Commonwealth Consolidated Acts Commonwealth Consolidated Acts1 Subsection 4(1)
Insert:
"Australian workplace agreement or AWA" means an Australian workplace agreement under Part VID.
2 Subsection 4(1)
Insert:
"AWA" means an Australian workplace agreement under Part VID.
3 Before Part VIE
Insert:
Part VID—Australian workplace agreements (AWAs)
In this Part, unless the contrary intention appears:
"additional approval requirements" means the additional approval requirements in section 170VPA.
"ancillary document" means any of the following:
(a) a variation agreement;
(b) an extension agreement;
(c) a termination agreement;
(d) a termination notice.
"approval notice" means an approval notice issued by the Employment Advocate or Commission under Division 5.
"approved" means approved under Division 5 by the Employment Advocate or Commission.
"AWA" has a meaning affected by sections 170VB and 170VPJ.
"AWA date" means the date on which the employer and employee sign the AWA or, if they sign on different dates, the later of those dates.
"bargaining agent" means a person or group of persons duly appointed as a bargaining agent under section 170VK.
"comparable employee" , in relation to an AWA, means an employee of the employer who does the same kind of work as the employee who is a party to the AWA.
"constitutional trade or commerce" means trade or commerce:
(a) between Australia and a place outside Australia; or
(b) between the States; or
(c) within a Territory, between a State and a Territory or between 2 Territories.
"eligible court" means any of the following:
(a) the Federal Court of Australia;
(b) a District, County or Local Court;
(c) a magistrate’s court.
"employee" has a meaning affected by section 170VB.
"employer" has a meaning affected by section 170VB.
"existing employee" , in relation to an AWA, means an employee who signed the AWA after commencing the employment to which the AWA relates.
"extension agreement" means an agreement to extend the nominal expiry date of an AWA.
"file" , in relation to an AWA or ancillary document, means file with the Employment Advocate.
"filing receipt" means a receipt issued by the Employment Advocate.
"filing requirements" means the filing requirements in section 170VO.
"new employee" , in relation to an AWA, means an employee who signed the AWA before, or at the time of, commencing the employment to which the AWA relates.
"no-disadvantage test" means the no-disadvantage test set out in Part VIE.
"nominal expiry date" means the nominal expiry date that applies under section 170VH.
"party" , in relation to an AWA or ancillary document, means the employer or employee.
"period of operation" , in relation to an AWA, means the period of operation as determined under section 170VJ.
"referral notice" means a referral notice issued by the Employment Advocate under Division 5.
"refusal notice" means a refusal notice issued by the Employment Advocate or Commission under Division 5.
"relevant or designated award" means the relevant or designated award that is used when applying the no-disadvantage test set out in Part VIE.
"State agreement" means an employment agreement made under, or for the purposes of, a law of a State.
"sure" means not having any doubts.
"termination agreement" means an agreement to terminate an AWA.
"termination notice" means a notice of termination under section 170VM.
"variation agreement" means an agreement to vary an AWA.
"verified copy , in relation to a document, " means a copy that is certified as being a true copy of the document.
170VB Proposed AWAs and ancillary documents—interpretation
(1) So far as the context permits, a reference in this Part to an AWA or ancillary document includes a reference to a proposed AWA or ancillary document.
(2) In relation to a proposed AWA or ancillary document, a reference to the employer or employee is a reference to the person who will be the employer or employee when the AWA or ancillary document starts to operate.
An AWA is of no effect unless at least one of the following applies at the time when the AWA is filed:
(a) the employer is a constitutional corporation;
(b) the employer is the Commonwealth;
(c) the employee’s primary workplace is in a Territory;
(d) the employer is a waterside employer, the employee is a waterside worker and the employee’s employment is in connection with constitutional trade or commerce;
(e) the employee is a maritime employee and the employee’s employment is in connection with constitutional trade or commerce;
(f) the employee is a flight crew officer and the employee’s employment is in connection with constitutional trade or commerce.
170VCA Functions of Commission
(1) The Commission must, as far as practicable, perform its functions under this Part in a way that furthers the objects of this Act.
(2) Section 90 does not apply to the performance of functions of the Commission under this Part.
(3) In performing its functions under this Part, the Commission may not act under paragraph 111(1)(g) on the grounds specified in subparagraph (i), (ii) or (iii) of that paragraph.
Division 2—General rules about AWAs and ancillary documents
170VD AWAs and ancillary documents only have effect as provided by this Part
An AWA or ancillary document has effect as provided by this Part, and not otherwise. In particular:
(a) an AWA for a new employee has no effect before a filing receipt is issued for the AWA; and
(b) an AWA for an existing employee has no effect before an approval notice is issued for the AWA.
(1) For the purposes of this Part, 2 or more agreements that have been negotiated collectively may be included in the same document if the same employer is a party to all the agreements. The agreements need not be in the same terms.
(2) An AWA for a new employee cannot be included in the same document as an AWA for an existing employee.
Division 3—Making, varying or terminating an AWA
170VF Employer and employee may make an AWA
(1) An employer and employee may make a written agreement, called an Australian workplace agreement, that deals with matters pertaining to the relationship between an employer and employee.
(2) The AWA may be made before commencement of the employment.
(1) The employer must ensure that the AWA includes the provisions relating to discrimination that are prescribed by the regulations. If the AWA does not in fact include those provisions, the AWA is taken to include those provisions.
(2) The employer must ensure that the AWA does not include any provisions that prohibit or restrict disclosure of details of the AWA by either party to another person.
(3) The employer must ensure that the AWA includes a dispute resolution procedure. If the AWA does not in fact include a dispute resolution procedure, the AWA is taken to include the model procedure that is prescribed by the regulations.
(4) A dispute resolution procedure that is included in an AWA under subsection (3), or prescribed by the regulations for the purposes of subsection (3), may confer powers on the Commission to settle disputes between the parties to the AWA about the application or interpretation of the AWA. The Commission may exercise those powers.
170VH Nominal expiry date of AWA
(1) An AWA may specify a date as its nominal expiry date. The date cannot be more than 3 years after the AWA date.
(2) If no date is specified, then the nominal expiry date is the 3rd anniversary of the AWA date.
(3) An employer and employee may make a written agreement that extends the nominal expiry date. The extended date cannot be more than 3 years after the AWA date.
(4) The extension agreement has no effect unless a filing receipt is issued for the extension agreement at least 21 days before the nominal expiry date that is to be extended.
(5) The extension agreement takes effect on the day after an approval notice is issued for the extension agreement.
170VJ Period of operation of AWA
(1) An AWA for a new employee starts operating on the later of:
(a) the day after a filing receipt is issued for the AWA; or
(b) the day specified in the AWA as the starting day; or
(c) the day the employment commences;
and stops operating at the earlier of the following times:
(d) the end of the day when a refusal notice is issued in relation to the AWA;
(e) the time when a termination under section 170VM takes effect;
(f) the time when another AWA between the employer and employee starts to operate.
(2) An AWA for an existing employee starts operating on the later of:
(a) the day after an approval notice is issued for the AWA; or
(b) the day specified in the AWA as the starting day;
and stops operating at the earlier of the following times:
(c) the time when a termination under section 170VM takes effect;
(d) the time when another AWA between the employer and employee starts to operate.
(1) An employer or employee may appoint a person to be his or her bargaining agent in relation to the making, approval, variation or termination of an AWA. The appointment must be made in writing.
(2) Subject to subsection (3), an employer or employee must not refuse to recognise a bargaining agent duly appointed by the other party for the purposes of subsection (1).
(3) Subsection (2) does not apply if the person refusing has not been given a copy of the bargaining agent’s instrument of appointment before the refusal.
(4) An employer or employee must not coerce, or attempt to coerce, the other party:
(a) to appoint, or not to appoint, a particular person as an authorised bargaining agent; or
(b) to terminate the appointment of an authorised bargaining agent.
(5) In this section:
"person" includes a group of persons.
170VL Varying the terms of an AWA
(1) An employer and employee may make a written agreement varying an AWA.
(2) The variation takes effect on the later of:
(a) the day after an approval notice is issued for the variation agreement; or
(b) the day specified in the variation agreement as the date of effect.
(3) Section 170VG applies to the AWA as varied in the same way as that section applies to the original AWA.
Termination by a termination agreement
(1) The employer and employee may at any time make a written agreement to terminate the AWA.
(2) A termination under subsection (1) takes effect at the end of the day on which an approval notice is issued for the termination agreement or at such later time as is specified in the termination agreement.
Termination by the Commission
(3) After the nominal expiry date of an AWA, the Commission may, on application by either party, terminate the AWA if the Commission considers that it is not contrary to the public interest to do so.
(4) The Commission must issue a copy of its determination to the parties and to the Employment Advocate.
(5) A termination under subsection (3) takes effect at the end of the day on which the Commission issues copies of its determination, or at such later time as is specified in the determination.
Termination in accordance with the AWA
(6) After the nominal expiry date of an AWA, the employer or the employee may file a termination notice, stating that the AWA is to be terminated in a manner provided for in the AWA.
(7) A termination under subsection (6) takes effect at the end of the day on which an approval notice is issued for the termination notice, or at a later time specified in the termination notice.
Division 4—Filing AWAs and ancillary documents with Employment Advocate
170VN Filing AWAs and ancillary documents with Employment Advocate
(1) An AWA or ancillary document may be filed with the Employment Advocate.
(2) If the Employment Advocate is satisfied that the filing requirements for the document have been met, the Employment Advocate must issue a receipt to the person who filed the document.
(3) The Employment Advocate must not issue a filing receipt for an AWA unless the AWA was filed within 14 days after the AWA date.
AWA
(1) The filing requirements for an AWA are:
(a) the AWA must be signed and dated by each of the parties, and the signatures must be witnessed; and
(b) the AWA must be accompanied by a declaration by the employer:
(i) declaring that the AWA complies with section 170VG; and
(ii) declaring that, before the employee signed the AWA, the employer gave the employee a copy of an information statement prepared by the Employment Advocate; and
(iii) declaring whether or not the employer has offered an AWA in the same terms to all comparable employees; and
(c) the employer must have provided any other information that the Employment Advocate requires, by notice published in the Gazette , for the purpose of performing his or her functions.
(2) The information statement prepared by the Employment Advocate for the purposes of subsection (1) must include information about the following matters, but may include other information:
(a) Commonwealth statutory entitlements;
(b) occupational health and safety law;
(c) services provided by the Employment Advocate;
(d) bargaining agents.
Variation agreement
(3) The filing requirements for a variation agreement are:
(a) the variation agreement must be signed and dated by each of the parties, and the signatures must be witnessed; and
(b) the variation agreement must be accompanied by a declaration by the employer:
(i) declaring that the AWA, as varied, complies with section 170VG; and
(ii) declaring whether or not the employer has offered a variation agreement in the same terms to all comparable employees who also have an AWA in the same terms with the employer; and
(c) the employer must have provided any other information that the Employment Advocate requires, by notice published in the Gazette , for the purpose of performing his or her functions.
Extension agreement
(4) The filing requirements for an extension agreement are:
(a) the extension agreement must be signed and dated by each of the parties, and the signatures must be witnessed; and
(b) the employer must have provided any other information that the Employment Advocate requires, by notice published in the Gazette , for the purpose of performing his or her functions.
Termination agreement
(5) The filing requirements for a termination agreement are:
(a) the termination agreement must be signed and dated by each of the parties, and the signatures must be witnessed; and
(b) the employer must have provided any other information that the Employment Advocate requires, by notice published in the Gazette , for the purpose of performing his or her functions.
Termination notice
(6) The filing requirements for a termination notice are:
(a) the termination notice must be signed and dated by the party or parties filing the notice, and each signature must be witnessed; and
(b) the party or parties filing the termination notice must have provided any other information that the Employment Advocate requires, by notice published in the Gazette , for the purpose of performing his or her functions.
170VP Employer’s declaration must be accurate
An employer must not, in a declaration filed with the Employment Advocate for the purposes of this Part, make a statement that the employer knows, or ought reasonably to know, is false or misleading.
Division 5—Approval of AWAs and ancillary documents
170VPA Additional approval requirements for AWA and ancillary documents
AWA
(1) The additional approval requirements for an AWA are:
(a) the AWA complies with section 170VG; and
(b) the employee received a copy of the AWA at least the required number of days before signing the AWA; and
(c) the employer explained the effect of the AWA to the employee between:
(i) the time the employee first received a copy of the AWA; and
(ii) the time when the employee signed the AWA; and
(d) the employee genuinely consented to making the AWA; and
(e) in a case where the employer failed to offer an AWA in the same terms to all comparable employees—the employer did not act unfairly or unreasonably in failing to do so.
Note: An employer might have valid reasons for not offering an AWA in the same terms to all comparable employees.
For the purposes of this subsection, the required number of days is 5 for a new employee and 14 for an existing employee.
Variation agreement
(2) The additional approval requirements for a variation agreement are:
(a) the AWA, as varied, complies with section 170VG; and
(b) the employee received a copy of the variation agreement at least 14 days before signing the variation agreement; and
(c) the employer explained the effect of the variation agreement to the employee between:
(i) the time the employee first received a copy of the variation agreement; and
(ii) the time when the employee signed the variation agreement; and
(d) the employee genuinely consented to making the variation agreement; and
(e) in a case where the employer did not offer a variation agreement in the same terms to all comparable employees who also have an AWA in the same terms—the employer did not act unfairly or unreasonably in not doing so.
Note: An employer might have valid reasons for not offering a variation agreement in the same terms to all comparable employees.
Extension agreement
(3) The additional approval requirement for an extension agreement is that the employee genuinely consented to making the extension agreement.
Termination agreement
(4) The additional approval requirement for a termination agreement is that the employee genuinely consented to making the termination agreement.
Termination notice
(5) The additional approval requirement for a termination notice is that the termination is in accordance with the AWA.
Subdivision B—Approval by Employment Advocate
170VPB Approval of AWA by Employment Advocate
(1) The Employment Advocate must approve an AWA for which a filing receipt has been issued if:
(a) the Employment Advocate is sure that the AWA passes the no‑disadvantage test; and
(b) the Employment Advocate is satisfied that the AWA meets the additional approval requirements.
Note: The additional approval requirements are in section 170VPA.
(2) If the Employment Advocate has concerns about whether the AWA passes the no‑disadvantage test, but those concerns are resolved by:
(a) a written undertaking given by the employer and accepted by the Employment Advocate; or
(b) other action by the parties;
the Employment Advocate must approve the AWA.
(3) If the Employment Advocate has concerns about whether the AWA passes the no‑disadvantage test and those concerns are not resolved under subsection (2), the Employment Advocate must refer the AWA to the Commission.
(4) If the Employment Advocate is not satisfied that the AWA meets the additional approval requirements, the Employment Advocate must refuse to approve the AWA.
170VPC Approval of variation agreement by Employment Advocate
(1) The Employment Advocate must approve a variation agreement for which a filing receipt has been issued if:
(a) the Employment Advocate is sure that the AWA, as varied, passes the no‑disadvantage test; and
(b) the Employment Advocate is satisfied that the variation agreement meets the additional approval requirements.
Note: The additional approval requirements are in section 170VPA.
(2) If the Employment Advocate has concerns about whether the AWA, as varied, passes the no‑disadvantage test, but those concerns are resolved by:
(a) a written undertaking given by the employer and accepted by the Employment Advocate; or
(b) other action by the parties;
the Employment Advocate must approve the variation agreement.
(3) If the Employment Advocate has concerns about whether the AWA, as varied, passes the no‑disadvantage test and those concerns are not resolved under subsection (2), the Employment Advocate must refer the variation agreement to the Commission.
(4) If the Employment Advocate is not satisfied that the variation agreement meets the additional approval requirements, the Employment Advocate must refuse to approve the variation agreement.
170VPD Approval of other ancillary documents by Employment Advocate
(1) This section applies to the following ancillary documents:
(a) an extension agreement;
(b) a termination agreement;
(c) a termination notice.
(2) The Employment Advocate must approve the ancillary document if the Employment Advocate is satisfied that the ancillary document meets the additional approval requirements for the document concerned. Otherwise, the Employment Advocate must refuse to approve the ancillary document.
170VPE Protocol for referring AWAs and variation agreements to the Commission
(1) As soon as practicable after the commencement of this section, the President must establish a protocol to provide general guidance to the Employment Advocate concerning the referral of AWAs or variation agreements to the Commission. The terms of the protocol must have the concurrence of the Employment Advocate.
(2) In deciding whether to refer an AWA or variation agreement to the Commission, the Employment Advocate must apply the protocol.
170VPF Employment Advocate must issue approval, refusal or referral notice
(1) If the Employment Advocate approves an AWA or ancillary document, the Employment Advocate must issue an approval notice to the employer.
(2) If the Employment Advocate refuses to approve an AWA or ancillary document, the Employment Advocate must issue a refusal notice to the employer.
(3) If the Employment Advocate refers an AWA or variation agreement to the Commission, the Employment Advocate must issue a referral notice to the employer, advising of the referral.
(4) In each approval notice, refusal notice or referral notice issued under this section, the Employment Advocate must identify the relevant or designated award that applies to the AWA to which the notice relates.
Subdivision C—Approval by Commission
170VPFA Withdrawal of AWA or variation agreement
Either party to an AWA (other than an AWA for a new employee) or variation agreement that has been referred to the Commission by the Employment Advocate may withdraw the AWA or variation agreement by notice in writing lodged with the Commission.
170VPG Approval of AWA by Commission
(1) This section applies to an AWA that is referred to the Commission by the Employment Advocate.
(2) The Commission must approve the AWA if the Commission is satisfied that the AWA passes the no‑disadvantage test.
(3) If the Commission has concerns about whether the AWA passes the no‑disadvantage test, but those concerns are resolved by:
(a) a written undertaking given by the employer and accepted by the Commission; or
(b) other action by the parties;
the Commission must approve the AWA.
(4) If the Commission considers that it is not contrary to the public interest to approve the AWA, it must approve the AWA (whether or not subsection (2) or (3) requires the Commission to approve the AWA).
Note: An example of a case where the Commission may be satisfied that approving the AWA is not contrary to the public interest is where making the AWA is part of a reasonable strategy to deal with a short‑term crisis in, and to assist in the revival of, a business or part of a business.
(5) In any case where the Commission is not required to approve the AWA, the Commission must refuse to approve the AWA.
170VPH Approval of variation agreement by Commission
(1) This section applies to a variation agreement that is referred to the Commission by the Employment Advocate.
(2) The Commission must approve the variation agreement if the Commission is satisfied that the AWA, as varied, passes the no‑disadvantage test.
(3) If the Commission has concerns about whether the AWA, as varied, passes the no‑disadvantage test, but those concerns are resolved by:
(a) a written undertaking given by the employer and accepted by the Commission; or
(b) other action by the parties;
the Commission must approve the variation agreement.
(4) If the Commission considers that it is not contrary to the public interest to approve the variation agreement, it must approve the variation agreement (whether or not subsection (2) or (3) requires the Commission to approve the variation agreement).
Note: An example of a case where the Commission may be satisfied that approving the variation agreement is not contrary to the public interest is where making the variation agreement is part of a reasonable strategy to deal with a short‑term crisis in, and to assist in the revival of, a business or part of a business.
(5) In any case where the Commission is not required to approve the variation agreement, the Commission must refuse to approve the variation agreement.
170VPI Commission must issue approval or refusal notice etc.
(1) If the Commission approves an AWA or a variation agreement, the Commission must:
(a) issue an approval notice to the employer; and
(b) send a copy of the approval notice to the Employment Advocate; and
(c) send the Employment Advocate a copy of the AWA or variation agreement that was approved.
Note: An undertaking accepted in connection with an AWA is deemed to form part of the AWA. Therefore a copy of the undertaking will be sent to the Employment Advocate under this section.
(2) If the Commission refuses to approve an AWA or a variation agreement, the Commission must:
(a) issue a refusal notice to the employer; and
(b) send a copy of the refusal notice to the Employment Advocate.
170VPJ Undertakings deemed to be included in AWA
An undertaking accepted by the Employment Advocate or Commission under this Division is taken to be included in the AWA.
170VPK Employment Advocate to issue copies of approved AWAs and ancillary documents
(1) After an AWA or ancillary document is approved by the Employment Advocate, the Employment Advocate must issue to the employer a copy of the AWA or ancillary document, as approved.
(2) After an AWA or variation agreement is approved by the Commission, the Employment Advocate must issue to the employer a copy of the AWA or variation agreement, as approved.
Note: An undertaking accepted in connection with an AWA is deemed to form part of the AWA. Therefore a copy of the undertaking will be issued to the employer under this section.
170VQ Effect of AWA on awards and agreements
(1) During its period of operation, an AWA operates to the exclusion of any award that would otherwise apply to the employee’s employment. This subsection has effect subject to subsections (2) and (3).
(2) An AWA is of no effect if it is made:
(a) after the commencement of an award that is made under subsection 170MX(3) and applies to the employee’s employment; and
(b) before the nominal expiry date of the award.
(3) An AWA does not operate to the exclusion of an exceptional matters order, but prevails over an exceptional matters order to the extent of any inconsistency.
(4) During its period of operation, an AWA operates to the exclusion of any State award or State agreement that would otherwise apply to the employee’s employment.
(5) If a State award provides a remedy for the termination of an employee’s employment, subsection (4) is not intended to affect the provisions of the State award that relate to termination of employment, so far as those provisions are able to operate concurrently with the AWA.
(6) The relationship between an AWA and a certified agreement is as follows:
(a) a certified agreement prevails over the AWA to the extent of any inconsistency if:
(i) the certified agreement is in operation at the time the AWA comes into operation; and
(ii) the nominal expiry date of the certified agreement is after the date on which the AWA comes into operation; and
(iii) the certified agreement does not expressly allow a subsequent AWA to operate to the exclusion of the certified agreement or to prevail over the certified agreement to the extent of any inconsistency;
(b) a certified agreement that comes into operation after the nominal expiry date of the AWA prevails over the AWA to the extent of any inconsistency;
(c) in all other cases, the AWA operates to the exclusion of any certified agreement that would otherwise apply to the employee’s employment.
170VR Effect of AWA on other laws
(1) Subject to this section, an AWA prevails over conditions of employment specified in a State law, to the extent of any inconsistency.
(2) Provisions in an AWA that deal with the following matters operate subject to the provisions of any State law that deals with the matter:
(a) occupational health and safety;
(b) workers’ compensation;
(c) apprenticeship;
(d) any other matter prescribed by the regulations.
(3) If a State law provides a remedy for the termination of an employee’s employment, subsection (1) is not intended to affect the provisions of the State law that relate to termination of employment, so far as those provisions are able to operate concurrently with the AWA.
(4) To the extent of any inconsistency, an AWA prevails over prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations.
(5) In this section:
"Commonwealth law" means an Act or any regulations or other instrument made under an Act.
"prescribed conditions" means conditions that are identified by the regulations.
"State law" means a law of a State or Territory (including any regulations or other instrument made under a law of a State or Territory), but does not include a State award or State agreement.
170VS AWA binds employer’s successor
(1) If:
(a) an employee who is a party to an AWA becomes an employee of a new employer because the new employer is a successor to the whole or any part of the previous employer’s business or undertaking; and
(b) at the succession time at least one of the following applies:
(i) the new employer is a constitutional corporation;
(ii) the new employer is the Commonwealth;
(iii) the employee’s primary workplace is in a Territory;
(iv) the new employer is a waterside employer, the employee is a waterside worker and the employee’s employment is in connection with constitutional trade or commerce;
(v) the employee is a maritime employee and the employee’s employment is in connection with constitutional trade or commerce;
(vi) the employee is a flight crew officer and the employee’s employment is in connection with constitutional trade or commerce;
then the new employer replaces the previous employer as a party to the AWA from the succession time.
(2) The succession does not affect the rights and obligations of the previous employer that arose before the succession.
(3) In this section:
"successor" means a successor, transmittee or assignee.
170VT Parties must not breach AWA
(1) A party to an AWA must not breach the AWA.
(2) If the employee applies for an order under section 170VV in relation to an alleged breach of this section that involves the employee having received wages that are less than the wages required by the minimum conditions, the court may dismiss the application or adjourn the proceedings on the basis that an insufficient period of time has elapsed since the AWA started to operate for a reasonable comparison to be made for the purposes of the minimum conditions.
170VU Industrial action etc. by party to AWA
(1) During the period of operation of an AWA before its nominal expiry date, the employee must not engage in industrial action in relation to the employment to which the AWA relates.
(2) During the period of operation of an AWA before its nominal expiry date, the employer must not lock out the employee for the purpose of supporting or advancing claims in respect of the employee’s employment.
Division 7—Enforcement and remedies
170VV Penalties for contravening this Part
(1) An eligible court may make an order imposing a penalty on a person who contravenes a penalty provision.
(2) The penalty cannot be more than $10,000 for a body corporate or $2,000 in other cases.
(3) An application for an order under subsection (1) that relates to an AWA or ancillary document may be made by a party to the AWA or ancillary document.
(4) In this section:
"penalty provision" means subsection 170VK(2) or (4), section 170VP, subsection 170VT(1), section 170VU, subsection 170WE(1), subsection 170WF(1), subsection 170WG(1) or (2) or subsection 170WH(1) or (2).
170VW Damages for breach of AWA
(1) A party to an AWA who suffers loss or damage as a result of a breach of the AWA by the other party may recover the amount of the loss or damage in an eligible court.
(2) The action must be brought within 6 years after the date on which the cause of action arose.
170VX Compensation to new employee for shortfall in entitlements
(a) the total value of the entitlements to which the employee became entitled under the AWA for the period while it was in operation;
(b) the total value of the entitlements to which the employee would have been entitled for that period under the relevant or designated award, if the AWA had not been made, in respect of the employment to which the AWA relates.
(2) If an AWA that has been approved for a new employee includes an undertaking by the employer and the amount worked out under paragraph (a) below is less than the amount worked out under paragraph (b) below, the employee is entitled to recover the shortfall from the employer in an eligible court:
(a) the total value of the entitlements to which the employee became entitled under the AWA for the period before it was approved;
(b) the total value of the entitlements to which the employee would have been entitled for that period if the AWA, as filed, had included the undertaking by the employer.
An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, this Part.
170W Interest on judgment etc.
(1) Section 179A applies to a court exercising powers under section 170VW or 170VX in the same way as that section applies to a court exercising powers under subsection 178(6).
(2) Section 179B applies to a debt under a judgment or order made under section 170VW or 170VX in the same way as that section applies to a debt under a judgment or order made under section 179.
(1) Section 179C applies to a proceeding under section 170VW or 170VX that is started by a person in a magistrate’s court in the same way as that section applies to an action under section 179 that is started in a magistrates’s court.
(2) Subsection (1) of this section does not apply if, in the same proceeding, the person applies for an order under subsection 170VV(1).
Division 8—Limited immunity for industrial action
(1) In this Division:
"AWA industrial action" means:
(a) any industrial action taken by an employee directly against an employer for the purpose of compelling or inducing the employer:
(i) to make an AWA, on particular terms and conditions, with the employee; or
(ii) to make AWAs, on particular terms and conditions, with the employee and other employees; or
(b) an employer locking out an employee for the purpose of compelling or inducing the employee to make an AWA, on particular terms and conditions, with the employer.
"general industrial action" means any action taken by an employer or employee for the purpose of:
(a) compelling or inducing an employer or employee to accept particular terms or conditions of employment; or
(b) enforcing compliance with any demand relating to employment.
"industrial action" means:
(a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work; or
(b) a ban, limitation or restriction on the performance of work, or acceptance of or offering for work; or
(c) a failure or refusal to attend for work or a failure or refusal to perform any work at all.
"lock out" , in relation to an employee, means prevent the employee from performing work under a contract of employment without terminating the contract.
(2) In this Division, a reference to taking action includes a reference to:
(a) omitting to do something; or
(b) bringing about a circumstance.
170WC Limited immunity conferred
(1) Subject to subsection (2), no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of AWA industrial action unless the action has involved or is likely to involve:
(a) personal injury; or
(b) wilful or reckless destruction of, or damage to, property; or
(c) the unlawful taking, keeping or use of property.
(2) Subsection (1) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action.
(3) If an employer locks out an employee under subsection (1), the employer is entitled to refuse to pay any remuneration to the employee in respect of the period of the lockout.
(4) An employer is not entitled to lock out an employee under subsection (1) unless the continuity of the employee’s employment, for such purposes as are prescribed by the regulations, is not affected by the lockout.
170WD Immunity conditional on giving notice
(1) The immunity conferred by section 170WC in respect of AWA industrial action does not apply unless 3 working days’ notice of the intention to take the action was given to the other party in the manner and form required by the regulations.
(2) Notice need not be given by an employee under subsection (1) if the employer is taking general industrial action.
(3) Notice need not be given by an employer under subsection (1) if the employee is taking general industrial action.
170WE Employer not to dismiss, prejudice etc. an employee for taking AWA industrial action
(1) An employer must not:
(a) dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice; or
(b) threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice;
wholly or partly because the employee is proposing to take, is taking or has taken, AWA industrial action.
(2) Subsection (1) does not apply to any of the following actions taken by the employer:
(a) standing‑down the employee;
(b) refusing to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed;
(c) action of the employer that is itself AWA industrial action to which section 170WC applies.
(3) In proceedings against an employer under section 170VV for an alleged contravention of subsection (1) of this section, it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to take, was taking or had taken, AWA industrial action.
170WF Hindering AWA negotiations
(1) A person who is not a party to negotiations relating to an AWA must not use threats or intimidation with the intention of hindering the negotiations or the making of the AWA. For this purpose party to negotiations includes a bargaining agent.
(2) This section does not apply to conduct by or on behalf of an organisation of employees for the purpose of negotiating a certified agreement, if the conduct is authorised by another provision of this Act.
170WG Persons must not apply duress or make false statements in connection with AWA etc.
(1) A person must not apply duress to an employer or employee in connection with an AWA or ancillary document.
(2) A person must not knowingly make a false or misleading statement to another person with the intention of persuading the other person to make, or not to make, an AWA.
170WH Employer must give copies of documents to employee
(1) As soon as practicable after an employer receives any of the following documents from the Employment Advocate or Commission, the employer must give the employee a copy of the document:
(a) a filing receipt;
(b) an approval notice, refusal notice or referral notice;
(c) an AWA or ancillary document, as approved.
(2) The employer must give the employee any other document prescribed by the regulations, within the period required by the regulations.
170WHA Intervention not permitted
A person other than:
(a) a party to an AWA; or
(b) a bargaining agent of a party;
must not be allowed to make submissions, or to be heard, in relation to the filing, approval, variation or termination of the AWA.
170WHB Identity of AWA parties not to be disclosed
(1) A person (the entrusted person ) must not disclose protected information that the entrusted person knows, or has reasonable grounds to believe, will identify another person (the AWA party ) as being, or having been, a party to an AWA.
Penalty: Imprisonment for 6 months.
(2) Each of the following is an exception to the prohibition in subsection (1):
(a) the disclosure is made by the entrusted person in the course of performing functions or duties as a Registry official;
(b) the disclosure is authorised by the regulations;
(c) the disclosure is required or permitted by another Act;
(d) the disclosure is authorised in writing by the AWA party.
(3) For the purposes of determining the burden of proof in proceedings for an offence against subsection (1), the exceptions in subsection (2) are taken to be part of the description of the offence.
(4) In this section:
"protected information" means information that was acquired by the entrusted person:
(a) in the course of performing functions or duties as a Registry official; or
(b) from a Registry official who disclosed the information as authorised by the regulations.
"Registry official" means:
(a) the Industrial Registrar; or
(b) a member of the staff of the Industrial Registry (including a Deputy Industrial Registrar).
170WHC Commission not to publish AWA determinations
The Commission is not obliged under section 143 to publish any determination of the Commission that approves, refuses to approve or terminates an AWA. However, if the Commission does publish such a determination under section 143, the Commission must ensure that the publication does not disclose the identity of either party to the AWA.
170WHD Hearings to be in private
Any hearing by the Commission for the purposes of this Part must be held in private.
(1) The Employment Advocate may issue a verified copy of any document filed with, or issued or approved by, the Employment Advocate or Commission under this Part. The verified copy may only be issued to a person who is or was a party to the AWA or ancillary document to which the verified copy relates.
(2) The Employment Advocate may issue a certificate stating any one or more of the following:
(a) that specified AWAs or ancillary documents are the only such documents that were filed in relation to a specified employer and employee before a date specified in the certificate; or
(b) that specified notices are the only such notices that were issued to a specified employer by the Employment Advocate or Commission before a date specified in the certificate; or
(c) that a filing receipt, approval notice, refusal notice or referral notice was issued for a specified AWA or ancillary document on a specified day.
The certificate may only be issued to a person who is or was a party to each of the documents to which the certificate relates.
(3) In all courts and proceedings:
(a) a verified copy issued by the Employment Advocate is evidence of the document of which it is a verified copy; and
(b) a certificate issued by the Employment Advocate under subsection (2) is evidence of the matters stated in the certificate.
(4) A document that purports to be a verified copy, or certificate, referred to in subsection (3) is taken to be such a copy or certificate, unless the contrary is proved.
170WJ Signature on behalf of body corporate
An AWA or ancillary document may be signed on behalf of a body corporate by a duly authorised officer of the body corporate and need not be made under the body corporate’s seal.
170WK AWAs with Commonwealth employees
(1) A Secretary may act on behalf of the Commonwealth in relation to AWAs with employees in relation to whom the Secretary has the powers of Secretary.
(2) In this section:
"Secretary" means a Secretary within the meaning of the Public Service Act 1922 .
The regulations may make provision in relation to the following matters:
(a) requiring an employer who is a party to an AWA to supply copies of prescribed documents to the employee;
(b) the qualifications and appointment of bargaining agents;
(c) the required form of AWAs or ancillary documents (including a requirement that the document be in the English language);
(d) the witnessing of signatures on AWAs or ancillary documents;
(e) prescribing fees for the issue by the Employment Advocate of certificates and verified copies;
(f) the making and retention by employers of records relating to the employment of persons under AWAs, and the inspection of such records.
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