WORKPLACE RELATIONS LEGISLATION AMENDMENT (INDEPENDENT CONTRACTORS) ACT 2006 - SCHEDULE 4 Amendments relating to stand downs
WORKPLACE RELATIONS LEGISLATION AMENDMENT (INDEPENDENT CONTRACTORS) ACT 2006 - SCHEDULE 4
Amendments relating to stand downs
1 Subsection 4(1)
Insert:
"authorised stand down" means a stand down of an employee that is authorised as mentioned in subsection 691B(1).
2 Subsection 13(1) (after table item 6)
Insert:
6A | Division 7 of Part 12 | Stand downs | Section 691C |
3 At the end of paragraph 183(1)(b)
Add:
(iv) any hours in the week when the employee is stood down (but only if the stand down is an authorised stand down);
4 At the end of Part 12
Add:
691A Employer may stand down employees in certain circumstances
(1) This section applies if:
(a) an employee employed by an employer cannot usefully be employed during a period because of a particular circumstance; and
(b) that circumstance is:
(i) a strike; or
(ii) a breakdown of machinery; or
(iii) a stoppage of work for any cause for which the employer cannot reasonably be held responsible; and
(c) either:
(i) there is no contract of employment, and no industrial instrument, that binds the employer in respect of the employment of the employee and that contains provision for the standing down of the employee during that period because of that circumstance; or
(ii) a contract of employment, or industrial instrument, that binds the employer in respect of the employment of the employee contains provision for the standing down of the employee during that period because of that circumstance, but the employer's right to stand down the employee is dependent on the employer having to apply to the Commission, a State industrial authority or another person or body for an order or determination (however described) authorising the employer to stand down the employee.
(2) If this section applies, the employer:
(a) may stand down the employee during the period referred to in paragraph (1)(a) because of the circumstance referred to in that paragraph; and
(b) if the employer stands down the employee under paragraph (a) of this subsection--may deduct payment for the period during which the employee is stood down.
(3) A period during which an employee is stood down under subsection (2) does not break the employee's continuity of service.
(4) A period during which an employee is stood down under subsection (2) counts as service for all purposes.
(5) A provision of a contract of employment or an industrial instrument that provides as mentioned in subparagraph (1)(c)(ii) has no effect. However, this section does not otherwise affect the operation of any provision of a contract of employment or industrial instrument that provides for the standing down of employees.
(6) In this section:
"industrial instrument" means any of the following:
(a) a workplace agreement;
(b) an award;
(c) a pre - reform AWA;
(d) a pre - reform certified agreement (within the meaning of Schedule 7);
(e) a preserved State agreement;
(f) a notional agreement preserving State awards;
(g) a workplace determination;
(h) an employment agreement (within the meaning of Division 12 of Part 21);
(i) an exceptional matters order (within the meaning of Schedule 7);
(j) a section 170MX award (within the meaning of Schedule 7);
(k) an old IR agreement (within the meaning of Schedule 7).
691B Prohibition of unauthorised stand downs
(1) An employer must not stand down an employee from his or her employment if the stand down is not authorised by:
(a) subsection 691A(2); or
(b) a provision of a contract of employment, or an industrial instrument (within the meaning of section 691A), that is binding on the employer in respect of the employment of the employee (other than a provision that is rendered of no effect by subsection 691A(5)).
Note 1: Compliance with this subsection is dealt with as follows:
(a) the model dispute resolution process applies (see subsection (2));
(b) the Court may grant an injunction (see subsection (3));
(c) the compliance provisions of Part 14 apply.
Note 2: If the standing down of an employee is not authorised as mentioned in this subsection, the employee may recover any lost wages by taking appropriate enforcement action (whether under this Act or otherwise).
(2) The model dispute resolution process (other than section 697) applies to a dispute under subsection (1).
Note: The model dispute resolution process is set out in Part 13.
(3) The Court, or the Federal Magistrates Court, on application by an employee who has been stood down or by an inspector, may grant an injunction requiring the employer of the employee to cease contravening (or not to contravene) subsection (1).
691C Extraterritorial extension
(1) This Division, and the rest of this Act so far as it relates to this Division, extend:
(a) to an employee outside Australia who meets any of the conditions in this section; and
(b) to the employee's employer (whether the employer is in or outside Australia); and
(c) to acts, omissions, matters and things relating to the employee or the employee's employment (whether those acts, omissions, matters or things are in or outside Australia).
Note: In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts Interpretation Act 1901 .
Employee in Australia's exclusive economic zone
(2) One condition is that the employee is in Australia's exclusive economic zone and either:
(a) is an employee of an Australian employer and is not prescribed by the regulations as an employee to whom this subsection does not apply; or
(b) is an employee prescribed by the regulations as an employee to whom this subsection applies.
Note: The regulations may prescribe the employee by reference to a class. See subsection 13(3) of the Legislative Instruments Act 2003 .
On Australia's continental shelf outside exclusive economic zone
(3) Another condition is that the employee:
(a) is outside the outer limits of Australia's exclusive economic zone, but is in, on or over a part of Australia's continental shelf prescribed by the regulations for the purposes of this subsection, in connection with the exploration of the continental shelf or the exploitation of its natural resources; and
(b) meets the requirements that are prescribed by the regulations for that part.
Note: The regulations may prescribe different requirements relating to different parts of Australia's continental shelf. The regulations may need to do so to give effect to Australia's international obligations.
Outside Australia's exclusive economic zone and continental shelf
(4) Another condition is that the employee:
(a) is neither in Australia's exclusive economic zone nor in, on or over a part of Australia's continental shelf described in paragraph (3)(a); and
(b) is an Australian - based employee of an Australian employer; and
(c) is not prescribed by the regulations as an employee to whom this subsection does not apply.
(5) In this section:
"this Act" includes the Registration and Accountability of Organisations Schedule and regulations made under it.
5 Section 717 (at the end of the definition of applicable provision )
Add:
; and (e) subsection 691B(1) (prohibition of unauthorised stand downs).
6 Subsection 718(1) (at the end of the table)
Add:
8 | subsection 691B(1) (prohibition of unauthorised stand downs) | (a) an employee to whom subsection 691B(1) applies; (b) an inspector |
7 Subsection 718(2)
Omit "and 7 ", substitute ", 7 and 8 ".
8 After Division 7 of Part 21
Insert:
880A Additional effect of Act--stand downs
Without affecting its operation apart from this section, Division 7 of Part 12 also has effect in relation to the employment of any employee in Victoria, and for this purpose:
(a) each reference in that Division to an employer (within the meaning of that Division) is to be read as a reference to an employer (within the meaning of this Division) in Victoria; and
(b) each reference in that Division to an employee (within the meaning of that Division) is to be read as a reference to an employee (within the meaning of this Division) in Victoria; and
(c) each reference in that Division to employment (within the meaning of that Division) is to be read as a reference to the employment of an employee (within the meaning of this Division) in Victoria.
9 Section 891
Repeal the section.
10 After paragraph 89(1)(a) of Schedule 6
Insert:
(aa) section 691A (as applied by section 880A); and
11 After paragraph 95(a) of Schedule 6
Insert:
(aa) section 691A (as applied by section 880A); and
12 After paragraph 102(a) of Schedule 6
Insert:
(aa) section 691A (as applied by section 880A); and