FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) ACT 2009 - SCHEDULE 13 Bargaining and industrial action
FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) ACT 2009 - SCHEDULE 13
Bargaining and industrial action1 Meanings of employee and employer
In this Schedule, employee means a national system employee and employer means a national system employer.
2 Employee covered by individual agreement - based transitional instrument or individual Division 2B State employment agreement is taken not to be an employee who will be, or who is, covered by enterprise agreement in certain circumstances
(1) This item applies to an employee at a particular time if, at that time, an individual agreement - based transitional instrument or an individual Division 2B State employment agreement covers the employee.
(2) The employee is only taken, for the purposes of the FW Act, to be at that time an employee who is or will be covered by an enterprise agreement or a proposed enterprise agreement, if one of the following applies:
(a) the nominal expiry date of the individual agreement - based transitional instrument or the individual Division 2B State employment agreement has passed;
(b) a conditional termination of the individual agreement - based transitional instrument or the individual Division 2B State employment agreement has been made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.
Note: The main effect of this subitem is that an employee who is covered by an individual agreement - based transitional instrument or an individual Division 2B State employment agreement will not be able to do any of the following until the nominal expiry date of the instrument passes or a conditional termination of the instrument is made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A:
(a) be represented in bargaining for an enterprise agreement;
(b) vote on the agreement;
(c) be in a group of employees covered by a protected action ballot order in relation to the agreement;
(d) have the agreement apply to the employee.
(3) Despite subitem (2), an employer must give a notice of employee representational rights to an employee under section 173 of the FW Act, if the employer would have been required to give such a notice but for subitem (2). However, the notice must explain that a person can only become the employee's bargaining representative for the agreement when one of the following occurs:
(a) the nominal expiry date of the individual agreement - based transitional instrument or the individual Division 2B State employment agreement passes;
(b) a conditional termination of the individual agreement - based transitional instrument or the individual Division 2B State employment agreement is made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.
3 Application for bargaining order where certain collective agreement - based transitional instruments or collective Division 2B State employment agreements have not passed nominal expiry date
Despite subsection 229(3) of the FW Act, if one or more of the following instruments apply to an employee, or employees, who will be covered by a proposed enterprise agreement:
(a) any of the following transitional instruments:
(i) a collective agreement;
(ii) a workplace determination;
(iii) a preserved collective State agreement;
(iv) a pre - reform certified agreement;
(v) a section 170MX award;
(b) a collective Division 2B State employment agreement;
an application for a bargaining order may only be made under subsection 229(1) of that Act:
(f) not more than 90 days before the nominal expiry date of the instrument, or the latest nominal expiry date of those instruments (as the case may be); or
(g) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) of that Act that employees approve the agreement, but before the agreement is so approved.
4 Industrial action must not be taken before the nominal expiry date of agreement - based transitional instrument or Division 2B State employment agreement
(1) The following provisions of the FW Act:
(a) section 417 (which prohibits industrial action before the nominal expiry date of enterprise agreements etc.);
(b) item 14 of the table in subsection 539(2) of the FW Act (which deals with civil remedies);
apply, on and after the WR Act repeal day, in relation to an agreement - based transitional instrument or a Division 2B State employment agreement, in a corresponding way to the way that those provisions apply in relation to an enterprise agreement.
(2) Subitem (1) does not apply to an individual agreement - based transitional instrument or an individual Division 2B State employment agreement if the employee and employer covered by the instrument or agreement have made a conditional termination in relation to the instrument or agreement under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.
Note: The effect of this provision is that an employee who is covered by an agreement - based transitional instrument or a Division 2B State employment agreement may not organise or engage in industrial action until after the nominal expiry date of the instrument or agreement has passed. However, this does not apply to an individual agreement - based transitional instrument, or an individual Division 2B State employment agreement, in relation to which a conditional termination has been made.
(3) For the purposes of subitem (1), the reference in subsection 417(1) of the FW Act to the day on which an enterprise agreement was approved by the FWC is taken to be a reference to the day on which the agreement - based transitional instrument or the Division 2B State employment agreement became such an instrument or agreement.
5 Applications on foot under sections 496 and 497 of the WR Act
(1) Despite the repeal of sections 496 and 497 of the WR Act, if:
(a) before the WR Act repeal day, an application was made to the Commission or the Court under either of those sections; and
(b) the application had not been finally dealt with as at the WR Act repeal day;
the Commission or the Court, as the case requires, must consider the application on or after that day as if the WR Act had not been repealed.
(2) To avoid doubt, if the Commission or the Court does not make an order, or grant an injunction, under section 496 or 497 of the WR Act, as those sections continue to apply because of subitem (1), the decision not to make the order or grant the injunction does not affect whether or not the industrial action concerned is protected industrial action under the FW Act.
6 Continuation of section 496 and 497 orders and injunctions
Despite the repeal of sections 496 and 497 of the WR Act:
(a) an order made, or an injunction granted, under either of those provisions that was in operation immediately before the WR Act repeal day continues to have effect on and after that day; and
(b) a person who, immediately before the WR Act repeal day, was required to comply with the order or injunction must not breach the order or injunction on or after the WR repeal day.
Note: For the continuation of orders or injunctions to prevent or stop industrial action that were made by State industrial bodies or courts of Division 2B referring States, see item 61 of Schedule 3A.
7 Civil remedy provisions of FW Act apply to section 496 orders
Subsections 421(1), (3) and (4) and item 15 of the table in subsection 539(2) of the FW Act have effect, on and after the WR Act repeal day, as if:
(a) references in those provisions to an order under section 418 included references to an order under subsection 496(1) of the WR Act as referred to in item 5 or 6 of this Schedule; and
(b) references in those provisions to an order under section 419 included references to an order under subsection 496(2) of the WR Act as referred to in item 5 or 6 of this Schedule; and
(c) references in those provisions to an order under section 420 included references to an order under subsection 496(6) of the WR Act as referred to in item 5 or 6 of this Schedule.
8 Effect of orders terminating bargaining periods upon industrial action related workplace determinations
(1) This item applies if one of the following is in force in relation to a proposed collective agreement under the WR Act immediately before the WR Act repeal day:
(a) an order terminating a bargaining period under subsection 430(1) of the WR Act that was made on the ground, or on grounds including the ground, that the Commission was satisfied as mentioned in subsection 430(3) of that Act;
(b) a declaration by the Minister under section 498 of the WR Act (which deals with industrial action endangering life, etc.).
(2) Divisions 3 and 5 of Part 2 - 5 of the FW Act have effect, on and after the WR Act repeal day, in relation to the making of an industrial action related workplace determination, as if:
(a) references to a termination of industrial action instrument included references to the order or declaration referred to in subitem (1); and
(b) references to a proposed enterprise agreement included references to the proposed collective agreement; and
(c) references to the bargaining representatives for a proposed enterprise agreement included references to the persons who were, immediately before the WR Act repeal day, negotiating parties for the proposed collective agreement; and
(d) references to an employer or employee that would have been covered by a proposed enterprise agreement included references to an employer or employee, as the case requires, that would have been bound by the proposed collective agreement; and
(e) the reference in paragraph 275(g) to bargaining representatives complying with the good faith bargaining requirements included a reference to the negotiating parties genuinely trying to reach agreement in relation to the proposed collective agreement.
Note: The effect of this provision is that FWA may make an industrial action related workplace determination under the FW Act based on conduct, orders and declarations in relation to negotiations for a proposed collective agreement under the WR Act.
9 Commission must not deal further with applications, appeals or reviews relating to bargaining periods
If:
(a) before the WR Act repeal day, an application was made under Division 2 of Part 9 of the WR Act for the suspension or termination of a bargaining period; and
(b) the application had not been finally dealt with as at the WR Act repeal day;
the Commission must not, on or after that day, deal with or continue to deal with the application, or any appeal or review relating to the application.
10 Effect of suspension or termination orders on or after the WR Act repeal day
An order under Division 2 of Part 9 of the WR Act suspending or terminating a bargaining period is of no effect on or after the WR Act repeal day, other than as referred to in item 8.
11 Notices of industrial action of no effect on or after WR Act repeal day
A notice of intention to take industrial action given under section 441 of the WR Act before the WR Act repeal day is of no effect on or after that day.
Part 4 -- Protected action ballots
12 Commission must not deal further with application, appeal or review relating to ballot order
The Commission must not, on or after the WR Act repeal day, deal with or continue to deal with any application, appeal or review relating to a ballot order.
13 Ballot orders and authorisations have no effect on or after WR Act repeal day
(1) A ballot order under subsection 451(1) of the WR Act, or a ballot or authorisation under such an order, has no effect on or after the WR Act repeal day.
Note: This means that no protected action ballots can be conducted or continued on or after the WR Act repeal day, and any nomination in a ballot order of a person as an authorised ballot agent, or as an authorised independent adviser, will also have no effect.
(2) This item has effect subject to items 14A and 15.
14 Continuation of sections 476, 477 and 479 of the WR Act for protected action ballots completed before WR Act repeal day
The following provisions of Part 9 of the WR Act continue to apply in relation to a ballot completed before the WR Act repeal day as if that Part had not been repealed:
(a) section 476;
(b) subsections 477(1) to (6);
(c) section 479.
Note: A person must not contravene subsection 477(1) or (4) of the WR Act as those sections continue to apply because of this item (see item 14 of Schedule 16).
14A FWA may order that industrial action is taken to be authorised by a protected action ballot
(1) A person who is a bargaining representative for a proposed enterprise agreement may apply to FWA for an order under this item if, before the WR Act repeal day, the person was an applicant specified in an order for a protected action ballot in relation to a proposed collective agreement.
(2) The application must be made within 28 days after the WR Act repeal day.
(3) FWA may order that industrial action that was authorised under section 478 of the WR Act in relation to the proposed collective agreement is taken to be authorised, in relation to the proposed enterprise agreement, by a protected action ballot under subsection 459(1) of the FW Act, if FWA is satisfied that:
(a) on or after 1 March 2009, the person organised or engaged in industrial action, for the purpose of supporting or advancing claims in relation to the proposed collective agreement; and
(b) all such industrial action organised or engaged in by the person was:
(i) authorised by a protected action ballot under section 478 of the WR Act; and
(ii) protected action within the meaning of the WR Act; and
(c) the person did not first organise or engage in such industrial action on or after the WR Act repeal day; and
(d) no collective agreement covering the employees whose employment would have been subject to the proposed collective agreement was approved by those employees before the WR Act repeal day; and
(e) the proposed enterprise agreement will cover those employees; and
(f) the person is genuinely trying to reach agreement in relation to the proposed enterprise agreement; and
(g) it is reasonable in all the circumstances to make the order.
(4) Industrial action that is taken to be authorised because of the operation of subitem (3) is only taken to be authorised in relation to employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) were relevant employees (within the meaning of section 450 of the WR Act) in relation to the proposed collective agreement.
(5) For the purposes of subsection 414(3) of the FW Act, the results of the protected action ballot under that Act are taken to have been declared on the day of the order.
15 Continuing liability for cost of protected action ballot
Sections 482 and 483 of the WR Act continue to apply on and after the WR Act repeal day in relation to a ballot ordered under Division 4 of Part 9 of the WR Act.
16 Record - keeping requirements relating to protected action ballot conducted under WR Act
An authorised ballot agent in relation to a protected action ballot conducted before the WR Act repeal day must keep the following for a period of one year after the day on which the ballot closed:
(a) the roll of voters;
(b) all the ballot papers, envelopes and other documents and records relevant to the ballot.
17 Restriction on when protected action ballot orders may be made--certain agreement - based transitional instruments and collective Division 2B State employment agreements that cover employees who will be covered by proposed enterprise agreement
(1) This item applies if one or more of the following instruments cover the employees who will be covered by a proposed enterprise agreement:
(a) any of the following transitional instruments:
(i) a collective agreement;
(ii) a workplace determination;
(iii) a preserved collective State agreement;
(iv) a pre - reform certified agreement;
(v) a section 170MX award;
(b) a collective Division 2B State employment agreement.
(2) An application for a protected action ballot order must not be made under subsection 437(1) of the FW Act earlier than 30 days before the nominal expiry date of the instrument, or the latest nominal expiry date of those instruments (as the case may be).
(3) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.
18 FWC may take into account conduct engaged in by bargaining representatives while bargaining for collective agreement
(1) This item applies if:
(a) before the WR Act repeal day, a bargaining representative for a proposed enterprise agreement engaged in conduct in relation to a proposed collective agreement; and
(b) immediately before that day, the collective agreement had not been made; and
(c) the employment of the employees who would be covered by the proposed enterprise agreement would have been subject to the proposed collective agreement, had it been made; and
(d) the employers who would be covered by the proposed enterprise agreement would have been bound by the proposed collective agreement, had it come into operation.
(1A) This item applies if:
(a) before the Division 2B referral commencement, a bargaining representative for a proposed enterprise agreement engaged in conduct in relation to a proposed collective State employment agreement; and
(b) immediately before that day, the collective State employment agreement had not been made, or had been made but had not been lodged (however described) under a State industrial law of a Division 2B referring State; and
(c) the employment of the employees who would be covered by the proposed enterprise agreement would have been subject to the proposed collective State employment agreement, had it come into operation; and
(d) the employers who would be covered by the proposed enterprise agreement would have been bound by the proposed collective State employment agreement, had it come into operation.
(2) If this item applies because of subitem (1) or (1A), the FWC may take into account the conduct referred to in that subitem:
(a) in deciding whether it is reasonable in all the circumstances to make a bargaining order or a scope order in relation to the proposed enterprise agreement; and
(b) in deciding which terms to include in a workplace determination that relates to the proposed enterprise agreement; and
(c) in deciding under Part 3 - 3 of the FW Act (which deals with industrial action) whether a bargaining representative is genuinely trying to reach an agreement in relation to the proposed enterprise agreement; and
(d) in deciding under subsection 423(2) or (3) of that Act whether protected industrial action that relates to the proposed enterprise agreement is causing, or threatening to cause, significant economic harm to a person.
Part 6 -- Payments relating to periods of industrial action
19 Payments relating to pre - commencement periods of industrial action etc.
(1) If industrial action (whether or not protected action) is engaged in before the commencement of Part 3 - 3 of the FW Act then:
(a) Division 9 of Part 9 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to the industrial action; and
(b) Part 3 - 1 and Division 9 of Part 3 - 3 of the FW Act do not apply in relation to the industrial action.
(2) If:
(a) industrial action (whether or not protected action) is engaged in during a shift or other period of work that is taken to be a day because of subsection 507(3) of the WR Act; and
(b) Part 3 - 3 of the FW Act commences during that shift or other period;
then:
(c) Division 9 of Part 9 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to the industrial action until the end of that shift or other period; and
(d) Part 3 - 1 and Division 9 of Part 3 - 3 of the FW Act do not apply in relation to the industrial action engaged in during that shift or period.
20 Application of Division 9 of Part 3 - 3 of the FW Act
Division 9 of Part 3 - 3 of the FW Act applies as if:
(a) the reference in paragraph 470(4)(c), subsection 471(2) and paragraph 474(2)(c) of that Act to a modern award included a reference to an award - based transitional instrument and a Division 2B State award; and
(b) the reference in those
provisions to an enterprise agreement included a reference to an agreement -
based transitional instrument and a Division 2B State agreement.