Commonwealth Numbered Acts

WORKPLACE RELATIONS AND OTHER LEGISLATION AMENDMENT ACT (No. 2) 1996 No. 77 of 1996 - SCHEDULE 1

Schedule 1-Amendment of the Workplace Relations Act
1996: reference of Victorian matters 1 Before Schedule 1 Insert:
Part XV-Matters referred by Victoria
Division 1-Preliminary 488 Object
The object of this Part is to extend existing provisions of this Act, and to
include additional provisions in this Act, as a result of the referral of
certain matters to the Parliament of the Commonwealth by the Commonwealth
Powers (Industrial Relations) Act 1996 of Victoria. 489 Interpretation
In this Part:
declared industry sector means an industry sector declared in a declaration in
force under section 20 of the Employee Relations Act 1992 of Victoria
immediately before the commencement of subsection 4(7) of the Commonwealth
Powers (Industrial Relations) Act 1996 of Victoria.
eligible court means:

   (a)  the Industrial Division of the Magistrates' Court of Victoria; or

   (b)  any other court prescribed by the regulations.
employee has the same meaning as in section 3 of the Commonwealth Powers
(Industrial Relations) Act 1996 of Victoria, but does not include a person who
is undertaking a vocational placement.
employer has the same meaning as in section 3 of the Commonwealth Powers
(Industrial Relations) Act 1996 of Victoria.
employment agreement means an agreement in force, or entered into but not yet
in force, under Part 2 of the Employee Relations Act 1992 of Victoria:

   (a)  if that Part is in force at the commencement of Division 3 of this
        Part-at the commencement of that Division; or

   (b)  if Part 2 of that Act is not so in force-immediately before that Part
        ceased to be in force.
modify includes add to, omit from and substitute for.
penalty provision means:

   (a)  subsection 505(1); or

   (b)  subsection 509(6); or

   (c)  section 510; or

   (d)  each of the following subclauses of Schedule 1A:
7(1), 13(2), 14(3), 15(2), 15(3), 25(2), 26(3), 27(2), 27(3), 38(2), 39(3),
40(2), 40(3) and 53(3).
recognised association has the same meaning as that expression had in section
4 of the Employee Relations Act 1992 of Victoria:

   (a)  if the definition of that expression is in force at the commencement
        of Division 4 of this Part-at the commencement of that Division; or

   (b)  if the definition is not so in force-immediately before the definition
        ceased to be in force.
transitional registration application means an application for registration
under Part IX made within 2 years after the commencement of Division 4 of this
Part.
Victorian public sector has the same meaning as the expression public sector
has in section 3 of the Commonwealth Powers (Industrial Relations) Act 1996 of
Victoria.
work classification means a work classification that, immediately before the
commencement of subsection 4(7) of the Commonwealth Powers (Industrial
Relations) Act 1996 of Victoria:

   (a)  was a declared work classification under the Employee Relations Act
        1992 of Victoria; or

   (b)  had been declared by the Commission (within the meaning of the
        Employee Relations Act 1992 of Victoria) to be an interim work
        classification.
Division 2-Extension of existing Commonwealth provisions 490 Division only has
effect if supported by reference
A section of this Division has effect only for so long, and in so far, as the
Commonwealth Powers (Industrial Relations) Act 1996 of Victoria refers to the
Parliament of the Commonwealth a matter or matters that result in the
Parliament of the Commonwealth having sufficient legislative power for the
section so to have effect. 491 Exclusion of Commonwealth employment
This Division does not apply to employment of an employee by the Commonwealth.
2 At the end of Division 2 of Part XV Add: 492 Additional effect of
Act-termination of employment
Without affecting its operation apart from this section, Division 3 of Part
VIA also has effect in relation to the termination of employment, at the
initiative of the employer, of any employee in Victoria. 3 At the end of
Division 2 of Part XV Add: 493 Additional effect of Act-industrial disputes

(1) Without affecting its operation apart from this section, this Act also has
effect, subject to this section, as if the definition of industrial dispute in
subsection 4(1) were replaced by the following: industrial dispute means
(except in Part XA):

   (a)  an industrial dispute (including a threatened, impending or probable
        industrial dispute):

        (i)    within the limits of Victoria; and

        (ii)   that is about matters pertaining to the relationship between
               employers and employees; or

   (b)  a situation that is likely to give rise to an industrial dispute of
        the kind referred to in paragraph (a); and includes a demarcation
        dispute.

(2) A law of Victoria prescribed for the purposes of this section prevails to
the extent of any inconsistency over an award or order made under this Act, in
its operation in accordance with subsection (1), in relation to an industrial
dispute about matters pertaining to the relationship between:

   (a)  employers; and

   (b)  employees in the Victorian public sector. 494 Additional effect of
        Act-certified agreements

(1) In addition to the effect that Division 2 of Part VIB and related
provisions of this Act have in relation to agreements about matters pertaining
to the relationship between:

   (a)  an employer (within the meaning of that Division) who is a
        constitutional corporation or the Commonwealth; and

   (b)  employees (within the meaning of that Division) employed in a single
        business or part of a single business of the employer; that Division
        and those provisions also have effect as mentioned in subsection (2).

(2) Division 2 of Part VIB and related provisions of this Act have effect in
the same way as mentioned in subsection (1) in relation to an agreement about
matters pertaining to the relationship between:

   (a)  an employer (within the meaning of this Part) in Victoria who is
        carrying on a single business or a part of a single business; and

   (b)  employees (within the meaning of this Part) in Victoria employed in
        the single business or part. 495 Additional effect of Act-AWAs

(1) In addition to the effect that Part VID and related provisions of this Act
have in relation to agreements about matters pertaining to the relationship
between:

   (a)  an employer (within the meaning of that Part); and

   (b)  an employee (within the meaning of that Part); that Part and those
        provisions also have effect as mentioned in subsection (2).

(2) Part VID and related provisions of this Act have effect in the same way as
mentioned in subsection (1) in relation to an agreement about matters
pertaining to the relationship between:

   (a)  an employer (within the meaning of this Part) in Victoria; and

   (b)  an employee (within the meaning of this Part) in Victoria. 496
        Additional effect of Act-freedom of association
Despite section 298C, Part XA also has effect in relation to conduct in
Victoria. 4 At the end of Part XV Add:
Division 3-New Commonwealth provisions
Subdivision A-General 497 Division only has effect if supported by reference
A section of this Division has effect only for so long, and in so far, as the
Commonwealth Powers (Industrial Relations) Act 1996 of Victoria refers to the
Parliament of the Commonwealth a matter or matters that result in the
Parliament of the Commonwealth having sufficient legislative power for the
section so to have effect. 498 Exclusion of Commonwealth employment
This Division does not apply to employment of an employee by the Commonwealth.
499 Inconsistency with other Commonwealth laws

(1) Subject to section 531, this Division does not have effect to the extent
of any inconsistency with any other Commonwealth law.

(2) In subsection (1):
other Commonwealth law means a law of the Commonwealth other than this Act.
Subdivision B-Minimum terms and conditions of Victorian employees 500 Minimum
terms and conditions of employment

(1) Subject to sections 507 and 508, minimum terms and conditions of
employment for employees in Victoria are contained in Schedule 1A.

(2) Subsection (1) is intended to supplement, and not to override,
entitlements under:

   (a)  Part VIA of this Act; or

   (b)  any Commonwealth legislation other than this Act; or

   (c)  any legislation of Victoria or of any other State or Territory. 501
        Minimum wages

(1) For the purposes of Schedule 1A, the Commission may from time to time, by
order, set or adjust a minimum wage for employees within a work
classification, other than employees who are subject to an award, a certified
agreement or an AWA.

(2) The Commission may only do so on application by:

   (a)  an employee, or group of employees, within the work classification; or

   (b)  an employer of such an employee or group of employees; or

   (c)  the Minister; or

   (d)  an organisation that is entitled to represent the industrial interests
        of one or more of the employees within the work classification; or

   (e)  an organisation of which an employer of employees within the work
        classification is a member. Note: Under Division 4, the regulations
        may make special provision relating to the registration of recognised
        associations as organisations.

(3) A minimum wage set or adjusted by the Commission may be different for
different categories of employee within the work classification according to
whether the employee is a full-time employee, a part-time employee, a
temporary employee, a junior employee, an apprentice or a person employed on a
casual or piece rate basis.

(4) In setting the level of minimum wages, the Commission must, so far as
possible and appropriate in relation to Victorian practice and conditions,
take into consideration:

   (a)  the needs of workers and their families (taking into account the
        general level of wages in Victoria), the cost of living, social
        security benefits and the relative living standards of other social
        groups; and

   (b)  economic factors, including the requirements of economic development,
        levels of productivity and the desirability of attaining and
        maintaining a high level of employment.

(5) A minimum wage set or adjusted by the Commission is to be expressed as a
rate of pay for each hour worked in a working week of 38 hours or of such
other number of hours as the Commission determines to be appropriate in the
case of the relevant declared industry sector.

(6) Nothing in this section empowers the Commission to make any determination,
order or decision in relation to the standard hours of work in a declared
industry sector.

(7) In setting or adjusting a minimum wage under subsection (1), the
Commission may, if it considers it relevant to do so, have regard to:

   (a)  the transcript of any proceedings before the Employee Relations
        Commission of Victoria; and

   (b)  any evidence given in any such proceedings; relating to the setting or
        adjusting of a minimum wage. 502 Reference of minimum wage proceeding
        to Full Bench

(1) Where a proceeding in relation to an application under subsection 501(2)
is before a member of the Commission:

   (a)  a party to the proceeding; or

   (b)  the Minister; may apply to the member to have the proceeding dealt
        with by a Full Bench because the subject-matter of the proceeding is
        of such importance that, in the public interest, the proceeding should
        be dealt with by a Full Bench.

(2) If an application is made under subsection (1) of this section to a member
of the Commission other than the President, the member must refer the
application to the President to be dealt with.

(3) The President must confer with the member about whether the application
should be granted.

(4) If the President is of the opinion that the subject-matter of the
proceeding is of such importance that, in the public interest, the proceeding
should be dealt with by a Full Bench, the President must grant the
application.

(5) If the President grants the application, the Full Bench must hear and
determine the application and, in the hearing, may have regard to any evidence
given, and any arguments adduced, in the proceeding mentioned in subsection
(1).

(6) The President or a Full Bench may, in relation to the exercise of powers
under this section, direct a member of the Commission to provide a report in
relation to a specified matter.

(7) The member must, after making such investigation (if any) as is necessary,
provide a report to the President or Full Bench, as the case may be.

(8) The President may, before a Full Bench has been established for the
purpose of hearing and determining, under this section, an application,
authorise a member of the Commission to take evidence for the purposes of the
hearing and determination, and:

   (a)  the member has the powers of a person authorised to take evidence
        under subsection 111(3); and

   (b)  the Full Bench must have regard to the evidence. 503 Modified
        application of section 143 in relation to minimum wage orders
For the purpose of applying section 143 to a decision or determination
consisting of an order of the Commission under section 501:

   (a)  the order is not an award or an order affecting an award; and

   (b)  the reference in paragraph 143(3)(b) to a registry is taken to be a
        reference to a registry in Victoria. 504 Certain provisions of no
        effect
A provision of an employment agreement or of any other contract of employment
with an employee in Victoria is of no effect to the extent that it provides a
term or condition of employment less favourable to an employee than the
minimum applicable under subsection 500(1). 505 Employer must comply with
minimum terms and conditions of employment

(1) Subject to sections 507 and 508, an employer must not enter into a
contract of employment with an employee in Victoria that provides a term or
condition of employment less favourable to the employee than the minimum
applicable under subsection 500(1).

(2) A contract of employment with an employee in Victoria entered into by an
employer in contravention of subsection (1) of this section is not, for that
reason only, illegal, void or unenforceable. 506 Deemed inclusion of minimum
terms and conditions in contracts etc.

(1) Subject to sections 507 and 508, if an employment agreement does not at
any time comply with a minimum term or condition of employment applicable
under subsection 500(1), then, for the purposes of sections 178 and 179 (in
their application in accordance with section 527), it is taken to have effect
as if it did comply.

(2) Subject to sections 507 and 508, if a contract of employment, other than
an employment agreement, with an employee in Victoria does not at any time
comply with a minimum term or condition of employment applicable under
subsection 500(1), then the employee may take proceedings in an eligible court
to recover money owed under the contract as if it did comply. 507 Limit on
operation of sections 505 and 506 and Schedule 1A
Sections 505 and 506 do not apply in relation to a contract of employment, or
an employment agreement, with an employee, and Schedule 1A does not apply in
relation to an employee, during any period in which the employee is subject to
a certified agreement or an AWA. 508 Relationship between awards and minimum
terms and conditions of employment
An award of the Commission prevails to the extent of any inconsistency with
Schedule 1A. 509 Exemption from minimum rate of pay

(1) The relevant minimum rate of pay applicable to an employee under paragraph
1(1)(c) of Schedule 1A does not apply to the employee while the employee holds
a certificate in force under this section.

(2) The Commission may give a person a certificate under this section if the
Commission is satisfied that, because of the person's age, infirmity or
slowness, the person is unable to obtain work at the relevant minimum rate
applicable under paragraph 1(1)(c) of Schedule 1A.

(3) The Commission must specify a minimum rate of pay in the certificate.

(4) The certificate is in force for 12 months.

(5) The Commission may renew the certificate from time to time for a further
12 months.

(6) An employer must not:

   (a)  directly or indirectly pay, or offer to pay, a person holding a
        certificate under this section at a lower rate than the minimum rate
        specified in the certificate; or

   (b)  employ, without the written consent of the Commission, more than one
        person holding a certificate under this section, unless the number of
        employees of the employer holding such certificates does not exceed
        one-fifth of the total number of employees of the employer.

(7) Section 45 has effect as if the following paragraph were added at the end
of subsection (1) of that section:

   (h)  a decision of a member of the Commission refusing to give a person a
        certificate under section 509 or to renew such a certificate.

(8) A certificate of exemption in force under section 15 of the Employee
Relations Act 1992 of Victoria:

   (a)  if that section is in force at the commencement of this Division-at
        the commencement of this Division; or

   (b)  if that section is not so in force-immediately before that section
        ceased to be in force; continues in force for the purposes of this Act
        as if it had been made under this section, at the time it was actually
        made or last renewed, as the case requires.
Subdivision C-Intervals for meals 510 Intervals for meals

(1) Subject to sections 512 and 513, an employer must not require an employee
in Victoria to work for more than 5 hours continuously without an interval for
a meal, unless the employee is subject to an employment agreement that allows
the employer to do this.

(2) The interval for the meal must be for the period required by the
employment agreement. If no period is set by the employment agreement, the
interval must be for at least half an hour. 511 Relationship between section
510 and other laws etc.
Section 510 is intended to supplement, and not to override, entitlements
under:

   (a)  any Commonwealth legislation other than this Act; or

   (b)  any legislation of Victoria or of any other State or Territory. 512
        Limit on operation of section 510
Section 510 does not apply in relation to an employee during any period in
which the employee is subject to a certified agreement or an AWA. 513
Relationship between awards and section 510
An award of the Commission prevails to the extent of any inconsistency with
section 510.
Subdivision D-Pay slips 514 Pay slips
The regulations may require employers of persons who are employees in Victoria
to issue pay slips to the persons at such times, and containing such
particulars, as are prescribed.
Subdivision E-Employment agreements Note: In addition to the provisions in
this Subdivision, sections 504, 506 and 510 also deal with employment
agreements. 515 Continued operation of employment agreements

(1) Subject to subsection (2), for the purposes of this Act, even if Part 2 of
the Employee Relations Act 1992 of Victoria has been or is repealed, an
employment agreement continues in force, or comes into force, as if that Part
had not been, or were not, repealed.

(2) For the purposes of this Act, an employment agreement ceases to be in
force, or does not come into force, in relation to an employee if the
employment of the employee is subject to a certified agreement or an AWA. 516
Individual employment agreements on cessation of collective employment
agreements

(1) When a collective employment agreement ceases to be in force other than
because of subsection 515(2):

   (a)  each employee who continues to be employed by the employer; and

   (b)  the employer; are taken, for the purposes of this Division, to be
        bound by an employment agreement, that is an individual employment
        agreement, with the same terms and conditions as the collective
        employment agreement.

(2) Subject to subsection 515(2), the individual employment agreement is in
force at all times after the collective employment agreement ceases to be in
force. 517 Lodging collective employment agreements within 14 days of coming
into force etc.

(1) If a copy of a collective employment agreement that came into force before
the commencement of this Division was not lodged, under the Employee Relations
Act 1992 of Victoria as then in force, with the Chief Commission
Administration Officer of Victoria before this Division commenced, an employer
bound by the agreement must, within 14 days after the commencement of this
Division, lodge a copy of the agreement with a Registrar.

(2) If a collective employment agreement comes into force after the
commencement of this Division, an employer bound by the agreement must, within
14 days after the agreement comes into force, lodge a copy of the agreement
with a Registrar.

(3) If an employer does not comply with subsection (1) or (2), the employment
agreement ceases to be in force for the purposes of this Act at the end of the
14 days mentioned in that subsection. 518 Variation of collective employment
agreements

(1) The parties to a collective employment agreement may not vary any term of
the agreement unless the variation is necessary:

   (a)  to remove an ambiguity or uncertainty; or

   (b)  to make the agreement comply with section 519 or 520; or

   (c)  to make the agreement comply with a minimum term or condition of
        employment applicable under subsection 500(1).

(2) If the parties to a collective employment agreement vary a term of the
agreement in accordance with subsection (1) of this section, a party to the
agreement must, within 14 days after the variation comes into force, lodge a
copy of the agreement, as varied, with a Registrar.

(3) If a party does not comply with subsection (2), the variation of the
agreement ceases to be in force for the purposes of this Act at the end of the
14 days mentioned in that subsection. 519 Stand down provisions

(1) If an employment agreement does not contain provision for the
standing-down of employees who cannot be usefully employed because of any
strike, breakdown of machinery or any stoppage of work for any cause for which
the employer cannot reasonably be held responsible, the agreement is taken to
include the provision mentioned in subsection (2).

(2) The provision is that:

   (a)  the employer may deduct payment for any part of a day during which an
        employee cannot usefully be employed because of any strike, breakdown
        of machinery or any stoppage of work for any cause for which the
        employer cannot reasonably be held responsible; and

   (b)  this does not break the continuity of employment of the employee for
        the purpose of any entitlements. 520 Dispute resolution provisions

(1) If an employment agreement does not contain provisions that set out
procedures to be followed to prevent or settle claims, disputes or grievances
that arise during the currency of the agreement, the agreement is taken to
include the provision mentioned in subsection (2).

(2) The provision is that any dispute or grievance that arises must be dealt
with in the following manner:

   (a)  the matter must first be discussed by the aggrieved employee with his
        or her immediate supervisor;

   (b)  if not settled, the employee may request a representative to be
        present and the matter must be discussed with the immediate supervisor
        and his or her superior or another representative of the employer
        appointed for the purpose of this procedure;

   (c)  if the matter is not resolved, it must be submitted to the Commission
        or an agreed mediator for the purposes of conciliation or mediation;

   (d)  the parties may agree to submit the dispute to arbitration and, if so
        agreed, the decision must be accepted by the parties subject to any
        appeal available;

   (e)  until the matter is determined, work must continue at the direction of
        the employer. No party is to be prejudiced as to the final settlement
        by the continuance of work in accordance with this procedure;

   (f)  the parties must co-operate to ensure that these procedures are
        carried out expeditiously.

(3) If an employment agreement does contain provisions of the kind mentioned
in subsection (1) and those provisions refer to conciliation or mediation by
the Employee Relations Commission of Victoria, the reference is taken for the
purposes of this Act to be a reference to conciliation by the Australian
Industrial Relations Commission. 521 Limit on damages for breach of employment
agreement
If:

   (a)  after the commencement of this Division, an employee does an act, or
        fails to do an act; and

   (b)  the act or failure constitutes a contravention or contraventions of an
        employment agreement; the amount of damages that may be recovered in
        any proceeding against the employee in respect of the contravention or
        contraventions must not exceed $5,000. 522 Employer to give copy of
        employment agreement
Every employer bound by an employment agreement must, on being requested to do
so by an employee also bound by the agreement, give a copy of the agreement to
the employee as soon as possible. 523 Registrar not to divulge information in
employment agreements
If a Registrar has a copy of an employment agreement, the Registrar must not
allow the information in the copy to become available to any person other
than:

   (a)  a party to the agreement; or

   (b)  a person with authority to enforce the provisions of the agreement on
        behalf of a party to the agreement. 524 Restriction on protected
        action and AWA industrial action: employees
Subject to section 529, if an employee who is bound by an employment agreement
organises or engages in industrial action (including within the meaning of
Division 8 of Part VID):

   (a)  in the case of a collective employment agreement-at any time when the
        agreement is in force; or

   (b)  in the case of an individual employment agreement-at any time during
        the period of 3 years after the commencement of this Division; then:

   (c)  the action is not protected action for the purposes of Division 8 of
        Part VIB; and

   (d)  the action is not AWA industrial action for the purposes of Division 8
        of Part VID. 525 Restriction on protected action and AWA industrial
        action: employers
Subject to section 529, if an employer who is bound by an employment agreement
locks out (including within the meaning of Division 8 of Part VID) an
employee:

   (a)  in the case of a collective employment agreement-at any time when the
        agreement is in force; or

   (b)  in the case of an individual employment agreement-at any time during
        the period of 3 years after the commencement of this Division; then:

   (c)  the lockout is not protected action for the purposes of Division 8 of
        Part VIB; and

   (d)  the lockout is not AWA industrial action for the purposes of Division
        8 of Part VID. 526 Restriction on protected action: organisations
Subject to section 529, if:

   (a)  either:

        (i)    an organisation of employees; or

        (ii)   an officer or employee of such an organisation acting in that
               capacity; organises or engages in industrial action; and

   (b)  the purpose of so doing is to support or advance claims in respect of
        the employment of any employee bound by an employment agreement:

        (i)    in the case of a collective employment agreement-at any time;
               or

        (ii)   in the case of an individual employment agreement-at any time
               during the period of 3 years after the commencement of this
               Division; then the action is not protected action for the
               purposes of Division 8 of Part VIB. 527 Application of Act as
               if employment agreement were a certified agreement

(1) Subject to this section, this Act (other than Part VIB and sections 143,
353A and 358A) applies in relation to an employment agreement in the same way
as it applies in relation to a certified agreement.

(2) Subsection (1) does not have the effect that any other Act applies in
relation to an employment agreement in the same way as it applies in relation
to a certified agreement. 528 Application of section 111AAA as if employment
agreement were a State employment agreement

(1) Subject to this section and to section 529, section 111AAA applies in
relation to an employment agreement in the same way as it applies in relation
to a State employment agreement.

(2) Subsection (1) does not apply to an employment agreement that was not
genuinely entered into. An example of such an agreement is one entered into as
a result of coercion. 529 Exclusion of certain agreements from sections 524,
525, 526 and 528
Sections 524, 525, 526 and 528 do not apply to an employment agreement:

   (a)  that is taken to exist by section 516; or

   (b)  that was taken to exist at any time before the commencement of this
        Division by subsection 11(3) of the Employee Relations Act 1992 of
        Victoria as then in force; or

   (c)  that was taken to exist by subsection 24(3) of the Employee Relations
        Act 1992 of Victoria at any time while that subsection was in force;
        or Note: Subsection 24(3) of the Employee Relations Act 1992 of
        Victoria was repealed by section 5 of the Employee Relations
        (Amendment) Act 1994 of Victoria.

   (d)  that was taken to exist at any time before the commencement of this
        Division by:

        (i)    clause 22 of Schedule 6 to the Public Sector Management Act
               1992 of Victoria; or

        (ii)   section 19 of the Vocational Education and Training (College
               Employment) Act 1993 of Victoria; as then in force. 530
               Relationship between employment agreements and awards
An award prevails to the extent of any inconsistency with an employment
agreement. 531 Relationship between employment agreements and enterprise
flexibility agreements
An enterprise flexibility agreement, as continued in effect by item 2 of
Schedule 9 to the Workplace Relations and Other Legislation 
Amendment Act 1996, prevails to the extent of any inconsistency with an
employment agreement. 532 Record keeping
Section 353A has effect as if "an employment agreement (within the meaning of
Part XV)," were inserted in that section before "an award" (wherever
occurring).
Subdivision F-Contravention of penalty provisions 533 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) may be made by:

   (a)  any employee concerned; or

   (b)  any employer concerned; or

   (c)  any other person prescribed. 534 Injunctions
An eligible court may grant an injunction requiring a person not to
contravene, or to cease contravening, a penalty provision.
Division 4-Recognised associations 535 Regulations relating to transitional
registration applications

(1) The regulations may modify the effect of Part IX and related provisions of
this Act in relation to any one or more of the following:

   (a)  the making of transitional registration applications by recognised
        associations;

   (b)  the grant of transitional registration applications made by recognised
        associations;

   (c)  the registering of recognised associations as a result of making
        transitional registration applications.

(2) If the matters referred to the Parliament of the Commonwealth by the
Commonwealth Powers (Industrial Relations) Act 1996 of Victoria cease to be so
referred:

   (a)  the modifications made by the regulations cease to have effect; but

   (b)  the validity of any registration of a recognised association under
        Part IX of this Act that took place in accordance with the
        modifications is not affected by the modifications ceasing to have
        effect as mentioned in paragraph (a). 536 Regulations relating to
        certain recognised associations that have become registered
The regulations may modify the effect of:

   (a)  Part IX and related provisions of this Act; or

   (b)  provisions of this Act that refer or otherwise relate to the
        entitlement of organisations to represent the industrial interests of
        members; in relation to either or both of the following:

   (c)  recognised associations that are registered under Part IX as a result
        of making transitional registration applications;

   (d)  organisations of which recognised associations are part. 5 Before
        Schedule 1 Insert:
Schedule 1A-Minimum terms and conditions of employment Note 1: See section
500. Note 2: This Schedule is based on Schedule 1 to the Employee Relations
Act 1992 of Victoria. Note 3: The terms and conditions set out in this
Schedule in respect of parental leave and termination of employment supplement
those applicable under Part VIA-see subsection 500(2).
Part 1-General 1 Minimum terms and conditions of employment

(1) The minimum terms and conditions of employment are:

   (a)  paid annual leave for each year worked of the number of ordinary hours
        required to be worked in any 4 week period during that year. This
        leave accrues on a pro-rata basis and is cumulative;

   (b)  paid sick leave for each year worked of the number of ordinary hours
        required to be worked in any 1 week period during that year. This
        leave accrues on a pro-rata basis and is cumulative;

   (c)  the greater of:

        (i)    any minimum wage for the work classification of the employee
               applicable under section 501; and

        (ii)   the rate of pay that applied to the employee under paragraph
               1(c) of Schedule 1 to the Employee Relations Act 1992 of
               Victoria at the test time (see subclause (2)) or, if the
               employee was not employed in Victoria at that time, that would
               have so applied if the employee had commenced to be employed in
               Victoria at that time;

   (d)  subject to and in accordance with this Schedule, maternity, paternity
        or adoption leave and an entitlement to work part-time in connection
        with the birth or adoption of a child;

   (e)  subject to and in accordance with this Schedule, an entitlement to be
        given notice of termination or compensation instead of notice.

(2) In paragraph (1)(c): test time means:

   (a)  if paragraph 1(c) of Schedule 1 to the Employee Relations Act 1992 of
        Victoria was in force at the commencement of this Schedule-the time at
        which this Schedule commenced; or

   (b)  if that paragraph was not so in force-immediately before that
        paragraph ceased to be in force.
Part 2-Maternity leave 2 Nature of leave
Maternity leave is unpaid leave. 3 Definitions
In this Part:
child means a child of the employee under the age of one year.
confinement, in relation to a female employee, means confinement caused by the
birth of a child or other termination of a pregnancy.
continuous service means service under an unbroken contract of employment and
includes:

   (a)  any period of leave taken in accordance with this Part; and

   (b)  any period of leave or absence authorised by the employer or by an
        employment agreement; and

   (c)  any period of part-time employment in accordance with Part 5
        (including part-time employment as a replacement employee).
employee includes a part-time employee but does not include an employee
engaged in casual or seasonal work.
expected date of confinement, in relation to a female employee, means a date
certified by a registered medical practitioner to be the date on which the
registered medical practitioner expects the employee to be confined in respect
of her pregnancy.
paternity leave means leave of the type provided for by Part 3, whether
prescribed by an employment agreement or otherwise.
spouse includes a de facto spouse and a former spouse. 4 Eligibility for
maternity leave

(1) An employee who becomes pregnant is, on production to her employer of the
certificate required by clause 5, entitled to a period of up to 52 weeks of
maternity leave.

(2) However, any such maternity leave may not extend beyond the child's first
birthday.

(3) The entitlement to maternity leave under this clause is to be reduced by
any period of paternity leave taken by the employee's spouse in relation to
the same child. Apart from paternity leave of up to one week at the time of
confinement, maternity leave is not to be taken concurrently with paternity
leave.

(4) Subject to clauses 7 and 10, the period of maternity leave is to be
unbroken and must, immediately following confinement, include a period of 6
weeks of compulsory leave.

(5) An employee must have had at least 12 months of continuous service with
her employer immediately preceding the date on which she commences maternity
leave. 5 Certification
When applying for maternity leave, an employee must, at the times specified in
clause 6, produce to her employer:

   (a)  a certificate from a registered medical practitioner stating that she
        is pregnant and the expected date of confinement;

   (b)  a statutory declaration:

        (i)    stating particulars of any period of paternity leave sought or
               taken by her spouse; and

        (ii)   stating her agreement that for the period of her maternity
               leave she will not engage in any conduct inconsistent with her
               contract of employment. 6 Notice requirements

(1) An employee must, not less than 10 weeks before the expected date of
confinement, produce to her employer the certificate referred to in paragraph
5(a).

(2) An employee must, not less than 4 weeks before she proposes to commence
maternity leave, produce to her employer the statutory declaration referred to
in paragraph 5(b).

(3) An employer, by not less than 14 days' notice in writing to the employee,
may require her to commence maternity leave at any time within the 6 weeks
immediately before her expected date of confinement.

(4) An employee is not in breach of this clause as a consequence of failure to
give the stipulated period of notice in accordance with subclause (2) if the
failure is caused by the confinement occurring earlier than the expected date.
7 Transfer to a safe job

(1) If, in the opinion of a registered medical practitioner, illness or risks
arising out of the pregnancy or hazards connected with the work assigned to
the employee make it inadvisable for the employee to continue at her present
work, the employer must, if the employer deems it practicable, transfer the
employee to a safe job at the rate and on the conditions attaching to her
present work until the commencement of maternity leave. Note: This is a
penalty provision: see section 533 and the definition of penalty provision in
section 489.

(2) If the transfer to a safe job is not practicable, the employee may, or the
employer may require the employee to, take leave on full pay for such period
as is certified necessary by a registered medical practitioner. Such leave is
not to be treated as maternity leave for the purposes of this Part. 8
Variation of period of maternity leave

(1) So long as the maximum period of maternity leave does not exceed the
period to which the employee is entitled under clause 4:

   (a)  the period of maternity leave may be lengthened once only by the
        employee giving to her employer not less than 14 days' notice in
        writing stating the period by which the leave is to be lengthened; and

   (b)  the period may be further lengthened by agreement between the employer
        and the employee.

(2) The period of maternity leave may, with the consent of her employer, be
shortened by the employee giving to her employer not less than 14 days' notice
in writing stating the period by which the leave is to be shortened. 9
Cancellation of maternity leave

(1) Maternity leave, applied for but not commenced, is cancelled should the
pregnancy of an employee terminate otherwise than by the birth of a living
child.

(2) If the pregnancy of an employee then on maternity leave terminates
otherwise than by the birth of a living child, it is the right of the employee
to resume work at a time nominated by the employer which must be no later than
4 weeks after the date of notice in writing by the employee to the employer
that she desires to resume work. 10 Special maternity leave and sick leave

(1) If the pregnancy of an employee not then on maternity leave terminates
within 28 weeks before her expected date of confinement otherwise than by the
birth of a living child, then:

   (a)  she is entitled to such period of unpaid leave (special maternity
        leave) as a registered medical practitioner certifies to be necessary
        before her return to work; or

   (b)  for illness other than the normal consequences of confinement she is
        entitled, either instead of or in addition to special maternity leave,
        to such paid sick leave as she is then entitled to and as a registered
        medical practitioner certifies to be necessary before her return to
        work.

(2) If an employee not then on maternity leave suffers illness related to her
pregnancy, she may take such paid sick leave as she is then entitled to and
such further unpaid leave (special maternity leave) as a registered medical
practitioner certifies to be necessary before her return to work.

(3) For the purposes of this Part, maternity leave includes special maternity
leave.

(4) An employee returning to work after the completion of a period of leave
taken under this clause is entitled to the position which she held immediately
before commencing that leave or, in the case of an employee who was
transferred to a safe job under clause 7, to the position which she held
immediately before that transfer.

(5) If that position no longer exists but there are other positions available
which the employee is qualified for and is capable of performing, the employer
must make available to the employee a position as nearly as possible
comparable in status and pay to that of her former position. Note: This is a
penalty provision: see section 533 and the definition of penalty provision in
section 489. 11 Maternity leave and other leave entitlements

(1) So long as the aggregate of any leave, including leave taken under this
Part, does not exceed the period to which the employee is entitled under
clause 4, an employee may, instead of or in conjunction with maternity leave,
take any annual leave or long service leave or any part of it to which she is
entitled.

(2) Paid sick leave or other paid absences authorised by an employment
agreement (excluding annual leave or long service leave) are not available to
an employee during her absence on maternity leave. 12 Effect of maternity
leave on employment
Subject to this Part, despite any employment agreement or other provision to
the contrary, absence on maternity leave does not break the continuity of
service of an employee but is not to be taken into account in calculating the
period of service for any purpose of any relevant employment agreement. 13
Termination of employment

(1) An employee on maternity leave may terminate her employment at any time
during the period of leave by notice given in accordance with any relevant
employment agreement.

(2) An employer must not terminate the employment of an employee on the ground
of her pregnancy or of her absence on maternity leave, but otherwise the
rights of an employer in relation to termination of employment are not
affected by this Part. Note: This is a penalty provision: see section 533 and
the definition of penalty provision in section 489. 14 Return to work after
maternity leave

(1) An employee must confirm her intention of returning to work by notice in
writing to the employer given not less than 4 weeks before the end of her
period of maternity leave.

(2) An employee, on returning to work after maternity leave or the expiration
of the notice required by subclause (1), is entitled:

   (a)  to the position which she held immediately before commencing maternity
        leave; or

   (b)  in the case of an employee who was transferred to a safe job under
        clause 7, to the position which she held immediately before that
        transfer; or

   (c)  in the case of an employee who has worked part-time during the
        pregnancy, to the position which she held immediately before
        commencing the part-time employment.

(3) If the position no longer exists but there are other positions available
which the employee is qualified for and is capable of performing, the employer
must make available to the employee a position as nearly as possible
comparable in status and pay to that of her former position. Note: This is a
penalty provision: see section 533 and the definition of penalty provision in
section 489. 15 Replacement employees

(1) A replacement employee is an employee specifically engaged as a result of
an employee proceeding on maternity leave.

(2) Before an employer engages a replacement employee, the employer must
inform that person of the temporary nature of the employment and of the rights
of the employee who is being replaced. Note: This is a penalty provision: see
section 533 and the definition of penalty provision in section 489.

(3) Before an employer engages a person to replace an employee temporarily
promoted or transferred in order to replace an employee exercising her rights
under this Part, the employer must inform that person of the temporary nature
of the promotion or transfer and of the rights of the employee who is being
replaced. Note: This is a penalty provision: see section 533 and the
definition of penalty provision in section 489.

(4) Nothing in this Part is to be construed as requiring an employer to engage
a replacement employee.
Part 3-Paternity leave 16 Nature of leave
Paternity leave is unpaid leave. 17 Definitions
In this Part:
child means a child of the employee or the employee's spouse under the age of
one year.
confinement, in relation to an employee's spouse, means the spouse's
confinement caused by the birth of a child or other termination of a
pregnancy.
continuous service means service under an unbroken contract of employment and
includes:

   (a)  any period of leave taken in accordance with this Part; and

   (b)  any period of leave or absence authorised by the employer or by an
        employment agreement; and

   (c)  any period of part-time employment in accordance with Part 5
        (including part-time employment as a replacement employee).
employee includes a part-time employee, but does not include an employee
engaged in casual or seasonal work.
expected date of confinement, in relation to an employee's spouse, means a
date certified by a registered medical practitioner to be the date on which
the registered medical practitioner expects the spouse to be confined in
respect of her pregnancy.
maternity leave means leave of the type provided for by Part 2 (and includes
special maternity leave), whether prescribed by an employment agreement or
otherwise.
primary care-giver means a person who assumes the principal role of providing
care and attention to a child.
spouse includes a de facto spouse and a former spouse. 18 Eligibility for
paternity leave

(1) A male employee is, on production to his employer of the certificate
required by paragraph 19(a), entitled to one or two periods of paternity
leave, the total of which must not exceed 52 weeks, in the following
circumstances:

   (a)  an unbroken period of up to one week at the time of confinement of his
        spouse (short paternity leave);

   (b)  a further unbroken period of up to 51 weeks in order to be the primary
        care-giver of a child if the leave does not extend beyond the child's
        first birthday (extended paternity leave). This entitlement is to be
        reduced by any period of maternity leave taken by the employee's
        spouse in relation to the same child and is not to be taken
        concurrently with that maternity leave.

(2) An employee must have had at least 12 months of continuous service with
his employer immediately preceding the date on which he commences either
period of leave. 19 Certification
When applying for paternity leave, an employee must, at the times specified in
clause 20, produce to his employer:

   (a)  a certificate from a registered medical practitioner which names his
        spouse, states that she is pregnant and the expected date of
        confinement or states the date on which the birth took place;

   (b)  in relation to any period of extended paternity leave to be taken, a
        statutory declaration:

        (i)    stating that he is seeking that period of paternity leave to
               become the primary care-giver of a child; and

        (ii)   stating particulars of any period of maternity leave sought or
               taken by his spouse; and

        (iii)  stating his agreement that for the period of his paternity
               leave he will not engage in any conduct inconsistent with his
               contract of employment. 20 Notice requirements

(1) An employee must, not less than 10 weeks before each proposed period of
leave, give his employer notice in writing stating the dates on which he
proposes to start and finish the period or periods of leave and produce the
certificate and statutory declaration required by clause 19.

(2) An employee is not in breach of this clause as a consequence of failure to
give the stipulated period of notice in accordance with subclause (1) if the
failure is caused by:

   (a)  the birth occurring earlier than the expected date; or

   (b)  the death of the mother of the child; or

   (c)  other compelling circumstances.

(3) The employee must immediately notify his employer of any change in the
information provided under clause 19. 21 Variation of period of paternity
leave

(1) So long as the maximum period of paternity leave does not exceed the
period to which the employee is entitled under clause 18:

   (a)  the period of extended paternity leave may be lengthened once only by
        the employee giving not less than 14 days' notice in writing stating
        the period by which the leave is to be lengthened; and

   (b)  the period may be further lengthened by agreement between the employer
        and the employee.

(2) The period of extended paternity leave may, with the consent of the
employer, be shortened by the employee giving not less than 14 days' notice in
writing stating the period by which the leave is to be shortened. 22
Cancellation of paternity leave
Extended paternity leave, applied for but not commenced, is cancelled when the
pregnancy of the employee's spouse terminates otherwise than by the birth of a
living child. 23 Paternity leave and other leave entitlements

(1) So long as the aggregate of any leave, including leave taken under this
Part, does not exceed the period to which the employee is entitled under
clause 18, an employee may, instead of or in conjunction with paternity leave,
take any annual leave or long service leave or any part of it to which he is
entitled.

(2) Paid sick leave or other paid absence authorised by an employment
agreement (excluding annual leave or long service leave) is not available to
an employee during his absence on paternity leave. 24 Effect of paternity
leave on employment
Subject to this Part, despite any employment agreement or other provision to
the contrary, absence on paternity leave does not break the continuity of
service of an employee but is not to be taken into account in calculating the
period of service for any purpose of any relevant employment agreement. 25
Termination of employment

(1) An employee on paternity leave may terminate his employment at any time
during the period of leave by notice given in accordance with any relevant
employment agreement.

(2) An employer must not terminate the employment of an employee on the ground
of his absence on paternity leave, but otherwise the rights of an employer in
relation to termination of employment are not affected by this Part. Note:
This is a penalty provision: see section 533 and the definition of penalty
provision in section 489. 26 Return to work after paternity leave

(1) An employee must confirm his intention of returning to work by notice in
writing to the employer given not less than 4 weeks before the end of the
period of extended paternity leave.

(2) An employee, on returning to work after paternity leave or the expiration
of the notice required by subclause (1) is entitled:

   (a)  to the position which he held immediately before commencing paternity
        leave; or

   (b)  in the case of an employee who has worked part-time in connection with
        the birth of the child, to the position which he held immediately
        before commencing the part-time employment.

(3) If the position no longer exists but there are other positions available
which the employee is qualified for and is capable of performing, the employer
must make available to the employee a position as nearly as possible
comparable in status and pay to that of his former position. Note: This is a
penalty provision: see section 533 and the definition of penalty provision in
section 489. 27 Replacement employees

(1) A replacement employee is an employee specifically engaged as a result of
an employee proceeding on paternity leave.

(2) Before an employer engages a replacement employee, the employer must
inform that person of the temporary nature of the employment and of the rights
of the employee who is being replaced. Note: This is a penalty provision: see
section 533 and the definition of penalty provision in section 489.

(3) Before an employer engages a person to replace an employee temporarily
promoted or transferred in order to replace an employee exercising his rights
under this Part, the employer must inform that person of the temporary nature
of the promotion or transfer and of the rights of the employee who is being
replaced. Note: This is a penalty provision: see section 533 and the
definition of penalty provision in section 489.

(4) Nothing in this Part is to be construed as requiring an employer to engage
a replacement employee.
Part 4-Adoption leave 28 Nature of leave
Adoption leave is unpaid leave. 29 Definitions
In this Part:
child, in relation to an employee, means a person under the age of 5 years who
is placed with the employee for the purposes of adoption and who has not
previously lived continuously with the employee for a period of 6 months or
more or is not a child or step-child of the employee or of the spouse of the
employee.
continuous service means service under an unbroken contract of employment and
includes:

   (a)  any period of leave taken in accordance with this Part; and

   (b)  any period of leave or absence authorised by the employer or by any
        relevant employment agreement; and

   (c)  any period of part-time employment in accordance with Part 5
        (including part-time employment as a replacement employee).
employee includes a part-time employee, but does not include an employee
engaged in casual or seasonal work.
primary care-giver means a person who assumes the principal role of providing
care and attention to a child.
relative adoption occurs where a child is adopted by a parent, a spouse of a
parent or another relative, being a grandparent, brother, sister, aunt or
uncle (whether of the whole blood or half blood or by marriage).
spouse includes a de facto spouse and a former spouse. 30 Eligibility for
adoption leave

(1) An employee is, on production to the employer of the documentation
required by clause 31, entitled to one or two periods of adoption leave, the
total of which must not exceed 52 weeks, in the following circumstances:

   (a)  an unbroken period of up to 3 weeks at a time of the placement of the
        child (short adoption leave);

   (b)  an unbroken period of up to 52 weeks from the time of the placement of
        the child in order to be the primary care-giver of the child (extended
        adoption leave). This entitlement is to be reduced by:

        (i)    any period of short adoption leave taken; and

        (ii)   the aggregate of any periods of adoption leave taken or to be
               taken by the employee's spouse in relation to the same child;
               but extended adoption leave is not to extend beyond one year
               after the placement of the child and is not to be taken
               concurrently with adoption leave taken by the employee's spouse
               in relation to the same child.

(2) The employee must have had at least 12 months of continuous service with
his or her employer immediately preceding the date on which he or she
commences either period of leave. 31 Certification

(1) Before taking adoption leave, the employee must produce to the employer:

   (a)  a statement from an adoption agency or another appropriate body of the
        expected date of placement of the child with the employee for adoption
        purposes; or

   (b)  a statement from the appropriate government authority confirming that
        the employee is to have custody of the child pending application for
        an adoption order.

(2) In relation to any period of extended adoption leave to be taken, the
employee must also produce a statutory declaration:

   (a)  stating that the employee is seeking that period of adoption leave to
        become the primary care-giver of the child; and

   (b)  stating particulars of any period of adoption leave sought or taken by
        the employee's spouse; and

   (c)  stating the employee's agreement that for the period of his or her
        adoption leave he or she will not engage in any conduct inconsistent
        with his or her contract of employment. 32 Notice requirements

(1) On receiving notice of approval for adoption purposes, an employee must
notify his or her employer of the approval and, within 2 months after
receiving notice of the approval, must further notify the employer of the
period or periods of adoption leave which the employee proposes to take. In
the case of a relative adoption, the employee must so notify the employer on
deciding to take a child into custody pending an application for an adoption
order.

(2) An employee who commences employment with an employer after the date of
approval for adoption purposes must notify the employer of that date on
commencing employment and of the period of adoption leave which the employee
proposes to take. Such an employee is not entitled to adoption leave unless he
or she has not less than 12 months of continuous service with that employer
immediately preceding the date on which he or she commences the leave.

(3) An employee must, as soon as he or she is aware of the expected date of
placement of a child for adoption purposes but no later than 14 days before
the expected date of placement, give notice in writing to his or her employer
of that date, and of the date of commencement of any period of short adoption
leave to be taken.

(4) An employee must, at least 10 weeks before the proposed date of commencing
any period of extended adoption leave to be taken, give notice in writing to
the employer of the date of commencing leave and the period of leave to be
taken.

(5) An employee is not in breach of this clause as a consequence of failure to
give the stipulated period of notice in accordance with subclause (3) or (4)
if the failure is caused by:

   (a)  the requirement of an adoption agency for the employee to accept
        earlier or later placement of a child; or

   (b)  the death of his or her spouse; or

   (c)  other compelling circumstances. 33 Variation of period of adoption
        leave

(1) So long as the maximum period of adoption leave does not exceed the period
to which the employee is entitled under clause 30:

   (a)  the period of extended adoption leave may be lengthened once only by
        the employee giving not less than 14 days' notice in writing stating
        the period by which the leave is to be lengthened; and

   (b)  the period may be further lengthened by agreement between the employer
        and the employee.

(2) The period of extended adoption leave may, with the consent of the
employer, be shortened by the employee giving not less than 14 days' notice in
writing stating the period by which the leave is to be shortened. 34
Cancellation of adoption leave

(1) Adoption leave, applied for but not commenced, is cancelled should the
placement of the child not proceed.

(2) If the placement of a child for adoption purposes with an employee then on
adoption leave does not proceed or continue, the employee must notify the
employer forthwith and the employer must nominate a time not exceeding 4 weeks
from receipt of the notification for the resumption of work by the employee.
35 Special leave

(1) The employer must grant to any employee who is seeking to adopt a child
any unpaid leave not exceeding 2 days that is required by the employee to
attend any compulsory interviews or examinations that are necessary as part of
the adoption procedure.

(2) If paid leave is available to the employee, the employer may require the
employee to take such leave instead of special leave. 36 Adoption leave and
other entitlements

(1) So long as the aggregate of any leave, including leave taken under this
Part, does not exceed the period to which the employee is entitled under
clause 30, an employee may, instead of or in conjunction with adoption leave,
take any annual leave or long service leave or any part of it to which he or
she is entitled.

(2) Paid sick leave or other paid absence authorised by an employment
agreement (excluding annual leave or long service leave) is not available to
an employee during the employee's absence on adoption leave. 37 Effect of
adoption leave on employment
Subject to this Part, despite any employment agreement or other provision to
the contrary, absence on adoption leave does not break the continuity of
service of an employee but is not to be taken into account in calculating the
period of service for any purpose of any relevant employment agreement. 38
Termination of employment

(1) An employee on adoption leave may terminate the employment at any time
during the period of leave by notice given in accordance with any relevant
employment agreement.

(2) An employer must not terminate the employment of an employee on the ground
of the employee's application to adopt a child or absence on adoption leave,
but otherwise the rights of an employer in relation to termination of
employment are not affected by this Part. Note: This is a penalty provision:
see section 533 and the definition of penalty provision in section 489. 39
Return to work after adoption leave

(1) An employee must confirm his or her intention of returning to work by
notice in writing to the employer given not less than 4 weeks before the end
of the period of extended adoption leave.

(2) An employee, on returning to work after adoption leave, is entitled:

   (a)  to the position which he or she held immediately before commencing
        adoption leave; or

   (b)  in the case of an employee who has worked part-time in connection with
        the adoption of the child, to the position which he or she held
        immediately before commencing the part-time employment.

(3) If the position no longer exists but there are other positions available
which the employee is qualified for and is capable of performing, the employer
must make available to the employee a position as nearly as possible
comparable in status and pay to that of the employee's former position. Note:
This is a penalty provision: see section 533 and the definition of penalty
provision in section 489. 40 Replacement employees

(1) A replacement employee is an employee specifically engaged as a result of
an employee proceeding on adoption leave.

(2) Before an employer engages a replacement employee, the employer must
inform that person of the temporary nature of the employment and of the rights
of the employee who is being replaced. Note: This is a penalty provision: see
section 533 and the definition of penalty provision in section 489.

(3) Before an employer engages a person to replace an employee temporarily
promoted or transferred in order to replace an employee exercising his or her
rights under this Part, the employer must inform that person of the temporary
nature of the promotion or transfer and of the rights of the employee who is
being replaced. Note: This is a penalty provision: see section 533 and the
definition of penalty provision in section 489.

(4) Nothing in this Part is to be construed as requiring an employer to engage
a replacement employee.
Part 5-Part-time employment 41 Definitions
In this Part:
continuous service means service under an unbroken contract of employment and
includes:

   (a)  any period of part-time employment in accordance with this Part
        (including part-time employment as a replacement employee); and

   (b)  any period of leave or absence authorised by the employer or by any
        relevant employment agreement.
female employee means an employed female who is pregnant or is caring for a
child whom she has borne or a child who has been placed with her for adoption
purposes.
former position means the position held by an employee immediately before
commencing part-time employment under this Part or, if such position no longer
exists but there are other positions available for which the employee is
qualified and the duties of which he or she is capable of performing, a
position as nearly as possible comparable in status and pay to that of the
position held by the employee immediately before commencing part-time
employment.
male employee means an employed male who is caring for a child born of his
spouse or a child placed with the employee for adoption purposes.
part-time employment means work of a lesser number of hours than constitutes
full-time work under the relevant employment agreement, but does not include
casual or temporary work.
spouse includes a de facto spouse and a former spouse. 42 Entitlement
With the agreement of the employer:

   (a)  a female employee may work part-time in one or more periods while she
        is pregnant if part-time employment is, because of the pregnancy,
        necessary or desirable;

   (b)  a female employee may work part-time in one or more periods at any
        time from the seventh week after the date of birth of the child until
        the child's second birthday or, in relation to adoption, from the date
        of placement of the child until the second anniversary of the
        placement;

   (c)  a male employee may work part-time in one or more periods at any time
        from the date of birth of the child until the child's second birthday
        or, in relation to adoption, from the date of placement of the child
        until the second anniversary of the placement. 43 Return to former
        position

(1) An employee who has had at least 12 months continuous service with an
employer immediately before commencing part-time employment after the birth or
placement of a child has, at the end of the period of part-time employment or
the first period, if there is more than one, the right to return to his or her
former position.

(2) Nothing in subclause (1) prevents the employer from permitting the
employee to return to his or her former position after a second or subsequent
period of part-time employment. 44 Effect of part-time employment on
continuous service
Despite any employment agreement or other provision to the contrary,
commencement on part-time employment under this Part, and return from
part-time employment to full-time employment under this Part, does not break
the continuity of service of an employee. 45 Pro rata entitlements
Subject to this Part and the matters agreed in the part-time employment
agreement under clause 48, part-time employment is to be, pro rata, in
accordance with the provisions of any employment agreement applicable to the
work concerned. 46 Transitional arrangements-annual leave

(1) An employee working part-time under this Part is to be paid for and take
any annual leave accrued in respect of a period of full-time employment, in
such periods and manner as is specified in the annual leave provisions of the
employment agreement applicable of the work concerned, as if the employee were
working full-time in the class or work the employee was performing as a
full-time employee immediately before commencing part-time employment under
this Part.

(2) A full-time employee is to be paid for and take any annual leave accrued
in respect of a period of part-time employment under this Part, in such
periods and manner as is specified in the annual leave provisions of the
employment agreement applicable to the work concerned, as if the employee were
working part-time in the class of work the employee was performing as a
part-time employee immediately before resuming full-time work.

(3) By agreement between the employer and the employee, the period over which
leave is taken under subclause (2) may be shortened to the extent necessary
for the employee to receive pay at the employee's current full-time rate. 47
Transitional arrangements-sick leave

(1) An employee working part-time under this Part is to have sick leave
entitlements which have accrued under the employment agreement applicable to
the work concerned (including any entitlement accrued in respect of previous
full-time employment) converted into hours.

(2) When this entitlement is used, whether as a part-time employee or as a
full-time employee, it is to be debited for the ordinary hours that the
employee would have worked during the period of absence. 48 Part-time
employment agreement

(1) Before commencing a period of part-time employment under this Part the
employee and the employer must agree:

   (a)  that the employee may work part-time; and

   (b)  on the hours to be worked by the employee, the days on which they will
        be worked and commencing times for the work; and

   (c)  on the classification applying to the work to be performed; and

   (d)  on the period of part-time employment.

(2) The terms of this agreement may be varied by consent.

(3) The terms of this agreement or any variation to it must be put in writing
and retained by the employer. A copy of the agreement and any variation to it
must be provided to the employee by the employer. 49 Termination of employment

(1) The employment of a part-time employee under this Part may be terminated
in accordance with the provisions of this Part but must not be terminated by
the employer because the employee has exercised or proposes to exercise any
rights arising under this Part or has enjoyed or proposes to enjoy any
benefits arising under this Part.

(2) Any termination entitlements payable to an employee whose employment is
terminated while working part-time under this Part, or while working full-time
after transferring from part-time employment under this Part, are to be
calculated by reference to the full-time rate of pay at the time of
termination and by regarding all service as a full-time employee as qualifying
for a termination entitlement based on the period of a full-time employment
and all service as a part-time employee as qualifying on a pro rata basis. 50
Extension of hours of work
An employer may request, but not require, an employee working part- time under
this Part to work overtime. 51 Nature of part-time employment
The work to be performed part-time need not be the work performed by the
employee in his or her former position but must be work otherwise performed
under any relevant employment agreement. 52 Inconsistent employment agreement
provisions
An employee may work part-time under this Part despite any other provision of
any relevant employment agreement which limits or restricts the circumstances
in which part-time employment may be worked or the terms on which it may be
worked including any provision:

   (a)  limiting the number of employees who may work part-time; or

   (b)  establishing quotas as to the ratio of part-time to full-time
        employees; or

   (c)  prescribing a minimum or maximum number of hours a part-time employee
        may work; or

   (d)  requiring consultation with, the consent of or monitoring by, an
        association of employees; and such provisions do not apply to
        part-time employment under this Part. 53 Replacement employees

(1) A replacement employee is an employee specifically engaged as a result of
an employee working part-time under this Part.

(2) A replacement employee may be employed part-time. Subject to this clause,
clauses 45 to 49 and 52 apply to the part-time employment of a replacement
employee.

(3) Before an employer engages a replacement employee under this Part, the
employer must inform the person of the temporary nature of the employment and
of the rights of the employee who is being replaced. Note: This is a penalty
provision: see section 533 and the definition of penalty provision in section
489.

(4) Nothing in this Part is to be construed as requiring an employer to engage
a replacement employee.
Part 6-Requirements for lawful termination of employment 54 Employee to be
given notice of termination

(1) An employer must not terminate an employee's employment unless:

   (a)  the employee has been given either the period of notice required by
        this clause, or compensation instead of notice; or

   (b)  the employee is guilty of serious misconduct, that is, misconduct of a
        kind such that it would be unreasonable to require the employer to
        continue the employment during the notice period.

(2) The required period of notice is first worked out using this table:
Employee's period of continuous service with the employer
Period of notice
    Not more than 1 year                           At least 1 week

    More than 1 year but not more than 3 years     At least 2 weeks

    More than 3 years but not more than 5 years    At least 3 weeks

    More than 5 years                              At least 4 weeks


(3) The period of notice is increased by one week if the employee is over 45
years old and has completed at least 2 years continuous service with the
employer.

(4) The regulations may prescribe events or other matters that must be
disregarded, or must in prescribed circumstances be disregarded, in
ascertaining a period of continuous service for the purposes of subclauses (2)
and (3).

(5) The amount of compensation instead of notice must equal or exceed the
total of all amounts that, if the employee's employment had continued until
the end of the required period of notice, the employer would have become
liable to pay to the employee because of the employment continuing during that
period.

(6) The total must be worked out on the basis of:

   (a)  the employee's ordinary hours of work (even if they are not standard
        hours); and

   (b)  the amounts payable to the employee in respect of those hours,
        including (for example) allowances, loadings and penalties; and

   (c)  any other amounts payable under the employee's employment agreement or
        other contract of employment.

(7) The following employees are excluded from the operation of this clause:

   (a)  an employee of a kind referred to in subparagraph 39(1)(a)(ii), (iii),
        (iv) or (v) of the Employee Relations Act 1992 of Victoria:

        (i)    if that subparagraph was in force at the commencement of this
               Schedule-at the commencement of this Schedule; or

        (ii)   if that subparagraph was not so in force-immediately before
               that subparagraph ceased to be in force;

   (b)  an employee of a kind specified in an Order, made for the purposes of
        paragraph 54(7)(b) of Schedule 1 to that Act by the Governor of
        Victoria in Council and published in the Government Gazette of
        Victoria, where the Order was in force:

        (i)    if that paragraph was in force at the commencement of this
               Schedule-at the commencement of this Schedule; or

        (ii)   if that paragraph was not so in force-immediately before that
               paragraph ceased to be in force. 55 Employer to be given notice
               of termination

(1) An employee must not terminate his or her employment unless the employer
has been given the period of notice required by this clause.

(2) The required period of notice is:

   (a)  the period of notice required by the relevant employment agreement or
        other contract of employment; or

   (b)  if no period of notice is applicable under paragraph (a), a period of
        notice equal to the employee's usual pay period.