Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1—Amendments
1 Subsection 4(1) (definition of Bargaining Division )
Repeal the definition.
2 Subsection 4(1) (definition of Bargaining Division’s functions and powers )
Repeal the definition.
3 Subsection 4(1) (definition of certified agreement )
Omit “Division 2”, substitute “Division 4”.
4 After section 5
Insert:
5AA Additional operation of Act—certified agreements
(1) In addition to the application that Division 2 of Part VIB and related provisions of this Act have to agreements about matters pertaining to the relationship between:
(a) an employer who is a constitutional corporation or the Commonwealth; and
(b) employees employed in a single business or part of a single business of the employer;
that Division and those provisions also apply as mentioned in subsections (2) and (3).
(2) Division 2 of Part VIB and related provisions of this Act apply in the same way as mentioned in subsection (1) in relation to an agreement about matters pertaining to the relationship between an employer who is carrying on a single business or a part of a single business in a Territory and employees employed in the single business or part.
(3) Division 2 of Part VIB and related provisions apply in the same way as mentioned in subsection (1) in relation to an agreement about matters pertaining to the relationship between:
(a) a waterside employer and waterside workers employed in a single business or part of a single business of the waterside employer; or
(b) an employer and maritime employees employed in a single business or part of a single business of the employer; or
(c) a flight crew officers’ employer and flight crew officers performing duties or being trained in a single business or part of a single business of the employer;
so far as the matters relate to trade or commerce:
(d) between Australia and a place outside Australia; or
(e) between the States; or
(f) within a Territory, between a State and Territory, or between 2 Territories.
5 At the end of section 43
Add:
(2) If the matter before the Commission is an application under Division 2 or 3 of Part VIB for certification of an agreement, the Commission:
(a) must, on application, grant leave to intervene in the matter to any organisation of employees that was requested to represent a person as mentioned in subsection 170LK(4) in relation to the agreement, provided the request was not withdrawn; and
(b) except as mentioned in paragraph (a), must not grant leave to intervene in the matter to an organisation of employees other than one that is proposed to be bound by the agreement.
6 Paragraph 45(1)(e)
Omit “Division 2”, substitute “Division 4”.
7 Paragraph 45(1)(ec)
Repeal the paragraph.
8 Paragraph 45(3)(b)
Omit “party to”, substitute “person who made”.
9 Paragraph 45(3)(ba)
Repeal the paragraph.
10 Paragraph 103(1)(a)
Omit “Division 2”, substitute “Division 4”.
11 Subsection 108(8)
Omit “Division 2”, substitute “Division 4”.
12 Paragraph 111(1)(c)
Omit “Division 2”, substitute “Division 4”.
13 After subsection 135(2)
Insert:
(2A) If:
(a) the Commission is required under Part VIB to be satisfied that a valid majority of persons employed at a particular time whose employment is or will be subject to an agreement have genuinely made the agreement or given an approval; and
(b) the Commission is not so satisfied;
then:
(c) the Commission may order that a vote be taken by secret ballot (with or without a provision for absent voting), in accordance with directions given by the Commission, of persons employed at the time of the ballot whose employment is or will be subject to the agreement to determine whether they would make the agreement or give the approval; and
(d) if a majority of the validly cast votes is in favour of making the agreement or giving the approval, the Commission is taken to be satisfied of the requirement.
(2B) If it appears to the Commission that:
(a) industrial action is being taken or the taking of industrial action is threatened, impending or probable; and
(b) the industrial action relates to a bargaining period (within the meaning of Division 8 of Part VIB); and
(c) finding out, in relation to a matter, the attitudes of the employees whose employment will be subject to the proposed agreement concerned might help to stop or to prevent the industrial action, or might help the settlement of the matters giving rise to the industrial action;
the Commission may order that a vote of the employees be taken by secret ballot (with or without a provision for absent voting), in accordance with directions given by the Commission, for the purpose of finding out their attitudes in relation to the matter.
14 After subsection 136(8)
Insert:
(8A) If:
(a) the Commission has made an order for a secret ballot under subsection 135(2A); and
(b) before the vote is taken, the Commission forms the view that the secret ballot should not be proceeded with because it has satisfied itself that the requirement mentioned in paragraph (a) of that subsection has been met;
the Commission must revoke the order.
(8B) If:
(a) the Commission has made an order for a secret ballot under subsection 135(2B); and
(b) before the vote is taken, the Commission forms the view that the secret ballot should not be proceeded with because it has satisfied itself that:
(i) the matters giving rise to the industrial action have been, or are about to be, settled; or
(ii) the industrial action has stopped or been prevented, or is about to stop or be prevented;
the Commission must revoke the order.
15 Subsection 137(1)
Omit “or (2)”, substitute “, (2), (2A) or (2B)”.
16 Paragraph 138(5)(b)
After “the organisation”, insert “(if any)”.
17 Section 139
Omit “section 135 or”, substitute “subsection 135(1), (2) or (2B) or section”.
18 Subsection 143(4)
Repeal the subsection, substitute:
(4) The Industrial Registrar must ensure that the following are published as soon as practicable:
(a) a decision or determination covered by subsection (1) or (2), except:
(i) a decision to certify an ordinary Part VIB agreement; or
(ii) a decision or determination that is, in the Commission’s opinion, an order affecting such an agreement;
(b) any written reasons for a decision or determination covered by paragraph (a) that are received by the Registrar;
(c) a multiple‑business agreement a copy of which is given to a Registrar under subparagraph (2)(d)(ia).
(4A) In subsection (4):
"multiple-business agreement" has the same meaning as in Part VIB.
ordinary Part VIB agreement means an agreement under Division 2 or 3 of Part VIB, other than a multiple-business agreement.
19 Part VIB
Repeal the Part, substitute:
The object of this Part is to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business.
(1) The Commission must, as far as practicable, perform its functions under this Part in a way that furthers the objects of this Act and, in particular, the object of this Part.
(2) Section 90 (Commission to take into account the public interest) 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.
170LB Single business and single employer
(1) For the purposes of this Part, a single business is:
(a) a business, project or undertaking that is carried on by an employer; or
(b) the activities carried on by:
(i) the Commonwealth, a State or a Territory; or
(ii) a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or
(iii) any other body in which the Commonwealth, a State or a Territory has a controlling interest.
(2) For the purposes of this Part:
(a) if 2 or more employers carry on a business, project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer; and
(b) if 2 or more corporations that are related to each other for the purposes of the Corporations Law each carry on a single business:
(i) the corporations may be treated as one employer; and
(ii) the single businesses may be treated as one single business.
(3) For the purposes of this Part, a part of a single business includes, for example:
(a) a geographically distinct part of the single business; or
(b) a distinct operational or organisational unit within the single business.
170LC Additional operation of Part
(1) In addition to its operation apart from this section to a single business, or part of a single business, of an employer, this Part applies, subject to this section, in the same way to any of the following, or any combination or combinations of the following:
(a) one or more single businesses;
(b) one or more parts of single businesses;
carried on by one or more employers.
(2) If an application for certification of an agreement by the Commission can only be made under this Part because of subsection (1), the agreement is a multiple‑business agreement .
(3) Only a Full Bench may certify a multiple‑business agreement under Division 4.
(4) A Full Bench, under that Division, must not certify a multiple‑business agreement unless it is satisfied that it is in the public interest to certify the agreement, having regard to:
(a) whether the matters dealt with by the agreement could be more appropriately dealt with by an agreement, other than a multiple‑business agreement, under this Part; and
(b) any other matter that the Full Bench considers relevant.
(5) In spite of section 170LY (which deals with the effect of a certified agreement in relation to awards and other certified agreements), a multiple‑business agreement has no effect in so far as it is inconsistent with any other agreement that is certified under Division 4 that is not a multiple‑business agreement.
Note 1: Section 170LY would nevertheless apply to inconsistencies with awards or orders of the Commission or with other multiple‑business agreements.
Note 2: Part VID deals with the relationship between AWAs and all certified agreements.
(6) Division 8 (other than sections 170NA and 170NB) does not apply in relation to a proposed multiple‑business agreement.
For the purposes of this Part, the nominal expiry date of a certified agreement is the date specified in the agreement as its nominal expiry date, or that date as extended or further extended under section 170MC.
For the purposes of this Part, a valid majority of persons employed at a particular time whose employment is or will be subject to an agreement:
(a) make or genuinely make the agreement; or
(b) approve or genuinely approve:
(i) the agreement; or
(ii) the extension of the nominal expiry date of the agreement; or
(iii) the variation or termination of the agreement;
if:
(c) the employer gives all of the persons so employed a reasonable opportunity to decide whether they want to make the agreement or give the approval; and
(d) either:
(i) if subparagraph (ii) does not apply—a majority of the persons; or
(ii) if the decision is made by a vote—a majority of the persons who cast a valid vote;
decide, or genuinely decide, that they want to make the agreement or give the approval.
For the purposes of this Part, a working day , in relation to a single business or a part of a single business, is a day on which employees normally perform work in that business or part.
A paid rates award is an award or a State award that:
(a) includes a statement to the effect that it is a paid rates award; or
(b) has been regarded by the Commission, or a State industrial authority, as the case may be, as a paid rates award when applying principles for the purposes of determining wages and conditions of employment.
Division 2—Making agreements with constitutional corporations or the Commonwealth
170LH What this Division covers
This Division sets out requirements that must be satisfied for applications to be made to the Commission to certify certain agreements between employers who are constitutional corporations or the Commonwealth and:
(a) organisations of employees; or
(b) employees.
(1) For an application to be made to the Commission under this Division, there must be an agreement, in writing, about matters pertaining to the relationship between:
(a) an employer who is a constitutional corporation or the Commonwealth; and
(b) all persons who, at any time when the agreement is in operation, are employed in a single business, or a part of a single business, of the employer and whose employment is subject to the agreement.
Note: Section 5AA also allows agreements to be made on a different constitutional basis about matters pertaining to the relationship between an employer and employees.
(2) The agreement must be made in accordance with section 170LJ, 170LK or 170LL.
170LJ Agreement with organisations of employees
(1) The employer may make the agreement with one or more organisations of employees where, when the agreement is made, each organisation:
(a) has at least one member employed in the single business or part whose employment will be subject to the agreement; and
(b) is entitled to represent the industrial interests of the member in relation to work that will be subject to the agreement.
(2) The agreement must be approved by a valid majority of the persons employed at the time whose employment will be subject to the agreement.
(3) The employer must take reasonable steps to ensure that:
(a) at least 14 days before any approval is given, all the persons either have, or have ready access to, the agreement, in writing; and
(b) before any approval is given, the terms of the agreement are explained to all the persons.
(4) An agreement must not be made under this section if it is able to be made under section 170LL (which deals with greenfields agreements).
170LK Agreement with employees
(1) The employer may make the agreement with a valid majority of the persons employed at the time whose employment will be subject to the agreement.
(2) The employer must take reasonable steps to ensure that every person employed at the time whose employment will be subject to the agreement has at least 14 days’ notice, in writing, of intention to make the agreement, and the agreement must not be made before those 14 days have passed.
(3) At or before the time when the notice is given, the employer must take reasonable steps to ensure that every such person either has, or has ready access to, the proposed agreement, in writing.
(4) The notice must also state that if:
(a) any person whose employment will be subject to the agreement is a member of an organisation of employees; and
(b) the organisation is entitled to represent the person’s industrial interests in relation to work that will be subject to the agreement;
the person may request the organisation to represent the person in meeting and conferring with the employer about the agreement.
(5) If an organisation is so requested to represent such a person, the employer must give the organisation a reasonable opportunity to meet and confer with the employer about the agreement before it is made.
(6) If at any time after the request is made:
(a) the person withdraws the request; or
(b) the conditions in paragraphs (4)(a) and (b) cease to be met;
the requirement in subsection (5) ceases to apply to the employer.
(7) Before the agreement is made, the employer must take reasonable steps to ensure that the terms of the agreement are explained to all the persons employed at the time whose employment will be subject to the agreement.
(8) If a proposed agreement is varied for any reason after the notice is given, the steps in subsections (2), (3), (5) and (7) must again be taken in relation to the proposed agreement as varied.
(1) If:
(a) the single business is a new business that the employer proposes to establish, or is establishing, when the agreement is to be made; and
(b) the agreement is to be made before the employment of any of the persons who will be necessary for the normal operation of the business or part and whose employment will be subject to the agreement;
then the employer may make the agreement with one or more organisations of employees meeting the requirements of subsection (2).
(2) When the agreement is made, each organisation must be entitled to represent the industrial interests of one or more of the persons, whose employment is likely to be subject to the agreement, in relation to work that will be subject to the agreement.
170LM Making the application for certification
(1) The application for the Commission to certify the agreement must state that it is made under this Division.
(2) The application must be made no later than 21 days after:
(a) if it is made in accordance with section 170LJ—the day on which it is approved as mentioned in subsection 170LJ(2); or
(b) if it is made in accordance with section 170LK or 170LL—the day on which it is made.
Division 3—Making agreements about industrial disputes and industrial situations
170LN What this Division covers
This Division sets out requirements that must be satisfied for an application to be made to the Commission to certify certain agreements:
(a) to settle, further settle or maintain the settlement of, or to prevent, industrial disputes; or
(b) to prevent industrial situations from giving rise to industrial disputes.
170LO Agreement about industrial dispute
If an employer who is carrying on a single business is or was a party to an industrial dispute, the employer may agree with one or more organisations of employees with whom the employer is or was in dispute on terms for:
(a) settling or further settling all or any of the matters that are in dispute; or
(b) maintaining a settlement of all or any of the matters that were in dispute, whether the settlement was made by an award, a certified agreement or otherwise; or
(c) preventing further industrial disputes between them.
170LP Agreement about industrial situation
If the parties to an industrial situation are, or include, an employer carrying on a single business and one or more organisations of employees, the employer and any of the organisations may agree on terms for preventing the situation from giving rise to an industrial dispute involving them.
170LQ Multiple disputes and situations
A single agreement may deal with 2 or more disputes or situations.
170LR Approval by valid majority of employees
(1) The agreement must be approved by a valid majority of the persons employed at the time whose employment will be subject to the agreement.
(2) The employer must take reasonable steps to ensure that:
(a) at least 14 days before any approval is given, all the persons either have, or have ready access to, the agreement, in writing; and
(b) before any approval is given, the terms of the agreement are explained to all the persons.
170LS Making the application for certification
(1) The application to the Commission to certify the agreement must state that it is made under this Division.
(2) The application must be made no later than 21 days after the day on which it is approved as mentioned in subsection 170LR(1).
Division 4—Certifying agreements
(1) If an application is made to the Commission in accordance with Division 2 or 3 to certify an agreement, the Commission must certify the agreement if, and must not certify the agreement unless, it is satisfied that the requirements of this section are met.
(2) The agreement must pass the no‑disadvantage test (see Part VIE).
(3) If:
(a) the only reason why the Commission must not certify an agreement is that the agreement does not pass the no‑disadvantage test; and
(b) the Commission is satisfied that certifying the agreement is not contrary to the public interest;
the agreement is taken to pass the no‑disadvantage test.
(4) An example of a case where the Commission may be satisfied that certifying the agreement is not contrary to the public interest is where making the agreement is part of a reasonable strategy to deal with a short‑term crisis in, and to assist in the revival of, the single business or part.
(5) If the agreement was made in accordance with section 170LJ or Division 3, a valid majority of persons employed at the time whose employment would be subject to the agreement must have genuinely approved the agreement.
(6) If the agreement was made in accordance with section 170LK, a valid majority of persons employed at the time whose employment would be subject to the agreement must have genuinely made the agreement.
(7) The explanation of the terms of the agreement to persons as mentioned in paragraph 170LJ(3)(b), subsection 170LK(7) or paragraph 170LR(2)(b) must have taken place in ways that were appropriate, having regard to the persons’ particular circumstances and needs. An example of such a case would be where the persons included:
(a) women; or
(b) persons from a non‑English speaking background; or
(c) young persons.
(8) The agreement must include procedures for preventing and settling disputes between:
(a) the employer; and
(b) the employees whose employment will be subject to the agreement;
about matters arising under the agreement.
(9) If the agreement was made in accordance with section 170LK, the employer must not have coerced, or attempted to coerce, any employee:
(a) not to make a request as mentioned in subsection 170LK(4); or
(b) to withdraw such a request.
(10) The agreement must specify a date as the nominal expiry date of the agreement, and that date cannot be more than 3 years after the date on which the agreement will come into operation.
170LU When Commission to refuse to certify an agreement
(1) Despite section 170LT, if the application for certification states that it is made under Division 3, the Commission must refuse to certify the agreement unless it is satisfied that the agreement will:
(a) settle or further settle all or any of the matters that are the subject of the industrial dispute; or
(b) maintain a settlement of all or any of the matters that were the subject of the industrial dispute, whether the settlement was made by an award, a certified agreement or otherwise; or
(c) prevent further industrial disputes between the persons concerned; or
(d) prevent the industrial situation from giving rise to an industrial dispute involving the persons concerned; or
(e) assist in doing any of the things mentioned in paragraphs (a) to (d).
(2) Despite section 170LT, the Commission must refuse to certify an agreement if the Commission thinks that a provision of the agreement is inconsistent with:
(a) a provision of Division 3 of Part VIA; or
(b) an order by the Commission under that Division; or
(c) an injunction granted, or any other order made, by the Court under that Division.
(3) Despite section 170LT, the Commission must refuse to certify an agreement if it is satisfied that:
(a) the employer has, in connection with negotiating the agreement, contravened section 170NB or Part XA (which deals with freedom of association); or
(b) the employer has caused a person or body to engage, in connection with negotiations for an agreement, in conduct that, had the employer engaged in the conduct, would be a contravention by the employer of section 170NB or Part XA; or
(c) a person or body has, on behalf of the employer:
(i) so engaged in such conduct; or
(ii) caused another person or body so to engage in such conduct.
(4) Subsection (3) does not apply if the Commission is satisfied that the contravention or conduct, and its effects, have been fully remedied.
(5) Despite section 170LT, the Commission must refuse to certify an agreement if it thinks that a provision of the agreement discriminates against an employee, whose employment will be subject to the agreement, because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(6) For the purposes of subsection (5), a provision of an agreement does not discriminate against an employee merely because:
(a) it provides for a junior rate of pay; or
(b) it discriminates, in respect of particular employment, on the basis of the inherent requirements of that employment; or
(c) it discriminates, in respect of employment as a member of the staff of an institution that is conducted in accordance with the teachings or beliefs of a particular religion or creed:
(i) on the basis of those teachings or beliefs; and
(ii) in good faith.
(7) Paragraph (6)(a) does not apply for the purposes of any application of subsection (5) by the Commission more than 3 years after 22 June 1997, except where the Commission decides, on a case‑by‑case basis, that the paragraph should apply. Decisions by the Commission as to whether the paragraph should apply must be made by the Commission in accordance with principles established by a Full Bench.
(8) Despite section 170LT, the Commission must refuse to certify an agreement if:
(a) the agreement applies only to a part of a single business that is neither of the following:
(i) a geographically distinct part of the single business; or
(ii) a distinct operational or organisational unit within the single business; and
(b) the Commission considers that the agreement defines that part in a way that results in the employment of employees not being subject to the agreement where it would be reasonable for the employment to be, having regard to:
(i) the nature of the work performed by the employees whose employment is not subject to the agreement; and
(ii) the organisational and operational relationships between that part and the rest of the single business; and
(c) the Commission considers it unfair that the employment of those employees is not subject to the agreement.
170LV Other options open to Commission instead of refusing to certify an agreement
(1) If, under section 170LT or 170LU, the Commission has grounds to refuse to certify an agreement:
(a) the Commission may accept an undertaking from one or more of the persons who made the agreement in relation to the operation of the agreement and, if satisfied that the undertaking meets the Commission’s concerns, certify the agreement; and
(b) in any case, before refusing to certify the agreement, the Commission must give the persons who made the agreement an opportunity to take any action that may be necessary to make the agreement certifiable.
(2) If an undertaking is not complied with, the Commission, after giving the persons who made the agreement an opportunity to be heard, may:
(a) order the one or more persons who gave the undertaking to comply with it; or
(b) by order, terminate the agreement.
(3) If:
(a) after doing the things required or permitted by subsection (1), the Commission is still required to refuse to certify the agreement; and
(b) it is so required only because it is not satisfied as mentioned in subsection 170LU(1);
the Commission may conciliate the industrial dispute or industrial situation concerned with a view to assisting the persons concerned to make the agreement certifiable.
170LW Procedures for preventing and settling disputes
Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:
(a) to settle disputes over the application of the agreement;
(b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes.
Division 5—Effect of certified agreements
170LX When a certified agreement is in operation
(1) A certified agreement comes into operation when it is certified and, subject to this section, remains in operation at all times afterwards.
(2) The agreement ceases to be in operation if:
(a) its nominal expiry date has passed; and
(b) it is replaced by another certified agreement.
(3) The agreement:
(a) ceases to be in operation if it is terminated under section 170LV, 170ME, 170MG, 170MH or 170MHA; and
(b) does not operate if subsection 170LY(2) applies.
The agreement may also be set aside under subsection 113(2A).
Note: Sections 170LV and 170ME deal with breaches of undertakings. Sections 170MG, 170MH and 170MHA deal with voluntary termination. Subsection 113(2A) deals with discriminatory agreements.
(4) If:
(a) the application for certification of an agreement states that the application is made under Division 2; and
(b) at any time when the agreement is in operation, the employer who made the agreement, or any employer who is bound by the agreement under section 170MB (which deals with successor employers), is a constitutional corporation; and
(c) at any later time while bound by the agreement, any such employer ceases to be a constitutional corporation;
the agreement ceases to apply to the single business or part carried on by that employer.
170LY Effect of a certified agreement in relation to awards and other certified agreements
(1) While a certified agreement is in operation:
(a) subject to this section, it prevails over an award or order of the Commission, to the extent of any inconsistency with the award or order; and
(b) it has no effect to the extent of any inconsistency with another agreement certified before it, whose nominal expiry date has not passed.
(2) If:
(a) an award is made under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period); and
(b) before the award is made, or after it is made but before its nominal expiry date passes, a certified agreement is certified; and
(c) the employment of at least one employee is subject to both the award and the certified agreement;
the certified agreement does not operate at any time while the award operates.
(3) An exceptional matters order prevails, to the extent of any inconsistency, over a certified agreement that was certified before the order was made.
Note: Part VID deals with the relationship between AWAs and certified agreements.
170LZ Effect of a certified agreement on Commonwealth laws or State laws, awards or agreements
(1) Subject to this section, a certified agreement prevails over terms and conditions of employment specified in a State law, State award or State employment agreement, to the extent of any inconsistency.
(2) Provisions in a certified agreement that deal with the following matters operate subject to the provisions of a 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, State award or State employment agreement provides a remedy for the termination of an employee’s employment, subsection (1) is not intended to affect the provisions of the State law, State award or State employment agreement that relate to termination of employment, so far as those provisions are able to operate concurrently with the certified agreement.
(4) To the extent of any inconsistency, a certified agreement displaces 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 a State employment agreement.
Division 6—Persons bound by certified agreements
170M Persons bound in Division 2 cases
(1) If the application for certification states that the application is made under Division 2, the certified agreement binds:
(a) the employer; and
(b) all persons whose employment is, at any time when the agreement is in operation, subject to the agreement.
(2) If, in accordance with section 170LJ or 170LL, one or more organisations of employees made the agreement with the employer, the agreement also binds the one or more organisations.
(3) If:
(a) the application for certification states that the application is made under Division 2; and
(b) in accordance with section 170LK, a valid majority of persons made the agreement with the employer; and
(c) before the agreement is certified, an organisation of employees notifies the Commission and the employer in writing that it wants to be bound by the agreement; and
(d) the organisation satisfies the Commission that it has at least one member:
(i) whose employment will be subject to the agreement; and
(ii) whose industrial interests the organisation is entitled to represent in relation to work that will be subject to the agreement; and
(iii) who requested the organisation to give the notification;
the Commission must, by order, determine that the agreement binds the organisation.
170MA Persons bound in Division 3 cases
If the application for certification states that the application is made under Division 3, the certified agreement binds:
(a) the employer and the one or more organisations of employees concerned; and
(b) all members of the one or more organisations of employees concerned.
170MB Successor employers bound
(1) If:
(a) an employer is bound by a certified agreement; and
(b) at a later time:
(i) if the application for certification of the agreement stated that it was made under Division 2—a new employer that is a constitutional corporation or the Commonwealth; or
(ii) if the application stated that it was made under Division 3—a new employer;
becomes the successor, transmittee or assignee (whether immediate or not) of the whole or a part of the business concerned, then, from the later time:
(c) the new employer is bound by the certified agreement, to the extent that it relates to the whole or the part of the business; and
(d) the previous employer ceases to be bound by the certified agreement, to the extent that it relates to the whole or the part of the business; and
(e) a reference in this Part to the employer includes a reference to the new employer, and ceases to refer to the previous employer, to the extent that the context relates to the whole or the part of the business.
(2) Subsection (1) does not affect the rights and obligations of the previous employer that arose before the later time.
Division 7—Extending, varying or terminating certified agreements
170MC Extending the nominal expiry date
(1) On or before the nominal expiry date of a certified agreement:
(a) if paragraph (b) does not apply—the employer; or
(b) if one or more organisations are bound by the agreement—the employer and the one or more organisations;
may, in writing, extend the nominal expiry date of the agreement. The extended date cannot be more than 3 years after the date on which the agreement came into operation.
(2) The extension has no effect unless the Commission approves it.
(3) The Commission must, by order, approve the extension if, and must not approve the extension unless, it is satisfied that a valid majority of the employees whose employment is subject to the agreement at the time genuinely approve the extension.
(4) The extension takes effect when the Commission’s order takes effect.
(5) This section does not apply to an agreement:
(a) to which section 170LL (greenfields agreements) applied; or
(b) to which subsection 170LT(3) applied, in circumstances covered by the example in subsection 170LT(4) (short‑term business crises).
170MD Varying a certified agreement
(1) Either:
(a) if paragraph (b) does not apply—the employer; or
(b) if one or more organisations are bound by the agreement—the employer and the one or more organisations;
may, in writing, vary the agreement.
(2) The variation has no effect unless the Commission approves it.
(3) The Commission must, by order, approve the variation if, and must not approve the variation unless, it is satisfied that:
(a) a valid majority of the employees whose employment is subject to the agreement at the time genuinely approve the variation; and
(b) the Commission would be required to certify the agreement as varied if it were a new agreement whose certification was applied for under this Part.
(4) In applying paragraph (3)(b):
(a) any requirement about a majority of persons making or approving the agreement is taken to be satisfied; and
(b) section 170LV (which deals with undertakings in the context of certifying an agreement) is to be disregarded.
Note: Section 170ME instead deals with undertakings in relation to the variation.
(5) The variation takes effect when the Commission’s order takes effect.
(6) The Commission may, on application by any person bound by a certified agreement, by order vary a certified agreement:
(a) for the purpose of removing ambiguity or uncertainty; or
(b) for the purpose of including, omitting or varying a term (however expressed) that authorises an employer to stand‑down an employee.
(7) A certified agreement is not able to be varied except in accordance with:
(a) this section (including as it applies in accordance with section 170MDA); or
(b) subsection 113(2A) (which deals with discriminatory agreements); or
(c) section 170MC (extending the nominal expiry date); or
(d) section 170ME (which deals with undertakings).
Note: Subsection (7) would not apply to an agreement in so far as the obligations under the agreement can change because of the terms of the agreement itself.
170MDA Variation where discrimination between unionists and non‑unionists
If:
(a) one or more employees whose employment is not subject to the agreement request the employer to:
(i) vary the agreement so that the employment of the employees is subject to the agreement; and
(ii) seek the approval of the Commission for the variation under section 170MD; and
(b) the employment of the employees would be subject to the agreement if:
(i) they were members of an organisation of employees or of a particular organisation of employees; or
(ii) they were not members of an organisation of employees or of a particular organisation of employees; and
(c) the variation would not cause the agreement to become a multiple‑business agreement;
the employer must comply with the request.
(2) If, in accordance with the request, the employer seeks the approval of the Commission to the variation under subsection 170MD(3), the Commission must disregard paragraph 170MD(3)(a) in deciding whether to approve the variation.
170ME Other options open to Commission instead of refusing to approve variation of an agreement
(1) If, under section 170MD, the Commission has grounds to refuse to approve a variation of an agreement:
(a) the Commission may accept an undertaking from one or more of the persons who varied the agreement in relation to the operation of the agreement as varied and, if satisfied that the undertaking meets the Commission’s concerns, approve the variation; and
(b) in any case, before refusing to approve the variation, the Commission must give the persons who varied the agreement an opportunity to take any action that may be necessary to allow the variation to be approved.
(2) If an undertaking is not complied with, the Commission, after giving the persons who varied the agreement an opportunity to be heard, may:
(a) order the one or more persons who gave the undertaking to comply with it; or
(b) by order, vary the agreement so as to undo the effect of the approved variation; or
(c) by order, terminate the agreement.
170MG Terminating a certified agreement where valid majority approve at any time
(1) Either:
(a) if paragraph (b) does not apply—the employer; or
(b) if one or more organisations are bound by the agreement—the employer and the one or more organisations;
may, in writing, terminate the agreement.
(2) The termination has no effect unless the Commission approves it.
(3) The Commission must, by order, approve the termination of the agreement if, and must not approve the termination unless, it is satisfied that a valid majority of the employees whose employment is subject to the agreement at the time genuinely approve its termination.
(4) The termination takes effect when the Commission’s order takes effect.
170MH Terminating a certified agreement in public interest after nominal expiry date
(1) After the nominal expiry date of a certified agreement:
(a) the employer; or
(b) a majority of the employees whose employment is subject to the agreement; or
(c) an organisation of employees that is bound by the agreement and that has at least one member whose employment is subject to the agreement;
may apply to the Commission to have the agreement terminated.
(2) On receiving the application, the Commission must take such steps as it considers appropriate to obtain the views of persons bound by the agreement about whether it should be terminated.
(3) If, after complying with subsection (2), the Commission considers that it is not contrary to the public interest to terminate the agreement, the Commission must, by order, terminate the agreement.
(4) The termination takes effect when the Commission’s order takes effect.
170MHA Terminating an agreement in a way provided under agreement after nominal expiry date
(1) If:
(a) a certified agreement makes provision for it to be terminated if certain conditions are met; and
(b) those conditions are met after the agreement’s nominal expiry date has passed;
any of the persons mentioned in subsection (2) may apply to the Commission to have the termination approved.
(2) The persons are:
(a) the employer; or
(b) an employee whose employment is subject to the agreement; or
(c) an organisation of employees that is bound by the agreement and that has at least one member whose employment is subject to the agreement.
(3) If the Commission is satisfied that the requirements of paragraphs (1)(a) and (b) are complied with, it must, by order, approve the termination.
(4) If the Commission does so, the agreement terminates when the Commission’s order takes effect.
Division 8—Negotiations for certified agreements etc.
170MI Initiation of bargaining period
(1) If:
(a) an employer; or
(b) an organisation of employees; or
(c) an employee acting on his or her own behalf and on behalf of other employees;
wants to negotiate an agreement under Division 2 or 3 in relation to employees who are employed in a single business or a part of a single business, the employer, organisation or employee (the initiating party ) may initiate a period (the bargaining period ) for negotiating the proposed agreement.
Note: This subsection has effect subject to subsections 170MW(10) and 170MZ(7).
(2) The bargaining period is initiated by the initiating party giving written notice to each other negotiating party (see subsection (3)) and to the Commission stating that the initiating party intends to try:
(a) to make an agreement with the other negotiating parties under Division 2 or 3; and
(b) to have any agreement so made certified under Division 4.
(3) In this Division, each of the following is a negotiating party to a proposed agreement:
(a) the initiating party;
(b) if the initiating party is an employer who intends to try to make an agreement under section 170LJ or 170LL or Division 3—the organisation or organisations who are proposed to be bound by the agreement;
(c) if the initiating party is an employer who intends to try to make an agreement under section 170LK—the employees at the time whose employment will be subject to the agreement;
(d) if the initiating party is an organisation of employees—the employer who is proposed to be bound by the agreement;
(e) if the initiating party is an employee acting on his or her own behalf and on behalf of other employees—the employer who is proposed to be bound by the agreement and the employees whose employment will be subject to the agreement.
170MJ Particulars to accompany notice
The notice is to be accompanied by particulars of:
(a) the single business or part of the single business to be covered by the proposed agreement; and
(b) the types of employees whose employment will be subject to the agreement and the other persons who will be bound by the agreement; and
(c) the matters that the initiating party proposes should be dealt with by the agreement; and
(d) the industrial dispute (if any) to which the proposed agreement relates; and
(e) the proposed nominal expiry date of the agreement; and
(f) any other matters prescribed by the regulations.
170MK When bargaining period begins
The bargaining period begins at the end of 7 days after:
(a) the day on which the notice was given; or
(b) if the notice was given to different persons on different days—the later or latest of those days.
(1) This section identifies certain action ( protected action ) to which the provisions in section 170MT (which confers certain legal immunity on protected action) are to apply.
(2) During the bargaining period:
(a) an organisation of employees that is a negotiating party; or
(b) a member of such an organisation who is employed by the employer; or
(c) an officer or employee of such an organisation acting in that capacity; or
(d) an employee who is a negotiating party;
is entitled, for the purpose of:
(e) supporting or advancing claims made in respect of the proposed agreement; or
(f) responding to a lockout by the employer of employees whose employment will be subject to the agreement;
to organise or engage in industrial action directly against the employer and, if the organisation, member, officer or employee does so, the organising of, or engaging in, that industrial action is protected action.
(3) Subject to subsection (6), during the bargaining period, the employer is entitled, for the purpose of:
(a) supporting or advancing claims made by the employer in respect of the proposed agreement; or
(b) responding to industrial action by any of the employees whose employment will be subject to the agreement;
to lock out from their employment all or any of the employees whose employment will be subject to the agreement and, if the employer does so, the lockout is protected action.
Note 1: The existence of this entitlement does not affect any right of the employer to refuse 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.
Note 2: The existence of this entitlement also does not affect any authorisation of the employer to stand‑down the employee as a result of a variation of an award under section 126, nor does it affect the Commission’s powers under that section to vary an award to give such an authorisation.
(4) The reference in subsection (3) to the employer locking out employees from their employment is a reference to the employer preventing employees from performing work under their contracts of employment without terminating those contracts.
(5) If the employer locks out employees from their employment in accordance with subsection (3), the employer is entitled to refuse to pay any remuneration to the employees in respect of the period of the lockout.
(6) The employer is not entitled to lock out employees from their employment under subsection (3) unless the continuity of the employees’ employment for such purposes as are prescribed by the regulations is not affected by the lockout.
(7) This section has effect subject to the following provisions of this Division.
170MM Industrial action must not involve secondary boycott
(1) Engaging in industrial action is not protected action if:
(a) it is engaged in in concert with one or more persons or organisations that are not protected persons; or
(b) it is organised other than solely by one or more protected persons.
(2) Organising industrial action is not protected action if:
(a) it is organised in concert with one or more persons or organisations that are not protected persons; or
(b) it is intended to be engaged in other than solely by one or more protected persons.
(3) In this section:
"protected person" means:
(a) an organisation of employees that is a negotiating party; or
(b) a member of such an organisation who is employed by the employer; or
(c) an officer or employee of such an organisation acting in that capacity; or
(d) an employee who is a negotiating party.
170MN Industrial action etc. must not be taken until after nominal expiry date of certain agreements and awards
(1) From the time when:
(a) a certified agreement; or
(b) an award under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period);
comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action.
(2) For the purposes of subsection (1), the following are covered by this subsection:
(a) any employee whose employment is subject to the agreement or award;
(b) an organisation of employees that is bound by the agreement or award;
(c) an officer or employee of such an organisation acting in that capacity.
(3) If the employee, organisation or officer contravenes subsection (1), the action concerned is not protected action.
(4) From the time when:
(a) a certified agreement; or
(b) an award under subsection 170MX(3);
comes into operation until its nominal expiry date has passed, the employer must not, for the purpose of supporting or advancing claims in respect of the employment of employees whose employment is subject to the agreement or award, lock out such an employee from his or her employment.
(5) If the employer does so, the lockout is not protected action.
(6) Engaging in industrial action, or locking out an employee, in contravention of section 170VU is not protected action.
170MO Notice of action to be given
(1) Any action taken as mentioned in subsection 170ML(2) by:
(a) an organisation of employees; or
(b) a member of such an organisation; or
(c) an officer or employee of such an organisation acting in that capacity; or
(d) an employee who is a negotiating party;
is not protected action unless the requirements set out in subsection (2) are met.
(2) The requirements are that:
(a) if the action is in response to, and is taken after the start of, a lockout of employees by the employer in respect of the proposed agreement—the organisation, or the employee who is a negotiating party, has given the employer written notice of the intention to take the action; or
(b) in any other case—the organisation, or the employee who is a negotiating party, has given the employer at least 3 working days’ written notice of the intention to take the action.
(3) If one or more of the negotiating parties is an organisation of employees, any action taken as mentioned in subsection 170ML(3) by the employer to lock out employees from their employment:
(a) is not protected action unless the employer has given the other negotiating party or each of the other negotiating parties:
(i) if the lockout is in response to, and takes place after the start of, industrial action organised or engaged in by an organisation that is a negotiating party in respect of the proposed agreement—written notice of the intended lockout; or
(ii) in any other case—at least 3 working days’ written notice of the intended lockout; and
(b) is not protected action in so far as it relates to a particular employee unless:
(i) if subparagraph (a)(i) applies—before the lockout begins; or
(ii) in any other case—at least 3 working days before the lockout begins;
the employer has given written notice to the particular employee, or has taken other reasonable steps to notify the particular employee, of the intended lockout.
(4) If one or more of the negotiating parties is an employee whose employment will be subject to the proposed agreement, any action taken as mentioned in subsection 170ML(3) by the employer to lock out employees from their employment is not protected action in so far as it relates to a particular employee unless:
(a) if the lockout is in response to, and takes place after the start of, industrial action organised or engaged in by any of the employees who are negotiating parties in respect of the proposed agreement—before the lockout begins; or
(b) in any other case—at least 3 working days before the lockout begins;
the employer has given written notice to the particular employee, or has taken other reasonable steps to notify the particular employee, of the intended lockout.
(5) A written notice or other notification under this section must state the nature of the intended action and the day when it will begin.
(6) A written notice or other notification under this section may be given before the start of the bargaining period.
170MP Negotiation must precede industrial action or lockout
(1) Engaging in industrial action by a person who is a member of an organisation of employees that is a negotiating party is not protected action unless the organisation has, before the person begins to engage in the industrial action:
(a) genuinely tried to reach agreement with the employer; and
(b) if the Commission has made an order in relation to the negotiations—complied with the order in so far as it applies to the organisation.
(2) Engaging in industrial action by an employee (the first employee ) who is a negotiating party is not protected action unless, before the first employee begins to engage in the industrial action:
(a) the first employee, or another employee acting on behalf of the first employee, has genuinely tried to reach agreement with the employer; and
(b) if the Commission has made an order in relation to the negotiations—the first employee has complied with the order in so far as it applies to the first employee.
(3) A lockout of employees by an employer is not protected action unless the employer has, before the employer begins the lockout:
(a) if the employees are members of an organisation or organisations that are negotiating parties—genuinely tried to reach agreement with the organisation or organisations; and
(b) if the employees are negotiating parties—genuinely tried to reach agreement with the employees; and
(c) if the Commission has made an order in relation to the negotiations—complied with the order in so far as it applies to the employer.
170MQ What happens if Commission orders a ballot
(1) If, under subsection 135(2), the Commission has ordered that a vote of members of an industrial organisation be taken by secret ballot in relation to the proposed agreement, the organising of, or engaging in, industrial action by:
(a) the organisation; or
(b) a member of the organisation; or
(c) an officer or employee of the organisation acting in that capacity;
after the making of the order is not protected action unless:
(d) such a ballot has been taken; and
(e) the industrial action has been approved by a majority of the valid votes cast in the ballot.
(2) If, under subsection 135(2B), the Commission has ordered that a vote of employees be taken by secret ballot in respect of a proposed agreement, the organising of, or engaging in, industrial action by the employees after the making of the order is not protected action unless:
(a) such a ballot has been taken; and
(b) the industrial action has been approved by a majority of the valid votes cast in the ballot.
170MR Industrial action must be duly authorised
(1) Engaging in industrial action by members of an organisation of employees that is a negotiating party is not protected action unless, before the industrial action begins:
(a) the industrial action is duly authorised by a committee of management of the organisation or by someone authorised by such a committee to authorise the industrial action; and
(b) if the rules of the organisation provide for the way in which the industrial action is to be authorised—the industrial action is duly authorised under those rules; and
(c) written notice of the giving of the authorisation is given to a Registrar.
(2) Industrial action is taken, for the purposes of this section, to be duly authorised under the rules of an organisation of employees even though a technical breach has occurred in authorising the industrial action, so long as the person or persons who committed the breach acted in good faith.
(3) Examples of a technical breach in authorising industrial action are as follows:
(a) a contravention of the rules of the organisation;
(b) an error or omission in complying with the requirements of this Act;
(c) participation, by a person not eligible to do so, in the making of a decision by a committee of management, or by members, of the organisation.
(4) Industrial action is taken, for the purposes of this section, to have been duly authorised under the rules of an organisation of employees, and to have been so authorised before the industrial action began, unless:
(a) the Court declares in a proceeding that the industrial action was not duly authorised under those rules; and
(b) the proceeding was brought in the Court within 6 months after the notification in relation to the industrial action was given to a Registrar under paragraph (1)(c).
(5) In so far as the rules of an organisation of employees provide for the way in which industrial action that section 170ML entitles the organisation to organise or engage in is to be authorised, the rules do not contravene section 196 unless the manner provided for contravenes that section.
170MS What happens if application to certify agreement is not made within 21 days
Unless an application to the Commission to certify an agreement is made within 21 days after the day when the agreement is made, nothing that was done during the bargaining period by an employee whose employment is subject to the agreement or by a person bound by the agreement is protected action.
(1) An order made by the Commission under section 127 does not apply to protected action.
(2) Subject to subsection (3), no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of any industrial action that is protected action unless the industrial 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.
(3) Subsection (2) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action.
170MU Employer not to dismiss employee etc. for engaging in protected 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 engage, is engaging, or has engaged, in protected action.
(2) Subsection (1) of this section 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 protected action.
(3) In proceedings under section 170NF 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 engage, was engaging, or had engaged, in protected action.
170MV When bargaining period ends
The bargaining period ends if any of the following events occurs:
(a) an agreement under Division 2 or 3 is made by the employer and any one or more of the other negotiating parties; or
(b) the initiating party tells the other negotiating party or each of the other negotiating parties in writing that the initiating party no longer wants to reach an agreement under Division 2 or 3 with that other party or those other parties; or
(c) the Commission terminates the bargaining period.
170MW Power of Commission to suspend or terminate bargaining period
(1) Subject to subsection (8), the Commission may, by order, suspend or terminate the bargaining period if, after giving the negotiating parties an opportunity to be heard, it is satisfied that any of the circumstances set out in subsections (2) to (7) exists or existed.
(2) A circumstance for the purposes of subsection (1) is that a negotiating party that, before or during the bargaining period, has organised or taken, or is organising or taking, industrial action to support or advance claims in respect of the proposed agreement:
(a) did not genuinely try to reach an agreement with the other negotiating parties before organising or taking the industrial action; or
(b) is not genuinely trying to reach an agreement with the other negotiating parties; or
(c) has failed to comply with any directions by the Commission that relate to the proposed agreement or to a matter that arose during the negotiations for the proposed agreement; or
(d) has failed to comply with a recommendation of the Commission under section 111AA that relates to the proposed agreement or to a matter that arose during the negotiations for the proposed agreement.
(3) A circumstance for the purposes of subsection (1) is that industrial action that is being taken to support or advance claims in respect of the proposed agreement is threatening:
(a) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
(b) to cause significant damage to the Australian economy or an important part of it.
(4) A circumstance for the purposes of subsection (1) is that industrial action is being organised or taken by:
(a) an organisation that is a negotiating party; or
(b) a member of such an organisation who is employed by the employer; or
(c) an officer or employee of such an organisation acting in that capacity;
against an employer to support or advance claims in respect of employees:
(d) whose employment will be subject to the agreement; and
(e) who are neither members, nor eligible to become members, of the organisation.
(5) A circumstance for the purposes of subsection (1) is that industrial action that is being organised or taken by an organisation that is a negotiating party:
(a) relates, to a significant extent, to a demarcation dispute; or
(b) contravenes an order of the Commission that relates, to a significant extent, to a demarcation dispute.
(6) If the bargaining period relates to employees employed in a part of a single business, a circumstance for the purposes of subsection (1) is that the initiating party is not complying with an award or order, a direction of the Commission, or a certified agreement, in relation to another part of the single business.
(7) A circumstance for the purposes of subsection (1) is that:
(a) immediately before the commencement of this section, the wages and conditions of the kind of employees whose employment will be subject to the agreement were determined by a paid rates award, or would have been so determined if a certified agreement, an enterprise flexibility agreement (within the meaning of this Act as then in force) or a State employment agreement had not prevailed over the award; and
(b) so far as the wages and conditions of the kind of employees whose employment will be subject to the agreement were, before the commencement of this section, customarily determined by an award or a State award, they were determined by a paid rates award; and
(c) there is no reasonable prospect of the negotiating parties reaching an agreement under Division 2 or 3 during the bargaining period.
(8) The Commission:
(a) may not make an order under subsection (1), in a circumstance set out in subsection (2), (4), (5), (6) or (7), except on application by a negotiating party; but
(b) may make an order under subsection (1), in a circumstance set out in subsection (3):
(i) on its own initiative; or
(ii) on application by a negotiating party or the Minister.
(9) Anything done by a negotiating party or any other person in respect of the proposed agreement is not protected action if it is done at a time when the bargaining period is suspended.
(10) An order under subsection (1) terminating the bargaining period may, if the Commission considers it to be in the public interest, contain a declaration that, during a specified period beginning at the time of the termination, a specified negotiating party or employee of the employer:
(a) is not allowed to initiate a new bargaining period in relation to specified matters that are dealt with by the proposed agreement; or
(b) may initiate such a bargaining period only on conditions specified in the declaration.
170MX What happens if Commission terminates a bargaining period under subsection 170MW(3) or (7)
(1) This section applies if a bargaining period is terminated on the ground set out in subsection 170MW(3) or (7).
(2) As soon as practicable, the Commission must begin to exercise the conciliation powers mentioned in section 170MY:
(a) to facilitate the making of an agreement under Division 2 or 3; or
(b) otherwise to settle any matter or issue that could be covered by such an agreement.
This subsection applies even if the Commission has already attempted conciliation during the bargaining period.
(3) If, after exercising conciliation powers as required by subsection (2), the Commission is satisfied that:
(a) the negotiating parties have not settled the matters that were at issue during the bargaining period (whether or not by making an agreement); and
(b) it is not likely that further conciliation will result in the matters being settled within a reasonable time;
the Commission must, if it considers it appropriate, exercise the arbitration powers mentioned in section 170MY to make an award that deals with the matters.
(4) Despite any other provision of this Act, those arbitration powers may only be exercised by a Full Bench.
(5) In exercising those arbitration powers, the Full Bench must have regard to the following:
(a) the matters that were at issue during the bargaining period;
(b) the merits of the case;
(c) the interests of the negotiating parties and the public interest;
(d) how productivity might be improved in the business or part of the business concerned;
(e) the extent to which the conduct of the negotiating parties during the bargaining period was reasonable;
(f) any relevant principles formulated by a Full Bench for the purposes of this subsection.
(6) Subsection (5) does not, by implication, limit the matters to which the Full Bench may have regard.
170MY Commission’s powers where section 170MX applies
(1) The Commission has the conciliation and arbitration powers in relation to the matters mentioned in subsections 170MX(2) and (3) that it would have under Part VI in relation to the matters if that Part applied to conciliation and arbitration in relation to the matters instead of in relation to industrial disputes.
(2) To avoid doubt, the Commission’s powers under subsection (1) are not limited by section 89A.
170MZ Awards under section 170MX
(1) An award under subsection 170MX(3) must specify a date as its nominal expiry date.
(2) Subject to this section, the award remains in operation at all times after it commences.
(3) The award has effect subject to any conditions that are specified in the award.
(4) Before the award’s nominal expiry date has passed, the Full Bench must not revoke the award unless it is satisfied that:
(a) the employer and the one or more organisations, or a majority of the employees, who are bound by the award have agreed to the revocation (for example, because they propose to make an agreement under Division 2 or 3); and
(b) the revocation would not be against the public interest.
(5) If:
(a) the award’s nominal expiry date has passed; and
(b) either:
(i) the employer, or an organisation, bound by the award; or
(ii) a majority of the employees to whom the award applies;
request the Commission in writing to terminate the award; and
(c) the Commission has given the following a reasonable opportunity to be heard in relation to the request:
(i) the employer bound by the award;
(ii) any organisations bound by the award;
(iii) the employees to whom the award applies; and
(d) the Commission considers that it is not contrary to the public interest to terminate the award;
the Commission must terminate the award.
(6) The award may only be varied for the purpose of:
(a) removing ambiguity or uncertainty; or
(b) including, omitting or varying a term (however expressed) that authorises an employer to stand‑down an employee.
(7) Before the award’s nominal expiry date has passed, no bargaining period may be initiated under section 170MI for negotiating an agreement in relation to the employment of employees whose employment is dealt with in the award.
170N Commission not to arbitrate during bargaining period
During a bargaining period, the Commission must not exercise its arbitration powers under Part VI in relation to a matter that is at issue between the negotiating parties.
170NA Conciliation in respect of agreements
(1) The Commission has the conciliation powers in relation to a matter arising under this Part that it would have under Part VI in relation to the matter if that Part applied to conciliation in relation to the matters instead of in relation to industrial disputes.
(2) If 2 or more organisations of employees are involved in the negotiations or proposed negotiations, the Commission may order that all of the organisations be represented, for the purposes of conciliating the matter, by a single person or group of persons, where the person or persons are authorised by the organisations to represent them (whether generally or in relation to the particular negotiations).
(3) Subsection (2) does not, by implication, limit the powers mentioned in subsection (1).
170NB Employers not to discriminate between unionist and non‑unionist
(1) An employer must not, in negotiating an agreement under Division 2 or 3, discriminate between employees of the employer:
(a) because some of those employees are members of an organisation of employees while others are not members of such an organisation; or
(b) because some of those employees are members of a particular organisation of employees, while others are not members of that organisation or are members of a different organisation of employees.
(2) In so far as a purpose of the agreement is to settle some or all of the matters that are the subject of an industrial dispute to which the employer is a party, subsection (1) does not require the agreement to cover:
(a) matters that are not the subject of that dispute; or
(b) employees whose terms and conditions of employment are not the subject of that dispute.
(3) In so far as a purpose of the agreement is to prevent industrial disputes of a particular kind, subsection (1) does not require the agreement to cover:
(a) matters that are not likely to be the subject of a dispute of that kind; or
(b) employees whose terms and conditions of employment are not likely to be the subject of a dispute of that kind.
Division 9—Prohibition of coercion in relation to agreements
170NC Coercion of persons to make, vary or terminate certified agreements etc.
(1) A person must not:
(a) take or threaten to take any industrial action or other action; or
(b) refrain or threaten to refrain from taking any action;
with intent to coerce another person to agree, or not to agree, to:
(c) making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or
(d) approving any of the things mentioned in paragraph (c).
Note: The Court has certain remedial powers in relation to a contravention of this section: see Division 10.
(2) Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8).
(3) An employer must not coerce, or attempt to coerce, an employee of the employer:
(a) not to make a request as mentioned in subsection 170LK(4) in relation to an agreement that the employer proposes to make; or
(b) to withdraw such a request.
Division 10—Enforcement and remedies
For the purposes of this Division, each of the following is a penalty provision :
(a) section 170MDA;
(b) section 170MN;
(c) section 170MU;
(d) section 170NB;
(e) section 170NC.
For the purposes of this Division, each of the following is an eligible court :
(a) the Federal Court of Australia;
(b) a District, County or Local Court;
(c) a magistrate’s court.
170NF Penalties for contravening penalty provisions
(1) A contravention of a penalty provision is not an offence. However, 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 a contravention of section 170MDA may be made by:
(a) the employees making the request mentioned in that section; or
(b) an organisation of employees of which any of the employees making that request is a member; or
(c) an inspector; or
(d) any other person prescribed by the regulations.
(4) An application for an order under subsection (1) that relates to a contravention of section 170MN may be made by:
(a) any employee whose employment is subject to the certified agreement concerned; or
(b) any other person who is bound by the agreement; or
(c) any person who is affected by the industrial action or lockout concerned; or
(d) any other person prescribed by the regulations.
(5) An application for an order under subsection (1) that relates to a contravention of section 170MU may be made by:
(a) the employee concerned; or
(b) an organisation of employees of which that employee is a member; or
(c) an inspector; or
(d) any other person prescribed by the regulations.
(6) An application for an order under subsection (1) that relates to a contravention of section 170NB may be made by:
(a) any employee who allegedly was disadvantaged because of the discrimination mentioned in subsection 170NB(1); or
(b) an organisation of employees of which that employee is a member; or
(c) an inspector; or
(d) any other person prescribed by the regulations.
(7) An application for an order under subsection (1) that relates to a contravention of section 170NC may be made by:
(a) an employee whose employment is subject to the agreement concerned or will be subject to the proposed agreement concerned; or
(b) any other person bound by the agreement concerned or who will be bound by the proposed agreement concerned; or
(c) the person who allegedly was intended to be coerced; or
(d) an organisation of employees of which that person is a member; or
(e) an inspector; or
(f) any other person prescribed by the regulations.
An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision.
170NH Reinstatement and compensation where employer contravenes section 170MU
(1) If an employer contravenes section 170MU, an eligible court may order the employer:
(a) if the contravention was constituted by dismissing an employee—to reinstate the person dismissed to the position that the person occupied immediately before the dismissal or to a position no less favourable than that position; and
(b) in any case—to pay, to the person dismissed, injured or prejudiced, compensation for loss suffered as a result of the dismissal, injury or prejudice.
(2) The rights of and relating to reinstatement that are conferred on a person by this section do not limit any other rights of the person.
170NI Complementary State laws
(1) A complementary State law may confer functions and powers on the Commission.
(2) In this section:
"certified agreement provisions" means this Part, and the other provisions of this Act so far as they relate to this Part.
"complementary State law" means a law of a State that applies the certified agreement provisions as a law of the State, with:
(a) the modifications required by the regulations; and
(b) any other modifications permitted by the regulations.
"modifications" includes additions, omissions and substitutions.
20 Section 334A
Repeal the section.
21 Schedule 1 (heading)
Omit “Sections 4 and 5”.
22 Schedules 8, 15 and 16
Repeal the Schedules.
Part 2—Application and transitional
23 Application and transitional
(1) Subject to this item, the amendments made by this Schedule apply to:
(a) an agreement made after the commencement of this Schedule; and
(b) a bargaining period, for a proposed agreement, initiated after the commencement of this Schedule.
New termination provisions apply to pre‑commencement certified agreements
(2) If:
(a) an agreement was entered into before the commencement of this Schedule and was covered by Division 2 of Part VIB of the Workplace Relations Act 1996 as then in force; and
(b) whether before or after the commencement of this Schedule:
(i) the period of operation specified in the agreement; or
(ii) if it has been extended or further extended under section 170MJ of that Act as in force at the time—that period as extended or further extended;
has ended;
then, after the commencement of this Schedule, section 170MH of that Act as amended by this Schedule, instead of section 170MN of that Act as in force immediately before the commencement of this Schedule, applies to the agreement.
Enterprise flexibility agreements that prevail over certified agreements
(3) If:
(a) an enterprise flexibility agreement is continued in force by Schedule 9; and
(b) any part (the post‑commencement EFA period ) of the period of operation specified in the agreement, or that period as extended or further extended, occurs after the commencement of this Schedule; and
(c) the enterprise flexibility agreement is, during the post‑commencement EFA period, to any extent inconsistent with a certified agreement (whether made before or after the commencement of this Schedule); and
(d) the certified agreement was certified after implementation of the enterprise flexibility agreement was approved;
then the enterprise flexibility agreement prevails over the certified agreement, to the extent of the inconsistency, during the post‑commencement EFA period.
Certified agreements that prevail over enterprise flexibility agreements
(4) If:
(a) an enterprise flexibility agreement is continued in force by Schedule 9; and
(b) a certified agreement (whether made before or after the commencement of this Schedule) is at any time after the commencement of this Schedule to any extent inconsistent with the enterprise flexibility agreement; and
(c) subitem (3) does not apply to the inconsistency;
the certified agreement prevails over the enterprise flexibility agreement, to the extent of the inconsistency.
170MX(3) awards and exceptional matters orders prevail over pre‑ and post‑commencement certified agreements
(5) Subsections 170LY(2) and (3) of the Workplace Relations Act 1996 as amended by this Schedule apply to certified agreements whether certified before or after the commencement of this Schedule.
Ongoing matters under Bargaining Division
(6) The Commission may continue to deal with an ongoing matter (see subitem (7)), on and after the day on which this Schedule commences, in the exercise of the functions and powers of the Commission under the Workplace Relations Act 1996 as amended by this Act.
Meaning of ongoing matters
(7) In subitem (6), an ongoing matter means a matter that the Commission had started to deal with, before the day on which this Schedule commenced, in the exercise of the functions and powers described in the Workplace Relations Act 1996 (as then in force) as the Bargaining Division’s functions and powers.
Annual report under former section 170RC
(8) Section 170RC of the Workplace Relations Act 1996 as in force immediately before the commencement of this Schedule does not require, and is taken never to have required, the Minister to cause a person to review and to report to the Minister in relation to the reporting period ending on 31 December 1996.
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