FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) ACT 2009 - SCHEDULE 16 Compliance

FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) ACT 2009 - SCHEDULE 16

1   Meanings of employee and employer

In this Schedule, employee and employer have their ordinary meanings.

2   Compliance with transitional instruments

Award - based transitional instruments

(1)   A person must not contravene a term of an award - based transitional instrument that applies to the person.

Note 1:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

Note 2:   An injunction may not be granted in relation to a contravention of an award - based transitional instrument (see item   17).

Agreement - based transitional instruments

(2)   A person must not contravene a term of an agreement - based transitional instrument that applies to the person.

Note 1:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

Note 2:   An injunction may not be granted in relation to a contravention of an agreement - based transitional instrument (see item   17).

3   Compliance with obligations relating to conditional terminations of individual agreement - based transitional instruments

(1)   An employer must not contravene subitem   18(6) of Schedule   3.

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

(2)   A bargaining representative who applies to the FWC for approval of an enterprise agreement must not contravene subitem   18(7) of Schedule   3.

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

4   Compliance with obligation to notify employees about preserved redundancy provisions

An employer must not contravene subitem   39(3) of Schedule   3.

Note:   This item is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

4A   Compliance with Division   2B State instruments

Division   2B State awards

(1)   A person must not contravene a term of a Division   2B State award that applies to the person.

Note 1:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

Note 2:   An injunction may not be granted in relation to a contravention of a Division   2B State award (see item   17).

Division   2B State employment agreements

(2)   A person must not contravene a term of a Division   2B State employment agreement that applies to the person.

Note 1:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

Note 2:   An injunction may not be granted in relation to a contravention of a Division   2B State employment agreement instrument (see item   17).

4B   Compliance with obligations relating to conditional terminations of individual Division   2B State employment agreements

(1)   An employer must not contravene subitem   25(6) of Schedule   3A.

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

(2)   A bargaining representative who applies to the FWC for approval of an enterprise agreement must not contravene subitem   25(7) of Schedule   3A.

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

4C   Compliance with obligation to notify employees about automatic sunsetting

5   Compliance with transitional APCSs, the transitional FMW and transitional special FMWs

A person must not contravene section   182 or 185 of the WR Act as that section continues to apply under item   5 of Schedule   9.

Note 1:   This item is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

Note 2:   An injunction may not be granted in relation to a contravention of section   182 or 185 of the WR Act (see item   17).

6   Compliance with minimum entitlements

Minimum entitlements

(1)   A person must not contravene any of the following provisions:

  (a)   Divisions   3, 4, 5, and 6 of Part   7 of the WR Act as they continue to apply under item   2 of Schedule   4;

  (b)   Divisions   1 and 2 of Part   12 of the WR Act as they continue to apply under item   3 of Schedule   4;

  (c)   section   661 of the WR Act as it continues to apply under item   4 of Schedule   4.

Note 1:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

Note 2:   An injunction may not be granted in relation to a contravention of section   661 of the WR Act (see item   17).

Extended operation of parental leave

(2)   A person must not contravene Division   6 of Part   12 of the WR Act as it continues to apply under item   3 of Schedule   4.

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

7   Compliance with take - home pay orders

A person must not contravene a term of a take - home pay order that applies to the person.

Note:   This item is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

7A   Compliance with transitional pay equity orders and orders to continue effect of terms relating to long service leave

(1)   A person must not contravene a term of a transitional pay equity order that applies to the person.

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

(2)   A person must not contravene an order under item   30 of Schedule   3A that continues the effect of terms of a Division   2B State award relating to long service leave.

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

8   Compliance with continued provisions relating to workplace agreements

(1)   A person must not contravene any of the following provisions of the WR Act as the provision continues to apply because of Schedule   8:

  (a)   subsection   335(3);

  (b)   subsection   337(8) or (9);

  (c)   subsection   339(1);

  (d)   subsection   342(1);

  (e)   subsection   346(1);

  (f)   subsection   346A(1);

  (g)   subsection   346ZH(1);

  (h)   subsection   362(1);

  (i)   subsection   364(1);

  (j)   subsection   370(8) or (9);

  (k)   subsection   372(1);

  (l)   subsection   375(1);

  (m)   subsection   379(1);

  (n)   subsection   385(1);

  (o)   subsection   388(1);

  (p)   subsection   391(1);

  (q)   subsection   394(5);

  (r)   subsection   397(1);

  (s)   subsection   601H(2).

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

(2)   A person must not contravene any of the following provisions of the WR Act as the provision continues to apply because of Schedule   8:

  (a)   subsection   341(1);

  (b)   subsection   343(1);

  (c)   subsection   357(1);

  (d)   subsection   365(1);

  (e)   subsection   366(1);

  (f)   subsection   374(1);

  (g)   subsection   376(1);

  (h)   subsection   387(1).

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

(3)   A person must not contravene subsection   334(2) of the WR Act as that subsection continues to apply because of Schedule   8.

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

(4)   A person must not contravene subsection   365(1), 366(1), 400(3), 400(5) or 401(1) of the WR Act as those subsections continue to apply because of Schedule   8.

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

9   Compliance with continued provisions relating to workplace agreements

(1)   This item applies to the following provisions of the WR Act as the provisions continue to apply because of Schedule   8:

  (a)   subsection   341(1);

  (b)   subsection   374(1);

  (c)   subsection   387(1);

  (d)   subsection   400(5);

  (e)   subsection   401(1).

(2)   Subdivision C of Division   11 of Part   8 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to a contravention of the provision.

10   Compliance with WR Act equal remuneration orders

A person must not contravene a term of a WR Act equal remuneration order as it continues to apply because of item   4 of Schedule   10.

Note:   This item is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

11   Transfer of business--compliance with notice requirements

(1)   A person must not contravene subsection   599(4) of the WR Act as it continues to apply because of subitem   2(2) of Schedule   11.

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

(2)   A person must not contravene any of the following provisions of the WR Act as they continue to apply because of subitem   2(2) or (3) of Schedule   11:

  (a)   subsections   602(2) and (4);

  (b)   subsections   603(1), (2) and (3);

  (c)   subsection   603A(2);

  (d)   subsection   603B(1);

  (e)   subclauses   28(2) and (3A) of Schedule   9;

  (f)   subclauses   29(1), (2) and (3) of Schedule   9;

  (g)   subclause   29A(2) of Schedule   9;

  (h)   subclause   29B(1) of Schedule   9.

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

(3)   A person must not contravene subitem   10(2) of Schedule   11.

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

(4)   A person must not contravene subitem   11(1) of Schedule   11.

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

(5)   A person must not contravene subsection   599(4) of the WR Act as applied by item   13 of Schedule   11.

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

12   Non - disclosure obligation--information acquired under FW Act that identifies an employee as an employee to whom an individual agreement - based transitional instrument applies

(1)   A person who:

  (a)   is the protected action ballot agent for a protected action ballot (other than the Australian Electoral Commission); or

  (b)   is the independent advisor for a protected action ballot; or

  (c)   acquires information from, or on behalf of, a person referred to in paragraph   (a) or (b) in the course of performing functions or exercising powers for the purposes of the ballot;

must not disclose to any other person information about an employee if the information will identify whether or not the employee is covered by an individual agreement - based transitional instrument or an individual Division   2B State employment agreement.

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

(2)   Subitem   (1) does not apply if:

  (a)   the disclosure is made in the course of performing functions or exercising powers for the purposes of the protected action ballot; or

  (b)   the disclosure is required or authorised by or under a law; or

  (c)   the employee has consented, in writing, to the disclosure.

Note 1:   Personal information given to the FWC, the Australian Electoral Commission or another protected action ballot agent under Division   8 of Part   3 - 3 of the FW Act may be regulated under the Privacy Act 1988 .

Note 2:   The President of the FWC may, in certain circumstances, disclose, or authorise the disclosure of, information acquired by the FWC or a member of the staff of the FWC, in the course of performing functions or exercising powers as the FWC (see section   655 of the FW Act).

(3)   In this item:

protected action ballot has the same meaning as in the FW Act.

13   Non - disclosure obligation--protected ballot information acquired under the WR Act

(1)   A person who acquires protected ballot information in the course of performing functions or exercising powers under this Act, the WR Act or the FW Act must not disclose that information to any other person if the information will identify:

  (a)   whether a person is a member of an employee organisation; or

  (b)   a person as:

  (i)   an applicant who was represented by an applicant's agent; or

  (ii)   a relevant employee who was one of the prescribed number of employees supporting an application for a ballot order (as required by subsection   451(4) of the WR Act); or

  (iii)   a person whose name appears on the roll of voters for a protected action ballot; or

  (iv)   a person who is covered by an individual agreement - based transitional instrument or an individual Division   2B State employment agreement.

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

(2)   Subitem   (1) does not apply if:

  (a)   the disclosure is made for the purposes of performing functions or exercising powers under this Act, the WR Act (as it continues to apply under this Act) or the FW Act; or

  (b)   the disclosure is required or authorised by or under a law; or

  (c)   the person referred to in paragraph   (1)(a) or (b) has consented, in writing, to the disclosure.

Note 1:   If the protected ballot information is personal information, it may be regulated under the Privacy Act 1988 .

Note 2:   The President of the FWC may, in certain circumstances, disclose, or authorise the disclosure of, information acquired by the FWC or a member of the staff of the FWC, in the course of performing functions or exercising powers as the FWC (see section   655 of the FW Act).

(3)   In this item:

protected action ballot has the same meaning as in the WR Act.

protected ballot information means information acquired in connection with a protected action ballot.

14   Compliance with continued provisions relating to protected action ballots

A person must not contravene subsection   477(1) or (4) of the WR Act as those subsections continue to apply because of item   14 of Schedule   13.

Note:   This item is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

15   Continuing Schedule   6 instruments

(1)   A person must not contravene a term of a continuing Schedule   6 instrument that applies to the person.

Note 1:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

Note 2:   An injunction may not be granted in relation to a contravention of a continuing Schedule   6 instrument (see item   17).

(2)   A transitional employer must not contravene subclause   72J(2) or 72K(1), (2) or (3) of continued Schedule   6.

Note:   This subitem is a civil remedy provision (see item   16, and Part   4 - 1 of the FW Act).

16   Application of FW Act to civil remedy provisions under this Act

(1)   Part   4 - 1 of the FW Act applies as if:

  (a)   items   2 to 8 and 10 to 15 of this Schedule were provisions of the FW Act; and

  (b)   the table in subsection   539(2) included the table below (with the references in column 1 of the table below to be read as references to provisions of this Schedule (being Schedule   16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 )); and

  (c)   a reference to a fair work instrument in that Part   included a reference to a transitional instrument, a Division   2B State instrument, a transitional minimum wage instrument or a continuing Schedule   6 instrument; and

  (d)   the reference in subsection   540(3) to items   4, 7 and 14 in the table in subsection   539(2) included a reference to items   40, 44C, 44H, 44J and 44K in the table below; and

  (da)   the reference in subsections   540(3) and (4) to a term in an enterprise agreement that would be an outworker term if it were included in a modern award included:

  (i)   a reference to a term in a collective agreement - based transitional instrument that would be an outworker term if it were included in an award - based transitional instrument; and

  (ii)   a reference to a term in a collective Division   2B State employment agreement that would be an outworker term if it were included in a Division   2B State award; and

  (e)   subsection   541(3) included references to items   2, 5, 7, 10, and 15 of this Schedule; and

  (f)   subsection   557(2) included references to items   2 to 8 and 10 to 15 of this Schedule.

Outworkers

(2)   For the purposes of table items   38, 39, 40, 40A, 44A, 44B, 44C, 44D, 48, 60 and 61 in subitem   (1), and the operation of subsections   540(3) and (4) of the FW Act in relation to those table items:

  (a)   outworker has the meaning given by the FW Act; and

  (b)   outworker term has the meaning that would be given by section   140 of the FW Act if:

  (i)   references in the section to a modern award were references to an award - based transitional instrument, a Division   2B State award or a continuing Schedule   6 instrument; and

  (ii)   paragraph   140(3)(b) of that Act did not refer to subsection   142(1); and

  (iii)   paragraph   140(3)(c) of that Act did not refer to subsection   142(2).

(3)   Section   570 of the FW Act applies in relation to proceedings that relate to any of items   2 to 8 or 10 to 15 of this Schedule as if the reference to this Act (being the FW Act) were a reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 .

(4)   Section   571 of the FW Act applies as if the reference to a pecuniary penalty imposed under this Act (being the FW Act) were a reference to a pecuniary penalty imposed in relation to any of items   2 to 8 or 10 to 15 of this Schedule.

17   No injunctions in relation to certain contraventions

The Federal Court and the Federal Circuit and Family Court of Australia (Division   2) may not make an order under Division   2 of Part   4 - 1 of the FW Act granting an injunction, or an interim injunction, to prevent, stop or remedy the effects of a contravention of:

  (a)   a transitional instrument; or

  (aa)   a Division   2B State instrument; or

  (b)   a continuing Schedule   6 instrument; or

  (c)   section   182 or 185 of the WR Act as that section continues to apply under item   5 of Schedule   9; or

  (d)   section   661 of the WR Act, as it continues to apply under item   4 of Schedule   4.

18   Application of safety net contractual entitlements

To avoid doubt, the following have no effect before the FW (safety net provisions) commencement day:

  (a)   sections   541, 542 and 543 of the FW Act;

  (b)   section   706 of the FW Act as it operates because of paragraph   706(1)(b) that Act.

Note:   Inspectors may exercise powers for the other compliance purposes set out in subsection   706(1) of the FW Act before the FW (safety net provisions) commencement day.

19    Regulations dealing with civil penalties

(1)   The regulations may provide for civil penalties for contravention of this Act or of the WR Act as the WR Act continues to apply because of this Act.

(2)   The penalties for contravention must not be more than:

  (a)   20 penalty units for an individual; and

  (b)   100 penalty units for a body corporate.