[Page Break] New South Wales Industrial Relations (Commonwealth Powers) Bill 2009 Contents Page 1 Name of Act 2 2 Commencement 2 3 Definitions 2 4 Fundamental workplace relations principles 6 5 Reference of matters 6 6 Matters excluded from the reference 7 7 Termination of references 7 8 Effect of termination of amendment reference or transition reference before initial reference 8 9 Period for termination of references 8 Schedule 1 Text to be included in the provisions of the Commonwealth Fair Work Act 10 Schedule 2 Amendment of Industrial Relations Act 1996 No 17 20 b2009-153-33.d08 [Page Break] Industrial Relations (Commonwealth Powers) Bill 2009 No , 2009 A Bill for An Act to refer certain matters relating to workplace relations to the Parliament of the Commonwealth for the purposes of section 51 (xxxvii) of the Constitution of the Commonwealth; and to amend the Industrial Relations Act 1996. [Page Break] The Legislature of New South Wales enacts: 1 1 Name of Act 2 This Act is the Industrial Relations (Commonwealth Powers) Act 2009. 3 2 Commencement 4 This Act commences on a day to be appointed by proclamation. 5 3 Definitions 6 (1) In this Act: 7 amendment reference means the reference under section 5 (1) (b). 8 Commonwealth Fair Work Act means the Fair Work Act 2009 of the 9 Commonwealth (as amended from time to time). 10 excluded subject matter means any of the following matters: 11 (a) a matter dealt with in the Anti-Discrimination Act 1977, 12 (b) superannuation, 13 (c) workers compensation, 14 (d) occupational health and safety, 15 (e) matters relating to outworkers (within the ordinary meaning of 16 the term), 17 (f) child labour, 18 (g) training arrangements, 19 (h) long service leave, 20 (i) leave for victims of crime, 21 (j) attendance for service on a jury, or for emergency service duties, 22 (k) declaration, prescription or substitution of public holidays, 23 (l) the following matters relating to provision of essential services or 24 to situations of emergency: 25 (i) directions to perform work (including to perform work at 26 a particular time or place, or in a particular way), 27 (ii) directions not to perform work (including not to perform 28 work at a particular time or place, or in a particular way), 29 (m) regulation of any of the following: 30 (i) employee associations, 31 (ii) employer associations, 32 (iii) members of employee associations or of employer 33 associations, 34 (n) workplace surveillance, 35 Page 2 [Page Break] (o) business trading hours, 1 (p) claims for enforcement of contracts of employment, except so far 2 as a law of the State provides for the variation or setting aside of 3 rights and obligations arising under a contract of employment, or 4 another arrangement for employment, that a court or tribunal 5 finds is unfair, 6 (q) rights or remedies incidental to a matter referred to in a preceding 7 paragraph of this definition, 8 except to the extent that the Fair Work Act 2009 of the Commonwealth, 9 as originally enacted, deals with the matter (directly or indirectly), or 10 requires or permits instruments made or given effect under the 11 Commonwealth Fair Work Act so to deal with the matter. 12 express amendment of the Commonwealth Fair Work Act means the 13 direct amendment of the text of that Act (whether by the insertion, 14 omission, repeal, substitution or relocation of words or matter), but does 15 not include the enactment by a Commonwealth Act of a provision that 16 has, or will have, substantive effect otherwise than as part of the text of 17 the Commonwealth Fair Work Act. 18 fundamental workplace relations principles--see section 4. 19 initial reference means the reference under section 5 (1) (a). 20 initial referred provisions means the scheduled text, to the extent to 21 which that text deals with matters that are included in the legislative 22 powers of the Parliament of the State. 23 law enforcement officer means: 24 (a) a member of the NSW Police Force, or 25 (b) a police cadet or special constable. 26 local government sector employee means an employee of any of the 27 following: 28 (a) a local council or county council under the Local Government Act 29 1993, 30 (b) a wholly-owned subsidiary of, or a body wholly controlled by, 31 any such local or county council, 32 (c) the Local Government Association of NSW or the Shires 33 Association of NSW. 34 reference means: 35 (a) the initial reference, or 36 (b) the amendment reference, or 37 (c) the transition reference. 38 Page 3 [Page Break] referred subject matters means any of the following: 1 (a) terms and conditions of employment, including any of the 2 following: 3 (i) minimum terms and conditions of employment (including 4 employment standards and minimum wages), 5 (ii) terms and conditions of employment contained in 6 instruments (including instruments such as awards, 7 determinations and enterprise-level agreements), 8 (iii) bargaining in relation to terms and conditions of 9 employment, 10 (iv) the effect of a transfer of business on terms and conditions 11 of employment, 12 (b) terms and conditions under which an outworker entity may 13 arrange for work to be performed for the entity (directly or 14 indirectly), if the work is of a kind that is often performed by 15 outworkers, 16 (c) rights and responsibilities of persons, including employees, 17 employers, independent contractors, outworkers, outworker 18 entities, associations of employees or associations of employers, 19 being rights and responsibilities relating to any of the following: 20 (i) freedom of association in the context of workplace 21 relations, and related protections, 22 (ii) protection from discrimination relating to employment, 23 (iii) termination of employment, 24 (iv) industrial action, 25 (v) protection from payment of fees for services related to 26 bargaining, 27 (vi) sham independent contractor arrangements, 28 (vii) standing down employees without pay, 29 (viii) union rights of entry and rights of access to records, 30 (d) compliance with, and enforcement of, the Commonwealth Fair 31 Work Act, 32 (e) the administration of the Commonwealth Fair Work Act, 33 (f) the application of the Commonwealth Fair Work Act, 34 (g) matters incidental or ancillary to the operation of the 35 Commonwealth Fair Work Act or of instruments made or given 36 effect under the Commonwealth Fair Work Act, 37 but does not include any excluded subject matter. 38 Page 4 [Page Break] referred transition matters means the matters of the making of laws 1 with respect to the transition from the regime provided for by: 2 (a) the Workplace Relations Act 1996 of the Commonwealth (as it 3 continues to apply because of the Fair Work (Transitional 4 Provisions and Consequential Amendments) Act 2009 of the 5 Commonwealth), or 6 (b) a law of this State relating to workplace relations or industrial 7 relations, 8 to the regime provided for by the Commonwealth Fair Work Act. 9 scheduled text means the text set out in Schedule 1. 10 State public sector employee means the following: 11 (a) a member of the Government Service of New South Wales, the 12 NSW Health Service, the Teaching Service of New South Wales 13 or any other service of the Crown in right of the State (including 14 an employee of any New South Wales government agency), 15 (b) an employee of a body established for a public purpose that is 16 subject to control or direction by a Minister of the State or in 17 which the State has a controlling interest, 18 but does not include an employee of the following: 19 (c) a State owned corporation or a subsidiary of a State owned 20 corporation, 21 (d) a person or body declared by or under an Act not to be or not to 22 represent the Crown in right of the State or not to be a New South 23 Wales government agency. 24 transition reference means the reference under section 5 (1) (c). 25 (2) Words or phrases in the definition of excluded subject matter or the 26 definition of referred subject matters that are defined in the 27 Commonwealth Fair Work Act (other than in Division 2B of Part 1-3 of 28 that Act) have the meanings set out in that Act as in force on 29 1 July 2009. 30 (3) Section 9A of the Industrial Relations Act 1996 makes provision for the 31 declaration of employers that are not national system employers under 32 the Commonwealth Fair Work Act. 33 Page 5 [Page Break] 4 Fundamental workplace relations principles 1 The following are the fundamental workplace relations principles under 2 this Act: 3 (a) that the Commonwealth Fair Work Act should provide for, and 4 continue to provide for, the following: 5 (i) a strong, simple and enforceable safety net of minimum 6 employment standards, 7 (ii) genuine rights and responsibilities to ensure fairness, 8 choice and representation at work, including the freedom 9 to choose whether or not to join and be represented by a 10 union or participate in collective activities, 11 (iii) collective bargaining at the enterprise level with no 12 provision for individual statutory agreements, 13 (iv) fair and effective remedies available through an 14 independent umpire, 15 (v) protection from unfair dismissal, 16 (b) that there should be, and continue to be, in connection with the 17 operation of the Commonwealth Fair Work Act, the following: 18 (i) an independent tribunal system, 19 (ii) an independent authority able to assist employers and 20 employees within a national workplace relations system. 21 5 Reference of matters 22 (1) Subject to the other provisions of this Act, the following matters are 23 referred to the Parliament of the Commonwealth: 24 (a) the matters to which the initial referred provisions relate, but only 25 to the extent of the making of laws with respect to those matters 26 by including the initial referred provisions in the Commonwealth 27 Fair Work Act, as originally enacted, and as subsequently 28 amended by amendments enacted at any time before this Act 29 commences, in the terms, or substantially in the terms, set out in 30 the scheduled text, 31 (b) the referred subject matters, but only to the extent of making laws 32 with respect to any such matter by making express amendments 33 of the Commonwealth Fair Work Act, 34 (c) the referred transition matters. 35 (2) The reference of a matter under subsection (1) has effect only: 36 (a) if and to the extent that the matter is not included in the legislative 37 powers of the Parliament of the Commonwealth (otherwise than 38 Page 6 [Page Break] by a reference for the purposes of section 51 (xxxvii) of the 1 Constitution of the Commonwealth), and 2 (b) if and to the extent that the matter is included in the legislative 3 powers of the Parliament of the State. 4 (3) The operation of each paragraph of subsection (1) is not affected by any 5 other paragraph. 6 (4) For the avoidance of doubt, it is the intention of the Parliament of the 7 State that the Commonwealth Fair Work Act may be expressly 8 amended, or have its operation otherwise affected, at any time after the 9 commencement of this Act by provisions of Commonwealth Acts 10 whose operation is based on legislative powers that the Parliament of 11 the Commonwealth has apart from under the references under 12 subsection (1). 13 (5) Despite any other provision of this section, a reference under 14 subsection (1) has effect for a period: 15 (a) beginning when this section commences, and 16 (b) ending at the end of the day fixed under section 7 as the day on 17 which the reference is to terminate, 18 but no longer. 19 6 Matters excluded from the reference 20 A matter referred by section 5 does not include: 21 (a) matters relating to Ministers, Members of Parliament, judicial 22 officers or members of administrative tribunals, or 23 (b) matters relating to persons in the service of either House of 24 Parliament, or of the President or Speaker, or of the President and 25 Speaker jointly, or 26 (c) matters relating to State public sector employees, or 27 (d) matters relating to persons appointed or engaged by the Governor 28 or a Minister under any Act, law or authority, or 29 (e) matters relating to law enforcement officers, or 30 (f) matters relating to local government sector employees, 31 or matters relating to the employer of any of the above. 32 7 Termination of references 33 (1) The Governor may, at any time, by proclamation published on the NSW 34 legislation website, fix a day as the day on which: 35 (a) the references are to terminate, or 36 Page 7 [Page Break] (b) the amendment reference is to terminate, or 1 (c) the transition reference is to terminate. 2 (2) The Governor may, by proclamation published on the NSW legislation 3 website, revoke a proclamation published under subsection (1), in 4 which case the revoked proclamation is taken (for the purposes of 5 section 5) never to have been published. 6 (3) A revoking proclamation has effect only if published before the day 7 fixed under subsection (1). 8 (4) The revocation of a proclamation published under subsection (1) does 9 not prevent publication of a further proclamation under that subsection. 10 (5) If the amendment reference and the transition reference have been 11 terminated, the expression the references in subsection (1) refers only 12 to the initial reference. 13 8 Effect of termination of amendment reference or transition reference 14 before initial reference 15 (1) If the amendment reference or the transition reference terminates before 16 the initial reference, the termination of the amendment reference or 17 transition reference does not affect: 18 (a) laws that were made under that reference before that termination 19 (whether or not they have come into operation before that 20 termination), or 21 (b) the continued operation in the State of the Commonwealth Fair 22 Work Act as in operation immediately before that termination or 23 as subsequently amended or affected by: 24 (i) laws referred to in paragraph (a) that come into operation 25 after that termination, or 26 (ii) provisions referred to in section 5 (4). 27 (2) Accordingly, the amendment reference or transition reference continues 28 to have effect for the purposes of subsection (1) unless the initial 29 reference is terminated. 30 9 Period for termination of references 31 (1) Subject to subsection (2), a day fixed by a proclamation under 32 section 7 (1) must be no earlier than the first day after the end of the 33 period of 6 months beginning on the day on which the proclamation is 34 published. 35 (2) If: 36 (a) a proclamation under section 7 (1) only provides for the 37 termination of the amendment reference, and 38 Page 8 [Page Break] (b) the Governor, as part of the proclamation by which the 1 termination is to be effected, declares that, in the opinion of the 2 Governor, the Commonwealth Fair Work Act: 3 (i) is proposed to be amended (by an amendment introduced 4 into the Parliament of the Commonwealth by a 5 Commonwealth Minister), or 6 (ii) has been amended, 7 in a manner that is inconsistent with one or more of the 8 fundamental workplace relations principles, 9 the day fixed by the proclamation under section 7 (1) (b) may be earlier 10 than the day that applies under subsection (1) but must be no earlier than 11 the first day after the end of the period of 3 months beginning on the day 12 on which the proclamation is published. 13 (3) If the Governor terminates the amendment reference and fixes a day 14 under subsection (2), the Minister must, as soon as practicable after the 15 publication of the relevant proclamation, prepare a report on the matter 16 and cause copies of that report to be laid before both Houses of 17 Parliament. 18 Page 9 [Page Break] Schedule 1 Text to be included in the provisions of the Commonwealth Fair Work Act Schedule 1 Text to be included in the provisions of 1 the Commonwealth Fair Work Act 2 Division 2B Application of this Act in States that refer 3 matters after 1 July 2009 but on or before 4 1 January 2010 5 30K Meaning of terms used in this Division 6 (1) In this Division: 7 amendment reference of a State means the reference by the 8 Parliament of the State to the Parliament of the Commonwealth 9 of the matters covered by subsection 30L(4). 10 excluded subject matter means any of the following matters: 11 (a) a matter dealt with in a law referred to in subsection 12 27(1A) of this Act; 13 (b) superannuation; 14 (c) workers compensation; 15 (d) occupational health and safety; 16 (e) matters relating to outworkers (within the ordinary 17 meaning of the term); 18 (f) child labour; 19 (g) training arrangements; 20 (h) long service leave; 21 (i) leave for victims of crime; 22 (j) attendance for service on a jury, or for emergency service 23 duties; 24 (k) declaration, prescription or substitution of public holidays; 25 (l) the following matters relating to provision of essential 26 services or to situations of emergency: 27 (i) directions to perform work (including to perform 28 work at a particular time or place, or in a particular 29 way); 30 (ii) directions not to perform work (including not to 31 perform work at a particular time or place, or in a 32 particular way); 33 (m) regulation of any of the following: 34 (i) employee associations; 35 Page 10 [Page Break] Text to be included in the provisions of the Commonwealth Fair Work Act Schedule 1 (ii) employer associations; 1 (iii) members of employee associations or of employer 2 associations; 3 (n) workplace surveillance; 4 (o) business trading hours; 5 (p) claims for enforcement of contracts of employment, 6 except so far as a law of a State provides for the variation 7 or setting aside of rights and obligations arising under a 8 contract of employment, or another arrangement for 9 employment, that a court or tribunal finds is unfair; 10 (q) rights or remedies incidental to a matter referred to in a 11 preceding paragraph of this definition; 12 except to the extent that this Act as originally enacted deals with 13 the matter (directly or indirectly), or requires or permits 14 instruments made or given effect under this Act so to deal with 15 the matter. 16 express amendment means the direct amendment of the text of 17 this Act (whether by the insertion, omission, repeal, substitution 18 or relocation of words or matter), but does not include the 19 enactment by a Commonwealth Act of a provision that has, or 20 will have, substantive effect otherwise than as part of the text of 21 this Act. 22 fundamental workplace relations principles: see subsection 23 30L(9). 24 initial reference of a State means the reference by the Parliament 25 of the State to the Parliament of the Commonwealth of the 26 matters covered by subsection 30L(3). 27 law enforcement officer means: 28 (a) a member of a police force or police service; or 29 (b) a person appointed to a position for the purpose of being 30 trained as a member of a police force or police service; or 31 (c) a person who has the powers and duties of a member of a 32 police force or police service; 33 and, without limiting paragraphs (a), (b) and (c), includes a police 34 reservist, a police recruit, a police cadet, a junior constable, a 35 police medical officer, a special constable, an ancillary constable 36 or a protective services officer. 37 local government employee, of a State, means: 38 (a) an employee of a local government employer of the State; 39 or 40 Page 11 [Page Break] Schedule 1 Text to be included in the provisions of the Commonwealth Fair Work Act (b) any other employee in the State of a kind specified in the 1 regulations. 2 local government employer, of a State, means an employer that 3 is: 4 (a) a body corporate that is established for a local government 5 purpose by or under a law of a State; or 6 (b) a body corporate in which a body to which paragraph (a) 7 applies has, or 2 or more such bodies together have, a 8 controlling interest; or 9 (c) a person who employs individuals for the purposes of an 10 unincorporated body that is established for a local 11 government purpose by or under a law of a State; or 12 (d) any other body corporate that is a local government body 13 in the State of a kind specified in the regulations; or 14 (e) any other person who employs individuals for the purposes 15 of an unincorporated body that is a local government body 16 in the State of a kind specified in the regulations. 17 referral law, of a State, means the law of the State that refers 18 matters, as mentioned in subsection 30L(1), to the Parliament of 19 the Commonwealth. 20 referred provisions means the provisions of this Division to the 21 extent to which they deal with matters that are included in the 22 legislative powers of the Parliaments of the States. 23 referred subject matters means any of the following: 24 (a) terms and conditions of employment, including any of the 25 following: 26 (i) minimum terms and conditions of employment, 27 (including employment standards and minimum 28 wages); 29 (ii) terms and conditions of employment contained in 30 instruments (including instruments such as awards, 31 determinations and enterprise-level agreements); 32 (iii) bargaining in relation to terms and conditions of 33 employment; 34 (iv) the effect of a transfer of business on terms and 35 conditions of employment; 36 (b) terms and conditions under which an outworker entity may 37 arrange for work to be performed for the entity (directly or 38 indirectly), if the work is of a kind that is often performed 39 by outworkers; 40 Page 12 [Page Break] Text to be included in the provisions of the Commonwealth Fair Work Act Schedule 1 (c) rights and responsibilities of persons, including 1 employees, employers, independent contractors, 2 outworkers, outworker entities, associations of employees 3 or associations of employers, being rights and 4 responsibilities relating to any of the following: 5 (i) freedom of association in the context of workplace 6 relations, and related protections; 7 (ii) protection from discrimination relating to 8 employment; 9 (iii) termination of employment; 10 (iv) industrial action; 11 (v) protection from payment of fees for services related 12 to bargaining; 13 (vi) sham independent contractor arrangements; 14 (vii) standing down employees without pay; 15 (viii) union rights of entry and rights of access to records; 16 (d) compliance with, and enforcement of, this Act; 17 (e) the administration of this Act; 18 (f) the application of this Act; 19 (g) matters incidental or ancillary to the operation of this Act 20 or of instruments made or given effect under this Act; 21 but does not include any excluded subject matter. 22 referring State: see section 30L. 23 State public sector employee, of a State, means: 24 (a) an employee of a State public sector employer of the State; 25 or 26 (b) any other employee in the State of a kind specified in the 27 regulations; 28 and includes a law enforcement officer of the State. 29 State public sector employer, of a State, means an employer that 30 is: 31 (a) the State, the Governor of the State or a Minister of the 32 State; or 33 (b) a body corporate that is established for a public purpose by 34 or under a law of the State, by the Governor of the State or 35 by a Minister of the State; or 36 (c) a body corporate in which the State has a controlling 37 interest; or 38 Page 13 [Page Break] Schedule 1 Text to be included in the provisions of the Commonwealth Fair Work Act (d) a person who employs individuals for the purposes of an 1 unincorporated body that is established for a public 2 purpose by or under a law of the State, by the Governor of 3 the State or by a Minister of the State; or 4 (e) any other employer in the State of a kind specified in the 5 regulations; 6 and includes a holder of an office of the State whom the State's 7 referral law provides is to be taken, for the purposes of this Act, 8 to be an employer of law enforcement officers of the State. 9 transition reference of a State means the reference by the 10 Parliament of the State to the Parliament of the Commonwealth 11 of the matters covered by subsection 30L(5). 12 (2) Words or phrases in the definition of excluded subject matter in 13 subsection (1), or in the definition of referred subject matters in 14 subsection (1), that are defined in this Act (other than in this 15 Division) have, in that definition, the meanings set out in this Act 16 as in force on 1 July 2009. 17 30L Meaning of referring State 18 Reference of matters by State Parliament to Commonwealth 19 Parliament 20 (1) A State is a referring State if the Parliament of the State has, after 21 1 July 2009 but on or before 1 January 2010, referred the matters 22 covered by subsections (3), (4) and (5) in relation to the State to 23 the Parliament of the Commonwealth for the purposes of 24 paragraph 51(xxxvii) of the Constitution: 25 (a) if and to the extent that the matters are not otherwise 26 included in the legislative powers of the Parliament of the 27 Commonwealth (otherwise than by a reference under 28 paragraph 51(xxxvii) of the Constitution); and 29 (b) if and to the extent that the matters are included in the 30 legislative powers of the Parliament of the State. 31 This subsection has effect subject to subsection (6). 32 (2) A State is a referring State even if: 33 (a) the State's referral law provides that the reference to the 34 Parliament of the Commonwealth of any or all of the 35 matters covered by subsections (3), (4) and (5) is to 36 terminate in particular circumstances; or 37 Page 14 [Page Break] Text to be included in the provisions of the Commonwealth Fair Work Act Schedule 1 (b) the State's referral law provides that particular matters, or 1 all matters, relating to State public sector employees, or 2 State public sector employers, of the State are not included 3 in any or all of the matters covered by subsections (3), (4) 4 and (5); or 5 (c) the State's referral law provides that particular matters, or 6 all matters, relating to local government employees, or 7 local government employers, of the State are not included 8 in any or all of the matters covered by subsections (3), (4) 9 and (5). 10 Reference covering referred provisions 11 (3) This subsection covers the matters to which the referred 12 provisions relate to the extent of making laws with respect to 13 those matters by amending this Act, as originally enacted, and as 14 subsequently amended by amendments enacted at any time 15 before the State's referral law commenced, to include the referred 16 provisions. 17 Reference covering amendments 18 (4) This subsection covers the referred subject matters to the extent 19 of making laws with respect to those matters by making express 20 amendments of this Act. 21 Reference covering transitional matters 22 (5) This subsection covers making laws with respect to the transition 23 from the regime provided for by: 24 (a) the Workplace Relations Act 1996 (as it continues to apply 25 because of the Fair Work (Transitional Provisions and 26 Consequential Amendments) Act 2009); or 27 (b) a law of a State relating to workplace relations or industrial 28 relations; 29 to the regime provided for by this Act. 30 Effect of termination of reference 31 (6) Despite anything to the contrary in a referral law of a State, a 32 State ceases to be a referring State if any or all of the following 33 occurs: 34 (a) the State's initial reference terminates; 35 (b) the State's amendment reference terminates, and neither of 36 subsections (7) and (8) apply to the termination; 37 (c) the State's transition reference terminates. 38 Page 15 [Page Break] Schedule 1 Text to be included in the provisions of the Commonwealth Fair Work Act (7) A State does not cease to be a referring State because of the 1 termination of its amendment reference if: 2 (a) the termination is effected by the Governor of that State 3 fixing a day by proclamation as the day on which the 4 reference terminates; and 5 (b) the day fixed is no earlier than the first day after the end of 6 the period of 6 months beginning on the day on which the 7 proclamation is published; and 8 (c) that State's amendment reference, and the amendment 9 reference of every other referring State (other than a 10 referring State that has terminated its amendment 11 reference in the circumstances referred to in 12 subsection (8)), terminate on the same day. 13 (8) A State does not cease to be a referring State because of the 14 termination of its amendment reference if: 15 (a) the termination is effected by the Governor of that State 16 fixing a day by proclamation as the day on which the 17 reference terminates; and 18 (b) the day fixed is no earlier than the first day after the end of 19 the period of 3 months beginning on the day on which the 20 proclamation is published; and 21 (c) the Governor of that State, as part of the proclamation by 22 which the termination is to be effected, declares that, in the 23 opinion of the Governor, this Act: 24 (i) is proposed to be amended (by an amendment 25 introduced into the Parliament by a Minister); or 26 (ii) has been amended; 27 in a manner that is inconsistent with one or more of the 28 fundamental workplace relations principles. 29 (9) The following are the fundamental workplace relations 30 principles: 31 (a) that this Act should provide for, and continue to provide 32 for, the following: 33 (i) a strong, simple and enforceable safety net of 34 minimum employment standards; 35 (ii) genuine rights and responsibilities to ensure 36 fairness, choice and representation at work, 37 including the freedom to choose whether or not to 38 join and be represented by a union or participate in 39 collective activities; 40 Page 16 [Page Break] Text to be included in the provisions of the Commonwealth Fair Work Act Schedule 1 (iii) collective bargaining at the enterprise level with no 1 provision for individual statutory agreements; 2 (iv) fair and effective remedies available through an 3 independent umpire; 4 (v) protection from unfair dismissal; 5 (b) that there should be, and continue to be, in connection with 6 the operation of this Act, the following: 7 (i) an independent tribunal system; 8 (ii) an independent authority able to assist employers 9 and employees within a national workplace 10 relations system. 11 30M Extended meaning of national system employee 12 (1) A national system employee includes: 13 (a) any individual in a State that is a referring State because of 14 this Division so far as he or she is employed, or usually 15 employed, as described in paragraph 30N(1)(a), except on 16 a vocational placement; and 17 (b) a law enforcement officer of the State to whom subsection 18 30P(1) applies. 19 (2) This section does not limit the operation of section 13 (which 20 defines a national system employee). 21 Note: Section 30S may limit the extent to which this section extends the 22 meaning of national system employee. 23 30N Extended meaning of national system employer 24 (1) A national system employer includes: 25 (a) any person in a State that is a referring State because of this 26 Division so far as the person employs, or usually employs, 27 an individual; and 28 (b) a holder of an office to whom subsection 30P(2) applies. 29 (2) This section does not limit the operation of section 14 (which 30 defines a national system employer). 31 Note: Section 30S may limit the extent to which this section extends the 32 meaning of national system employer. 33 30P Extended ordinary meanings of employee and employer 34 (1) A reference in this Act to an employee with its ordinary meaning 35 includes a reference to a law enforcement officer of a referring 36 State if the State's referral law so provides for the purposes of that 37 law. 38 Page 17 [Page Break] Schedule 1 Text to be included in the provisions of the Commonwealth Fair Work Act (2) A reference in this Act to an employer with its ordinary meaning 1 includes a reference to a holder of an office of a State if the 2 State's referral law provides, for the purposes of that law, that the 3 holder of the office is taken to be the employer of a law 4 enforcement officer of the State. 5 (3) This section does not limit the operation of section 15 (which 6 deals with references to employee and employer with their 7 ordinary meanings). 8 Note: Section 30S may limit the extent to which this section extends the 9 meanings of employee and employer. 10 30Q Extended meaning of outworker entity 11 (1) An outworker entity includes a person, other than in the person's 12 capacity as a national system employer, so far as: 13 (a) the person arranges for work to be performed for the 14 person (either directly or indirectly); and 15 (b) the work is of a kind that is often performed by 16 outworkers; and 17 (c) one or more of the following applies: 18 (i) at the time the arrangement is made, one or more 19 parties to the arrangement is in a State that is a 20 referring State because of this Division; 21 (ii) the work is to be performed in a State that is a 22 referring State because of this Division; 23 (iii) the person referred to in paragraph (a) carries on an 24 activity (whether of a commercial, governmental or 25 other nature) in a State that is a referring State 26 because of this Division, and the work is reasonably 27 likely to be performed in that State; 28 (iv) the person referred to in paragraph (a) carries on an 29 activity (whether of a commercial, governmental or 30 other nature) in a State that is a referring State 31 because of this Division, and the work is to be 32 performed in connection with that activity. 33 (2) This section does not limit the operation of the definition of 34 outworker entity in section 12. 35 Note: Section 30S may limit the extent to which this section extends the 36 meaning of outworker entity. 37 30R General protections 38 (1) Part 3-1 (which deals with general protections) applies to action 39 taken in a State that is a referring State because of this Division. 40 Page 18 [Page Break] Text to be included in the provisions of the Commonwealth Fair Work Act Schedule 1 (2) This section applies despite section 337 (which limits the 1 application of Part 3-1), and does not limit the operation of 2 sections 338 and 339 (which set out the application of that Part). 3 Note: Section 30S may limit the extent to which this section extends the 4 application of Part 3-1. 5 30S Division only has effect if supported by reference 6 A provision of this Division has effect in relation to a State that 7 is a referring State because of this Division only to the extent that 8 the State's referral law refers to the Parliament of the 9 Commonwealth the matters mentioned in subsection 30L(1) that 10 result in the Parliament of the Commonwealth having sufficient 11 legislative power for the provision so to have effect. 12 Page 19 [Page Break] Schedule 2 Amendment of Industrial Relations Act 1996 No 17 Schedule 2 Amendment of Industrial Relations Act 1 1996 No 17 2 [1] Sections 9A and 9B 3 Insert after section 9: 4 9A Employers declared not to be national system employers 5 (1) An eligible employer is declared not to be a national system 6 employer for the purposes of the Fair Work Act 2009 of the 7 Commonwealth if the Minister, by order published on the NSW 8 legislation website, declares the employer not to be a national 9 system employer. 10 (2) An eligible employer is an employer that, under section 14 of the 11 Fair Work Act 2009 of the Commonwealth, is eligible to be 12 declared not to be a national system employer for the purposes of 13 that Act. 14 9B Referral of workplace relations matters to Commonwealth 15 (1) This Act is subject to the Fair Work Act 2009 of the 16 Commonwealth, including provisions of that Act that have effect 17 in this State because of the referral of matters relating to 18 workplace relations to the Commonwealth Parliament by the 19 Industrial Relations (Commonwealth Powers) Act 2009. 20 (2) A reference in any Act or instrument to an industrial instrument 21 or agreement (however described) includes a reference to a 22 relevant federal industrial instrument or agreement if the context 23 permits and it is necessary to do so to take account of the 24 reference of those matters to the Commonwealth Parliament. 25 [2] Section 146A Commission may exercise certain functions conferred on 26 it by agreement 27 Omit the section. 28 [3] Section 146B Commission may exercise certain dispute resolution 29 functions under federal enterprise agreements 30 Omit section 146B (1) (a) and (b). Insert instead: 31 (a) the parties to the dispute are bound by a federal enterprise 32 agreement, and 33 (b) the Commission is authorised or permitted to conduct the 34 dispute resolution process under procedures set out in the 35 agreement. 36 Page 20 [Page Break] Amendment of Industrial Relations Act 1996 No 17 Schedule 2 [4] Section 146B (2) (a) 1 Omit the paragraph. Insert instead: 2 (a) the federal enterprise agreement concerned, and 3 [5] Section 146B (3) 4 Omit "the federal workplace agreement concerned, federal model dispute 5 resolution process". 6 Insert instead "the federal enterprise agreement". 7 [6] Section 146B (7) and (8) 8 Omit the subsections. Insert instead: 9 (7) Nothing in this section makes any order, determination or other 10 decision of the Commission in respect of the dispute binding on 11 other parties to the dispute unless the federal enterprise 12 agreement concerned or federal Act operate to make it binding on 13 the parties. 14 (8) In this section: 15 federal Act means the Fair Work Act 2009 of the 16 Commonwealth. 17 federal enterprise agreement means an enterprise agreement 18 within the meaning of the federal Act (and includes any 19 workplace agreement within the meaning of the former 20 Workplace Relations Act 1996 of the Commonwealth that 21 continues in force under the law of the Commonwealth). 22 modification includes addition, exception, omission or 23 substitution. 24 [7] Section 202 Definitions 25 Omit the definitions of Federal Act and Federal Commission. Insert instead: 26 Federal Act means the Fair Work Act 2009 of the 27 Commonwealth. 28 Federal Commission means Fair Work Australia under the 29 Federal Act. 30 Page 21 [Page Break] Schedule 2 Amendment of Industrial Relations Act 1996 No 17 [8] Schedule 4 Savings, transitional and other provisions 1 Insert at the end of clause 2 (1): 2 Industrial Relations (Commonwealth Powers) Act 2009 3 Page 22