted
award that may apply to the transferred transitional employee. The
provisions are civil remedy provisions.
29. Subclause 72J(1) would confirm that the clause applies where a
transmitted award binds a transitional employer in relation to a
transferring transitional employee by force of clause 72G.
30. Subclause 72J(2) would provide that within 28 days after the
transferring transitional employee commences employment with the
transitional employer, the transitional employer must take reasonable
steps to give the transferring transitional employee a notice that
complies with subclause 72J(3). 'Reasonable steps' is included as there
may be exceptional circumstances which prevent a transitional employer
from complying with the notice requirements.
31. Subclause 72J(3) would provide that the notice must:
* identify the transmitted award;
* state that the transitional employer is bound by the transmitted
award;
* specify the date on which the transmission period for the
transmitted award ends; and
* state that the transitional employer will remain bound by the
transmitted award until the end of the transmission period unless
the transmitted award is revoked, or otherwise ceases to be in
operation, before the end of that period.
New clause 72K - Lodging copy of notice with Employment Advocate
Only one transferring transitional employee
32. Proposed subclause 72K(1) would deal with the situation where there is
only one transferring transitional employee with respect to the
transitional award.
33. Where there is only one transferring transitional employee with respect
to a transitional award, and the transitional employer gives notice under
subclause 72J(2) to that transitional employee, the transitional employer
must also lodge a copy of the notice with the Employment Advocate.
34. This notice must be lodged in accordance with subclause 72K(4) within
14 days of giving the notice to the transferring transitional employee.
35. Proposed legislative note 1 would indicate that subclause 72K(1) is a
civil remedy provision with reference to clause 72M.
36. Proposed legislative note 2 would refer to obligations imposed by
sections 137.1 and 137.2 of the Criminal Code in relation to the
provision of information or documents.
Multiple transferring transitional employees and notices all given on the
one day
37. Proposed subclause 72K(2) would deal with the situation where there are
a number of transferring transitional employees with respect to a
transitional award, who were all given notice under subclause 72J(2) on
the same day.
38. Where the transitional employer gives a number of notices under
subclause 72J(2) to transferring transitional employees in relation to a
transitional award, and all the notices are given on the one day, the
transitional employer must lodge a copy of one of those notices with the
Employment Advocate.
39. This notice must be lodged in accordance with subclause 72K(4) within
14 days of giving the notice to the transferring transitional employee.
40. Proposed legislative note 1 would indicate that subclause 72K(2) is a
civil remedy provision with reference to clause 72M.
41. Proposed legislative note 2 would refer to obligations imposed by
sections 137.1 and 137.2 of the Criminal Code in relation to the
provision of information or documents.
Multiple transferring transitional employees and notices given on different
days
42. Proposed subclause 72K(3) would deal with the situation where there are
a number of transferring transitional employees with respect to a
transitional award, who were all given notice under subclause 72J(2) but
on different days.
43. Where the transitional employer gives a number of notices under
subclause 72J(2) to transferring transitional employees in relation to a
transitional award, and all the notices are given on different days, the
transitional employer must lodge a copy of the notice or one of those
notices with the Employment Advocate.
44. This notice must be a copy of the notice or one of the notices given on
the earliest of those days and lodged in accordance with subclause 72K(4)
within 14 days after that notice is given.
Proposed legislative note 1 would indicate that subclause 72K(3) is a civil
remedy provision with reference to clause 72M.
45. Proposed legislative note 2 would refer to obligations imposed by
sections 137.1 and 137.2 of the Criminal Code in relation to the
provision of information or documents.
Lodgement with the Employment Advocate
46. Proposed subclause 72K(4) would provide that a notice is lodged in
accordance with this subclause only once it is actually received by the
Employment Advocate.
47. The proposed legislative note would explain that subclause 72K(4)
departs from section 29 of the Acts Interpretation Act 1901 (AI Act).
Section 29 of the AI Act provides that service of a document is normally
effected when it is 'properly prepaid, addressed and posted'.
New clause 72L - Employment Advocate must issue receipt for lodgement
48. Proposed clause 72L would oblige the Employment Advocate to issue a
receipt for a notice that it receives under clause 72K. The receipt must
state that it was lodged in accordance with clause 72K and specify the
date of lodgement.
49. The Employment Advocate would need to give a copy of the receipt to the
person who lodged the notice under clause 72K.
New clause 72M- Civil remedies
50. Proposed clause 72M would deal with the civil remedy provisions of
Part 6A.
51. Subclause 72M(1) would specify that subclauses 72J(2) and 72K(1), (2)
and (3) are civil remedy provisions.
52. The proposed legislative note would indicate that proposed Division 4
of Part VIII also contains provisions that are relevant to the
consideration of civil remedies under the WR Act.
53. Proposed subclauses 72M(2) and (3) would provide that the Federal Court
or the Federal Magistrates Court may order a person who has contravened
the civil remedy provisions to pay a pecuniary penalty of not more than
300 penalty units for a body corporate or 60 penalty units in other
cases.
54. Subclause 72M(5) would establish who has standing (ie who is entitled)
to make an application for an order under subclause 72M(2).
New Division 5 - Miscellaneous
New clause 72N - Regulations
55. Proposed clause 72N would enable regulations to be made with respect to
the succession, transmission or assignment of a business or part of a
business, and the obligations of transitional employers in these
situations. The regulations might also deal with the terms and
conditions of the employment of transitional employees whose employment
is affected by a transmission, assignment or succession of a business, or
part of a business.
56. This regulation making power is intended to be broad in scope, and
should not be construed narrowly.
Item 250 - Schedule 1, item 359, page 567 (lines 15 to 19)
57. This item would omit the final paragraph of the definition of
industrial dispute in proposed subclause 75(1) of Schedule 13. This
amendment is similar to the amendment made to the definition of
industrial dispute in subclause 2(1) of Schedule 13 (item 224). The
amendment removes the express limitation on disputes about matters
pertaining to a transitional employer and a third party (such as an
independent contractor), to ensure that disputes about outworker terms in
a transitional award are able to be dealt with to the same extent as is
currently possible.
Item 251 - Schedule 1, item 359, page 568 (after line 11)
58. This item would insert subclauses 77(3) and (4) into Schedule 13.
Proposed clause 77 of Schedule 13 relates to preserved transitional award
terms in transitional Victorian reference awards.
59. Proposed subclauses 77(3) and (4) of Schedule 13 would provide
regulation-making powers, to exclude certain matters from the 'more
generous' comparison between preserved award terms and the Australian
Fair Pay and Conditions Standard, in a similar way to proposed
subsections 117(7) and (8) (item 71, page 295).
Item 252 - Schedule 1, item 359, page 575 (line 29)
60. This item would amend proposed paragraph 89(1)(a) of Schedule 13, by
adding a reference to each of sections 101B (Protected award conditions)
and 103R (Consequences of termination of agreement - application of other
industrial instruments) to the list of sections which will apply to a
common rule (which has effect under Subdivision E of Division 1 of Part 7
of Schedule 13) as if the common rule were an award.
61. The effect of this amendment is that the provisions of sections 101B
and 103R, relating to protected award conditions and the consequences of
termination of a workplace agreement respectively, to the extent that
they apply in relation to employees and employers (within the meaning of
section 489) in Victoria because of section 500, will have effect as if a
reference to an award were a reference to a common rule.
Item 253 - Schedule 1, item 359, page 576 (line 22) to page 577 (line 2)
62. This item would omit proposed clause 94 of Schedule 13 and replace it
with a new clause 94.
63. Clause 94 of Schedule 13 relates to the application of 'transmission of
business' provisions to transitional Victorian reference award.
64. This amendment is consequential upon amendments made by item 228
(amendment of paragraph 4(2)(b) of Schedule 13), item 248 (amendment of
paragraph 69(1)(d) of Schedule 13) and item 249 which would insert a new
Part 6A of Schedule 13 (Transmission of transitional awards).
65. New Part 6A of Schedule 13 would apply on its own terms to a
transitional Victorian reference award (within the meaning of clause 73
of Schedule 13), because transitional Victorian reference awards are a
subset of transitional awards (within the meaning of subclause 2(1) of
Schedule 13).
66. Clause 94 would provide that subclause 72J(3) (item 249) has effect, in
relation to a transitional Victorian reference award (within the meaning
of clause 73) as if paragraphs (e), (f) and (g) were added to subclause
72J(3).
67. These three additional paragraphs have the same effect as proposed
paragraphs 129(3)(e), (f) and (g) of the WR Act (item 81, page 336 of the
Bill). They are necessary because employees and employers (within the
meaning of section 489) in Victoria are covered by Parts VA and VB of the
WR Act as a result of the extended application of those Parts provided by
Part XV, unlike excluded employees and excluded employers (within the
meaning of subclause 2(1) of Schedule 13) in States other than Victoria.
Item 254 - Schedule 1, item 359, page 577 (line 7)
68. This item would amend proposed paragraph 95(a) of Schedule 13, by
adding a reference to each of sections 101B (Protected award conditions)
and 103R (Consequences of termination of agreement - application of other
industrial instruments) to the list of sections which will apply to a
transitional Victorian reference award (within the meaning of clause 73
of Schedule 13) as if the transitional Victorian reference award were an
award.
69. The effect of this amendment is that the provisions of sections 101B
and 103R, relating to protected award conditions and the consequences of
termination of a workplace agreement respectively, to the extent that
they apply in relation to employees and employers (within the meaning of
section 489) in Victoria because of section 500, will have effect as if a
reference to an award were a reference to a transitional Victorian
reference award.
Item 255 - Schedule 1, item 359, page 577 (after line 8)
70. This item would add a Subdivision H to Division 1 of Part 7 of Schedule
13, consisting of proposed clause 95A (Ceasing to be bound by
transitional Victorian reference award - inability to resolve industrial
dispute under this Schedule).
71. Clause 95A of Schedule 13 would provide that clause 59 of Schedule 13
has effect, in relation to a transitional Victorian reference award
(within the meaning of clause 73 of Schedule 13) as if the word 'must'
were deleted from subclause 59(3) and replaced with the word 'may'.
Clause 59 of Schedule 13 provides that, in certain circumstances, the
AIRC must issue an order stating that a transitional award no longer
binds an excluded employer in respect of particular employees.
72. This amendment would provide the AIRC with discretion whether or not to
make an order under clause 59 of Schedule 13 that a transitional employer
cease to be bound by a transitional Victorian reference award. In States
other than Victoria, the effect of an order made under clause 59 of
Schedule 13 would be that the relevant employees' terms and conditions
would be regulated under the relevant State's industrial laws. For
employees (within the meaning of section 489) in Victoria, terms and
conditions will be regulated by the Act rather than any State industrial
laws. It is therefore appropriate that the AIRC have discretion whether
to make an order under clause 59 of Schedule 13 applying to employees
(within the meaning of section 489) in Victoria.
Item 256 - Schedule 1, item 359, page 577 (after line 28)
73. This item would insert subclauses 97(3), (4) and (5) into Schedule 13.
Proposed clause 97 of Schedule 13 relates to preserved transitional award
terms in transitional awards other than transitional Victorian reference
awards.
74. Proposed subclause 97(3) would provide an explanation of the meaning of
personal/carer's leave for the purposes of clause 97, in a similar way to
proposed subclause 77(2) of Schedule 13.
75. Proposed subclauses 97(4) and (5) of Schedule 13 would provide
regulation-making powers, to exclude certain matters from the 'more
generous' comparison between preserved award terms and the Australian
Fair Pay and Conditions Standard, in a similar way to proposed
subsections 117(7) and (8) (item 71, page 295).
Item 257 - Schedule 1, item 359, page 580 (after line 27)
76. This item would insert Subdivision BA into Division 2 of Part 7 of
Schedule 13, consisting of section 101A (Transmission of business).
77. This amendment is consequential upon item 249 which would insert a new
Part 6A of Schedule 13 (Transmission of transitional awards).
78. Clause 101A would provide that subclause 72J(3) (item 249) has effect,
in relation to a transitional award (other than a transitional Victorian
reference award within the meaning of clause 73) to the extent that the
award regulates excluded employers (within the meaning of subclause 2(1)
of Schedule 13) in respect of the employment (within the meaning of
section 489) of employees (within the meaning of section 489) as if
paragraphs (e), (f) and (g) were added to subclause 72J(3).
79. These three additional paragraphs have the same effect as proposed
paragraphs 129(3)(e), (f) and (g) (item 81, page 336 of the Bill). They
are necessary because employees and employers (within the meaning of
section 489) in Victoria are covered by Parts VA and VB of the WR Act as
a result of the extended application of those Parts provided by Part XV,
unlike excluded employees and excluded employers (within the meaning of
subclause 2(1) of Schedule 13) in States other than Victoria.
Item 258 - Schedule 1, item 359, page 580 (line 34)
80. This item would amend proposed paragraph 102(a) of Schedule 13, by
adding a reference to each of sections 101B (Protected award conditions)
and 103R (Consequences of termination of agreement - application of other
industrial instruments) to the list of sections which will apply to a
transitional award other than a transitional Victorian reference award,
to the extent that the award regulates excluded employers in respect of
the employment of employees (within the meaning of section 489), as if
the transitional award were, to that extent, an award.
81. The effect of this amendment is that the provisions of sections 101B
and 103R, relating to protected award conditions and the consequences of
termination of a workplace agreement respectively, to the extent that
they apply in relation to employees and employers (within the meaning of
section 489) in Victoria because of section 500, will have effect as if a
reference to an award were a reference to a transitional award other than
a transitional Victorian reference award, to the extent that the award
regulates excluded employers in respect of the employment of employees
(within the meaning of section 489).
Item 259 - Schedule 1, item 359, page 580 (after line 35)
82. This item would add a Subdivision D to Division 2 of Part 7 of Schedule
13, consisting of proposed clause 102A (Ceasing to be bound by
transitional award - inability to resolve industrial dispute under this
Schedule).
83. Clause 102A of Schedule 13 would provide that clause 59 of Schedule 13
has effect, in relation to a transitional award other than a transitional
Victorian reference award, to the extent that the award regulates
excluded employers in respect of the employment of employees (within the
meaning of section 489), as if the word 'must' were deleted from
subclause 59(3) and replaced with the word 'may'. Clause 59 of Schedule
13 provides that, in certain circumstances, the AIRC must issue an order
stating that a transitional award no longer binds an excluded employer in
respect of particular employees.
84. This amendment would provide the AIRC with a discretion whether or not
to make an order under clause 59 of Schedule 13 that a transitional
employer cease to be bound by a transitional award other than a
transitional Victorian reference award, to the extent that the award
regulates excluded employers in respect of the employment of employees
(within the meaning of section 489). In States other than Victoria, the
effect of an order made under clause 59 of Schedule 13 would be that the
relevant employees' terms and conditions would be regulated under the
relevant State's industrial laws. For employees (within the meaning of
section 489) in Victoria, terms and conditions will be regulated by the
Act rather than any State industrial laws. It is therefore appropriate
that the AIRC have discretion whether to make an order under clause 59 of
Schedule 13 applying to employees (within the meaning of section 489) in
Victoria.
Item 260 - Schedule 1, item 359, page 581 (before line 3)
85. This item would amend proposed Part 8 of Schedule 13 by inserting a
clause that provides for the application of proposed subsection 34(4)
(reconstituted Commission) to the transitional award system.
Item 261 - Schedule 1, item 359, page 581 (after line 8)
86. These items would amend proposed clause 103 to limit the application of
proposed section 44Q. Section 44Q would enable the AIRC to suspend or
cancel an award or order in certain cases.
87. These amendments ensure that the AIRC is only able to suspend or cancel
a transitional award in cases of misconduct by an organisation bound by
the award or a substantial number of its members, and not for 'any other
reason'. Proposed clauses 57 to 59 deal with the full range of
circumstances in which a transitional award ceases to apply.
Item 262 - Schedule 1, item 359, page 582 (line 14)
88. This item made a technical amendment to proposed paragraph 105(f) to
correct a cross-referencing error.
Item 263 - Schedule 1, item 359, page 582 (after line 30)
89. Proposed clause 107 in the Bill provides for the application of
Part VIII (compliance) to the transitional award system. This item would
amend proposed clause 107 to give a person and an entity standing to
apply for a penalty or other remedy for a breach of an outworker term in
a transitional award.
Item 264 - Schedule 1, item 359, page 582 (after line 31)
90. This item would amend proposed Part 8 by inserting new provisions to
provide for the application of certain terms of the WR Act to Schedule
13:
* proposed clause 107A would provide for the application of PartXA
(freedom of association);
* proposed clause 107B would provide for the application of
section 338 (contracts entered into by agents of employers);
* proposed clause 107C would provide for the application of
section 353A (records relating to employees); and
* proposed clause 107D would provide for the application of
section 413 (interpretation of awards).
Item 265 - Schedule 1, item 359, page 582 (line 33)
91. This item would make a minor amendment to proposed subclause 108(1) to
enable the proper operation of the regulation making power set out in
this clause.
Item 266 - Schedule 1, item 360, page 593 (lines 4 to 6)
92. Item 360 of the Bill would insert Proposed Schedule 14 into the WR Act,
which deals with transitional arrangements for existing pre-reform
Federal agreements etc. Proposed Part 4 of Schedule 14 would set out the
transitional arrangements for dealing with awards made under subsection
170MX(3) of the WR Act prior to the commencement of the Bill.
93. Proposed clause 22 of Schedule 14 would provide that Part 4 applies
specifically in relation to a 170MX award in force just before the reform
commencement.
94. Proposed item 266 would amend proposed clause 22 so that Part 4 of
Schedule 14 of the WR Act would apply to a 170MX award that was either:
* in force just before reform commencement; or
* made after reform commencement because of Part 8 of Schedule 14.
95. This amendment would be consequential to proposed amendment 268.
Proposed amendment 268 would insert proposed clause 32A into Part 8 of
Schedule 14, which set out the rules that will apply where the AIRC has
started to exercise it arbitration powers in relation to an application
for a 170MX award prior to reform commencement.
Item 267 - Schedule 1, item 360, page 595 (after line 29), after Part 7,
insert
96. Proposed item RCPH15 would insert a proposed Part 7A-Relationships
between pre-reform agreements etc. and public holiday entitlement, into
Schedule 14.
New clause 30A - Relationship between pre-reform agreements etc. and public
holiday entitlement
97. Proposed clause 30A would provide that Division 1A of Part VIA (public
holidays) does not apply to an employee if the employee's employment is
subject to:
* a pre-reform certified agreement;
* a pre-reform AWA; or
* a section 170MX award.
Item 268 - Schedule 1, item 360, page 596 (after line 19)
98. Item 360 of the Bill would insert Proposed Schedule 14 into the WR Act,
which deals with transitional arrangements for existing pre-reform
Federal agreements etc. Proposed amendment Agt150 would insert proposed
clause 32A into Part 8 of Schedule 14. Part 8 of Schedule 14 sets out the
rules that apply when an application for the certification of an
agreement has occurred prior to the Bill's commencement.
99. Subclause 32A(1) would provide that proposed clause 32A applies if,
before the Bill's commencement, the Commission has started to exercise
arbitration powers under subsection 170MX(3) of the WR Act to make a
170MX award, the rules under the pre-reform WR Act will apply.
100. The effect of proposed amendment 268 would be that if, before the
commencement of the Bill, the Commission terminated a bargaining period
and started to exercise its arbitration powers with a view to making a
170MX award, the Commission could make a 170MX award even after the
commencement of the Bill.
Item 269 - Schedule 1, item 360, page 597 (lines 13 to 15)
101. This item would amend clause 33 of Schedule 14 by inserting a
replacement definition of Victorian reference section 170MX award.
102. This amendment is consequential upon clauses 32A (item 268) and 38A
(item 270) of Schedule 14, which would allow a Victorian reference
section 170MX award to be made after the reform commencement in certain
circumstances.
Item 270 - Schedule 1, item 360, page 598 (after line 23)
103. This item would insert a new clause 38A of Schedule 14.
104. Clause 38A would provide that clause 32A of Schedule 14 (item 268) has
effect, in relation to the making of a section 170MX award under the WR
Act in its operation in accordance with repealed Division 2 of Part XV,
as if the reference in subclause 32A(1) to subsection 170MX(3) of the pre-
reform Act were read as a reference to that subsection as it had effect
because of repealed Division 2 of Part XV.
105. This amendment is consequential upon item 268, to ensure that new
clause 32A of Schedule 14 has effect in relation to matters arising under
section 170MX of the pre-reform Act as it had effect because of repealed
Division 2 of Part XV.
Item 271 - Schedule 1, item 360, page 599 (after line 17)
106. This item would insert new definitions of preserved collective State
agreement and preserved individual State agreement. This amendment is
consequential on amendments to Part 2-Preserved State Agreements, of
Schedule 15-Transitional treatment of State employment agreements and
State awards.
Item 272 - Schedule 1, item 360, page 599 (lines 21 and 22)
107. This item would insert a new definition of preserved State agreement.
This amendment is consequential on amendments to Part 2-Preserved State
Agreements, of Schedule 15-Transitional treatment of State employment
agreements and State awards.
Item 273 - Schedule 1, item 360, page 599 (after line 22)
108. Item 273 would insert a new subclause 1(1). The amendment is
consequential on amendments that apply in other provisions of the Act
relating to prohibited content. The amendment is required because section
4(2) of the Bill provides that a reference to an independent contractor
is confined to a natural person. The amendment would provide that the
restriction on the meaning of independent contractor in section 4(2)
would not apply for the purposes of regulations made under clause 9,
subclause 19(1), clause 37 or subclause 42(1) of Schedule 15. These
regulations relate to prohibited content in preserved State agreements
and notional agreements preserving State awards.
Item 274 - Schedule 1, item 360, page 600 (lines 12) to page 604 (line 29)
109. Proposed item 274 would substitute a new Division 1-Preserved
individual State agreements, a new Division 2-Preserved collective State
agreements and a new Division 2A-Effect and operation of a preserved
State agreement, in Part 2-Preserved State agreements, of Schedule 15-
Transitional treatment of State employment agreements and State awards.
The amendments effected by the substitution are technical, and intended
to improve readability.
Division 1-Preserved individual State agreements
Subdivision A-What is a preserved individual State agreement?
Clause 3 - Preserved individual State agreements
110. Proposed clause 3 would provide that a preserved individual State
agreement (PISA) would come into operation on reform commencement where,
immediately before reform commencement, the terms or conditions of an
employee's employment were determined, in whole or part, by a State
employment agreement applying to only one employee.
111. The State employment agreement is referred to as the original
individual agreement in the provisions of this Schedule.
112. A PISA would come into operation irrespective of whether the original
individual agreement regulates one term or condition of the relationship
between the employer and the employee, or whether it comprehensively
regulates the employment relationship. The actual terms and conditions
of employment that would be preserved in a PISA would be determined by
proposed clause 5 (below).
113. Subdivision B-Who is bound by or subject to a preserved individual
State agreement?
Clause 4 - Who is bound by or subject to a preserved individual State
agreement?
114. Under the WR Act a range of entitlements and obligations flow from
being 'bound by' or from a person's employment being 'subject to' an
agreement. Proposed clause 4 would set out who is bound by, or whose
employment is subject to, a PISA. This would be determined by reference
to those who were bound by, or whose employment was subject to, the
original individual agreement.
115. Proposed subclause 4(1) would address who would be bound by the PISA
by reference to those who were bound by the original agreement. It would
provide that an employer, an employee or an organisation would be bound
by the PISA if, immediately before the reform commencement, that
employer, employee or organisation was bound by or a party to the
original individual agreement. It would not matter whether the employer,
employee or organisation would have been bound under the terms of the
original individual agreement or by operation of a State or Territory
industrial law.
116. In this Schedule an organisation takes on the proposed definition in
Schedule 17 which provides that an organisation includes a transitionally
registered association.
117. Proposed subclause 4(2) would provide that a person's employment would
be subject to the PISA if the employment of a person was, immediately
before the reform commencement, subject to the original individual
agreement.
Subdivision C-Terms of a preserved individual State agreement
Clause 5 - Terms of a preserved individual State agreement
118. Clause 5 would provide for the terms of the PISA. It is intended that
the terms of the PISA would comprise:
* the terms of the original individual agreement (subclause 5(1));
* the terms of any other State employment agreement that,
immediately before the reform commencement, actually determined a
term or condition of employment of the employee bound by or
subject to the original individual agreement (subclause 5(2));
* the terms of any State award that, immediately before the reform
commencement, actually determined a term or condition of
employment of the employee bound by or subject to the original
individual agreement (subclause 5(3)); and
* a provision of a State or Territory law that, immediately before
the reform commencement, actually determined a preserved
entitlement of the employee bound by or subject to the original
individual agreement (subclause 5(4)).
119. This recognises that where an employee's employment is regulated by a
State employment agreement, that agreement is not necessarily
comprehensive of all the employee's terms and conditions of employment.
There may be terms and conditions of employment that are determined by
another State employment agreement, a State award or particular State or
Territory laws. If one of these instruments, or a particular law,
actually determined a term and condition of an employee's employment on
the day immediately before reform commencement, it is intended that the
term of the instrument, or the provision of the law, would form a term of
the PISA.
120. A term will only be included in the PISA to the extent that it
actually applied to the person. If a term did not apply because, for
example, it was included in an award which was excluded by the operation
of the original individual agreement, then it would not be included in
the PISA. The phrase 'as in force immediately before reform commencement'
makes it clear that the terms included in the original individual
agreement, other State employment agreement or State awards would be
preserved in the PISA as they exist at that time, and would not be
adjusted or varied to reflect subsequent changes to the agreements or
awards. Similarly, any provision of a State or Territory law that
determines a preserved entitlement would be preserved in the PISA as it
exists at that time, and would not be adjusted or varied to reflect
subsequent legislative amendments. The terms and conditions of employment
in a PISA may only be varied in accordance with this Schedule.
121. Proposed subclause 5(5) would set out a definition of preserved
entitlement. This definition would apply, when read with subclause 5(4),
so that the provisions of a State or Territory law would form a term of a
PISA to the extent that they relate to a preserved entitlement and
actually determined a term and condition of employment of the employee
bound by (or subject to) the original individual agreement on the day
immediately before reform commencement.
Illustrative Example
Tony is employed by Banco Bank Limited (Banco) in Brisbane under a State
employment agreement. He is the only employee bound by the agreement. The
agreement provides that Tony must work on Saturday mornings. The agreement
does not contain any terms dealing with penalty rates for working on a
Saturday or any terms dealing with annual leave.
The Banking - State - Award contains a term that employees will be entitled
to be paid at 150% of their normal pay rate for hours worked on a Saturday.
This term actually determines Tony's terms and conditions of employment,
and Banco pays Tony 150% of his normal pay rate for the hours he works on a
Saturday morning.
There is an entitlement to annual leave under the Industrial Relations Act
1999 (Qld).
At the reform commencement, Banco and Tony (who are both bound by the State
employment agreement) would become bound by a PISA.
The terms preserved in the PISA would be the terms of the State employment
agreement as in force immediately before the reform commencement. The term
of the State award setting penalty rates for working on a Saturday (as in
force immediately before reform commencement) would also be preserved in
the PISA. The provisions of the Industrial Relations Act 1999 (Qld) dealing
with annual leave (as in force immediately before reform commencement)
would also be preserved in the PISA.
Clause 6 - Nominal expiry date of a preserved individual State agreement
122. Proposed paragraph 6(a) would provide that the nominal expiry date of
a PISA would be the same date on which the original individual agreement
would have nominally expired under the relevant State or Territory
industrial law. This would include a nominal expiry date provided for
under the terms of the agreement itself, or under a State or Territory
law directly, or a combined effect of the two.
123. Proposed paragraph 6(b) would provide an exception to paragraph 6(a).
If the nominal expiry date of the original individual agreement would
have fallen more than three years after the commencement of the original
agreement, then the nominal expiry date in the PISA will instead be the
last day of the three year period after the commencement of the original
agreement. Note that a PISA would continue to operate after the nominal
expiry date has passed until it is terminated or replaced.
Clause 7 - Powers of State industrial authorities
124. Proposed subclause 7(1) would provide that if a PISA confers a
function or power on a State industrial authority, that function must not
be performed and that power must not be exercised by the State industrial
authority on or after the reform commencement. This subclause is
intended to ensure that the terms and conditions of a PISA are only
enforced under this Act, and not under the State or Territory laws or in
the State system in which the original individual agreement was made. It
would not be appropriate for State industrial authorities to exercise
powers or perform functions with respect to PISAs as PISAs would be
federal instruments.
125. Proposed subclause 7(2) would provide that the employer and the
persons bound by the PISA may, by agreement, confer such a function or
power on the AIRC. However this option would only apply in situations
where the matter or issue does not relate to the resolution of a dispute
about the application of the agreement. Proposed clause 8 provides that
in such cases, the model dispute resolution process would apply (see Part
VIIA of Schedule 1).
Clause 8 - Dispute resolution processes
126. Proposed subclause 8(1) would provide that a PISA is taken to include
a term requiring disputes about the application of the agreement to be
resolved in accordance with the proposed model dispute resolution process
(Part VIIA of Schedule 1).
127. Proposed subclause 8(2) would provide that any term of the PISA that
would otherwise deal with the resolution of those disputes is void to
that extent. This subclause is intended to ensure that disputes in
relation to the application of a PISA are resolved in a manner which is
consistent with the model dispute settlement resolution process
established under the WR Act, including that employers and employees be
encouraged to resolve disputes at the workplace level.
Clause 9 - Prohibited content
128. Proposed clause 9 would provide that a term of a PISA is void to the
extent that it contains prohibited content of a prescribed kind.
Division 2-Preserved collective State agreements
Subdivision A-What is a preserved collective State agreement?
Clause 10 - Preserved collective State agreements
129. Proposed clause 10 would provide that a preserved collective State
agreement would come into operation on reform commencement where,
immediately before reform commencement, the terms or conditions of an
employee's employment were determined, in whole or part, by a State
employment agreement applying to more than one employee.
130. The State employment agreement is referred to as the original
collective agreement in the provisions of this Schedule.
131. A preserved collective State agreement (PCSA) would come into
operation irrespective of whether the original collective agreement
regulates one term or condition of the relationship between the employer
and the employee, or whether it comprehensively regulates the employment
relationship. The actual terms and conditions of employment that would
be preserved in a PCSA would be determined by proposed clause 13 (below).
132. Subdivision B-Who is bound by or subject to a preserved collective
State agreement?
Clause 11 - Who is bound by a preserved collective State agreement?
Clause 12 - Whose employment is subject to a preserved collective State
agreement?
133. Under the WR Act a range of entitlements and obligations flow from
being 'bound by' or from a person's employment being 'subject to' an
agreement. Proposed clauses 11 and 12 would set out who is bound by, and
whose employment is subject to, a PCSA. This would be determined by
reference to those who were bound by, or whose employment was subject to,
the original collective agreement.
134. Proposed subclause 11(1) would address who would be bound by the PCSA
by reference to those who were bound by the original agreement. It would
provide that an employer, an employee or an organisation would be bound
by the PCSA if, immediately before the reform commencement, that
employer, employee or organisation was bound by or a party to the
original collective agreement. It would not matter whether the employer,
employee or organisation would have been bound under the terms of the
original collective agreement or by operation of a State or Territory
industrial law.
135. In this Schedule an organisation takes on the proposed definition in
Schedule 17 which provides that an organisation includes a transitionally
registered association.
136. Proposed subclause 11(2) would address who would be bound by a PCSA in
the future. It would be provide that if, after the reform commencement, a
person is employed by an employer who is bound by a PCSA and that
employee would have been bound by the original collective agreement (as
in force immediately before reform commencement), then the employee is
bound by the PCSA.
137. Proposed subclause 12(1) would provide that a person's employment
would be subject to the PCSA if the employment of that person was,
immediately before the reform commencement, subject to the original
collective agreement.
138. Proposed subclause 12(2) would address whose employment would be
subject to a PCSA in the future. It would provide that if, after the
reform commencement, a person is employed by an employer who is bound by
a PCSA and that employee's employment would have been subject to the
original collective agreement (as in force immediately before reform
commencement), then the employee's employment is subject to the PCSA.
139. Subdivision C-Terms of a preserved collective State agreement
Clause 13 - Terms of a preserved collective State agreement
140. Clause 13 would provide for the terms of the PCSA. It is intended that
the terms of the PCSA would comprise:
* the terms of the original collective agreement (subclause 13(1));
* the terms of any State award that, immediately before the reform
commencement, actually determined a term or condition of
employment of an employee bound by or subject to the original
collective agreement (subclause 13(2)); and
* a provision of a State or Territory law that, immediately before
the reform commencement, actually determined a preserved
entitlement of an employee bound by or subject to the original
collective agreement (subclause 13(3)).
141. This recognises that where an employee's employment is regulated by a
State employment agreement, that agreement is not necessarily
comprehensive of all the employee's terms and conditions of employment.
There may be terms and conditions of employment that are determined by a
State award or particular State or Territory laws. If the award, or a
particular law relating to a preserved entitlement, actually determined a
term and condition of an employee's employment on the day immediately
before reform commencement, it is intended that the term of the award, or
the provision of the law, would form a term of the PCSA.
142. A term will only be included in the PCSA to the extent that it
actually applied to the person. If a term did not apply because, for
example, it was included in an award which was excluded by the operation
of the original collective agreement, then it would not be included in
the PCSA. The phrase 'as in force immediately before reform commencement'
makes it clear that the terms included in the original collective
agreement or State awards would be preserved in the PCSA as they exist at
that time, and would not be adjusted or varied to reflect subsequent
changes to the agreement or awards. Similarly, any provision of a State
or Territory law that determines a preserved entitlement would be
preserved in the PCSA as it exists at that time, and would not be
adjusted or varied to reflect subsequent legislative amendments. The
terms and conditions of employment in a PCSA may only be varied in
accordance with this Schedule.
143. Proposed subclause 13(4) would set out a definition of preserved
entitlement. This definition would apply, when read with subclause 13(3),
so that the provisions of a State or Territory law would form a term of a
PCSA to the extent that they relate to a preserved entitlement and
actually determined a term and condition of employment of the employee
bound by (or subject to) the original individual agreement on the day
immediately before reform commencement.
Illustrative Example
Sarah has been employed as a confectioner by Sweetsbury Pty Ltd
(Sweetsbury) for 3 years. Sweetsbury and its employees, including Sarah,
are bound by a certified agreement, made under the Queensland Industrial
Relations Act 1999 (the Act).
The certified agreement provides most of Sarah's terms and conditions of
employment. However it is silent on carer's leave in relation to casual
employees. Under the Act, long term casual employees are entitled to 5
days unpaid leave in each year to care and support members of their
immediate family or members of their household when they are ill. Sarah
comes within the definition of a long term casual employee under the Act as
she has worked at Sweetsbury on a regular and systematic basis for at least
one year, and is therefore entitled to five days unpaid carer's leave each
year.
At the reform commencement Sweetsbury and its employees that are bound by
the certified agreement (which is a State employment agreement under
subsection 4(1) of the WR Act) would become bound by a PCSA.
In this instance, the terms preserved in the PCSA under clause 13 would be
the terms of the certified agreement as in force immediately before the
reform commencement, and the provisions of the Act relating to carer's
leave for long term casuals as in force immediately before the reform
commencement. Prior to reform commencement Sarah is entitled to carer's
leave, and would therefore be entitled to it after the reform commencement
under the terms of PCSA. On the other hand, Peter is not entitled to
carer's leave prior to the reform commencement because he is a casual
employee who has only been employed by Sweetsbury for three months. Peter
would be entitled to carer's leave under the terms of the PCSA if he worked
on a regular and systematic basis for at least one year.
Clause 14 - Nominal expiry date of a preserved collective State agreement
144. Proposed paragraph 14(a) would provide that the nominal expiry date of
a PCSA would be the same date on which the original collective agreement
would have nominally expired under the relevant State or Territory
industrial law. This would include a nominal expiry date provided for
under the terms of the agreement itself, or under a State or Territory
law directly, or a combined effect of the two.
145. Proposed paragraph 14(b) would provide an exception to paragraph
14(a). If the nominal expiry date of the original individual agreement
would have fallen more than three years after the commencement of the
original agreement, then the nominal expiry date in the PCSA will instead
be the last day of the three year period after the commencement of the
original agreement. Note that a PCSA would continue to operate after the
nominal expiry date has passed until it is terminated or replaced.
Clause 15 - Powers of State industrial authorities
146. Proposed subclause 15(1) would provide that if a PCSA confers a
function or power on a State industrial authority, that function must not
be performed and that power must not be exercised by the State industrial
authority on or after the reform commencement. This subclause is
intended to ensure that the terms and conditions of a PCSA are only
enforced under this Act, and not under the State or Territory laws or in
the State system in which the original individual agreement was made. It
would not be appropriate for State industrial authorities to exercise
powers or perform functions with respect to PCSAs as PCSAs would be
federal instruments.
147. Proposed subclause 15(2) would provide that the employer and the
persons bound by the PCSA may, by agreement, confer such a function or
power on the AIRC. However this option would only apply in situations
where the matter or issue does not relate to the resolution of a dispute
about the application of the agreement. Proposed clause 15A provides
that in such cases, the model dispute resolution process would apply (see
Part VIIA of Schedule 1).
Clause 15A - Dispute resolution processes
148. Proposed subclause 15A(1) would provide that a PCSA is taken to
include a term requiring disputes about the application of the agreement
to be resolved in accordance with the proposed model dispute resolution
process (Part VIIA of Schedule 1).
149. Proposed subclause 15A(2) would provide that any term of the PCSA that
would otherwise deal with the resolution of those disputes is void to
that extent. This subclause is intended to ensure that disputes in
relation to the application of a PCSA are resolved in a manner which is
consistent with the model dispute settlement resolution process
established under the WR Act, including that employers and employees be
encouraged to resolve disputes at the workplace level.
Clause 15B - Prohibited content
150. Proposed clause 15B would provide that a term of a PCSA is void to the
extent that it contains prohibited content of a prescribed kind.
Division 2A-Effect and operation of a preserved State agreement
Proposed Division 2A would set out provisions regarding the effect and
operation of a preserved State agreement. These provisions would apply to
both PISAs and PCSAs, as they both fall within the definition of preserved
State agreement (PSA) which would be set out in clause 1.
Clause 15C - Effect of preserved State agreement
151. Proposed subclause 15C(1) would provide that a PSA has effect
according to its terms, except to the extent that its terms are varied or
modified by this Part, or otherwise under this Act.
152. Proposed subclause 15C(2) would provide that this Part has effect
despite the terms of the PSA itself, or any State award or law of a
State.
153. Proposed subclause 15C(3) would clarify that none of the terms and
conditions of a PSA are enforceable under the law of a State. The terms
and conditions of employment included in a PSA would only be enforceable
under the WR Act.
Clause 15D - Effect of awards while preserved State agreement in operation
154. Proposed clause 15D would provide that an award has no effect in
relation to an employee while the terms of a PSA operate in relation to
the employee. The WR Act currently provides that a State employment
agreement may generally regulate the wages and conditions of employment
of an employee in spite of a federal award that would otherwise be
binding on an employer in respect of the employee (subsection 152(3)).
This is an exception to the approach in subsection 152(1) which provides
that a federal award prevails over State laws to the extent of any
inconsistency. This provision would preserve the effect of subsection
152(3) in relation to the terms and conditions contained in the PSA.
This is necessary to allow the terms and conditions from the original
agreement to continue to interact with a relevant award as they would do
if the reform commencement did not occur.
Illustrative Example
Jenny works as a receptionist at Henry's Strike 'em Down Ten Pin Bowling
Centre in Parramatta, NSW. Her employment is covered by an enterprise
agreement made under the Industrial Relations Act 1996 (NSW). Henry's
business is a respondent to the AWU Ten Pin Bowling Award 2003.
Prior to reform commencement, the agreement regulated Jenny and her
colleagues' terms and conditions of employment in spite of the federal
award, because of the operation of section 152 of the WR Act. The terms of
the agreement will be included in a preserved State agreement after reform
commencement, and the terms will continue to prevail over the terms of the
award.
Clause 15E - Relationship between preserved State agreement and Australian
Fair Pay and Conditions Standard
155. Proposed clause 15E would provide that the Standard does not apply to
an employee if the employee is bound by a PSA, or the person's employment
is subject to the PSA. This mirrors the situation for pre-reform federal
agreements (see clause 22 of Schedule 14). The Standard does not apply
to pre-reform federal agreements because those agreements were made under
different circumstances prior to the Standard operating.
Clause 15F - Relationship between preserved State agreement and public
holiday entitlement
156. Proposed clause 15F would provide that the public holiday entitlement
set out in proposed Division 1A of Part VIA of the Bill does not apply to
an employee if the employee is bound by a PSA, or the person's employment
is subject to the PSA. This mirrors the situation for pre-reform federal
agreements (see proposed clause 30A of Schedule 14). This entitlement
does not apply to pre-reform federal agreements because those agreements
were made under different circumstances prior to the entitlement having
effect.
Clause 15G - When a preserved State agreement ceases to operate
157. Proposed clause 15G would provide when a PSA ceases to operate.
158. Subclause 15G(1) would provide that a PSA ceases to be in operation if
it is terminated under clause 21.
159. Subclause 15G(2) would provide that a PSA ceases to be in operation in
relation to an employee, if a workplace agreement comes into operation in
relation to the employee (paragraph 15G(2)(a)), or if a workplace
determination comes into operation in relation to the employee (paragraph
15G(2)(b)). This result would arise irrespective of whether the nominal
expiry date of the PSA has passed. The nominal expiry date of a PISA is
provided for in proposed clause 6. The nominal expiry date of a PCSA is
provided for in proposed clause 14.
160. Subclause 15G(3) would provide that if a PSA has ceased to operate in
relation to an employee because a workplace agreement or a workplace
determination has come into operation in relation to an employee, then
the PSA would never operate again in relation to that employee.
Item 275 - Schedule 1, item 360, page 610 (lines 8 to 16)
161. This item would substitute a new proposed subclause 23(1). The
amendment is intended to align the wording of subclause 23(1) more
closely with the wording of subsection 110(1). The amendment is not
intended to effect any substantive change to the effect of subclause
23(1).
Item 276 - Schedule 1, item 360, page 611 (line 13)
162. This item would amend proposed subclause 23(7) by adding new
paragraphs 23(7)(c) - (d). Paragraph 23(7)(c) would add a person affected
by the industrial action to the list of persons able to apply for a
remedy for a breach of the civil remedy provision in subclause 23(1).
Paragraph 23(7)(d) is identical to the previous paragraph 23(7)(c) and
would provide that any other person prescribed by the regulations can
apply for a remedy for a breach of the civil remedy provision in
subclause 23(1).
Item 277 - Schedule 1, item 360, page 611 (line 24)
163. This item would amend proposed subclause 23(8) by adding new
paragraphs 23(7)(d) - (e). Paragraph 23(8)(d) would add a person affected
by the industrial action to the list of persons able to apply for a
remedy for a breach of the civil remedy provision in subclause 23(3).
Paragraph 23(8)(e) is identical to the previous paragraph 23(8)(d) and
would provide that any other person prescribed by the regulations can
apply for a remedy for a breach of the civil remedy provision in
subclause 23(3).
Item 278 - Schedule 1, item 360, page 611 (line 24)
164. Proposed item 278 would amend proposed clause 25 by adding the words
'or organising'. The amendment is a technical amendment to ensure that
both engaging in and also organising industrial action in contravention
of proposed clauses 23 or 24 is not protected action for the purposes of
the Act.
Item 279 - Schedule 1, item 360, page 613 (after line 17)
Clause 25A - Protected conditions where employment was subject to preserved
State agreement
165. Proposed clause 25A would provide a mechanism by which certain
protected conditions are automatically read into a workplace agreement
unless expressly excluded or modified.
166. Subclause 25A(1) would set out the application of the clause. It would
apply if a person's employment was subject to a PSA and the agreement
ceased to operate (under proposed clause 15G) because a workplace
agreement came into operation.
167. Subclause 25A(2) would provide that protected preserved conditions are
taken to be included in the workplace agreement and have effect in
relation to the employment of the person, subject to any terms of the
workplace agreement that expressly exclude or modify all or part of them.
168. Subclause 25A(3) would provide that despite paragraph 25A(2)(c), which
allows workplace agreement to expressly exclude or modify protected
preserved conditions, those protected preserved conditions that are about
outworkers conditions have effect, despite any terms of a workplace
agreement that provide, in a particular respect, a less favourable
outcome for the outworker.
169. Subclause 25A(4) would define outworker conditions to mean conditions
for outworkers, other than pay, but only to the extent necessary to
ensure that their overall conditions of employment are fair and
reasonable in comparison with the conditions of employment specified in a
relevant awards or awards for employees who perform the same kind of work
at an employer's business or commercial premises. The definition of
outworker conditions in subclause 25A(4) is similar to the provisions of
paragraph 116(1)(b) of the Bill, which relates to allowable award
matters.
170. The effect of the provisions would be that a workplace agreement could
only exclude or modify outworker conditions if the agreement provided a
more favourable outcome for the outworker than the outworker conditions.
171. Subclause 25A(4) would also provide definitions for the purposes of
subclauses 25A(1) - (3). The definition would provide that protected
preserved conditions, in relation to the employment of a person, are the
terms of a State award or a provision of a State or Territory industrial
law (as in force immediately before the reform commencement) that would
have determined a term or condition of that employee, had they been
employed at the time and that employment had not been subject to a State
employment agreement to the extent that the term or provision:
* is about protected allowable award matters (the list of matters is
defined in proposed subclause 25A(4)); or
* is incidental to a protected allowable award matter and may be
included in an award as permitted by section 116I; or
* is a machinery provision that is in respect of a protected
allowable award matter and may be included in an award as
permitted by section 116I; and
* is not about matters that are not allowable award matters because
of section 116B; or
* is not about any matters specified in the regulations.
172. The provision would ensure that an employee who is bound by or subject
to a PSA, and who subsequently makes a workplace agreement, would be
entitled to protected preserved conditions. They would, subject to the
limitations above, be drawn from any State award or State or Territory
law (as in force immediately before reform commencement) that would have
determined an employee's terms or conditions of employment. For the
purpose of determining the protected preserved conditions, the effect of
any State employment agreement would be ignored. This is because the
State employment agreement may have traded off particular terms in an
award or provisions under a State or Territory law. It is intended that
these conditions would be protected for the purposes of bargaining for a
workplace agreement under the WR Act. An employer and employee would,
however, be able to trade them off in the manner provided for by
subclauses 25(1) - (3).
Item 280 - Schedule 1, item 360, page 614 (line 27) to page 619 (line 26)
173. Proposed item 280 would substitute a new Division 1-What is a notional
agreement preserving State awards, and a new Division 2-Effect and
operation of a notional agreement preserving State awards, in Part 3-
Notional agreements preserving State awards, of Schedule 15-Transitional
treatment of State employment agreements and State awards. The amendments
effected by the substitution are technical, and intended to improve
readability.
Division 1-What is a notional agreement preserving State awards?
Subdivision A-What is a notional agreement preserving State awards?
Proposed clause 31 - Notional agreements preserving State awards
174. Proposed clause 31 would provide that a notional agreement preserving
State awards (NAPSA) would come into operation on reform commencement
where a term or condition of a person's employment was regulated under a
state award or a State or Territory industrial law. State award would be
defined in subsection 4(1) to mean an award, order, decision or
determination of a State industrial authority. In this Schedule, the
relevant State award is referred to as the original State award. The
relevant State or Territory law is referred to as the original State law.
175. The NAPSA is taken to come into operation in respect of an employer in
a single business or part of a single business and relevant employees.
These terms would be defined in subsection 4(1) by reference to the
definition in proposed section 95A. Subsection 95A(2) and subparagraph
95A(2)(b)(i) would also apply to proposed clause 31, so that two or more
employers would be deemed to be one employer for the purposes of clause
31 where certain conditions are met.
176. Proposed clause 31 is qualified by proposed paragraph 31(a) which
would provide that a NAPSA would not come into operation if any term or
condition of that employee's employment with the employer is regulated by
a State employment agreement at the reform commencement. The intention
of proposed paragraph 31(a) is to ensure that, where any term or
condition of employment between an employer and a employee is regulated
by a State employment agreement, those terms and conditions are preserved
as a PSA under Part 2 of this Schedule, and not as a NAPSA under Part 3.
The actual terms and conditions of employment that would be preserved in
a NAPSA would be determined by proposed clause 34 (see below).
Subdivision B-Who is bound by or subject to a notional agreement preserving
State awards?
Clause 32 - Who is bound by the notional agreement preserving State awards?
Clause 33 - Who is subject to a notional agreement preserving State awards
177. Proposed clauses 32 and 33 would set out who is bound by, or whose
employment is subject to, a NAPSA. This would be determined by reference
to those who are bound by, or whose employment was subject to the
original State award or the original State law.
178. Proposed subclause 32(1) would address who would be bound by the NAPSA
by reference to those who were bound by the original State award or
original State law. It would provide that an employer in the business (or
part), an employee employed in the business (or part) or an organisation
having at least one member who is such an employee would be bound by the
NAPSA.
179. In this Schedule an organisation takes on the proposed definition in
Schedule 17 which provides that an organisation includes a transitionally
registered association.
180. Proposed subclause 32(2) would address who would be bound by a NAPSA
in the future. It would provide that a person is bound by the NAPSA if:
* after the reform commencement, they are employed in the business
(or part);
* they would have been bound by the original State award or original
State law (as in force immediately before reform commencement);
and
* they are not bound by a PSA.
181. Proposed subclause 33(1) would provide that a person's employment
would be subject to the NAPSA if the employment of that person was,
immediately before the reform commencement, subject to the original State
award or original State law.
182. Proposed subclause 33(2) would address whose employment would be
subject to a NAPSA in the future. It would provide that a person is
subject to the NAPSA if:
* after the reform commencement, the person is employed in the
business (or part);
* the person would have been subject to the original State award or
original State law (as in force immediately before reform
commencement); and
* the person's employment is not subject to
* a PSA.
Illustrative Example
Six months after the reform commencement Brooke is employed as an entry
level process worker, by Milky Goodness Pty Ltd (Milky Goodness) a
manufacturer of dairy products, based in Launceston, Tasmania. Prior to
the reform commencement, the terms and conditions of employment of process
workers at Milky Goodness were regulated by the Tasmanian Butter and Cheese
Makers Award 2005. After the reform commencement the terms and conditions
of employment that existed in the Butter and Cheese Makers Award 2005
immediately before reform commencement would be preserved in a notional
agreement preserving state awards. At the reform commencement Milky
Goodness, and its current employees become bound to, or subject to the
notional agreement. When Brooke is employed by Milky Goodness, her
employment would become subject to the NAPSA. Milky Goodness and Brooke
would be able to enforce the NAPSA under the WR Act.
Clause 34 - Terms of notional agreement preserving State awards
183. Proposed clause 34 would provide for the terms of the NAPSA. It is
intended that the terms of the NAPSA would comprise:
* the terms of the original State award that, immediately before the
reform commencement, actually determined a term or condition of
employment of a person in the business (or part) provided that
person was not bound by, party to or subject to a State employment
agreement (subclause 34(1)); and
* a provision of a State or Territory law that, immediately before
the reform commencement, actually determined a preserved
entitlement of a person in the business (or part) provided that
person was not bound by, party to or subject to a State employment
agreement (subclause 34(2)).
184. A term will only be included in the NAPSA to the extent that it
actually applied to a person employed in the business (or part). The
phrase 'as in force immediately before reform commencement' makes it
clear that the terms included in the original State award or original
State law would be preserved in the NAPSA as they exist at that time, and
would not be adjusted or varied to reflect subsequent changes to the
award or legislation. The terms and conditions of employment in a NAPSA
may only be varied in accordance with this Schedule.
185. Proposed subclause 34(3) would set out a definition of preserved
entitlement. This definition would apply, when read with subclause 34(2),
so that the provisions of a State or Territory law would form a term of a
NAPSA to the extent that they relate to a preserved entitlement and
actually determined a term and condition of employment of the person
employed in the business (or part) on the day immediately before reform
commencement.
Illustrative Example
Julianne has been employed as a baker's assistant at Crusty Loaves Pty Ltd
(Crusty Loaves), in Perth, Western Australia, for 8 years. She is covered
by the Bakers' (Metropolitan) Award No.13 of 1987 (Bakers' Award). Among
other things, the award includes provisions dealing with redundancy and
provides a scale of severance pay depending on the period of continuous
service. The maximum that an employee is entitled to is eight weeks
severance pay in respect of a period of continuous service of four or more
years.
A 2005 General Order of the Western Australian Commission in relation to
redundancy applies to all employees (as defined in the Industrial Relations
Act 1979). It also provides a scale of severance pay. Under its terms,
the maximum that an employee is entitled to is 16 weeks severance pay in
respect of a period of continuous service of nine years and less than 10
years. This means that at the reform commencement, the terms of the
notional agreement would include the terms of the Bakers' Award as well as
the terms from the General Order that provides an entitlement to redundancy
more beneficial than the Bakers' Award, and to the extent that those terms
apply to Crusty Loaves and its employees (including Julianne).
Clause 35 - Powers of State industrial authorities
186. Proposed subclause 35(1) would provide that if a NAPSA confers a
function or power on a State industrial authority, that function must not
be performed and that power must not be exercised by the State industrial
authority on or after the reform commencement. This subclause is
intended to ensure that the terms and conditions of a NAPSA are only
enforced under this Act, and not under the State or Territory laws or in
the State system in which the original agreement was made. It would not
be appropriate for State industrial authorities to exercise powers or
perform functions with respect to federal instruments.
187. Proposed subclause 35(2) would provide that the employer and the
persons bound by the NAPSA may, by agreement, confer such a function or
power on the AIRC. However this option would only apply in situations
where the matter or issue does not relate to the resolution of a dispute
about the application of the agreement. Proposed clause 36 would provide
that in such a case, the model dispute resolution process would apply
(see Part VIIA of Schedule 1).
Clause 36 - Dispute resolution process
188. Proposed subclause 36(1) would provide that a NAPSA is taken to
include a term requiring disputes about the application of the notional
agreement to be resolved in accordance with the model dispute resolution
process (see Part VIIA of Schedule 1).
189. Proposed subclause 36(2) would provide that any term of the NAPSA that
would otherwise deal with the resolution of those disputes is void to
that extent.
Clause 37 - Prohibited content
190. Proposed clause 38 would provide that a term of a NAPSA is void to the
extent that it contains prohibited content of a prescribed kind.
191. Division 2-Effect and operation of a notional agreement preserving
State awards
Clause 38 - Effect of notional agreement preserving State awards
192. Proposed subclause 38(1) would provide that a NAPSA has effect
according to its terms, except where its terms are modified or varied
under this Part or under the Act.
193. Subclause 38(2) would make it clear that this Part of the Act has
effect despite terms and conditions of the original State award, the
original law or any other law of a State.
194. Subclause 38(3) would provide that none of the terms and conditions of
employment included in the NAPSA are enforceable under the law of a
State.
Clause 38A - Operation of notional agreement preserving State awards
195. Proposed clause 38A would provide the circumstances whereby a NAPSA
would cease to operate.
196. Subclause 38A(1) would provide that a NAPSA ceases to be in operation
at the end of the period of three years beginning on reform
commencement. During this period, the persons who are bound by, or whose
employment is subject to, the NAPSA may become bound by an award (see
proposed sections 120, 120A, and 120B). During this period, the AIRC
would undertake award rationalisation. The Award Review Taskforce will
report to Government with recommendations for the rationalisation of
award wage and classification structures and federal awards. Under its
terms of reference, the Taskforce will recommend an approach to
rationalise awards on an industry sector basis, and to permit general
coverage of employers and employees according to the relevant industry
sector based awards.
197. Subclause 38A(2) would provide that a NAPSA ceases to be in operation
in relation to an employee if a workplace agreement comes into operation
in relation to the employee. The workplace agreement could be a
collective agreement or an AWA.
198. This would mean that the NAPSA ceases to regulate the relationship
between that employee and employer. The employer would still be bound
to, or subject to the NAPSA to the extent that the notional agreement
binds, or regulates terms and conditions of employment in relation to
other employees bound to, or subject to the NAPSA.
199. It is noted at proposed clause 38A that a reference to a workplace
agreement includes a reference to a workplace determination.
200. Subclause 38A(3) would provide that a notional agreement ceases to be
in operation in relation to an employee if an award made under proposed
section 118E comes into operation in relation to the employee. Proposed
section 118E provides for the making of awards to give effect to award
rationalisation.
201. Subclause 38A(4) would provide that if a notional agreement has ceased
to operate in relation to an employee because of subclauses 33(2) or (3),
the agreement can never operate again in relation to that employee.
Item 281 - Schedule 1, item 360, page 624 (line 9)
202. This item would make a technical amendment to proposed subclause 45(1)
to address the situation where one than one term of a NAPSA is about one
of the matters set out at paragraphs 45(1)(a) - (g).
Item 282 - Schedule 1, item 360, page 624 (line 25)
203. This item would make a technical amendment by inserting a proposed
subclause 45(4) to address the situation where one than one term of a
NAPSA is about one of the matters set out at paragraphs 45(1)(a) - (g).
It would make clear that the terms taken together constitute the
preserved notional term of the NAPSA about the particular matter.
Item 283 - Schedule 1, item 360, page 624 (lines 30 and 31)
204. Proposed item 283 would substitute a new proposed paragraph 45(5)(a).
The amendment is consequential on an amendment to the definition of
parental leave in paragraph 117(7)(a) of the Bill.
Item 284 - Schedule 1, item 360, page 625 (lines 5 to 7)
205. Proposed item 284 would substitute a new note to subclause 45(5). The
amendment is consequential on an amendment to the subsection 117(7) of
the Bill.
Item 285 - Schedule 1, item 360, page 629 (after line 14)
206. Proposed clause 52 of Schedule 15 would provide a mechanism by which
certain protected notional conditions are automatically read into a
workplace agreement unless expressly excluded or modified. Proposed item
285 would insert subclause 52(2A) into proposed clause 52. Subclause
52(2A) would provide that despite paragraph 52(2)(c), which allows a
workplace agreement to expressly exclude or modify protected notional
conditions, those protected notional conditions that are about outworkers
conditions have effect, despite any terms of a workplace agreement that
provide, in a particular respect, a less favourable outcome for the
outworker.
207. Subclause 52(3) would define outworker conditions to mean conditions
for outworkers, other than pay, but only to the extent necessary to
ensure that their overall conditions of employment are fair and
reasonable in comparison with the conditions of employment specified in a
relevant awards or awards for employees who perform the same kind of work
at an employer's business or commercial premises. The definition of
outworker conditions in subclause 52(3) is similar to paragraph 116(1)(b)
of the Bill, which relates to allowable award matters.
208. The effect of the proposed amendment would be that a workplace
agreement could only exclude or modify outworker conditions if the
agreement provided a more favourable outcome for the outworker than the
outworker conditions.
Item 286 - Schedule 1, item 360, page 629 (after line 35)
209. Proposed subclause 52(3) of the Bill would provide definitions for the
purposes of subclauses 52(1) - (2A), which would deal with protected
notional conditions. Relevantly, the definition of protected allowable
award matters would include paragraph (d) that provides for the
observance of days declared by or under a law of a State or Territory to
be observed as public holidays and entitlements to payment in respect of
those days. Proposed item 286 would insert a new paragraph (da) into the
definition of protected allowable award conditions. It would include in
the list of protected allowable award matters a term of an award that
provides for days to be substituted, or a procedure for substituting,
public holidays.
210. In addition, it would have the effect of making the following
protected allowable award matters:
* a term that enables a public holiday declared in a metropolitan
area to be substituted for a public holiday in a country or
regional area; and
* a procedure for agreement between an employer and an individual
employee with respect to taking an alternate day as the public
holiday in lieu of a day that would otherwise be the designated
public holiday because of paragraph (d) of the definition.
Item 287 - Schedule 1, item 360, page 630 (after line 15)
211. Proposed subclause 52(3) would provide a definition of protected
notional conditions.
212. Proposed item 287 would make the definition of protected notional
conditions consistent with the operation of proposed section 116I of the
Bill. The substituted paragraph (a) of the definition would provide that
protected notional conditions include terms of a NAPSA that are:
* about protected allowable award matters;
* incidental to protected allowable award matters that may be
included in an award because of proposed section 116I; or
* machinery provisions that relate to protected allowable award
matters and that may be included in an award because of proposed
section 116I.
213. It would ensure that protected notional conditions fully incorporate
the relevant terms and conditions from NAPSAs (including terms that are
incidental and essential to the practical operation of protected
allowable award matters and machinery terms) and ensure that they operate
in a practical way.
Item 288 - Schedule 1, item 360, page 630 (line 17)
214. Proposed item 288 would amend subparagraph (b)(i) of the definition of
protected notional conditions in subclause 52(3) to say "matters that are
not about allowable award matters because of section 116B." This is a
technical amendment so that the language of subparagraph (b)(i) is more
precise.
Item 289 - Schedule 1, item 360, page 630 (after line 18)
215. Proposed item 289 would insert a new Division 6A-Industrial action
during the life of an enterprise award.
Clause 52AA - Action taken during life of enterprise award not protected
216. Proposed subclause 52AA(1) would provide that engaging in or
organising industrial action is not protected action if:
* the person engaging in or organising the industrial action is
bound by, or subject to, a NAPSA that includes terms and
conditions from an enterprise award;
* the enterprise award includes a term or condition relating to
industrial action;
* engaging in or organising the industrial action would breach that
term or condition; and
* the nominal expiry date for the enterprise award has not yet
passed.
217. Proposed subclause 52AA(2) would set out a definition of enterprise
award. It would be defined as a State award:
* that applies to a single business or part of a single business;
* that has a nominal expiry date; and
* that has a no extra claims clause.
218. The terms single business or part of a single business would be
defined in subsection 4(1) by reference to the definition in proposed
section 95A. Subsection 95A(2) and subparagraph 95A(2)(b)(i) would also
apply to proposed subclause 52AA(2), so that two or more employers would
be deemed to be one employer for the purposes of subclause 52AA(2) where
certain conditions are met.
219. Proposed subclause 52AA(2) would set out a definition of nominal
expiry date. It would be defined as the last day of the period during
which the enterprise award is specified to have effect.
220. Some State awards are made at the enterprise level as a result of
bargaining, and are more akin to an agreement. These 'enterprise awards'
are frequently expressed to apply for a particular period, contain
provisions stating that the party will make no extra claims during that
period, and contain restrictions on industrial action. The amendment
would make clear that where the parties have agreed to a restriction or
limitation on taking industrial action for the nominal life of the award,
any industrial action taken to support or advance claims for a collective
agreement that is in breach of that restriction or limitation is not
protected action. The amendment would not prevent the parties from taking
protected action that falls outside the scope of the restriction or
limitation, nor would it prevent the parties from taking protected
industrial action in support of a new collective agreement after the
nominal expiry date of the enterprise award has passed (even if the
action breached the restriction or limitation).
Illustrative example
Hard-As Steel is a party to an enterprise award (within the meaning in
subclause 52AA(2)). The enterprise award has a nominal expiry date of 30
September 2007. Because Hard-As Steel operates a 24 hour operation that
cannot be shut down without significant damage being caused to plant and
equipment, the enterprise award includes a term that if employees take
industrial action, they will ensure that there are still sufficient
employees working to ensure that the plant continues to operate at least at
minimum levels.
At the reform commencement, a NAPSA would come into operation. It would
include the term of the enterprise award relating to industrial action.
In January 2007, following the breakdown on negotiations for a new federal
collective workplace agreement, employees apply for and hold a secret
ballot on industrial action. The ballot favours industrial action, and the
employees serve the relevant notices under the Act (see Part VC) for the
action to be protected action. The action specified in the notices is a
number of stoppages of work for one hour. On the instruction of their shop
steward, Geoff, all of the employees take part in the stop work and no
minimum coverage occurs. The plant does not continue to operate at minimum
levels and Hard-As Steel incurs substantial costs.
The industrial action would not be protected action because it was taken in
breach of the term of the enterprise award included in the NAPSA, and was
taken before the nominal expiry date of the NAPSA.
Item 290 - Schedule 1, item 360, page 632 (line 10)
221. This amendment is consequential to item 302, which would broaden the
scope of Part 4 of Schedule 16 of the Bill so that it applies to all pre-
reform certified agreements.
Item 291 - Schedule 1, item 360, page 632 (line 31)
222. This amendment is consequential to item 302, which would broaden the
scope of proposed Part 4 of Schedule 16 of the Bill so that it applies to
all pre-reform certified agreements.
223. The Bill provides for the transfer of Division 2 pre-reform certified
agreements, whether they were actually made under Division 2 of Part VIA
of the WR Act, or whether they are Division 3 pre-reform certified
agreements treated as Division 2 pre-reform certified agreements under
the terms of Schedule 14. However, since all Division 3 pre-reform
certified agreements are now included in new proposed Part 4 of Schedule
16 with its widened scope, the words further defining which Division 2
agreements are covered are redundant.
Item 292 - Schedule 1, item 360, page 632 (after line 33), after the
definition of Division 2 pre-reform certified agreement in clause 3
224. This amendment is consequential to item 302, which would broaden the
scope of proposed Part 4 of Schedule 16 of the Bill so that it applies to
all pre-reform certified agreements.
225. New Part 4 of Schedule 16 provides for the transmission of both
Division 2 and Division 3 pre-reform certified agreements. The amendment
inserts a definition of 'Division 3 pre-reform certified agreement'
accordingly.
Item 293 - Schedule 1, item 360, page 633 (after line 10)
226. This amendment is consequential to item 302, which would broaden the
scope of proposed Part 4 of Schedule 16 of the Bill so that it applies to
all pre-reform certified agreements.
227. New Part 4 of Schedule 16 provides for the transmission of both
Division 2 and Division 3 pre-reform certified agreements. The amendment
inserts a definition of 'pre-reform certified agreement' accordingly.
Item 293 - Schedule 2, item 2, page 660 (line 5), after "clause 3", insert
"or 10"
228. Proposed item 293 would amend the definition of preserved State
agreement in proposed Schedule 17-Transitional arrangements for State
organisations. The amendment is consequential on amendments made to
Schedule 15-Transitional treatment of State employment agreements and
State awards.
Item 294 - Schedule 1, item 360, page 633, after the proposed definition of
pre-reform certified agreement
229. This amendment is consequential to item 271, which would insert new
definitions of 'preserved collective State agreement' and 'preserved
individual State agreement' into Schedule 15.
Item 295 - Schedule 1, item 360, page 633 (line 21)
230. This amendment is consequential to item 302, which would broaden the
scope of proposed Part 4 of Schedule 16 of the Bill so that it applies to
all pre-reform certified agreements.
Item 296 - Schedule 1, item 360, page 633 (after line 25), after the
definition of transitional industrial instrument in clause 3
231. This amendment would insert a definition of 'instrument' for the
purposes of proposed Schedule 16 to ensure the Schedule is read as
transmitting certain types of instruments only.
Item 297 - Schedule 1, item 360, page 634 (after line 24), at the end of
subclause 5(1)
232. This amendment is consequential to item 301, which would provide that
where the transmitting instrument is a Division 3 pre-reform certified
agreement that binds an employer who is not within the meaning of
proposed subsection 4AB(1), references in Schedule 16 to 'employees' and
'employment' are to have their ordinary meaning.
Item 298 - Schedule 1, item 360, page 635 (after line 3), at the end of
subclause 5(2)
233. This amendment is consequential to item 301, which would provide that
where the transmitting instrument is a Division 3 pre-reform certified
agreement that binds an employer who is not within the meaning of
proposed subsection 4AB(1), references in Schedule 16 to 'employees' and
'employment' are to have their ordinary meaning.
Item 299 - Schedule 1, item 360, page 635 (after line 18), at the end of
subclause 6(1)
234. This amendment is consequential to item 301, which would provide that
where the transmitting instrument is a Division 3 pre-reform certified
agreement that binds an employer who is not within the meaning of
proposed subsection 4AB(1), references in Schedule 16 to 'employees' and
'employment' are to have their ordinary meaning.
Item 300 - Schedule 1, item 360, page 635 (after line 26), at the end of
subclause 6(2)
235. This amendment is consequential to item 301, which would provide that
where the transmitting instrument is a Division 3 pre-reform certified
agreement that binds an employer who is not within the meaning of
proposed subsection 4AB(1), references in Schedule 16 to 'employees' and
'employment' are to have their ordinary meaning.
Item 301 - Schedule 1, item 360, page 635 (after line 28), at the end of
Part 2
236. This amendment is consequential to item 302, which would broaden the
scope of proposed Part 4 of Schedule 16 of the Bill so that it applies to
all pre-reform certified agreements.
237. Certified agreements made under Division 3 of Part VIA of the pre-
reform Act are in settlement of an industrial dispute. Therefore,
Division 3 certified agreements can bind any type of employer regardless
of whether they are a constitutional corporation or not, unlike Division
2 certified agreements.
238. After the reform commencement, Division 3 certified agreements binding
employers who are not constitutional corporations and who do not
otherwise fall within the federal system as defined by proposed section
4AB(1) will continue as per proposed Schedule 15. New Part 4 of Schedule
16 will provide for the transfer of those Division 3 certified
agreements, both to employers within the scope of proposed subsection
4AB(1) and to employers not within proposed subsection 4AB(1) who are
bound by a Division 3 pre-reform certified agreement. To ensure that all
relevant transmissions are captured by new Part 4, it is necessary to
include new section 6A, which would extend the meaning of 'an employee'
and 'employment' so that they will have their ordinary meaning.
Item 302 - Schedule 1, item 360, page 637 (after line 13) to page 643 (line
34)
239. This amendment would omit and substitute Part 4 of Schedule 16 of the
Bill.
New Part 4 - Transmission of Division 2 pre-reform certified agreements
240. Part 4 of Schedule 16 applies to the transmission of Division 2 pre-
reform certified agreements. The amendment would broaden the scope of
Part 4 so that it would contain the transmission of business provisions
specific to the transfer of all pre-reform certified agreements from an
old employer to a new employer.
New Division 1
241. This item would create a new Division within new Part 4 to deal with
the general provisions relating to the transfer of pre-reform certified
agreements.
New clause 10 - Transmission of pre-reform certified agreement
New employer bound by Division 2 pre-reform certified agreement
242. Proposed subclause 10(1) would provide that where the old employer and
employees of the old employer were bound by a Division 2 pre-reform CA
immediately before the time of transmission and there is at least one
transferring employee in relation to the Division 2 pre-reform CA, the
new employer will be bound by the Division 2 pre-reform CA.
243. This means that a new employer who is a successor, transmittee or
assignee to a business or part of a business, will be bound by the
Division 2 pre-reform CA that was binding on the old employer, in respect
of an employee if that employee is employed by the new employer within 2
months and the Division 2 pre-reform CA is capable of covering the
employee's employment with the new employer.
244. Proposed Note 1 would mention that where the Division 2 pre-reform CA
becomes binding on the new employer by force of this clause, the new
employer may have obligations imposed by clauses 28 and clause 29 with
respect to notification.
245. Proposed Note 2 would mention that the provision should be read in
conjunction with, and subject to, proposed clause 11.
New employer bound by Division 3 pre-reform certified agreement
246. Proposed subclause 10(2) would provide that where the old employer is
within the scope of proposed subsection 4AB(1), and the old employer and
employees of the old employer were bound by a Division 3 pre-reform CA
immediately before the time of transmission and there is at least one
transferring employee in relation to the Division 3 pre-reform CA, the
new employer will be bound by the Division 3 pre-reform CA.
247. This means that a new employer who is a successor, transmittee or
assignee to a business or part of a business, will be bound by the
Division 3 pre-reform CA that was binding on the old employer, in respect
of an employee if that employee is employed by the new employer within 2
months and the Division 3 pre-reform CA is capable of covering the
employee's employment with the new employer.
248. Note that the new employer would need to come within the scope of
proposed subsection 4AB(1) for proposed new subclause 10(2) to operate to
transmit the Division 3 pre-reform CA as proposed new clause 6A does not
apply.
249. Proposed Note 1 would mention that where the Division 3 pre-reform CA
becomes binding on the new employer by force of this clause, the new
employer may have obligations imposed by clauses 28 and clause 29 with
respect to notification.
250. Proposed Note 2 would mention that the provision should be read in
conjunction with, and subject to, proposed clause 11.
251. Proposed subclause 10(3) would provide that where the old employer is
not within the scope of proposed subsection 4AB(1), and the old employer
and employees of the old employer were bound by a Division 3 pre-reform
CA immediately before the time of transmission and there is at least one
transferring employee in relation to the Division 3 pre-reform CA, the
new employer will be bound by the Division 3 pre-reform CA if the new
employer is within the scope of proposed subsection 4AB(1) and/or is
bound by another Division 3 pre-reform CA at the time of transmission.
252. This means that a new employer who is a successor, transmittee or
assignee to a business or part of a business, will be bound by the
Division 3 pre-reform CA that was binding on the old employer, in respect
of an employee if that employee is employed by the new employer within 2
months and the Division 3 pre-reform CA is capable of covering the
employee's employment with the new employer.
253. Note that the new employer does not need to come within the scope of
proposed subsection 4AB(1) for proposed new subclause 10(3) to operate to
transmit the Division 3 pre-reform CA as proposed new clause 6A does
applies (to which Proposed Note 1 refers).
254. Proposed Note 2 would mention that where the Division 3 pre-reform CA
becomes binding on the new employer by force of this clause, the new
employer may have obligations imposed by clauses 28 and clause 29 with
respect to notification.
255. Proposed Note 3 would mention that the provision should be read in
conjunction with, and subject to, proposed clause 11.
Period for which new employer remains bound
256. Proposed subclause 10(4) would establish for how long the new employer
will be bound by the pre-reform CA. It would identify five events,
providing that when any one relevant event occurs, whichever is first,
the new employer will cease to be bound by the pre-reform CA, in its
entirety.
257. Firstly, the pre-reform CA may be terminated in accordance with
section 170MG of the pre-reform Act. This means that the pre-reform CA
may be terminated by the AIRC where there is valid majority of employees
who approve the termination. Note that proposed subclause 12(3) would
provide that a pre-reform CA may not be terminated under section 170MH or
170MHA of the pre-reform Act, during the transmission period, even where
the agreement has reached its nominal expiry date.
258. Secondly, the pre-reform CA would cease to bind the new employer when
there are no longer any transferring employees in relation to the pre-
reform CA. This is where all the transferring employees, for example,
either cease to be employed by the new employer or move to another job
while working for the new employer that is not capable of being covered
by the pre-reform CA.
259. Thirdly, the new employer would cease to be bound by the pre-reform CA
in respect of the transferring employees when the transferring employees
replace the pre-reform CA with a collective agreement, or all of the
transferring employees make AWAs with the new employer.
260. The proposed Note would mention that proposed subclause 10(6) should
be considered to determine how the new employer ceases to be bound by a
pre-reform CA in respect of each transferring employee in order to assess
whether all transferring employees are no longer bound by the pre-reform
CA.
261. Fourthly, the pre-reform CA would not be binding on the new employer
once the transmission period ends. This means that a new employer would
only be bound by the pre-reform CA by force of subclauses 10(1), 10(2) or
10(3) for a maximum period of 12 months.
262. Lastly, where the transmitting pre-reform CA is a Division 3 pre-
reform CA and the new employer is not within the scope of proposed
subsection 4AB(1), if the transitional period (which is five years from
the reform commencement) ends within the 12 month period post-
transmission, then the transmitted Division 3 pre-reform CA will cease to
apply at the end of the transitional period.
263. Proposed subclause 10(5) would provide that proposed paragraph
10(4)(d) does not apply (so that the 12 month maximum period of
application is removed) where the old employer is outside the scope of
proposed section 4AB(1) and is bound by a Division 3 pre-reform CA and
the new employer is an incorporated version of the old employer. In
these situations, proposed subclause 10(1) of Schedule 14 would provide
that the Division 3 pre-reform certified agreement is to be treated as a
Division 2 pre-reform certified agreement.
Illustrative Example
Romulus is employed by Star Holdings to work as a farmhand on a large
property in northern NSW. Allan owns Star Holdings. The employment
relationship between Star Holdings and its employees, including Romulus, is
governed by a Division 3 pre-reform certified agreement. Allan decides to
incorporate Star Holdings, which then changes its name to Star Pty Ltd.
Romulus continues to be employed by Star Pty Ltd after the transmission.
The Division 3 pre-reform certified agreement will continue to operate in
respect of Romulus's employment with Star Pty Ltd, including more than 12
months after transmission occurred.
Remus is employed by Moon Holdings as a farmhand on the property adjacent
to Allan's. Robert owns Moon Holdings. The employment relationship
between Moon Holdings and its employees, including Remus, is governed by a
Division 3 pre-reform certified agreement. Robert decides to sell the farm
to Star Pty Ltd. Remus continues to be employed by Star Pty Ltd after the
transmission. The Division 3 pre-reform certified agreement will continue
to operate in respect of Remus's employment with Star Pty Ltd, but because
Star Pty Ltd is unrelated to Remus's original employer, Moon Holdings, that
agreement will only operate for a maximum period of 12 months after
transmission occurred.
Period for which new employer remains bound in relation to a particular
transferring employee
264. Proposed subclause 10(6) would provide the circumstances where the new
employer would no longer be bound by the pre-reform CA in relation to
each transferring employee in contrast to proposed subclause 10(4) which
would stipulate when the new employer ceases to be bound by the pre-
reform CA in respect of all employees. Subclause 10(6) lists three ways
in which this may occur.
265. Firstly, the pre-reform CA would cease to be in operation in relation
to a transferring employee where the new employer makes an AWA with the
transferring employee.
266. Secondly, the pre-reform CA would cease to be in operation in relation
to the transferring employee where it is replaced by a collective
agreement between the new employer and the (formerly) transferring
employee. Note that proposed clause 3 of Schedule 14 would provide that
a collective agreement can replace a pre-reform CA, even where the
Division 2 pre-reform CA has not reached its nominal expiry date.
267. Finally, the pre-reform CA may cease to be binding on a particular
transferring employee because an event in proposed subclause 10(4) has
occurred.
New employer bound only in relation to employment of transferring employees
in business being transferred
268. Proposed subclause 10(7) would provide that a new employer is bound by
the pre-reform CA in respect of transferring employees only, in relation
to the business being transferred. This provision is intended to limit
the application of the pre-reform CA to transferring employees while they
are employed in the business being transferred. Therefore, employees of
the new employer who are not transferring employees cannot be bound by
the pre-reform CA.
New employer bound subject to Commission order
269. Proposed subclause 10(8) would provide that a new employer is bound by
the pre-reform CA by operation of proposed subclauses 10(1), 10(2) 10(3),
10(4) and 10(6) subject to an order of the AIRC under proposed clause 14.
Old employer's rights and obligations that arose before time of
transmission not affected
270. Proposed subclause 10(9) would provide that this clause does not
affect the rights and obligations of the old employer in respect of a
transferring employee that arose before the time of transmission. This
means, for example, that subclauses 10(1), 10(2) or 10(3) do not intend
to transfer liability for accrued employee entitlements to a new employer
from an old employer.
New clause 11 - Interaction rules
271. Proposed clause 11 would provide interaction rules that are specific
to pre-reform CAs and other instruments. Proposed clause 11 is to be
read in conjunction with clause 10.
Transmitted certified agreement
272. Proposed subclause 11(1) would provide that this clause applies if
subclauses 10(1), 10(2) or 10(3) apply to the pre-reform CA (ie to a
transmitted pre-reform CA).
Existing certified agreement
273. Proposed subclause 11(2) would specify arrangements for where the new
employer is bound by a collective agreement immediately before the time
of transmission (the existing collective agreement) with respect to other
employees who are not transferring employees, and the existing collective
agreement would be capable of applying on its terms to a transferring
employee. The existing collective agreement would not apply to the
transferring employee by force of this clause.
274. This would ensure that a transmitted pre-reform CA cannot
automatically be 'overridden' by an existing collective agreement that
binds the new employer.
275. However, subclause 11(2) does not intend to prevent an existing
collective agreement from applying to transferring employees where the
transmitted pre-reform CA is terminated during the transmission period.
276. Proposed subclause 11(3) would provide that subclause 11(2) does not
apply at the end of the transmission period. Therefore, at the end of
the 12 months after transmission, the existing collective agreement if it
is capable of applying on its terms, would not be precluded from applying
to a former transferring employee by subclause 11(2).
277. Proposed subclause 11(3) would also provide that where the
transmitting pre-reform CA is a Division 3 pre-reform CA and the new
employer is not within the scope of proposed subsection 4AB(1), if the
transitional period (which is five years from the reform commencement)
ends within the 12 month period post-transmission, then the existing
collective agreement if it is capable of applying on its terms, would not
be precluded from applying to a former transferring employee once the
transitional period ends.
278. Proposed subclause 11(4) would provide that proposed subclause 11(3)
does not apply (so that the 12 month maximum period of application is
removed) where the old employer is outside the scope of proposed section
4AB(1) and is bound by a Division 3 pre-reform CA and the new employer is
an incorporated version of the old employer. In these situations,
proposed subclause 10(1) of Schedule 14 would provide that the Division 3
pre-reform certified agreement is to be treated as a Division 2 pre-
reform certified agreement.
Transitional industrial instruments not to apply
279. Proposed subclause 11(5) would provide that from the time of
transmission a transitional industrial instrument cannot apply to a
transferring employee's employment, other than the transmitted pre-reform
CA. This means that a new employer's existing transitional industrial
instruments are not capable on their terms of applying to transferring
employees.
280. Proposed subclause 11(6) would provide that subclause 11(5) has effect
despite section 170LY of the pre-reform Act.
New clause 12 - Termination of transmitted pre-reform certified agreement
Transmitted agreement
281. Proposed subclause 12(1) would provide that this clause applies if
subclause 10(1) applies to the pre-reform CA (ie to a transmitted pre-
reform CA).
AWA
282. Proposed subclause 12(2) would provide that despite subclause 3(2) of
Schedule 14, the transmitted pre-reform CA ceases to be in operation in
relation to a transferring employee if the new employer and the
transferring employee make a new AWA. This means that the transmitted
pre-reform CA cannot bind the new employer in respect of the transferring
employee again, when an AWA has operated in respect of the employment,
even if the AWA is terminated prior to the end of the transmission
period.
283. The proposed Note would clarify that a pre-reform CA is normally only
suspended in respect of a particular employee while an AWA is in
operation, whereas the effect of proposed subclause 12(2) would be to
permanently cancel the transmitted pre-reform CA's operation.
Modified operation of sections 170MH and 170MHA of the old Act
284. Proposed subclause 12(3) would provide that a person may not apply to
the AIRC to have the transmitted pre-reform CA terminated under sections
170MH or 170MHA of the pre-reform Act during the transmission period,
even though the agreement has passed its nominal expiry date. This
provision is intended to be an exception to the rule that a CA may be
terminated by the AIRC once it has reached its nominal expiry date.
New Division 2 - Commission's powers
285. This item would create a new Division 2 within new Part 4 to outline
the AIRC's power to make orders with respect to a transferring pre-reform
CA.
New clause 13 - Application and terminology
286. Proposed subclause 13(1) would provide that the Division applies if a
person is bound by a pre-reform CA and that person's business or part of
a business becomes, or is likely to become transmitted.
287. This definition is to enable the Division to capture the time before
transmission as well as at, or after, transmission.
288. Proposed subclause 13(2) defines terms to be used in the Division,
which again reflect that the Division is to apply before, at and after
the time of transmission.
New clause 14 - Commission may make order
289. Proposed subclauses 14(1) and (2) would provide that the AIRC can make
an order that an incoming employer:
* is not, or will not be, bound by a pre-reform CA that would
otherwise bind the incoming employer under proposed subclause
10(1); or
* is, or will be, bound by the pre-reform CA that binds an incoming
employer by operation of subclause 10(1), but only to the extent
that the AIRC's order specified, including for a specified period.
290. The AIRC's order must specify the day from which the order takes
effect, however this time cannot be before the transfer time.
291. Proposed subclause 14(3) would provide that the AIRC cannot make an
order that would vary or extend the transmission period to provide that a
transmitted pre-reform CA is binding on a new employer for a period
longer than 12 months.
New clause 15 - When an application for an order can be made
292. Proposed clause 15 would provide that an application for an order
under subclause 14(1) can be made before, at or after the transfer time.
New clause 16 - Who may apply for order
293. Proposed clause 16 would prescribe who may apply for an order from the
AIRC under proposed clause 14 in respect of a pre-reform CA.
294. Subclause 16(1) would provide that before the transfer time, an
application for an order can only be made by the outgoing employer.
Therefore, before the transfer time the incoming employer could not apply
for an order that would limit the effect of a pre-reform CA.
295. Subclause 16(2) would provide that at or after the transfer time, an
application may be made by the:
* incoming employer;
* a transferring employee in relation to the pre-reform CA;
* an organisation of employees that is bound by the pre-reform CA;
or
* an organisation of employees that is entitled to apply in
accordance with proposed paragraph 16(2)(d).
296. The outgoing employer cannot apply for an order at or after the
transfer time as it would no longer be bound by the pre-reform CA in
respect of the transferring employee under this Division.
New clause 17 - Applicant to give notice of application
297. Proposed clause 17 would provide that an applicant for an order by the
AIRC under proposed clause 14 must take reasonable steps to give written
notice of the application to all persons who may make submissions in
relation to the application (a person who can make a submission is
specified under clause 18). This is not a civil remedy provision.
New clause 18 - Submissions in relation to application
298. Proposed clause 18 would establish who may make a submission to the
AIRC in relation to an application for an order under proposed clause 14
with respect to the pre-reform CA.
299. Under subclauses 18(1) and 18(2), before the transfer time the
following must be given an opportunity by the AIRC to make a submission:
* the applicant;
* an employee of the outgoing employer who is bound by the pre-
reform CA and who is employed in the business concerned;
* the incoming employer;
* an organisation of employees that is bound by the pre-reform CA;
* an organisation of employees that is entitled to make a submission
under proposed paragraph 18(2)(d).
300. Under proposed subclauses 18(1) and 18(3), at or after the transfer
time the following must be given an opportunity by the AIRC to make a
submission:
* the applicant;
* the incoming employer;
* a transferring employee in relation to the transmitted pre-reform
CA;
* an organisation of employees that is bound by the transmitted pre-
reform CA; and
* an organisation of employees that is entitled to make a submission
under proposed paragraph 18(3)(d).
301. The requirements for organisations under proposed paragraphs 18(2)(d)
and 18(3)(d) mirror the requirements for standing with respect to
enforcement and compliance in proposed Part VIII.
Item 303 -Schedule 1, item 360, page 644 (line 29)
302. Proposed item 303 would make a consequential amendment to paragraph
19(2)(a) of Schedule 16-Transmission of business rules (transitional
instruments). The amendment is consequential on amendments made to
Schedule 15-Transitional treatment of State employment agreements and
State awards.
Item 304 - Schedule 1, item 360, page 644 (line 33)
303. Proposed item 304 would make a consequential amendment to paragraph
19(2)(b) of Schedule 16-Transmission of business rules (transitional
instruments). The amendment is consequential on amendments made to
Schedule 15-Transitional treatment of State employment agreements and
State awards.
Item 305 - Schedule 1, item 360, page 645 (line 17)
304. Proposed item 305 would make a consequential amendment to paragraph
19(3)(a) of Schedule 16-Transmission of business rules (transitional
instruments). The amendment is consequential on amendments made to
Schedule 15-Transitional treatment of State employment agreements and
State awards.
Item 306 - Schedule 1, item 360, page 645 (line 24)
305. Proposed item 306 would make a consequential amendment to paragraph
19(3)(b) of Schedule 16-Transmission of business rules (transitional
instruments). The amendment is consequential on amendments made to
Schedule 15-Transitional treatment of State employment agreements and
State awards.
Item 307 - Schedule 1, item 360, page 645 (line 29), omit "subclause
33(3)", substitute
306. Proposed item 307 would make a consequential amendment to paragraph
19(3)(c) of Schedule 16-Transmission of business rules (transitional
instruments). The amendment is consequential on amendments made to
Schedule 15-Transitional treatment of State employment agreements and
State awards.
Item 308 - Schedule 1, item 360, page 651 (lines 10 and 11)
307. This amendment is consequential to item 302, which would broaden the
scope of proposed Part 4 of Schedule 16 of the Bill so that it applies to
all pre-reform certified agreements.
308. Proposed new subparagraph 28(1)(a)(ii) would be extended to ensure
that all types of pre-reform CAs that are transmitted under proposed Part
4 will be subject to the notice requirements in proposed Part 6.
Item 309 - Schedule 1, item 360, page 651 (lines 34 and 35) to page 652
(lines 1 and 2)
309. This amendment mirrors item 156, in respect of the notice requirements
in proposed paragraph 129(3)(f).
310. Proposed paragraph 28(3)(f) provides that an employer must indicate in
a clause 28 notice to a transferring employee, amongst other things, what
will dictate the terms and conditions contained in the transmitting
instrument when that instrument no longer applies to that transferring
employee. The provision refers to 'the source' for the new terms and
conditions.
311. In order to clarify the intent of the provision, the amendment would
identify what could be 'the source' for regulating those terms and
conditions under the WR Act, being the Australian Fair Pay and Conditions
Standard or another instrument.
Item 310 - Schedule 1, item 360, page 652 (after line 8), after subclause
(3)
312. This amendment would insert new proposed subclauses 28(3A) and 28(3B).
This amendment mirrors item 157, in respect of the notice requirements
in proposed section 129.
313. New subclause 28(3A) would create a new requirement that a new
employer provide a transferring employee with a copy of any existing
collective agreement or award that bound the new employer in respect of
its existing workforce (ie the employees employed by the new employer
prior to the transmission) with a clause 28 notice.
314. New subclause 28(3B) provides that the requirement to provide a copy
of an award or agreement under proposed subclause 28(3A) does not apply
where a transferring employee can easily access a copy, and the new
employer indicates in a clause 28 notice how a transferring employee can
access it.
315. An example of how a new employer could fulfil the requirement in
proposed subclause 28(3B) (mentioned in the legislative note) is by
including a website address in a clause 28 notice that was a link to a
copy of an applicable award or agreement.
Item 311 - Schedule 1, item 360, page 652 (line 23)
316. This amendment is consequential to item 308, which would ensure that
all types of pre-reform CAs that are transmitted under new Part 4 will be
subject to the notice requirements in proposed Part 6.
Item 312 - Schedule 1, item 360, page 653 (line 3)
317. This amendment is consequential to item 308, which would ensure that
all types of pre-reform CAs that are transmitted under new Part 4 will be
subject to the notice requirements in proposed Part 6.
Item 313 - Schedule 1, item 360, page 653 (line 17)
318. This amendment is consequential to item 308, which would ensure that
all types of pre-reform CAs that are transmitted under new Part 4 will be
subject to the notice requirements in proposed Part 6.
Item 314 - Schedule 1, item 360, page 654 (line 8)
319. This amendment is consequential to item 310, which would insert a new
requirement for the new employer to provide a copy of any existing award
or collective agreement that binds the new employer and its employees
prior to transmission. This amendment mirrors item 159, in respect of
the notice requirements in proposed section 129.
320. New proposed paragraph 31(1)(b) adds a reference to the new
requirement (in proposed subsection 28(3A)) to indicate that breaching
the requirement would attract a civil remedy.
Item 315 - Schedule 1, item 360, page 655 (table item 2)
321. This amendment is consequential to item 308, which would ensure that
all types of pre-reform CAs that are transmitted under new Part 4 will be
subject to the notice requirements in proposed Part 6.
Item 316 - Schedule 1, item 360, page 656 (after line 11)
322. This item would insert into clause 32 of Schedule 16 a definition of
Victorian reference Division 3 pre-reform certified agreement, for the
purposes of Part 7 of Schedule 16. The definition would be the same as
in clause 33 of Schedule 14 (item 360, page 597).
Item 317 - Schedule 1, item 360, page 657 (after line 23)
323. This item would insert clause 33A into Part 7 of Schedule 16.
324. Proposed clause 33A would provide that a Victorian reference Division
3 pre-reform certified agreement within the meaning of clause 32 (item
316) (ie an agreement between an employer in Victoria and a union, in
settlement of an intra-State Victorian industrial dispute) would, for the
purposes of Schedule 16, be treated as if it were made under section
170LJ of the pre-reform WR Act as it has effect because of repealed
Division 2 of Part XV. That is, for the purposes of Schedule 16, such an
agreement would be treated as if it were made between an employer in
Victoria and a union, under Division 2 of Part VIB of the pre-reform WR
Act as it has effect because of repealed Division 2 of Part XV.
325. To give effect to that intent, subclause 33A(1) would provide that
clause 6A, subclauses 10(2), (3) and (5), paragraph 11(3)(b) and
subclause 11(4) of Schedule 16 do not apply to a Victorian reference
Division 3 pre-reform certified agreement. Further, subclause 33A(2)
would provide that Division 1 of Part 4 of Schedule 16 (item 302) would
apply to a Victorian reference Division 3 pre-reform certified agreement
as if it had been made under section 170LJ of the WR Act as in force
before the reform commencement.
Item 318 - Schedule 1, item 360, page 658 (line 13)
326. Proposed item 318 would make a consequential amendment to paragraph
(35)(3)(c) of Schedule 16-Transmission of business rules (transitional
instruments). The amendment is consequential on amendments made to
Schedule 15-Transitional treatment of State employment agreements and
State awards.
Schedule 1A - Establishment of Australian Fair Pay Commission
Item 319 - Page 658 (after line 25), after Schedule 1
327. This item would insert a Schedule 1A - Establishment of Australian
Fair Pay Commission, after Schedule 1.
Workplace Relations Act 1996
Item 1 - After Part 1
328. This item would insert a new Part 1A in the WR Act to make provision
for the Australian Fair Pay Commission (AFPC).
Part 1A - Australian Fair Pay Commission
329. This Part would provide for the establishment of the AFPC. The AFPC
will set and adjust:
* the standard Federal Minimum Wage;
* special Federal Minimum Wages for junior employees, employees with
disabilities or employees under training arrangements;
* basic periodic rates of pay and basic piece rates of pay payable
for APCS classification levels; and
* casual loadings.
Division 1 - Preliminary
Section 7F - Definitions
330. Proposed section 7F would provide various definitions for Part 1A.
Only key definitions are explained here.
331. AFPC would mean the Australian Fair Pay Commission established by
proposed section 7G.
332. Wage review would mean a review conducted by the AFPC to determine
whether it should exercise any of its wage-setting powers.
333. Wage-setting decision would mean a decision made by the AFPC in the
exercise of its wage-setting powers.
334. Wage-setting function would be defined by proposed subsection 7I(1).
335. Wage-setting powers would be defined to mean the powers of the AFPC
under Division 2 of Part VA.
Division 2 - Australian Fair Pay Commission
336. This Division would establish the AFPC and set out its powers and
functions, including its wage setting functions and parameters and
provide for the arrangements for the appointment and entitlements of the
AFPC Chair and AFPC Commissioners.
Subdivision A - Establishment and functions
Section 7G - Establishment
337. Proposed section 7G would establish the AFPC and provide that it
consists of the AFPC Chair and four AFPC Commissioners.
Section 7H - Functions of the AFPC
338. Proposed section 7H would set out the functions of the AFPC. Broadly,
these are to exercise its wage-setting function (defined in proposed
subsection 7I(1)), any other functions conferred on the AFPC, and
promoting understanding of matters related to these functions.
Subdivision B - AFPC's wage-setting function
Section 7I - AFPC's wage-setting function
339. Proposed subsection 7I(1) would set out the AFPC's wage-setting
function which is to conduct wage reviews, and exercise its wage-setting
powers as necessary depending on the outcomes of these wage reviews.
340. The legislative note would explain that the wage-setting powers are
set out in Division 2 of Part VA.
341. Proposed subsection 7I(2) would set out the role of the AFPC during
the period from the commencement of this Part to the commencement of
Division 2 of Part VA. During this interim period the AFPC has the
function of gathering information for the purpose of assisting it to
perform its wage-setting function after Division 2 of Part VA has
commenced. It would also make clear that the AFPC, when performing its
wage-setting function, may have regard to any information gathered during
the interim period.
Section 7J - AFPC's wage-setting parameters
342. Proposed section 7J would provide that the objective of the AFPC is to
promote the economic prosperity of the people of Australia having regard
to:
* the capacity of the unemployed and low paid to obtain and remain
in employment;
* employment and competitiveness across the economy;
* providing a safety net for the low paid; and
* providing minimum wages for junior employees, and employees to
whom training arrangements apply and employees with disabilities
that ensure those employees are competitive in the labour market.
Section 7K - Wage reviews and wage-setting decisions
343. Proposed section 7K would outline the operation of the AFPC in
relation to its wage-setting function. Subsection 7K(1) would provide
that the AFPC may determine the timing, scope and frequency of wage
reviews, the manner in which wage reviews are to be conducted and when
wage-setting decisions are to come into effect. Subsection 7K(2) would
provide that for the purposes of performing its wage-setting function the
AFPC may inform itself in any way it thinks appropriate, including by:
* undertaking or commissioning research;
* consulting with any other body, person or organisation; or
* monitoring and evaluating the impact of its wage-setting
decisions.
344. Subsection 7K(3) would provide that subsections 7K(1) - (2) would have
effect subject to the WR Act and any regulations made under the Act.
Subsection 7K(4) would require the AFPC's wage-setting decisions to be
expressed as decisions of the AFPC as a body, to be in writing and
include reasons. It would also make clear that a wage-setting decision
is not a legislative instrument.
Section 7L - Constitution of the AFPC for wage-setting powers
345. Proposed section 7L would provide that for the purposes of exercising
its wage-setting powers the AFPC must be constituted by the AFPC Chair
and four AFPC Commissioners.
346. However, subsection 7L(2) would provide that if the AFPC Chair
considers it necessary due to the unavailability of an AFPC Commissioner,
the AFPC may be constituted by the AFPC Chair and not less than two AFPC
Commissioners.
347. Subdivision D (AFPC Chair) and Subdivision E (AFPC Commissioners) set
out additional requirements concerning appointments to the AFPC.
Section 7M - Publishing wage-setting decisions etc.
348. Proposed section 7M would provide that the AFPC must publish its wage-
setting decisions and may publish other information about wages or its
wage-setting function. Subsection 7M(3) provides that the publication
may be done in a way the AFPC considers appropriate.
Subdivision C - Operation of the AFPC
Section 7N - AFPC to determine its own procedures
349. Proposed section 7N would provide that the AFPC may determine the
procedures it would use in performing its functions, subject to
Subdivision B of this Division and any procedures prescribed by
regulations.
Section 7O - Annual report
350. Proposed section 7O would require the AFPC to provide an annual report
on the operation of the AFPC to the Minister for presentation to
Parliament. The report would be prepared as soon as practicable after
the end of each financial year.
351. It is envisaged that this report and the annual report by the AFPC
Secretariat under section 7ZJ would be published and presented to
Parliament concurrently.
Subdivision D - AFPC Chair
Section 7P - Appointment
352. Proposed section 7P would provide for the AFPC Chair to be appointed
by the Governor-General by written instrument. Subsection 7P(2) would
provide that the AFPC Chair can be appointed on either a full-time or
part-time basis for the period (not exceeding 5 years) specified in the
instrument of appointment.
353. Subsection 7P(3) would require that the AFPC Chair have high levels of
skills and experience in business or economics. Section 33 of the Acts
Interpretation Act 1901 provides that appointment includes re-
appointment.
Section 7Q - Remuneration
354. Proposed section 7Q would provide for the Remuneration Tribunal to
determine the remuneration of the AFPC Chair. In the absence of a
determination, the AFPC Chair would be paid the remuneration and
allowances that are prescribed.
355. Subsection 7Q(3) would provide that this section has effect subject to
the Remuneration Tribunal Act 1973. This will ensure that general
provisions of that Act are not displaced by this section.
Section 7R - Leave of absence
356. Proposed section 7R would provide that if the AFPC Chair is appointed
on a full-time basis the Remuneration Tribunal is to determine his or her
recreation leave entitlements.
357. The Minister may grant a full-time AFPC Chair leave of absence, other
than recreation leave, on such terms and conditions as he or she
determines.
358. Subsection 7R(2) would allow the Minister to grant a part-time AFPC
Chair leave of absence, including recreation leave, on such terms and
conditions as he or she determines.
Section 7S - Engaging in other paid employment
359. Proposed section 7S would require a full-time AFPC Chair to obtain
approval from the Minister before engaging in other paid employment.
Section 7T - Disclosure of interests
360. Proposed section 7T would require the AFPC Chair to give the Minister
notice in writing of all financial or other interests that could conflict
with the proper performance of the AFPC Chair's duties.
Section 7U - Resignation
361. Proposed section 7U would provide that the AFPC Chair may resign by
written notice given to the Governor-General and sets out when the
resignation takes effect.
Section 7V - Termination of appointment
362. Proposed subsection 7V(1) would allow the Governor-General to
terminate the appointment of the AFPC Chair if the AFPC Chair:
* becomes bankrupt or takes specified steps related to insolvency;
or
* contravenes, without reasonable excuse, the requirement to
disclose to the Minister any interest that could conflict with his
or her duties (proposed section 7T); or
* has or acquires interests (including by being an employer or
employee) that the Minister considers could conflict unacceptably
with the proper performance of his or her duties; or
* in the case of a full-time AFPC Chair, is absent from duty (except
on authorised leave) for 14 consecutive days or for 28 days in any
12 month period, or engages in other paid employment without the
Minister's approval (proposed section 7S); or
* in the case of a part-time AFPC Chair, is absent from duty (except
on authorised leave) to an extent that the Minister considers
excessive.
363. Subsection 7V(2) would allow the Governor-General to terminate the
AFPC Chair's appointment for misbehaviour or on the ground of physical or
mental incapacity. To avoid doubt, subsections 7V(3)-(5) would set out
certain limitations on termination on the ground of physical or mental
incapacity.
Section 7W - Other terms and conditions
364. Proposed section 7W would provide that the AFPC Chair holds office on
the terms and conditions that are determined by the Minister in relation
to matters not covered by the WR Act.
Section 7X - Acting AFPC Chair
365. Proposed section 7X would provide that the Minister may appoint a
person who meets the requirements set out in subsection 7P(3) as an
acting AFPC Chair when necessary, including on a recurring basis.
Subsection 7X(2) would provide that any act done under such an
appointment is not to be invalid only because of a defect or irregularity
in connection with the appointment.
Subdivision E - AFPC Commissioners
Section 7Y - Appointment
366. Proposed section 7Y would provide for an AFPC Commissioner to be
appointed by the Governor-General by written instrument. Subsection
7Y(2) would provide that an AFPC Commissioner is to be appointed on a
part-time basis for the period (not exceeding four years) specified in
the instrument of appointment. Subsection 7Y(3) would require that an
AFPC Commissioner have experience in one or more of the areas of
business, economics, community organisations or workplace relations.
Section 33 of the Acts Interpretation Act 1901 provides that appointment
includes re-appointment.
Section 7Z - Remuneration
367. Proposed section 7Z would provide for the Remuneration Tribunal to
determine the remuneration of an AFPC Commissioner. In the absence of a
determination, an AFPC Commissioner would be paid the remuneration and
allowances that are prescribed. Subsection 7Z(3) would provide that this
section has effect subject to the Remuneration Tribunal Act 1973. This
will ensure that general provisions of that Act are not displaced by this
section.
Section 7ZA - Leave of absence
368. Proposed section 7ZA would provide that the AFPC Chair may grant an
AFPC Commissioner leave of absence on such terms and conditions as he or
she determines.
Section 7ZB - Disclosure of interests
369. Proposed section 7ZB would require an AFPC Commissioner to give the
Minister notice in writing of all financial or other interests that could
conflict with the proper performance of his or her duties.
Section 7ZC - Resignation
370. Proposed section 7ZC would provide that an AFPC Commissioner may
resign by written notice given to the Governor-General and sets out when
the resignation takes effect.
Section 7ZD - Termination of appointment
371. Subsection 7ZD(1) would allow the Governor-General to terminate the
appointment of an AFPC Commissioner if the AFPC Commissioner:
* becomes bankrupt or takes specified steps related to insolvency;
or
* contravenes, without reasonable excuse, the requirement to
disclose to the Minister any interest that could conflict with his
or her duties (proposed section 7ZB);
* has or acquires interests (including by being an employer or
employee) that the Minister considers could conflict unacceptably
with the proper performance of his or her duties; or
* is absent from duty (except on authorised leave) to an extent that
the Minister considers excessive.
372. Subsection 7ZD(2) would allow the Governor-General to terminate an
AFPC Commissioner's appointment for misbehaviour or on the ground of
physical or mental incapacity. To avoid doubt, subsections 7ZD(3) - (5)
would set out certain limitations on termination on the ground of
physical or mental incapacity.
Section 7ZE - Other terms and conditions
373. Proposed section 7ZE would provide that an AFPC Commissioner would
hold office on the terms and conditions that are determined by the
Minister in relation to matters not covered by this Act.
Section 7ZF - Acting AFPC Commissioners
374. Proposed section 7ZF would provide that the Minister may appoint a
person who meets the requirements set out in subsection 7Y(3) as an
acting AFPC Commissioner when necessary, including on a recurring basis.
Subsection 7ZF(2) would provide that any act done under such an
appointment is not to be invalid only because of a defect or irregularity
in connection with the appointment.
Division 3 - AFPC Secretariat
375. This Division would establish the AFPC Secretariat as a separate
statutory agency to assist the AFPC and provide for appointment of the
Director of the Secretariat and the engagement of staff and consultants.
Subdivision A - Establishment and function
Section 7ZG - Establishment
376. Proposed subsection 7ZG(1) would establish the AFPC Secretariat.
377. Subsection 7ZG(2) would provide that the AFPC Secretariat consists of
the Director and the staff of the Secretariat.
Section 7ZH - Function
378. Proposed section 7ZH would provide that the function of the AFPC
Secretariat is to assist the AFPC in the performance of its functions.
Subdivision B - Operation of the AFPC Secretariat
Section 7ZI - AFPC Chair may give directions
379. Proposed section 7ZI would allow the AFPC Chair to give directions to
the Director of the Secretariat about the performance of the function of
the AFPC Secretariat and require the Director to comply with such
directions.
380. To avoid doubt, subsection 7ZI(3) would provide that the AFPC Chair
cannot give directions in relation to the performance of functions or
powers by the Director under the Financial Management and Accountability
Act 1997 or the Public Service Act 1999.
Section 7ZJ - Annual report
381. Proposed section 7ZJ would require the Director of the Secretariat to
provide an annual report on the operation of the AFPC Secretariat to the
Minister for presentation to Parliament. The report must be prepared as
soon as practicable after the end of each financial year.
382. It is envisaged that this report and the annual report by the AFPC
under section 7O would be published and presented to Parliament
concurrently.
Subdivision C - The Director of the Secretariat
Section 7ZK - Appointment
383. Proposed section 7ZK would provide for the Director of the Secretariat
to be appointed by the Minister by written instrument.
384. Subsection 7ZK(2) would provide that the Director of the Secretariat
is to be appointed on a full-time basis for the period (not exceeding
five years) specified in the instrument of appointment.
Section 7ZL - Remuneration
385. Proposed section 7ZL would provide that the Remuneration Tribunal is
to determine the remuneration of the Director of the Secretariat. In the
absence of a determination, the Director of the Secretariat would be paid
the remuneration and allowances that are prescribed.
386. Subsection 7ZL(3) would provide that this section has effect subject
to the Remuneration Tribunal Act 1973. This would ensure that general
provisions of that Act are not displaced by this section.
Section 7ZM - Leave of absence
387. Proposed section 7ZM would provide for the Remuneration Tribunal to
determine the recreation leave entitlements of the Director of the
Secretariat.
388. Subsection 7ZM(2) would allow the Minister to grant the Director of
the Secretariat leave of absence, including recreation leave, on such
terms and conditions as he or she determines.
Section 7ZN - Engaging in other paid employment
389. Proposed section 7ZN would require the Director of the Secretariat to
obtain approval from the Minister before engaging in other paid
employment.
Section 7ZO - Disclosure of interests
390. Proposed section 7ZO would require the Director of the Secretariat to
give the Minister notice in writing of all financial or other interests
that could conflict with the proper performance of his or her duties.
Section 7ZP - Resignation
391. Proposed section 7ZP would provide that the Director of the
Secretariat may resign by written notice given to the Minister and sets
out when the resignation takes effect.
Section 7ZQ - Termination of appointment
392. Proposed subsection 7ZQ(1) would allow the Minister to terminate the
appointment of the Director of the Secretariat if the Director of the
Secretariat:
* becomes bankrupt or takes specified steps related to insolvency;
or
* contravenes, without reasonable excuse, the requirement to
disclose to the Minister any interest that could conflict with his
or her duties (proposed section 7ZO); or
* has or acquires interests (including by being an employer or
employee) that the Minister considers could conflict unacceptably
with the proper performance of his or her duties; or
* engages in other paid employment without the Minister's approval
(proposed section 7ZN); or
* is absent from duty (except on authorised leave) for 14
consecutive days or for 28 days in any 12 month period.
393. Subsection 7ZQ(2) would require the Minister to terminate the Director
of the Secretariat's appointment if the Minister is of the opinion that
the Director's performance has been unsatisfactory for a significant
period of time.
394. Subsection 7ZQ(3) would allow the Minister to terminate the Director
of the Secretariat's appointment for misbehaviour or on the ground of
physical or mental incapacity.
395. To avoid doubt, subsections 7ZQ(4) - (6) would set out certain
limitations on termination on the ground of physical or mental
incapacity.
Section 7ZR - Other terms and conditions
396. Proposed section 7ZR would provide that the Director of the
Secretariat would hold office on the terms and conditions that are
determined by the Minister in relation to matters not covered by the WR
Act.
Section 7ZS - Acting Director of the Secretariat
397. Proposed section 7ZS would provide that the Minister may appoint an
acting Director of the Secretariat when necessary, including on a
recurring basis. Subsection 7ZS(2) would provide that any act done under
such an appointment is not to be invalid only because of a defect or
irregularity in connection with the appointment.
Subdivision D - Staff and consultants
Section 7ZT - Staff
398. Proposed section 7ZT would provide that the staff of the AFPC
Secretariat are to be engaged under the Public Service Act 1999
(subsection 7ZT(1)).
399. Subsection 7ZT(2) would provide that for the purposes of the Public
Service Act 1999 the Director of the Secretariat and staff of the AFPC
Secretariat would constitute a Statutory Agency with the Director as the
Head of that Statutory Agency.
Section 7ZU - Consultants
400. Proposed section 7ZU would provide that the Director of the
Secretariat may, on behalf of the Commonwealth, engage consultants with
suitable qualifications and experience for the AFPC or the AFPC
Secretariat. The terms and conditions of engagement of consultants would
be determined by the Director of the Secretariat and recorded in writing.
Financial Management and Accountability Regulations 1997
2 Part 1 of Schedule 1 (after table item 110)
401. This item would amend the Financial Management and Accountability
Regulations 1997, to prescribe the Australian Fair Pay Commission
Secretariat as a prescribed agency for the purposes of the Financial
Management and Accountability Act 1997.
Schedule 2 - Transitional arrangements for State organisations
Item 320 - Schedule 2, item 1, page 660 (line 5)
402. This item would make a consequential amendment to subsection 1(1)
(definition of 'preserved State agreement') as a result of amendments to
proposed Schedule 15.
Item 321 - Schedule 2, item 2, page 661 (lines 11 to 13)
Item 322 - Schedule 2, item 2, page 661 (lines 16 and 17)
403. This item would omit proposed paragraph 2(1)(a) of Schedule 17. That
paragraph provides that, in order to transitionally register under
Schedule 17, a State-registered association must have been bound to a
State award or State employment agreement immediately prior to the
commencement of the Schedule.
404. Some State-registered association are not, or are unable to be, bound
to State awards or employment agreements. This item would ensure that
all State-registered associations will be able to continue to represent
members who move into the federal system. There will remain a
requirement that the association seeking transitional registration must
have been entitled to represent the industrial interests of the member
under the State system.
405. Item 322 would make a consequential amendment to proposed
subparagraph 2(1)(b)(i) as a result of the amendment to paragraph 2(1)(a)
proposed by item 2.
Schedule 3A - Redundancy pay by small business employers
406. The amendments would insert a new Schedule 3A which would, with effect
from royal assent, amend the Workplace Relations Act 1996 (WR Act) to
protect small business employers from redundancy payments that would
otherwise adversely impact on the capacity of small businesses to provide
employment. The amendments would also preserve, after reform
commencement, a term of an award or order imposing a redundancy pay
obligation on an employer of fewer than 15 employees made before 26 March
2004.
Item 323
407. This item would insert a new Schedule 3A dealing with redundancy pay
by small business employers.
408. New Schedule 3A would, with effect from royal assent, amend the
Workplace Relations Act 1996 (WR Act) to protect small business employers
from redundancy payments that would otherwise adversely impact on the
capacity of small businesses to provide employment.
409. On 26 March 2004, the Australian Industrial Relations Commission (the
Commission) handed down a test case decision (PR032004) which determined
that the exemption of businesses with fewer than 15 employees from
redundancy pay obligations should be removed. The Commission decided
that the redundancy pay scale determined in 1984 for larger businesses
should now apply to small businesses. The scale ranges from four weeks'
pay after one year of service to eight weeks' pay after four years of
service. On 8 June 2004, the Commission handed down a supplementary
decision (PR062004), in which it decided that the redundancy pay scale
applicable to small business should not take into account service
rendered prior to the operative date of any order giving effect to the 26
March decision. Prior service will be taken into account in the case of
employees of employers having 15 or more employees.
410. The Australian Government opposes any attempt to impose redundancy pay
obligations on employers who employ fewer than 15 employees.
Schedule 3A - Redundancy pay by small business employers
Workplace Relations Act 1996
Clause 1 - Paragraph 89A(2)(m)
411. This clause would amend the WR Act to replace existing paragraph
89A(2)(m).
412. Proposed paragraph 89A(2)(m) would make redundancy pay by an employer
of 15 or more employees an allowable award matter.
413. This means that redundancy pay by an employer of fewer than 15
employees would not be an allowable award matter.
Clause 2 - Subsection 89A(7)
414. This clause would insert a cross-reference to new subsection 89A(7A),
which is to be inserted by clause 3.
Clause 3 - After subsection 89A(7)
415. This clause would insert proposed subsection 89A(7A) into the WR Act.
416. Subsection 89A(7A) would have the effect that the Commission would not
be able to make an exceptional matters order about redundancy pay by an
employer of fewer than 15 employees.
Clause 4 - After subsection 89A(8)
417. This clause would insert proposed subsection 89A(8A) into the WR Act.
418. Subsection 89A(8A) is an interpretative provision for proposed
paragraph 89A(2)(m) and subsection 89A(7A).
419. Paragraph 89A(8A)(a) sets out the time - the relevant time - at which
it is to be worked out whether a particular employer employs 15 or more
employees or fewer than 15 employees for the purposes of paragraph
89A(2)(m) and subsection 89A(7A).
420. The relevant time is either when notice of redundancy is given by the
employer or by the employee who becomes redundant, or when the redundancy
occurs, whichever happens first. The reference to notice of redundancy
being given by the employee refers to the situation where an employee
elects to take voluntary redundancy and advises the employer of that
fact.
421. Paragraph 89A(8A)(b) would ensure that a reference to employees in
either paragraph 89A(2)(m) or subsection 89A(7A) includes a reference to
the employee who becomes redundant and any other employee who becomes
redundant at the relevant time. A reference to employees also includes
any casual employee who, at the relevant time, has been engaged by the
employer on a regular and systematic basis for at least 12 months, but
does not include any other casual employee.
Clause 5 - After Part VI
New Part VIAAA - State and Territory laws etc. about redundancy payments by
small businesses
422. This clause would amend the WR Act to insert new a new Part dealing
with redundancy payments by small businesses under State and Territory
laws and instruments.
New section 167- Certain small businesses not bound by requirement to pay
redundancy pay
423. Proposed section 167 would provide that State laws, State awards,
State authority orders and Territory laws will have no effect to the
extent that they would require a relevant employer that employs fewer
than 15 employees to pay redundancy pay.
* Subsection 167(4) defines relevant employer to mean:
a) in the case of a State law, a State award or a State authority
order - a constitutional corporation;
b) in the case of a Territory law - any employer.
* The definitions in subsection 167(4) also ensure that any terms of
a State employment agreement that allow for redundancy pay are not
affected by these amendments.
1. Subsection 167(1) would provide that the section applies to a State law,
a State award, a State authority order or a Territory law, each of which
is an eligible instrument.
2. Subsection 167(2) would provide that an eligible instrument that would
otherwise have the effect of requiring a relevant employer that employs
fewer than 15 employees to pay redundancy pay, does not have that effect.
3. Paragraph 167(3) would explain how it is determined whether a relevant
employer employs fewer than 15 employees for the purposes of subsection
167(2).
4. Subsection 167(4) would define certain terms used in the section.
Clause 6 - At the end of section 170FA
5. This clause would amend section 170FA to include new subsections
170FA(3) and (4).
6. Subsection 170FA(3) would provide that the Commission must not make an
order to give effect to Article 12 of the Termination of Employment
Convention in relation to the matter of redundancy pay by an employer of
fewer than 15 employees.
7. Paragraph 170FA(4) would explain how it is determined whether a relevant
employer employs fewer than 15 employees purposes of subsection 170FA(3).
Clause 7 - Application
8. This clause would provide that the amendments contained in clauses 1 to
4 of this Schedule would apply where, after the Schedule commences, the
Commission is:
* dealing with an industrial dispute by arbitration; and
* making an award or order about the prevention or settlement of an
industrial dispute; and
* varying an award or order that would involve maintaining the
settlement of an industrial dispute.
9. This clause would apply whether the industrial dispute arose before or
after the commencement of the Schedule.
10. This clause would also provide that the amendment made by clause 5 of
this Schedule applies to:
* an eligible instrument, made after the commencement of this
Schedule, that has the effect of requiring a relevant employer
that employs fewer than 15 employees to pay redundancy pay; and
* an eligible instrument, made before or after the commencement of
this Schedule, that is amended or varied after the commencement of
this Schedule and has the effect of requiring a relevant employer
that employs fewer than 15 employees to pay redundancy pay.
11. In addition, this clause would provide that the amendment to section
170FA made by clause 6 of this Schedule would apply where the Commission
is making orders after commencement of this Schedule.
Clause 8 - Transitional - awards and orders of the Commission
12. This clause would provide that if, during the period from 26 March 2004
until this Schedule commences, the Commission made an award or order that
had the effect of requiring an employer of fewer than 15 employees to pay
redundancy pay, or the Commission varied an award or order that was made
before or during that period to that effect, then from the commencement
of this Schedule such an award or order ceases to have that effect.
Clause 9 - Transitional - Eligible instruments
Item applies to eligible instruments with small business redundancy pay
requirements just before commencement
13. This clause would provide transitional arrangements where a small
business redundancy pay obligation is contained in an 'eligible
instrument' (that is, a State law, State award, State authority order or
Territory law).
Eligible instruments that began to provide for small business redundancy
pay between 26 March 2004 and commencement
14. Paragraph 9(2)(a) would deal with a situation where an eligible
instrument was made before 26 March 2004 and before that date did not
contain provisions requiring the affected employers to pay redundancy pay
but was varied on or after 26 March 2004 to include a provision requiring
the affected employers to pay redundancy pay. Paragraph 9(2)(a) would
prevent that eligible instrument from having the effect of imposing
redundancy pay obligations on the affected small business employers from
the commencement of this Schedule.
15. Paragraph 9(2)(b) would prevent an eligible instrument made on or after
26 March 2004 having the effect of imposing redundancy pay obligations on
relevant small business employers from the commencement of this Schedule.
Eligible instruments where Federal award suppressed a small business
redundancy pay requirement that was present just before 26 March 2004
16. Subclause 9(3) would cover a situation where an eligible instrument was
made before 26 March 2004 and contains a provision requiring relevant
small business employers to pay redundancy pay but was suppressed by a
federal award because of inconsistency. Subclause 9(3) would ensure that
the eligible instrument would be prevented from 'springing up' to impose
redundancy pay obligations on relevant small business employers once the
inconsistency is removed and the federal award no longer contains a
provision dealing with small business redundancy pay.
Eligible instruments where certified agreement or AWA suppressed a small
business redundancy pay requirement that was present just before 26 March
2004, and a Federal award would also have had that effect
17. Subclause 9(4) would deal with a situation where a certified agreement
or AWA to which a relevant small business employer is party ceases to
have effect after the commencement of the Schedule, but the small
business employer remains bound by a federal award. Subclause 9(4) would
ensure that when the agreement ceases to have effect, an eligible
instrument that would otherwise have imposed a redundancy pay obligation
will not impose that obligation.
Eligible instruments where small business redundancy pay requirement was
present just before 26 March 2004 and a future Federal award starts to
apply
18. Subclause 9(5) would cover a situation where, before 26 March 2004, a
relevant small business employer was covered by an eligible instrument
(e.g. a State common rule award) containing provisions requiring the
employer to pay redundancy pay, and, after commencement of the Schedule,
the employer becomes bound by a federal award which applies in relation
to some or all of the employees to whom the requirement to pay redundancy
pay relates. From the time at which the employer becomes bound by the
federal award, the small business redundancy pay obligation in the
eligible instrument will cease to have effect in relation to the relevant
employees.
Definitions
19. Subclause 9(6) would define the terms eligible instrument, Federal
award and relevant employer.
Clause 10 - Protection of existing entitlements
20. This clause would ensure that nothing in this Schedule or an amendment
made by this Schedule would affect any entitlement to a redundancy
payment that had arisen before the commencement of this Schedule.
Schedule 4 - Transitional and other provisions
Item 324 - Schedule 4, item 4, page 675 (after line 16)
Item 325 - Schedule 4, item 4, page 675 (after line 20)
21. This item would amend subitem 4(1) of Schedule 4 by adding applicable
definitions for eligible entity and outworker term.
Item 326 - Schedule 4, item 4, pages 675 (lines 22 and 23)
Item 327 - Schedule 4, item 4, pages 675 Lines 27 and 28)
Item 328 - Schedule 4, item 4, pages 676 (line 2)
Item 329 - Schedule 4, item 4, page 676 (after line 2)
Item 330 - Schedule 4, item 4, page 676 (line 3)
Item 331 - Schedule 4, item 4, page 676 (line 5)
Item 332 - Schedule 4, item 4, page 676 (line 10)
Item 333 - Schedule 4, item 4, page 676 (line 13)
22. These items would amend proposed subitems 4(2) to (5) to ensure non-
employing eligible entities bound by an original award that contains
outworker terms remain bound after reform commencement.
Item 334
23. This item would insert a new item 5A into Schedule 4 of the Bill. New
item 5A would preserve, after reform commencement, a term of an award or
order imposing a redundancy pay obligation on an employer of fewer than
15 employees made before 26 March 2004.
Item 335 - Schedule 4, item 18, page 681 (line 24)
24. Proposed Schedule 4 of the Bill would set out transitional and other
provisions. Relevantly, proposed item 18 of Part 2 of Schedule 4 would
provide that Division 5 of Part VIA of the amended Act does not apply to
certain industrial instruments including 170MX awards. Division 5 of
Part VIA of the amended Act would deal with parental leave.
25. Sub-item 18(3) provides definitions for a number of terms including
170MX awards. Proposed amendment Agt160 would replace paragraph 18(3)(b)
in the Bill with a new paragraph 18(3)(b) that would include 170MX awards
made after the commencement of the Bill under Part 8 of Schedule 14 of
the amended Act, which would provide that where a 170MX award was in
force or being arbitrated just before commencement of the Bill, it would
be dealt with under the pre-reform WR Act.
26. This amendment would be consequential upon item 268.
Item 336 - Schedule 4, item 20, page 682 (after line 18)
27. Proposed Schedule 4 of the Bill would set out transitional and other
provisions. Proposed item 20 of Part 2 of Schedule 4 would provide that
the WR Act to continues to apply, after the Bill's commencement, to
proceedings commenced prior to reform commencement under Division 8 of
Part VIB of the WR Act. Proposed amendment 336 would insert a proposed
sub-item 20(1A), which would provide that item 20 of Part 2 of Schedule 4
applies subject to:
* Parts 4 and 8 of Schedule 14 to the amended Act (which would apply
to 170MX awards and applications to certify pre-reform certified
agreements); and
* Item 20A of Schedule 4 (which would relate to the continuation of
certain 170MX award proceedings).
28. Proposed item 336 would apply to the situation where, prior to the
Bill's commencement, the AIRC terminated a bargaining period under
subsection 170MW(3) of the WR Act. In that situation the AIRC could
exercise the conciliation powers mentioned in section 170MY of the WR
Act, post commencement, with a view to making an award under subsection
170MX(3).
Item 337 - Schedule 4, page 682 (after line 26)
29. Proposed Schedule 4 of the Bill would set out transitional and other
provisions. Proposed amendment 337 would insert proposed item 20A into
Division 4 of Part 2 of Schedule 4. Sub-item 20A(1) would provide that
item 20A applies if:
* a bargaining period was terminated on the ground set out in
subsection 170MW(3) of the WR Act before reform commencement;
* the AIRC had not started to exercise arbitration powers in
accordance with section 170MX(3) of the WR Act after reform
commencement; and
* but for the Bill, the AIRC would have been able to make a 170MX
award in relation to the bargaining period.
30. Subclause 20A(2) would provide that Division 8 of Part VC (which allows
the AIRC to make workplace determinations) applies as if:
* the termination of the bargaining period was made on the ground
set out in subsection 107G; and
* that termination happened on reform commencement.
31. Subclause 20A(3) would provide that a reference in proposed item 20A to
subsection 170MX(3) does not include a reference to that subsection as it
had effect because of repealed Division 2 of Part XV of the WR Act (which
dealt with Victoria).
32. The effect of proposed amendment 338 would be that if, pre-reform
commencement, the AIRC terminated a bargaining period and did not start
to exercise its arbitration powers with a view to making a section 170MX
award, the AIRC could make a workplace determination or a section 170MX
award after reform commencement.
Index]
[Search]
[Download]
[Bill]
[Help]