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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Industrial Relations Amendment
(Consequential Provisions) Bill 2010
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The object of this Bill is to make miscellaneous amendments to the Industrial
Relations Act 1996 (the principal Act) as a consequence of the enactment of the
Industrial Relations (Commonwealth Powers) Act 2009 which referred certain
matters relating to workplace relations to the Commonwealth Parliament.
In particular, the Bill:
(a) amends the principal Act to update existing references to Commonwealth
workplace relations legislation, including the Fair Work Act 2009 of the
Commonwealth (the Commonwealth Fair Work Act), and
(b) facilitates the transition, to the State industrial relations system, of federal
industrial instruments relating to specified State or local government
employers declared not to be national system employers.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on the date of assent
to the proposed Act.
b2010-021-04.d10
Industrial Relations Amendment (Consequential Provisions) Bill 2010
Explanatory note
Schedule 1 Amendment of Industrial Relations Act
1996 No 17
Schedule 1 [1] provides that federal industrial instruments relating to specified State
or local government employers that are declared by the Minister not to be national
system employers under the Commonwealth Fair Work Act will be established as
either State awards or enterprise agreements under the principal Act. The Industrial
Relations Commission of NSW will have power to vary such awards or agreements
or provide exemptions where necessary.
Schedule 1 [4] makes an amendment consequential on the enactment of the
Commonwealth Fair Work Act to provide that decisions of the Minimum Wage
Panel and a Full Bench of Fair Work Australia (instead of the now defunct Australian
Industrial Relations Commission) will be decisions that the Industrial Relations
Commission of NSW must adopt and apply to State awards, unless the Commission
is satisfied that the decision is not consistent with the objects of the principal Act or
that there are other good reasons for not doing so.
Schedule 1 [10] makes it clear that the Industrial Relations Commission of NSW
may exercise certain dispute resolution functions in respect of federal enterprise
agreements known as preserved State agreements, which were continued under the
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the
Commonwealth.
Schedule 1 [2], [3], [5][9] and [11][15] make amendments by way of statute law
revision to update references to Commonwealth workplace relations legislation, as
referred to in the Overview above.
Schedule 2 Amendment of Long Service Leave Act
1955 No 38
Schedule 2 makes a statute law revision amendment to the Long Service Leave
Act 1955 to update a reference to a definition of an award.
Explanatory note page 2
First print
New South Wales
Industrial Relations Amendment
(Consequential Provisions) Bill 2010
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Industrial Relations Act 1996 No 17 3
Schedule 2 Amendment of Long Service Leave Act 1955 No 38 7
b2010-021-04.d10
New South Wales
Industrial Relations Amendment
(Consequential Provisions) Bill 2010
No , 2010
A Bill for
An Act to amend the Industrial Relations Act 1996 as a consequence of the
enactment of the Industrial Relations (Commonwealth Powers) Act 2009; and for
other purposes.
Clause 1 Industrial Relations Amendment (Consequential Provisions) Bill 2010
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Industrial Relations Amendment (Consequential 3
Provisions) Act 2010. 4
2 Commencement 5
This Act commences on the date of assent to this Act. 6
Page 2
Industrial Relations Amendment (Consequential Provisions) Bill 2010
Amendment of Industrial Relations Act 1996 No 17 Schedule 1
Schedule 1 Amendment of Industrial Relations Act 1
1996 No 17 2
[1] Section 9A Employers declared not to be national system employers 3
Insert after section 9A (2): 4
(3) If an eligible employer is declared not to be a national system 5
employer, an industrial instrument (the transitional State 6
instrument) is, on the declaration, taken to be established under 7
this Act with the same terms and provisions of any federal 8
industrial instrument that applied to the employees of that 9
employer immediately before the declaration, subject to this 10
section and to any modifications as are necessary or as may be 11
prescribed by the regulations. 12
(4) Subject to subsection (5), the transitional State instrument is, 13
depending on the nature of the corresponding federal industrial 14
instrument, taken to be either an award or an enterprise 15
agreement under this Act. 16
(5) The Commission may, on the application of the Minister or any 17
party to the transitional State instrument: 18
(a) make a determination as to whether the instrument is to be 19
taken to be an award or an enterprise agreement under this 20
Act, and 21
(b) vary or revoke any term or provision of the instrument if 22
the Commission is satisfied that it is fair and reasonable to 23
do so in the circumstances, and 24
(c) exempt a party to the instrument from any provision of this 25
Act if the Commission is satisfied that it is fair and 26
reasonable to do so in the circumstances. 27
(6) If the transitional State instrument provides for any matter, 28
including remuneration or conditions of employment, that does 29
not meet the requirements set out in Division 2 of Part 1 of 30
Chapter 2, the instrument is taken to be modified to the extent 31
necessary to meet those requirements (but only in the case where 32
the instrument is taken to be an award under this Act). 33
(7) The transitional State instrument applies (unless earlier rescinded 34
or terminated in accordance with this Act) for a nominal term that 35
ends on the earlier of the following dates, and after that date, 36
applies until rescinded or terminated in accordance with this Act: 37
(a) the end of the day that is 2 years after the relevant eligible 38
employer was declared not to be a national system 39
employer, 40
Page 3
Industrial Relations Amendment (Consequential Provisions) Bill 2010
Schedule 1 Amendment of Industrial Relations Act 1996 No 17
(b) the end of the day that is the expiry date of the 1
corresponding federal industrial instrument. 2
(8) The regulations may make provision for or with respect to the 3
application of this Act to transitional State instruments. 4
(9) In this section: 5
federal industrial instrument means: 6
(a) a fair work instrument under the Fair Work Act 2009 of the 7
Commonwealth, or 8
(b) a Division 2B State instrument under Schedule 3A to the 9
Fair Work (Transitional Provisions and Consequential 10
Amendments) Act 2009 of the Commonwealth, or 11
(c) an instrument given continuing effect under Schedule 3 to 12
the Fair Work (Transitional Provisions and Consequential 13
Amendments) Act 2009 of the Commonwealth, other than 14
the following: 15
(i) an Australian workplace agreement, 16
(ii) a pre-reform Australian workplace agreement, 17
(iii) an individual transitional employment agreement. 18
[2] Section 28A Definitions 19
Omit the definition of Federal award. Insert instead: 20
Federal award means: 21
(a) a modern award within the meaning of the Fair Work 22
Act 2009 of the Commonwealth, or 23
(b) a Division 2B State award under Schedule 3A to the Fair 24
Work (Transitional Provisions and Consequential 25
Amendments) Act 2009 of the Commonwealth. 26
[3] Section 41 Enterprise agreements prevail over State awards 27
Omit the note at the end of the section. 28
[4] Section 48 29
Omit the section. Insert instead: 30
48 What is a National decision? 31
A National decision is a decision of the Minimum Wage Panel 32
or a Full Bench of Fair Work Australia that generally affects, or 33
is likely to generally affect, the conditions of employment of 34
employees in New South Wales who are subject to the 35
jurisdiction of that panel or body. 36
Page 4
Industrial Relations Amendment (Consequential Provisions) Bill 2010
Amendment of Industrial Relations Act 1996 No 17 Schedule 1
[5] Section 83 Application of Part 1
Omit "the Australian Industrial Relations Commission" from 2
section 83 (1A) (a). 3
Insert instead "Fair Work Australia". 4
[6] Section 83 (1A) (b) 5
Omit "Workplace Relations Act 1996". Insert instead "Fair Work Act 2009". 6
[7] Section 83 (5), definition of "Federal award" 7
Omit the definition. Insert instead: 8
Federal award means: 9
(a) a modern award within the meaning of the Fair Work 10
Act 2009 of the Commonwealth, or 11
(b) a Division 2B State award under Schedule 3A to the Fair 12
Work (Transitional Provisions and Consequential 13
Amendments) Act 2009 of the Commonwealth. 14
[8] Section 83 (5), definition of "industrial instrument" 15
Omit "or other Federal industrial instrument". 16
[9] Section 146B Commission may exercise certain dispute resolution 17
functions under federal enterprise agreements 18
Omit the note at the end of section 146B (1). 19
[10] Section 146B (8), definition of "federal enterprise agreement" 20
Omit the definition. Insert instead: 21
federal enterprise agreement means: 22
(a) an enterprise agreement, or 23
(b) a preserved State agreement (but only if the nominal term 24
of the agreement has not yet expired), 25
within the meaning of the federal Act (and includes any 26
workplace agreement within the meaning of the former 27
Workplace Relations Act 1996 of the Commonwealth that 28
continues in force under the law of the Commonwealth). 29
[11] Sections 217 (4), 239 (3), 281 and 290 30
Omit "Workplace Relations Act 1996" wherever occurring. 31
Insert instead "Fair Work (Registered Organisations) Act 2009". 32
Page 5
Industrial Relations Amendment (Consequential Provisions) Bill 2010
Schedule 1 Amendment of Industrial Relations Act 1996 No 17
[12] Section 249 Regulations 1
Omit section 249 (2). Insert instead: 2
(2) Any such regulations may deal with any of the matters dealt with 3
in Chapter 7 of the Fair Work (Registered Organisations) 4
Act 2009 of the Commonwealth in connection with the election 5
of officers of organisations registered under that Act. The 6
regulations may adopt the provisions of that Chapter, with or 7
without modification. 8
[13] Section 282 Regulations 9
Omit section 282 (2). Insert instead: 10
(2) Any such regulations may deal with any of the matters dealt with 11
in Chapter 8 of the Fair Work (Registered Organisations) 12
Act 2009 of the Commonwealth in connection with the accounts 13
and audit of organisations registered under that Act. The 14
regulations may adopt the provisions of that Chapter, with or 15
without modification. 16
[14] Section 283 Regulations 17
Omit section 283 (2). Insert instead: 18
(2) Any such regulations may deal with any of the matters dealt with 19
in Chapter 3 of the Fair Work (Registered Organisations) 20
Act 2009 of the Commonwealth in connection with the 21
amalgamation of organisations registered under that Act. The 22
regulations may adopt the provisions of that Chapter, with or 23
without modification. 24
[15] Dictionary 25
Omit the definition of Australian Industrial Relations Commission. 26
Insert instead in alphabetical order: 27
Fair Work Australia means Fair Work Australia established 28
under the Fair Work Act 2009 of the Commonwealth, and 29
includes any successor to that body. 30
Minimum Wage Panel means the Minimum Wage Panel 31
constituted under the Fair Work Act 2009 of the Commonwealth, 32
and includes any successor to that panel. 33
Page 6
Industrial Relations Amendment (Consequential Provisions) Bill 2010
Amendment of Long Service Leave Act 1955 No 38 Schedule 2
Schedule 2 Amendment of Long Service Leave Act 1
1955 No 38 2
Section 4 Long service leave 3
Omit paragraph (b) from the definition of Award in section 4 (13) (a). 4
Insert instead: 5
(b) a modern award in force under the Fair Work Act 2009 of 6
the Commonwealth, and 7
(c) a Division 2B State award under Schedule 3A to the Fair 8
Work (Transitional Provisions and Consequential 9
Amendments) Act 2009 of the Commonwealth. 10
Page 7
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