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Queensland
Fair Work (Commonwealth
Powers) and Other Provisions
Bill 2009
Queensland
Fair Work (Commonwealth Powers) and
Other Provisions Bill 2009
Contents
Page
Part 1 Preliminary
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Part 2 Reference of matters
4 Fundamental workplace relations principles . . . . . . . . . . . . . . . . 16
5 Reference of matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6 Matters excluded from the reference . . . . . . . . . . . . . . . . . . . . . . 18
7 Termination of references . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8 Effect of termination of amendment reference or transition
reference before initial reference . . . . . . . . . . . . . . . . . . . . . . . . . 19
9 Period for termination of references . . . . . . . . . . . . . . . . . . . . . . . 20
10 Proclamations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
11 Amendment of long title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
12 Transitional provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Part 3 Amendments of other legislation relating to the reference of
matters
Division 1 Amendment of Acts Interpretation Act 1954
13 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
14 Amendment of s 36 (Meaning of commonly used words
and expressions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Division 2 Amendment of Building and Construction Industry
(Portable Long Service Leave) Act 1991
15 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
16 Amendment of s 59 (Amount of long service leave payment) . . . 22
17 Amendment of schedule (Dictionary) . . . . . . . . . . . . . . . . . . . . . . 22
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Contents
Division 3 Amendment of Contract Cleaning Industry (Portable Long
Service Leave) Act 2005
18 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
19 Amendment of s 71 (Application for long service leave
entitlement) ..................................... 23
20 Amendment of s 73 (Amount of long service leave payment) . . . 23
21 Amendment of s 75 (Payments to employers) . . . . . . . . . . . . . . . 23
22 Amendment of s 151 (Relationship with other Acts, awards etc) . 23
23 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 24
Division 4 Amendment of Electoral Act 1992
24 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
25 Amendment of schedule (Election Funding and financial
disclosure based on part XX of the Commonwealth Electoral
Act) ......................................... 24
Division 5 Amendment of Electricity Act 1994
26 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
27 Amendment of s 131 (Effect of regulator taking over operation
of relevant operations) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Division 6 Amendment of Health Services Act 1991
28 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
29 Amendment of s 2 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Division 7 Amendment of Industrial Relations Act 1999
30 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
31 Amendment of s 5 (Who is an employee) . . . . . . . . . . . . . . . . . . 26
32 Amendment of s 6 (Who is an employer) . . . . . . . . . . . . . . . . . . . 26
33 Amendment of s 9 (Working time for an employee under an
industrial instrument made on or before 1 September 2005 etc.) 26
34 Amendment of s 9A (Working time for an employee under an
industrial instrument made after 1 September 2005 etc.) . . . . . . 27
35 Amendment of s 10 (Entitlement). . . . . . . . . . . . . . . . . . . . . . . . . 27
36 Amendment of s 11 (Entitlement). . . . . . . . . . . . . . . . . . . . . . . . . 27
37 Amendment of s 13 (Payment for annual leave). . . . . . . . . . . . . . 28
38 Amendment of s 13A (Annual leave loading) . . . . . . . . . . . . . . . . 28
39 Amendment of s 14 (Payment for annual leave on termination
of employment). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
40 Amendment of s 14A (Jury service leave) . . . . . . . . . . . . . . . . . . 28
41 Amendment of s 15 (Public holidays) . . . . . . . . . . . . . . . . . . . . . . 29
42 Amendment of ch 2, pt 2, div 5, hdg (Past overrides less
favourable conditions). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Contents
43 Amendment of s 41 (This part overrides less favourable
conditions) .................................... 29
44 Insertion of new section 57A . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
57A Provisions taken to be terms of industrial instrument. 30
45 Amendment of s 136 (Apprentice's and trainee's employment
conditions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
46 Amendment of s 275 (Power to declare persons to be
employees or employers) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
47 Amendment of s 276 (Power to amend or void contracts) . . . . . . 30
48 Amendment of s 314 (Functions and powers vested in
commission by other jurisdictions) . . . . . . . . . . . . . . . . . . . . . . . . 31
49 Amendment of s 315 (Arrangements with Commonwealth
public service) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
50 Amendment of s 408D (When fees are or are not payable to
private employment agent) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
51 Amendment of s 411 (Meaning of counterpart federal body for
ch 12) ......................................... 31
52 Amendment of s 580 (Exemption if federal election held) . . . . . . 32
53 Amendment of s 581 (Obligation to notify change in federal
election result) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
54 Amendment of s 582 (Exemption) . . . . . . . . . . . . . . . . . . . . . . . . 32
55 Amendment of s 584 (Obligation to file copy of federal officers
register) ......................................... 32
56 Amendment of s 585 (Obligation to give notice of change or
contravention). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
57 Amendment of s 586 (Who may apply) . . . . . . . . . . . . . . . . . . . . 33
58 Amendment of s 587 (Grant of exemption) . . . . . . . . . . . . . . . . . 33
59 Amendment of s 588 (Obligation to file copies of federal audit
documents). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
60 Amendment of s 589 (Obligation to give notice of change or
contravention). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
61 Insertion of new chapter 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Chapter 16 Employers declared not to be national system
employers
Part 1 Declarations
692 Declaration that particular employers are not to be
national system employers . . . . . . . . . . . . . . . . . . . . . 34
Part 2 Change from federal to State system
692A Definitions for this part . . . . . . . . . . . . . . . . . . . . . . . . 35
692B Brisbane City Council . . . . . . . . . . . . . . . . . . . . . . . . . 36
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Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Contents
692C Operation of existing industrial instrument in relation
to declared employers . . . . . . . . . . . . . . . . . . . . . . . . 37
692D New State instrument taken to exist for declared
employers in other circumstances . . . . . . . . . . . . . . . 37
692E Ability to carry over matters . . . . . . . . . . . . . . . . . . . . 39
692F Reference in a new State instrument to a federal
industrial authority or authority manager . . . . . . . . . . 40
692G Reference in a new State instrument to a provision
of Commonwealth law . . . . . . . . . . . . . . . . . . . . . . . . 40
692H Reference in a new State instrument to a federal
organisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
692I Counting service under the old federal instrument. . . 41
692J Accruing entitlements--leave accrued immediately
before the relevant day . . . . . . . . . . . . . . . . . . . . . . . . 42
692K Leave that is being, or is to be, taken under the old
federal instrument. . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
62 Amendment of s 745 (Definitions for pt 7) . . . . . . . . . . . . . . . . . . 43
63 Insertion of new ch 20, pt 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Part 10 Transitional provisions for Fair Work
(Commonwealth Powers) and Other
Provisions Act 2009
760 Referral of matters to Commonwealth Parliament . . . 43
761 Declaration about BCC Certified Agreement . . . . . . . 44
762 Amendment of regulation . . . . . . . . . . . . . . . . . . . . . . 44
64 Amendment of sch 5 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 44
Division 8 Amendment of Industrial Relations Regulation 2000
65 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
66 Renumbering of pt 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
67 Insertion of new pt 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Part 14 Declarations for Commonwealth Act, section
14(2)
148 Declarations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
68 Insertion of new sch 7A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Schedule 7A Employers declared not to be national system
employers
Division 9 Amendment of Magistrates Courts Act 1921
69 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
70 Amendment of s 42B (Application of pt 5A) . . . . . . . . . . . . . . . . . 55
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Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Contents
Division 10 Amendment of Statutory Instruments Act 1992
71 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
72 Amendment of sch 2A (Subordinate legislation to which part 7
does not apply). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Division 11 Amendment of Summary Offences Act 2005
73 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
74 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 56
Division 12 Amendment of Workers' Compensation and Rehabilitation
Act 2003
75 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
76 Amendment of s 107A (Definitions for pt 1A) . . . . . . . . . . . . . . . . 56
77 Amendment of sch 6 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 56
Division 13 Amendment of Workplace Health and Safety Act 1995
78 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
79 Amendment of s 90B (Definitions for part) . . . . . . . . . . . . . . . . . . 57
Part 4 Amendments relating to trustee companies
Division 1 Amendment of Trustee Companies Act 1968
80 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
81 Amendment of s 4 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 57
82 Amendment of s 4AA (Powers conferred on trustee companies
are additional powers) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
83 Omission of s 4A (Subsidiaries, holding companies and related
corporations) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
84 Omission of ss 36 and 36A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
85 Relocation and renumbering of s 43 (When legatee to bear
commission on legacy). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
86 Omission of pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
87 Omission of ss 5053. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
88 Omission of pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
89 Relocation and renumbering of s 62 (Appointment of attorney
by trustee company) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
90 Omission of pt 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
91 Replacement of pt 8, hdg (General) . . . . . . . . . . . . . . . . . . . . . . . 59
92 Insertion of new s 68C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
68C Compulsory transfer determinations . . . . . . . . . . . . . 59
93 Omission of s 69 (Other companies may apply for similar
powers) ....................................... 61
94 Omission of s 73 (Provisions relating to ex trustee companies). . 61
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Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Contents
95 Renumbering of pts 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
96 Insertion of new pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Part 6 Transitional provisions for Fair Work
(Commonwealth Powers) and Other
Provisions Act 2009
74 Definitions for pt 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
75 Court may review rate of commission . . . . . . . . . . . . 62
76 Court may review fee . . . . . . . . . . . . . . . . . . . . . . . . . 62
77 Filing and passing accounts . . . . . . . . . . . . . . . . . . . . 63
78 Court may order account . . . . . . . . . . . . . . . . . . . . . . 63
79 Investment of capital in name of Treasurer. . . . . . . . . 63
80 Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
81 Special transitional provisions . . . . . . . . . . . . . . . . . . 64
97 Omission of sch 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Division 2 Repeal
98 Repeal of regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Division 3 Amendment of Foreign Ownership of Land Register Act
1988
99 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
100 Amendment of s 10 (Trustee company common funds) . . . . . . . . 65
Division 4 Amendment of Guardianship and Administration Act 2000
101 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
102 Amendment of s 48 (Remuneration of professional
administrators) ............................... 66
103 Insertion of new ch 12, pt 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Part 10 Transitional provision for Fair Work
(Commonwealth Powers) and Other
Provisions Act 2009
268 Remuneration of professional administrators . . . . . . . 67
Division 5 Amendment of Trusts Act 1973
104 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
105 Amendment of s 5 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Part 5 Amendment of Adoption Act 2009
106 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
107 Insertion of new s 331A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
331A Interim orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
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Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Contents
Part 6 Amendment of Trans-Tasman Mutual Recognition
(Queensland) Act 2003
108 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
109 Insertion of new s 15 and schedule . . . . . . . . . . . . . . . . . . . . . . . 68
15 Authorisation to make gazette notice . . . . . . . . . . . . . 69
Schedule Authorised gazette notice
Part 7 Amendment of Mutual Recognition (Queensland) Act 1992
110 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
111 Amendment of s 5 (Enactment of uniform mutual recognition
legislation) ....................................... 72
Schedule 1 Other entities that are not public sector employers . . . . . . . 73
Schedule 2 Text to be included in the provisions of the Commonwealth
Fair Work Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Division 2B Application of this Act in States that refer matters after 1
July 2009 but on or before 1 January 2010
30K Meaning of terms used in this Division. . . . . . . . . . . . . . . . . . . . . 74
30L Meaning of referring State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
30M Extended meaning of national system employee . . . . . . . . . . . . . 82
30N Extended meaning of national system employer . . . . . . . . . . . . . 83
30P Extended ordinary meanings of employee and employer . . . . . . 83
30Q Extended meaning of outworker entity . . . . . . . . . . . . . . . . . . . . . 84
30R General protections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
30S Division only has effect if supported by reference . . . . . . . . . . . . 85
Page 7
2009
A Bill
for
An Act to refer particular matters relating to workplace
relations to the Parliament of the Commonwealth for the
purposes of section 51(xxxvii) of the Commonwealth
Constitution, to amend other legislation to provide for
particular matters as a consequence of the referral and for
associated matters, and to amend the Trustee Companies Act
1968 to facilitate the regulation of trustee companies by the
Commonwealth, to repeal the Trustee Companies Regulation
1996 and to make particular consequential amendments to
other Acts relating to trustee companies, and to amend the
Adoption Act 2009 to provide for a particular matter, and to
authorise the Governor to make a gazette notice endorsing a
particular Commonwealth regulation for the Trans-Tasman
Mutual Recognition (Queensland) Act 2003 and to amend the
Mutual Recognition (Queensland) Act 1992 for a particular
purpose
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 1 Preliminary
[s 1]
The Parliament of Queensland enacts-- 1
Part 1 Preliminary 2
1 Short title 3
This Act may be cited as the Fair Work (Commonwealth 4
Powers) and Other Provisions Act 2009. 5
2 Commencement 6
(1) This Act, other than parts 6 and 7, commences on a day to be 7
fixed by proclamation. 8
(2) The Acts Interpretation Act 1954, section 15DA does not 9
apply to a provision of this Act other than parts 4 and 5. 10
3 Definitions 11
(1) In this Act-- 12
amendment reference means the reference under section 13
5(1)(b). 14
Commonwealth Fair Work Act means the Fair Work Act 2009 15
(Cwlth) (as amended from time to time). 16
department see the Public Service Act 2008, section 7. 17
employing office means an entity designated as an employing 18
office, and empowered to employ persons on behalf of the 19
State, under an Act. 20
excluded subject matter means any of the following 21
matters-- 22
(a) a matter dealt with in the Anti-Discrimination Act 1991; 23
(b) superannuation; 24
(c) workers' compensation; 25
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Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 1 Preliminary
[s 3]
(d) occupational health and safety; 1
(e) matters relating to outworkers (within the ordinary 2
meaning of the term); 3
(f) child labour; 4
(g) training arrangements; 5
(h) long service leave; 6
(i) leave for victims of crime; 7
(j) attendance for service on a jury, or for emergency 8
service duties; 9
(k) declaration, prescription or substitution of public 10
holidays; 11
(l) the following matters relating to provision of essential 12
services or to situations of emergency-- 13
(i) directions to perform work, including to perform 14
work at a particular time or place, or in a particular 15
way; 16
(ii) directions not to perform work, including not to 17
perform work at a particular time or place, or in a 18
particular way; 19
(m) regulation of any of the following-- 20
(i) employee associations; 21
(ii) employer associations; 22
(iii) members of employee associations or of employer 23
associations; 24
(n) workplace surveillance; 25
(o) business trading hours; 26
(p) claims for enforcement of contracts of employment, 27
except so far as a law of the State provides for the 28
variation or setting aside of rights and obligations 29
arising under a contract of employment, or another 30
arrangement for employment, that a court or tribunal 31
finds is unfair; 32
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Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 1 Preliminary
[s 3]
(q) rights or remedies incidental to a matter referred to in a 1
preceding paragraph of this definition; 2
except to the extent that the Fair Work Act 2009 (Cwlth), as 3
originally enacted, deals with the matter (directly or 4
indirectly), or requires or permits instruments made or given 5
effect under the Commonwealth Fair Work Act so to deal with 6
the matter. 7
express amendment of the Commonwealth Fair Work Act 8
means the direct amendment of the text of that Act (whether 9
by the insertion, omission, repeal, substitution or relocation of 10
words or matter) but does not include the enactment by a 11
Commonwealth Act of a provision that has, or will have, 12
substantive effect otherwise than as part of the text of the 13
Commonwealth Fair Work Act. 14
fundamental workplace relations principles see section 4. 15
initial reference means the reference under section 5(1)(a). 16
initial referred provisions means the scheduled text, to the 17
extent to which that text deals with matters that are included 18
in the legislative powers of the Parliament of the State. 19
law enforcement officer means-- 20
(a) a member of the Queensland Police Service as defined 21
under the Police Service Administration Act 1990, 22
section 2.2; or 23
(b) a special constable appointed under the Police Service 24
Administration Act 1990, section 5.16. 25
local government sector employee means an employee of a 26
local government sector employer. 27
local government sector employer means an employer that 28
is-- 29
(a) a local government; or 30
(b) any entity established under the Local Government Act 31
1993 or the City of Brisbane Act 1924; or 32
(c) a local government entity under the Local Government 33
Act 2009; or 34
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Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 1 Preliminary
[s 3]
(d) the Local Government Association of Queensland 1
(Incorporated) established under the Local Government 2
Act 1993; or 3
(e) any other entity controlled by a body or bodies 4
mentioned in a preceding paragraph. 5
public sector employee means-- 6
(a) a person employed or appointed in or by a public sector 7
employer; or 8
(b) the chief executive of a public sector employer. 9
public sector employer means any of the following-- 10
(a) a Minister; 11
(b) a department or public service office; 12
(c) an employing office; 13
(d) a registry or other administrative office of a court or 14
tribunal of the State of any jurisdiction; 15
(e) an agency, authority, commission, corporation, 16
instrumentality, office, or other entity, not otherwise 17
mentioned in a preceding paragraph, established under 18
an Act or under State authorisation for a public or State 19
purpose; 20
(f) a chief executive of, or part of, an entity mentioned in a 21
preceding paragraph; 22
but does not include the following-- 23
(g) a GOC; 24
(h) an entity mentioned in schedule 1; 25
(i) a chief executive of an entity mentioned in paragraphs 26
(g) and (h). 27
reference means-- 28
(a) the initial reference; or 29
(b) the amendment reference; or 30
(c) the transition reference. 31
Page 13
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 1 Preliminary
[s 3]
referred subject matters means any of the following-- 1
(a) terms and conditions of employment, including any of 2
the following-- 3
(i) minimum terms and conditions of employment 4
(including employment standards and minimum 5
wages); 6
(ii) terms and conditions of employment contained in 7
instruments (including instruments such as awards, 8
determinations and enterprise-level agreements); 9
(iii) bargaining in relation to terms and conditions of 10
employment; 11
(iv) the effect of a transfer of business on terms and 12
conditions of employment; 13
(b) terms and conditions under which an outworker entity 14
may arrange for work to be performed for the entity 15
(directly or indirectly), if the work is of a kind that is 16
often performed by outworkers; 17
(c) rights and responsibilities of persons, including 18
employees, employers, independent contractors, 19
outworkers, outworker entities, associations of 20
employees or associations of employers, being rights 21
and responsibilities relating to any of the following-- 22
(i) freedom of association in the context of workplace 23
relations, and related protections; 24
(ii) protection from discrimination relating to 25
employment; 26
(iii) termination of employment; 27
(iv) industrial action; 28
(v) protection from payment of fees for services 29
related to bargaining; 30
(vi) sham independent contractor arrangements; 31
(vii) standing down employees without pay; 32
Page 14
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 1 Preliminary
[s 3]
(viii) union rights of entry and rights of access to 1
records; 2
(d) compliance with, and enforcement of, the 3
Commonwealth Fair Work Act; 4
(e) the administration of the Commonwealth Fair Work 5
Act; 6
(f) the application of the Commonwealth Fair Work Act; 7
(g) matters incidental or ancillary to the operation of the 8
Commonwealth Fair Work Act or of instruments made 9
or given effect under the Commonwealth Fair Work Act; 10
but does not include any excluded subject matter. 11
referred transition matters means the matters of the making 12
of laws with respect to the transition from the regime provided 13
for by-- 14
(a) the Workplace Relations Act 1996 (Cwlth) (as it 15
continues to apply because of the Fair Work 16
(Transitional Provisions and Consequential 17
Amendments) Act 2009 (Cwlth); or 18
(b) a law of this State relating to workplace relations or 19
industrial relations; 20
to the regime provided for by the Commonwealth Fair Work 21
Act. 22
scheduled text means the text set out in Schedule 2. 23
transition reference means the reference under section 24
5(1)(c). 25
(2) Words or phrases in the definition of excluded subject matter 26
or the definition of referred subject matters that are defined in 27
the Commonwealth Fair Work Act have, in that definition, the 28
meanings set out in that Act as in force on 1 July 2009. 29
(3) For the purposes of the Commonwealth Fair Work Act, the 30
Commissioner of the Police Service is to be taken to be an 31
employer of law enforcement officers of the State. 32
Page 15
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 2 Reference of matters
[s 4]
Part 2 Reference of matters 1
4 Fundamental workplace relations principles 2
The following are the fundamental workplace relations 3
principles under this Act-- 4
(a) that the Commonwealth Fair Work Act should provide 5
for, and continue to provide for, the following-- 6
(i) a strong, simple and enforceable safety net of 7
minimum employment standards; 8
(ii) genuine rights and responsibilities to ensure 9
fairness, choice and representation at work, 10
including the freedom to choose whether or not to 11
join and be represented by a union or participate in 12
collective activities; 13
(iii) collective bargaining at the enterprise level with no 14
provision for individual statutory agreements; 15
(iv) fair and effective remedies available through an 16
independent umpire; 17
(v) protection from unfair dismissal; 18
(b) that there should be, and continue to be, in connection 19
with the operation of the Commonwealth Fair Work Act, 20
the following-- 21
(i) an independent tribunal system; 22
(ii) an independent authority able to assist employers 23
and employees within a national workplace 24
relations system. 25
5 Reference of matters 26
(1) Subject to the other provisions of this Act, the following 27
matters are referred to the Parliament of the 28
Commonwealth-- 29
(a) the matters to which the initial referred provisions 30
relate, but only to the extent of the making of laws with 31
Page 16
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 2 Reference of matters
[s 5]
respect to those matters by including the initial referred 1
provisions in the Commonwealth Fair Work Act, as 2
originally enacted, and as subsequently amended by 3
amendments enacted at any time before this Act 4
commences, in the terms, or substantially in the terms, 5
set out in the scheduled text; 6
(b) the referred subject matters, but only to the extent of 7
making laws with respect to any such matter by making 8
express amendments of the Commonwealth Fair Work 9
Act; 10
(c) the referred transition matters. 11
(2) The reference of a matter under subsection (1) has effect 12
only-- 13
(a) if and to the extent that the matter is not included in the 14
legislative powers of the Parliament of the 15
Commonwealth (otherwise than by a reference for the 16
purposes of section 51(xxxvii) of the Commonwealth 17
Constitution); and 18
(b) if and to the extent that the matter is included in the 19
legislative powers of the Parliament of the State. 20
(3) The operation of each paragraph of subsection (1) is not 21
affected by any other paragraph. 22
(4) To remove doubt, it is declared that it is the intention of the 23
Parliament of the State that the Commonwealth Fair Work Act 24
may be expressly amended, or have its operation otherwise 25
affected, at any time after the commencement of this Act by 26
provisions of Commonwealth Acts whose operation is based 27
on legislative powers that the Parliament of the 28
Commonwealth has apart from under the references under 29
subsection (1). 30
(5) Despite any other provision of this section, a reference under 31
subsection (1) has effect for a period-- 32
(a) beginning when this section commences; and 33
Page 17
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 2 Reference of matters
[s 6]
(b) ending at the end of the day fixed under section 7 as the 1
day on which the reference is to terminate; 2
but no longer. 3
6 Matters excluded from the reference 4
A matter referred by section 5 does not include-- 5
(a) matters relating to Ministers or Members of Parliament; 6
or 7
(b) matters relating to the Governor, the Office of the 8
Governor, the Governor's official residence (known as 9
`Government House') and its associated administrative 10
unit; or 11
(c) matters relating to judicial officers, or members of 12
tribunals established by or under a law of the State, or 13
their associates; or 14
(d) matters relating to public sector employees and 15
employers; or 16
(e) matters relating to persons appointed or engaged by the 17
Governor, Governor in Council or a Minister under any 18
other Act, law or authority; or 19
(f) matters relating to officers or employees of the 20
parliamentary service as defined under the 21
Parliamentary Service Act 1988, section 23; or 22
(g) matters relating to law enforcement officers; or 23
(h) matters relating to local government sector employees 24
and employers. 25
7 Termination of references 26
(1) The Governor may, at any time, by proclamation published in 27
the Gazette, fix a day as the day on which-- 28
(a) the references are to terminate; or 29
(b) the amendment reference is to terminate; or 30
Page 18
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 2 Reference of matters
[s 8]
(c) the transition reference is to terminate. 1
(2) The Governor may, by proclamation published in the Gazette, 2
revoke a proclamation published under subsection (1), in 3
which case the revoked proclamation is taken (for the 4
purposes of section 5) never to have been published. 5
(3) A revoking proclamation has effect only if published before 6
the day fixed under subsection (1). 7
(4) The revocation of a proclamation published under subsection 8
(1) does not prevent publication of a further proclamation 9
under that subsection. 10
(5) If the amendment reference and the transition reference have 11
been terminated, the expression the references in subsection 12
(1) refers only to the initial reference. 13
8 Effect of termination of amendment reference or 14
transition reference before initial reference 15
(1) If the amendment reference or the transition reference 16
terminates before the initial reference, the termination of the 17
amendment reference or transition reference does not affect-- 18
(a) laws that were made under that reference before that 19
termination (whether or not they have come into 20
operation before that termination); or 21
(b) the continued operation in the State of the 22
Commonwealth Fair Work Act as in operation 23
immediately before the termination or as subsequently 24
amended or affected by-- 25
(i) laws referred to in paragraph (a) that come into 26
operation after that termination; or 27
(ii) provisions referred to in section 5(4). 28
(2) Accordingly, the amendment reference or transition reference 29
continues to have effect for the purposes of subsection (1) 30
unless the initial reference is terminated. 31
Page 19
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 2 Reference of matters
[s 9]
9 Period for termination of references 1
(1) Subject to subsection (2), a day fixed by a proclamation under 2
section 7(1) must be no earlier than the first day after the end 3
of the period of 6 months beginning on the day on which the 4
proclamation is published. 5
(2) If-- 6
(a) a proclamation under section 7(1) only provides for the 7
termination of the amendment reference; and 8
(b) the Governor, as part of the proclamation by which the 9
termination is to be effected, declares that, in the 10
opinion of the Governor, the Commonwealth Fair Work 11
Act-- 12
(i) is proposed to be amended (by an amendment 13
introduced into the Parliament of the 14
Commonwealth by a Commonwealth Minister); or 15
(ii) has been amended; 16
in a manner that is inconsistent with 1 or more of the 17
fundamental workplace relations principles; 18
the day fixed by the proclamation under section 7(1)(b) may 19
be earlier than the day that applies under subsection (1) but 20
must be no earlier than the first day after the end of the period 21
of 3 months beginning on the day on which the proclamation 22
is published. 23
(3) If the Governor fixes a day under subsection (2), the Minister 24
must, as soon as practicable after the publication of the 25
relevant proclamation, prepare a report on the matter and 26
cause a copy of the report to be laid before the Legislative 27
Assembly. 28
10 Proclamations 29
A proclamation made under this Act is subordinate 30
legislation. 31
Page 20
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 11]
11 Amendment of long title 1
(1) Long title, from `, to amend other legislation'-- 2
omit. 3
(2) This section is repealed the day after subsection (1) is 4
commenced. 5
12 Transitional provision 6
A reference in any Act or instrument to an industrial 7
instrument as defined under the Industrial Relations Act 1999 8
includes, if the context permits and it is necessary to do so to 9
take account of the reference of matters under this Act, a 10
reference to a federal industrial instrument. 11
Part 3 Amendments of other 12
legislation relating to the 13
reference of matters 14
Division 1 Amendment of Acts Interpretation 15
Act 1954 16
13 Act amended 17
This division amends the Acts Interpretation Act 1954. 18
14 Amendment of s 36 (Meaning of commonly used words 19
and expressions) 20
Section 36-- 21
insert-- 22
`federal industrial instrument see the Industrial Relations 23
Act 1999, schedule 5.'. 24
Page 21
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 15]
Division 2 Amendment of Building and 1
Construction Industry (Portable 2
Long Service Leave) Act 1991 3
15 Act amended 4
This division amends the Building and Construction Industry 5
(Portable Long Service Leave) Act 1991. 6
16 Amendment of s 59 (Amount of long service leave 7
payment) 8
Section 59(8), (10) and (11), after `relevant award'-- 9
insert-- 10
`or agreement'. 11
17 Amendment of schedule (Dictionary) 12
(1) Schedule, definitions award, building and construction 13
industry award or agreement and industrial agreement-- 14
omit. 15
(2) Schedule-- 16
insert-- 17
`building and construction industry award or agreement 18
means either of the following applying to the building and 19
construction industry-- 20
(a) an industrial instrument under the Industrial Relations 21
Act 1999; or 22
(b) a federal industrial instrument.'. 23
Page 22
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 18]
Division 3 Amendment of Contract Cleaning 1
Industry (Portable Long Service 2
Leave) Act 2005 3
18 Act amended 4
This division amends the Contract Cleaning Industry 5
(Portable Long Service Leave) Act 2005. 6
19 Amendment of s 71 (Application for long service leave 7
entitlement) 8
Section 71(2)(a), `award or relevant industrial agreement'-- 9
omit, insert-- 10
`industrial instrument'. 11
20 Amendment of s 73 (Amount of long service leave 12
payment) 13
Section 73(4), definition classification level, `award or 14
relevant industrial agreement'-- 15
omit, insert-- 16
`industrial instrument'. 17
21 Amendment of s 75 (Payments to employers) 18
Section 75(8), definition classification level, `award or 19
relevant industrial agreement'-- 20
omit, insert-- 21
`industrial instrument'. 22
22 Amendment of s 151 (Relationship with other Acts, 23
awards etc) 24
Section 151, `award or relevant industrial agreement'-- 25
Page 23
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 23]
omit, insert-- 1
`industrial instrument'. 2
23 Amendment of sch 2 (Dictionary) 3
(1) Schedule 2, definitions award and relevant industrial 4
agreement-- 5
omit. 6
(2) Schedule 2-- 7
insert-- 8
`industrial instrument means an industrial instrument under 9
the Industrial Relations Act 1999 or a federal industrial 10
instrument.'. 11
Division 4 Amendment of Electoral Act 1992 12
24 Act amended 13
This division amends the Electoral Act 1992. 14
25 Amendment of schedule (Election Funding and financial 15
disclosure based on part XX of the Commonwealth 16
Electoral Act) 17
Schedule, section 287, definition registered industrial 18
organisation-- 19
omit, insert-- 20
`registered industrial organisation means-- 21
(a) a body registered as an industrial organisation, or a body 22
whose registration was continued or preserved, under 23
the Industrial Relations Act 1999; or 24
(b) an organisation registered under the Fair Work 25
(Registered Organisations) Act 2009 (Cwlth) or the law 26
Page 24
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 26]
of another State or territory about the registration of 1
industrial organisations or unions.'. 2
Division 5 Amendment of Electricity Act 1994 3
26 Act amended 4
This division amends the Electricity Act 1994. 5
27 Amendment of s 131 (Effect of regulator taking over 6
operation of relevant operations) 7
Section 131(7), after `1999'-- 8
insert-- 9
`or the Fair Work Act 2009 (Cwlth)'. 10
Division 6 Amendment of Health Services Act 11
1991 12
28 Act amended 13
This division amends the Health Services Act 1991. 14
29 Amendment of s 2 (Definitions) 15
Section 2, definition award, after `(Cwlth)'-- 16
insert-- 17
`or a modern award under the Fair Work Act 2009 (Cwlth)'. 18
Page 25
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 30]
Division 7 Amendment of Industrial Relations 1
Act 1999 2
30 Act amended 3
This division amends the Industrial Relations Act 1999. 4
31 Amendment of s 5 (Who is an employee) 5
Section 5(1), at the end-- 6
insert-- 7
`Note-- 8
For the application of the Commonwealth Act, see the note to section 9
6(1).'. 10
32 Amendment of s 6 (Who is an employer) 11
Section 6(1), at the end-- 12
insert-- 13
`Note-- 14
The Commonwealth Act applies generally speaking to private sector 15
employers and their employees.'. 16
33 Amendment of s 9 (Working time for an employee under 17
an industrial instrument made on or before 1 September 18
2005 etc.) 19
(1) Section 9(8)-- 20
renumber as section 9(9). 21
(2) Section 9-- 22
insert-- 23
`(8) If this section applies to an employee, without limiting the 24
section, its provisions are taken to be terms of an industrial 25
instrument applicable to the employee.'. 26
Page 26
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 34]
34 Amendment of s 9A (Working time for an employee under 1
an industrial instrument made after 1 September 2005 2
etc.) 3
(1) Section 9A(12)-- 4
renumber as section 9A(13). 5
(2) Section 9A-- 6
insert-- 7
`(12) If this section applies to an employee, without limiting the 8
section, its provisions are taken to be terms of an industrial 9
instrument applicable to the employee.'. 10
35 Amendment of s 10 (Entitlement) 11
(1) Section 10(8)-- 12
renumber as section 10(9). 13
(2) Section 10-- 14
insert-- 15
`(8) If this section applies to an employee, without limiting the 16
section, its provisions are taken to be terms of an industrial 17
instrument applicable to the employee.'. 18
36 Amendment of s 11 (Entitlement) 19
(1) Section 11(8)-- 20
renumber as section 11(9). 21
(2) Section 11-- 22
insert-- 23
`(8) If this section applies to an employee, without limiting the 24
section, its provisions are taken to be terms of an industrial 25
instrument applicable to the employee.'. 26
Page 27
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 37]
37 Amendment of s 13 (Payment for annual leave) 1
(1) Section 13(5)-- 2
renumber as section 13(6). 3
(2) Section 13-- 4
insert-- 5
`(5) If this section applies to an employee, without limiting the 6
section, its provisions are taken to be terms of an industrial 7
instrument applicable to the employee.'. 8
38 Amendment of s 13A (Annual leave loading) 9
Section 13A-- 10
insert-- 11
`(4) If this section applies to an employee, without limiting the 12
section, its provisions are taken to be terms of an industrial 13
instrument applicable to the employee.'. 14
39 Amendment of s 14 (Payment for annual leave on 15
termination of employment) 16
Section 14-- 17
insert-- 18
`(6) If this section applies to an employee, without limiting the 19
section, its provisions are taken to be terms of an industrial 20
instrument applicable to the employee.'. 21
40 Amendment of s 14A (Jury service leave) 22
(1) Section 14A(7)-- 23
renumber as section 14A(8). 24
(2) Section 14A-- 25
insert-- 26
Page 28
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 41]
`(7) If this section applies to an employee, without limiting the 1
section, its provisions are taken to be terms of an industrial 2
instrument applicable to the employee.'. 3
41 Amendment of s 15 (Public holidays) 4
(1) Section 15(10)-- 5
renumber as section 15(11). 6
(2) Section 15-- 7
insert-- 8
`(10) If this section applies to an employee, without limiting the 9
section, its provisions are taken to be terms of an industrial 10
instrument applicable to the employee.'. 11
42 Amendment of ch 2, pt 2, div 5, hdg (Past overrides less 12
favourable conditions) 13
Chapter 2, part 2, division 5, heading-- 14
omit, insert-- 15
`Division 5 General'. 16
43 Amendment of s 41 (This part overrides less favourable 17
conditions) 18
(1) Section 41, heading-- 19
omit, insert-- 20
`41 Relationship to other rights and industrial instruments'. 21
(2) Section 41-- 22
insert-- 23
`(2) To the extent a provision of this part, other than section 38C, 24
applies to an employee, without limiting the provision, the 25
provision is taken to be a term of an industrial instrument 26
applicable to the employee.'. 27
Page 29
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 44]
44 Insertion of new section 57A 1
Chapter 2, part 3-- 2
insert-- 3
`57A Provisions taken to be terms of industrial instrument 4
`A provision of this part that applies to an employee, without 5
limiting the provision, is taken to be a term of an industrial 6
instrument applicable to the employee.'. 7
45 Amendment of s 136 (Apprentice's and trainee's 8
employment conditions) 9
Section 136(6), definition industrial instrument-- 10
omit, insert-- 11
`industrial instrument includes a federal industrial 12
instrument.'. 13
46 Amendment of s 275 (Power to declare persons to be 14
employees or employers) 15
Section 275(4), definition industrial instrument-- 16
omit, insert-- 17
`industrial instrument includes a federal industrial 18
instrument.'. 19
47 Amendment of s 276 (Power to amend or void contracts) 20
(1) Section 276, heading, before `void'-- 21
insert-- 22
`declare'. 23
(2) Section 276(7), definition industrial instrument-- 24
omit, insert-- 25
`industrial instrument includes a federal industrial 26
instrument.'. 27
Page 30
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 48]
48 Amendment of s 314 (Functions and powers vested in 1
commission by other jurisdictions) 2
Section 314(1)(a), `Workplace Relations Act 1996 (Cwlth)'-- 3
omit, insert-- 4
`Commonwealth Act'. 5
49 Amendment of s 315 (Arrangements with Commonwealth 6
public service) 7
Section 315(3), definition Commonwealth public servant, 8
paragraphs (b) and (c)-- 9
omit, insert-- 10
`(b) a person performing functions and exercising powers 11
under the Commonwealth Act.'. 12
50 Amendment of s 408D (When fees are or are not payable 13
to private employment agent) 14
Section 408D(4), definition industrial instrument-- 15
omit, insert-- 16
`industrial instrument includes a federal industrial 17
instrument.'. 18
51 Amendment of s 411 (Meaning of counterpart federal 19
body for ch 12) 20
Section 411(1)(b), `Commonwealth Act, schedule 1, section 21
151'-- 22
omit, insert-- 23
`Commonwealth (Registered Organisations) Act, section 24
151'. 25
Page 31
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 52]
52 Amendment of s 580 (Exemption if federal election held) 1
Section 580(2)(b), `Commonwealth Act'-- 2
omit, insert-- 3
`Commonwealth (Registered Organisations) Act'. 4
53 Amendment of s 581 (Obligation to notify change in 5
federal election result) 6
Section 581(1)(b), `Commonwealth Act'-- 7
omit, insert-- 8
`Commonwealth (Registered Organisations) Act'. 9
54 Amendment of s 582 (Exemption) 10
Section 582(2), `Commonwealth Act'-- 11
omit, insert-- 12
`Commonwealth (Registered Organisations) Act'. 13
55 Amendment of s 584 (Obligation to file copy of federal 14
officers register) 15
(1) Section 584(2), `Commonwealth Act'-- 16
omit, insert-- 17
`Commonwealth (Registered Organisations) Act'. 18
(2) Section 584(3), definition officer's records, `Commonwealth 19
Act'-- 20
omit, insert-- 21
`Commonwealth (Registered Organisations) Act'. 22
56 Amendment of s 585 (Obligation to give notice of change 23
or contravention) 24
Section 585(1), `Commonwealth Act'-- 25
Page 32
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 57]
omit, insert-- 1
`Commonwealth (Registered Organisations) Act'. 2
57 Amendment of s 586 (Who may apply) 3
(1) Section 586(b), `Commonwealth Act'-- 4
omit, insert-- 5
`Commonwealth (Registered Organisations) Act'. 6
(2) Section 586(c), `Commonwealth Act, schedule 1, section 7
270'-- 8
omit, insert-- 9
`Commonwealth (Registered Organisations) Act, section 10
270'. 11
58 Amendment of s 587 (Grant of exemption) 12
Section 587(4), definition relevant Commonwealth provision, 13
`Commonwealth Act, schedule 1, chapter 8, part 3'-- 14
omit, insert-- 15
`Commonwealth (Registered Organisations) Act, chapter 8, 16
part 3'. 17
59 Amendment of s 588 (Obligation to file copies of federal 18
audit documents) 19
Section 588(2), `filing under the Commonwealth Act, 20
schedule 1, section 268'-- 21
omit, insert-- 22
`lodging under the Commonwealth (Registered 23
Organisations) Act, section 268'. 24
60 Amendment of s 589 (Obligation to give notice of change 25
or contravention) 26
(1) Section 589(1)(b), `Commonwealth Act'-- 27
Page 33
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 61]
omit, insert-- 1
`Commonwealth (Registered Organisations) Act'. 2
(2) Section 589(1)(c), `Commonwealth Act, schedule 1, section 3
270'-- 4
omit, insert-- 5
`Commonwealth (Registered Organisations) Act, section 6
270'. 7
61 Insertion of new chapter 16 8
After section 691-- 9
insert-- 10
`Chapter 16 Employers declared not to 11
be national system 12
employers 13
`Part 1 Declarations 14
`692 Declaration that particular employers are not to be 15
national system employers 16
`(1) This section applies for the purpose of the Commonwealth 17
Act, section 14(2). 18
`(2) Brisbane City Council established under the City of Brisbane 19
Act 1924 is declared not to be a national system employer for 20
the purposes of the Commonwealth Act. 21
`(3) A regulation may declare an FWA section 14(2) employer not 22
to be a national system employer for the purposes of the 23
Commonwealth Act. 24
`(4) A regulation may revoke a declaration made under a 25
regulation. 26
Page 34
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 61]
`(5) The Minister by gazette notice may fix a relevant day for the 1
purposes of the declaration made by subsection (2) or a 2
declaration made by a regulation mentioned in subsection (3). 3
Note-- 4
Under the Commonwealth Act, section 14(2), an endorsement under 5
the section by the Minister under the Commonwealth Act must be in 6
force before a particular employer is not a national system employer as 7
specified by the declaration. The prescription of a relevant day allows 8
the timing of this endorsement to be taken into account for the purpose 9
of applying the provisions of part 2. 10
`(6) In this section-- 11
FWA section 14(2) employer means an employer that, under 12
section 14(2) of the Commonwealth Act, may be declared by 13
or under a law of the State not to be a national system 14
employer. 15
`Part 2 Change from federal to State 16
system 17
`692A Definitions for this part 18
`In this part-- 19
declared employee means a person employed by a declared 20
employer. 21
declared employer means an entity declared not to be a 22
national system employer by a regulation mentioned in 23
section 692(3). 24
federal industrial authority means-- 25
(a) Australian Industrial Relations Commission under the 26
Workplace Relations Act 1996 (Cwlth); or 27
(b) FWA. 28
federal industrial authority manager means-- 29
Page 35
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 61]
(a) the registrar or deputy registrar of the Australian 1
Industrial Relations Commission under the Workplace 2
Relations Act 1996; or 3
(b) the General Manager of FWA. 4
national fair work legislation means-- 5
(a) the Commonwealth Act; or 6
(b) the Fair Work (Transitional Provisions and 7
Consequential Amendments) Act 2009 (Cwlth). 8
new State instrument, for a particular employer, means the 9
industrial instrument taken to exist on the relevant day under 10
section 692D in relation to the employees of the employer. 11
old federal instrument, for a particular employer, means the 12
federal industrial instrument mentioned in section 692D as 13
applying to or purporting to apply to the employees of the 14
employer immediately before the relevant day. 15
relevant day means-- 16
(a) for the Brisbane City Council and employees of the 17
Brisbane City Council--the day fixed under section 18
692(5) for the declaration under section 692(2); or 19
(b) for another particular employer or employee of the 20
particular employer--the day fixed under section 692(5) 21
for the declaration under section 692(3) that the 22
employer is not to be a national system employer. 23
terms includes conditions, restrictions and other provisions. 24
`692B Brisbane City Council 25
`(1) This section applies to employees of Brisbane City Council to 26
whom the BCC federal agreement relates immediately before 27
the relevant day. 28
`(2) From the relevant day, the Brisbane City Council Transitional 29
Enterprise Bargaining Certified Agreement 2009 is taken to 30
bind Brisbane City Council, its employees and any employee 31
organisation that is a party to the agreement. 32
Page 36
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 61]
`(3) In this section-- 1
BCC federal agreement means the Brisbane City Council 2
Transitional Enterprise Bargaining Certified Agreement 6 3
Extension 11 under the Commonwealth Act. 4
`692C Operation of existing industrial instrument in relation 5
to declared employers 6
`(1) This section applies if a regulation provides in relation to a 7
particular declared employer that from the relevant day an 8
existing industrial instrument binds employees of the 9
employer. 10
`(2) From the relevant day, the industrial instrument binds the 11
declared employer, the declared employees and any 12
organisation that is a party to the agreement. 13
`(3) A regulation-- 14
(a) may be made for the purposes of subsection (1); and 15
(b) may declare the industrial instrument or any matter 16
relating to the industrial instrument to be valid for the 17
purposes of the operation of this section. 18
`692D New State instrument taken to exist for declared 19
employers in other circumstances 20
`(1) This section applies to the extent sections 692B and 692C do 21
not provide for declared employees. 22
`(2) If a federal industrial instrument, immediately before the 23
relevant day, applies to or purports to apply to the declared 24
employees of a particular declared employer, on the relevant 25
day, an industrial instrument binding the declared employer 26
and declared employees is taken to exist under this Act. 27
`(3) If a new State instrument is taken to exist because of 28
subsection (2)-- 29
(a) the instrument is taken to be-- 30
Page 37
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 61]
(i) if the old federal instrument is an individual 1
statutory agreement--a QWA; and 2
(ii) otherwise--a certified agreement; and 3
(b) the instrument will be taken to be on the relevant day -- 4
(i) for a QWA mentioned in paragraph 5
(a)(i)--approved under this Act; or 6
(ii) for a certified agreement mentioned in paragraph 7
(a)(ii)-- certified under this Act; and 8
(c) subject to this section, the instrument is taken to have 9
the same terms as the old federal instrument including 10
those terms as added to or modified by-- 11
(i) terms of a federal award incorporated into the old 12
federal instrument; or 13
(ii) orders of a federal industrial authority; or 14
(iii) another instrument under the national fair work 15
legislation or the Workplace Relations Act 1996 16
(Cwlth); and 17
(d) this Act will apply in relation to the instrument subject 18
to any modifications or exclusions that may be 19
prescribed under a regulation made for this subsection; 20
and 21
(e) the commission may-- 22
(i) on application by the Minister; or 23
(ii) on application by a declared employer, a declared 24
employee or an organisation; 25
amend or revoke any term of the instrument if the 26
commission is satisfied that it is fair and reasonable to 27
do so in the circumstances. 28
`(4) The commission may, in amending a new State instrument 29
under subsection (3)(e), and to achieve the final effect of an 30
amendment, provide for the amendment to take effect-- 31
(a) immediately; or 32
Page 38
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 61]
(b) progressively, in specified stages. 1
`(5) Despite a preceding subsection, a new State instrument 2
applies subject to chapter 2. 3
`(6) A new State instrument is taken to have a specified nominal 4
expiry date that is the earlier of the following-- 5
(a) a day that is 2 years from the relevant day; 6
(b) the day that, immediately before the relevant day, was 7
the expiry day of the old federal instrument. 8
`(7) In this section-- 9
individual statutory agreement includes the following under 10
the Workplace Relations Act 1996 (Cwlth) given continued 11
existence under the Fair Work (Transitional Provisions and 12
Consequential Amendments) Act 2009 (Cwlth)-- 13
(a) an Australian workplace agreement; 14
(b) a pre-reform AWA; 15
(c) an Individual Transitional Employment Agreement. 16
`692E Ability to carry over matters 17
`The commission may, in connection with the operation of 18
this part, or any matter arising, directly or indirectly, out of the 19
operation of this part-- 20
(a) accept, recognise, adopt or rely on any step taken under, 21
or for the purposes of, the national fair work legislation; 22
and 23
(b) accept or rely on any matter or thing (including in the 24
nature of evidence presented for the purposes of any 25
proceedings) that has been presented, filed or provided 26
under, or for the purposes of, the national fair work 27
legislation; and 28
(c) give effect in any other way to any other thing done 29
under, or for the purposes of, the national fair work 30
legislation. 31
Page 39
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 61]
`692F Reference in a new State instrument to a federal 1
industrial authority or authority manager 2
`(1) If a term of a new State instrument is expressed to confer a 3
power or function on a federal industrial authority, the term 4
has effect from the relevant day as if it conferred the power or 5
function instead on the commission. 6
`(2) If a term of a new State instrument is expressed to confer a 7
power or function on a federal industrial authority manager, 8
the term has effect from the relevant day as if it conferred the 9
power or function instead on the registrar. 10
`(3) This section has effect subject to-- 11
(a) a contrary intention in this Act; and 12
(b) a regulation. 13
`692G Reference in a new State instrument to a provision 14
of Commonwealth law 15
`(1) If a term of a new State instrument is expressed to refer to a 16
provision of the Commonwealth Act or the Workplace 17
Relations Act 1996 (Cwlth), from the relevant day it is taken 18
to refer instead to the corresponding provision of this Act. 19
`(2) This section has effect subject to-- 20
(a) a contrary intention in this Act; and 21
(b) a regulation. 22
`(3) In this section-- 23
corresponding provision of this Act, to a provision of the 24
Commonwealth Act or the Workplace Relations Act 1996 25
(Cwlth), means-- 26
(a) if paragraph (b) does not apply, a provision of this Act 27
that is of similar effect to the provision of the 28
Commonwealth Act or the Workplace Relations Act 29
1996 (Cwlth); or 30
(b) a provision of this Act declared under a regulation to be 31
a corresponding provision. 32
Page 40
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 61]
`692H Reference in a new State instrument to a federal 1
organisation 2
`(1) If a term of a new State instrument is expressed to refer to a 3
federal organisation, from the relevant day it is taken to refer 4
instead to an organisation under this Act of which the federal 5
organisation is a counterpart federal body as defined under 6
section 411. 7
`(2) If the federal organisation is not a counterpart federal body of 8
an organisation under this Act, the federal organisation is 9
taken to be an organisation under this Act for the 10
representation in the State system of the employees of the 11
relevant declared employer. 12
`(3) Subsection (2) stops applying to the federal organisation when 13
the new State instrument stops binding the relevant declared 14
employer. 15
`(4) This section has effect subject to-- 16
(a) a contrary intention in this Act; and 17
(b) a regulation. 18
`692I Counting service under the old federal instrument 19
`(1) Subsection (2) applies for the purpose of deciding the 20
entitlements of a declared employee under a new State 21
instrument. 22
`(2) Service of the declared employee with a declared employer 23
before the relevant day that counted under the old federal 24
instrument also counts as service of the declared employee 25
with the declared employer under the new State instrument. 26
`(3) If, before the relevant day, the declared employee has already 27
had the benefit of an entitlement, the amount of which was 28
calculated by reference to a period of service, subsection (2) 29
does not result in that period of service being counted again 30
when calculating the declared employee's entitlements of that 31
type under the new State instrument. 32
Page 41
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 61]
`692J Accruing entitlements--leave accrued immediately 1
before the relevant day 2
`(1) This section applies to leave of the following types, however 3
described, accruing to an employee (the leave)-- 4
(a) annual leave; 5
(b) sick leave, personal leave or carer's leave; 6
(c) long service leave. 7
`(2) If a declared employee to whom a new State instrument 8
applies had, immediately before the relevant day, an accrued 9
entitlement to an amount of the leave, the accrued leave is 10
taken to have accrued under the new State instrument. 11
`(3) It does not matter whether the leave accrued under the old 12
federal instrument, under the national fair work legislation or 13
this Act. 14
Note-- 15
The reference to the accrual of leave under this Act arises if the old 16
federal instrument refers to leave acrruing in accordance with this Act. 17
`(4) A regulation may deal with other matters relating to how a 18
new State instrument applies to any other accrued entitlement 19
that, immediately before the relevant day, a declared 20
employee had under the old federal instrument or the 21
Commonwealth Act. 22
`692K Leave that is being, or is to be, taken under the old 23
federal instrument 24
`(1) If a declared employee was, immediately before the relevant 25
day, taking a period of leave under the old federal instrument 26
or under the Commonwealth Act, the employee is entitled to 27
continue on that leave under the new State instrument or this 28
Act for the remainder of the period. 29
`(2) If a declared employee has, before the relevant day, taken a 30
step under the old federal instrument or the Commonwealth 31
Act that the employee is required to take so that the employee 32
can, from the relevant day, take a period of leave under the old 33
federal instrument or the Commonwealth Act, the employee is 34
Page 42
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 62]
taken to have taken the step under the new State instrument or 1
this Act. 2
`(3) A regulation may deal with other matters relating to how a 3
new State instrument applies to leave that, immediately before 4
the relevant day, is being, or is to be, taken by a declared 5
employee under the old federal instrument or the 6
Commonwealth Act.'. 7
62 Amendment of s 745 (Definitions for pt 7) 8
Section 745-- 9
insert-- 10
`Commonwealth Act means the Workplace Relations Act 11
1996 (Cwlth).'. 12
63 Insertion of new ch 20, pt 10 13
Chapter 20-- 14
insert-- 15
`Part 10 Transitional provisions for Fair 16
Work (Commonwealth Powers) 17
and Other Provisions Act 2009 18
`760 Referral of matters to Commonwealth Parliament 19
`(1) In this section-- 20
designated day means the day on which a Commonwealth law 21
in the terms, or substantially in the terms, set out in scheduled 22
text under the Fair Work (Commonwealth Powers) and Other 23
Provisions Act 2009 comes into operation. 24
`(2) This Act will operate in relation to-- 25
(a) any matter arising under this Act before the designated 26
day (including a matter that is not in the nature of a right 27
or that is procedural in nature); and 28
Page 43
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 64]
(b) any matter arising, directly or indirectly, out of such a 1
matter; 2
insofar as the matter is not dealt with under the 3
Commonwealth Act on or after the designated day. 4
`(3) Nothing in this section is intended to limit or affect the 5
operation of this Act-- 6
(a) in relation to industrial or other matters that are not 7
affected by a law of the Commonwealth relating to 8
matters referred to the Parliament of the Commonwealth 9
under the Fair Work (Commonwealth Powers) and 10
Other Provisions Act 2009; or 11
(b) in any other way (other than to the extent that this Act 12
can not apply because of a law of the Commonwealth).'. 13
`761 Declaration about BCC Certified Agreement 14
`(1) This section applies to the Brisbane City Council Transitional 15
Enterprise Bargaining Certified Agreement 2009. 16
`(2) The agreement is to be taken to be validly made and certified 17
for the purposes of the law of the State. 18
`762 Amendment of regulation 19
`The amendment of the Industrial Relations Regulation 2000 20
by the Fair Work (Commonwealth Powers) and Other 21
Provisions Act 2009 does not affect the power of the Governor 22
in Council to further amend the regulation or to repeal it.'. 23
64 Amendment of sch 5 (Dictionary) 24
(1) Schedule 5, definitions Australian commission, 25
Commonwealth Act, federal agreement, federal award and 26
federal organisation-- 27
omit. 28
(2) Schedule 5-- 29
Page 44
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 64]
insert-- 1
`Australian commission means FWA. 2
Commonwealth Act means the Fair Work Act 2009 (Cwlth). 3
Commonwealth (Registered Organisations) Act means Fair 4
Work (Registered Organisations) Act 2009 (Cwlth). 5
federal agreement means-- 6
(a) an Australian workplace agreement, or a certified 7
agreement, under the Workplace Relations Act 1996 8
(Cwlth) continued in existence under the Fair Work 9
(Transitional Provisions and Consequential 10
Amendments) Act 2009 (Cwlth); or 11
(b) an enterprise agreement or an individual flexibility 12
arrangement under the Commonwealth Act. 13
federal award means-- 14
(a) an award under the Workplace Relations Act 1996 15
(Cwlth) continued in existence under the Fair Work 16
(Transitional Provisions and Consequential 17
Amendments) Act 2009 (Cwlth); or 18
(b) a modern award under the Commonwealth Act. 19
federal industrial instrument means the following-- 20
(a) a fair work instrument under the Commonwealth Act; 21
(b) an instrument given continuing effect under the Fair 22
Work (Transitional Provisions and Consequential 23
Amendments) Act 2009 (Cwlth), schedule 3, part 2; 24
(c) a Division 2B State instrument under the Fair Work 25
(Transitional Provisions and Consequential 26
Amendments) Act 2009 (Cwlth). 27
federal organisation means an organisation under the 28
Commonwealth (Registered Organisations) Act. 29
FWA means Fair Work Australia under the Commonwealth 30
Act.'. 31
Page 45
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 65]
(3) Schedule 5, definition award, paragraph (b), from 1
`includes'-- 2
omit, insert-- 3
`includes a federal award.'. 4
(4) Schedule 5, definition industrial authority, after 5
`conciliation'-- 6
insert-- 7
`, determination'. 8
Division 8 Amendment of Industrial Relations 9
Regulation 2000 10
65 Regulation amended 11
This division amends the Industrial Relations Regulation 12
2000. 13
66 Renumbering of pt 14 14
(1) Part 14-- 15
renumber as part 15. 16
(2) Sections 148 and 149-- 17
renumber as sections 149 and 150. 18
67 Insertion of new pt 14 19
After section 147-- 20
insert-- 21
Page 46
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 68]
`Part 14 Declarations for 1
Commonwealth Act, section 2
14(2) 3
`148 Declarations 4
`(1) This section applies for the purpose of the Commonwealth 5
Act, section 14(2). 6
`(2) Each of the employers mentioned in schedule 7A are declared 7
not to be a national system employer for the purposes of the 8
Commonwealth Act, section 14(2). 9
Note-- 10
The local government listed in schedule 7A, part 2, opposite each 11
declared employer is the body to which the Commonwealth Act, 12
section 14(2)(a)(ii) applies of which the declared employer is a wholly 13
owned subsidiary (within the meaning of the Corporations Act) or by 14
which the declared employer is wholly controlled. 15
`(3) In the schedule, parts 1 and 2, a reference to an Act under 16
which an employer was established includes, if the Act 17
continued the employer in existence, a reference to any law by 18
or under which the employer was originally established.'. 19
68 Insertion of new sch 7A 20
After schedule 7-- 21
insert-- 22
Page 47
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 68]
`Schedule 7A Employers declared not to be 1
national system employers 2
section 148 3
`Part 1 Employers mentioned in the 4
Commonwealth Act, section 5
14(2)(a)(i) 6
1 Australian Agricultural College Corporation 7
established under the Agricultural College Act 2005 8
2 Library Board of Queensland 9
established under the Libraries Act 1988 10
3 Queensland Art Gallery Board of Trustees 11
established under the Queensland Art Gallery Act 1987 12
4 Queensland Building Services Authority 13
established under the Queensland Building Services Authority 14
Act 1991 15
5 Queensland Museum Board of Trustees 16
established under the Queensland Museum Act 1970 17
6 Residential Tenancies Authority 18
established under the Residential Tenancies and Rooming 19
Accommodation Act 2008 20
7 South Bank Corporation 21
established under the South Bank Corporation Act 1989 22
8 Stadiums Queensland 23
established under the Major Sports Facilities Act 2001 24
9 Tourism Queensland 25
Page 48
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 68]
established under the Tourism Queensland Act 1979 1
10 WorkCover Queensland 2
established under the Workers' Compensation and 3
Rehabilitation Act 2003 4
`Part 2 Employers mentioned in the 5
Commonwealth Act, section 6
14(2)(a)(ii) 7
1 Brisbane City Council Superannuation Plan (City Super) 8
ABN 32 864 248 795 9
established under the City of Brisbane Act 1924 for a local 10
government purpose 11
2 Local Government Superannuation Scheme ABN 23 053 121 12
564 13
established under the Local Government Act 1993 for a local 14
government purpose 15
3 Wide Bay Water Corporation ABN 98 380 729 010 16
established under the Local Government Act 1993 for a local 17
government purpose 18
Page 49
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 68]
`Part 3 Employers mentioned in the 1
Commonwealth Act, section 2
14(2)(a)(iii) 3
Entity Relevant Local Government
The trustee for Boonah and District Scenic Rim Regional Council
Art Gallery and Library Trust Gift
Fund (trading as Boonah and District
Art Gallery and Library Trust Gift
Fund) ABN 92 719 264 297
The trustee for the Boonah District Scenic Rim Regional Council
Performing Arts Centre (trading as
Boonah and District Performing Arts
Centre Trust) ABN 35 930 584 358
Brisbane Arts Trust (trading as Brisbane City Council
Brisbane Arts Trust) ABN 30 749 675
075
Brisbane Marketing Pty Ltd ACN 094 Brisbane City Council
633 262 and ABN 86 094 633 262
Brisbane Powerhouse Pty Ltd (trading Brisbane City Council
as Brisbane Powerhouse) ACN 091
551 290 and ABN 18 091 551 290
Burdekin Cultural Complex Board Inc. Burdekin Shire Council
(trading as Burdekin Cultural Complex
Board Inc.) ABN 38 161 809 872
Cairns Regional Gallery Limited Cairns Regional Council
ACN 062 537 259 and ABN 45 062
537 259
The trustee for the Cairns Regional Cairns Regional Council
Gallery Arts Trust (trading as Cairns
Regional Gallery Foundation Ltd)
ABN 42 114 461 772
Page 50
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 68]
Entity Relevant Local Government
Caloundra City Enterprises Pty Ltd Sunshine Coast Regional Council
ACN 127 655 136 and ABN 39 127
655 136
Central Queensland Local Banana Shire Council, Central
Government Association Inc. ABN 34 Highlands Regional Council,
593 816 745 Gladstone Regional Council, Isaac
Regional Council and
Rockhampton Regional Council
Central Western Queensland Remote Barcaldine Regional Council,
Area Planning and Development Barcoo Shire Council,
Board (trading as Central Western Blackall-Tambo Regional Council,
Queensland Remote Area Planning Boulia Shire Council, Diamantina
and Development Board) ACN 057 Shire Council, Longreach Regional
968 653 and ABN 76 057 968 653 Council and Winton Shire Council
CITIPAC International Pty Ltd Gold Coast City Council
ACN 011 028 649
City of Brisbane Arts and Brisbane City Council
Environment Ltd (trading as City of
Brisbane Arts and Environment
Limited) ACN 084 763 253 and
ABN 47 084 763 253
City of Brisbane Investment Brisbane City Council
Corporation Pty Ltd ACN 066 022 455
and ABN 95 066 022 455
Council of Mayors (SEQ) (trading as Brisbane City, Gold Coast City,
Council of Mayors (SEQ), and other Logan City, Lockyer Valley
names) ABN 64 998 531 528 Regional, Redland City, Scenic
Rim Regional, Somerset Regional,
Sunshine Coast Regional and
Toowoomba Regional Councils
Edward River Crocodile Farm Pty Pormpuraaw Aboriginal Council
Limited (trading as Edward River
Crocodile Farm) ACN 008 502 270
and ABN 90 008 502 270
Page 51
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 68]
Entity Relevant Local Government
The trustee for Empire Theatres Toowoomba Regional Council
Foundation (trading as Empire
Theatres Foundation) ABN 69 130 487
365
Empire Theatres Pty Ltd ACN 086 482 Toowoomba Regional Council
288 and ABN 83 086 482 288
Far North Queensland Regional Cairns Regional Council,
Organisation of Councils (trading as Cassowary Coast Regional
Far North Queensland Regional Council, Cooktown Shire Council,
Organisation of Councils) ABN 52 Hinchinbrook Shire Council,
034 736 962 Tablelands Regional Council,
Yarrabah Shire Council, Wujal
Wujal Aboriginal Shire Council
Gold Coast Arts Centre Pty Ltd Gold Coast City Council
(trading as Gold Coast Arts Centre Pty
Ltd) ACN 060 787 466 and ABN 85
060 787 466
Gulf Savannah Development Inc. Burke, Carpentaria, Croydon and
(trading as Gulf Savannah Etheridge Shire Councils
Development, and as Gulf Savannah
Tourism) ABN 69 956 728 660
Hervey Bay (Community Fund) Fraser Coast Regional Council
Limited ACN 120 350 469
Hervey Bay (Cultural Fund) Limited Fraser Coast Regional Council
ACN 120 350 405
The trustee for Ipswich Arts Ipswich City Council
Foundation Trust ABN 75 833 582
216
Ipswich City Council (trading as Ipswich City Council
Ipswich Arts Foundation) ABN 61 461
981 077
Page 52
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 68]
Entity Relevant Local Government
Ipswich City Enterprises Investments Ipswich City Council
Pty Ltd (trading as Ipswich City
Enterprises Investments Pty Ltd)
ACN 127 862 515 and ABN 42 127
862 515
Ipswich City Enterprises Pty Ltd Ipswich City Council
(trading as Ipswich City Enterprises
Pty Ltd) ACN 095 487 086 and
ABN 88 095 487 086
Kronosaurus Korner Board Inc. Richmond City Council
(trading as Kronosaurus Korner)
ABN 29 088 101 544
Lockhart River Aerodrome Company Lockhart River Aboriginal Shire
Pty Ltd (Lockhart River Aerodrome Council
Company Pty Ltd) ACN 061 972 978
and ABN 95 061 972 978
Nuffield Pty Ltd ACN 068 043 318 Brisbane City Council
and ABN 72 068 043 318
Outback @ Isa Pty Ltd (trading as Mount Isa City Council
Outback@Isa) ACN 31 104 362 718
and ABN 104 362 718
Palm Island Community Company Ltd Palm Island Aboriginal Shire
ACN 126 800 682 and ABN 64 126 Council
800 682
Poruma Island Pty Ltd ACN 098 641 Poruma Island Community Council
162 and ABN 88 098 641 162
Quad Park Corporation Pty Ltd Caloundra City Council
ACN 127 704 947 and ABN 31 127
704 947
Rodeo Capital Pty Ltd (trading as Mount Isa City Council
Buchanan Park Facilities
Management) ACN 125 659 510 and
ABN 89 125 659 510
Page 53
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 68]
Entity Relevant Local Government
Sunshine Coast Events Centre Pty Ltd Sunshine Coast Regional Council
(trading as Caloundra Civic Cultural
Centre) ACN 127 655 510 and
ABN 38 127 655 510
Surfers Paradise Alliance Ltd Gold Coast City Council
ACN 097 068 285 and ABN 19 097
068 285
The Brolga Theatre Board Inc. Fraser Coast Regional Council
(trading as The Brolga Theatre and
Convention Centre) ABN 75 529 942
824
The trustee for Townsville Cemetery Townsville City Council
Trust (trading as Townsville &
Thuringowa Cemetery Trust) ABN 72
096 373 559
TradeCoast Land Pty Ltd ACN 111 Brisbane City Council
428 212 and ABN 15 111 428 212
Waltzing Matilda Centre Ltd (trading Winton Shire Council
as Waltzing Matilda Centre) ACN 34
086 051 078 and ABN 34 086 051 078
Warwick Tourism and Events Pty Ltd Southern Downs Regional Council
ACN 105 787 246 and ABN 52 105
787 246
Widelinx Pty Ltd ACN 113 136 824 Fraser Coast Regional Council
and ABN 76 113 136 824
Woorabinda Pastoral Company Pty Woorabinda Aboriginal Shire
Limited ACN 011 072 450 and Council'.
ABN 17 011 072 450
Page 54
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 69]
Division 9 Amendment of Magistrates Courts 1
Act 1921 2
69 Act amended 3
This division amends the Magistrates Courts Act 1921. 4
70 Amendment of s 42B (Application of pt 5A) 5
Section 42B(3) and (4), after `(Cwlth)'-- 6
insert-- 7
`or the Fair Work Act 2009 (Cwlth)'. 8
Division 10 Amendment of Statutory 9
Instruments Act 1992 10
71 Act amended 11
This division amends the Statutory Instruments Act 1992. 12
72 Amendment of sch 2A (Subordinate legislation to which 13
part 7 does not apply) 14
Schedule 2A, at the end-- 15
insert-- 16
`a proclamation under the Fair Work (Commonwealth Powers) 17
and Other Provisions Act 2009'. 18
Division 11 Amendment of Summary Offences 19
Act 2005 20
73 Act amended 21
This division amends the Summary Offences Act 2005. 22
Page 55
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 3 Amendments of other legislation relating to the reference of matters
[s 74]
74 Amendment of sch 2 (Dictionary) 1
Schedule 2, definition authorised industrial officer, paragraph 2
(b)-- 3
omit, insert-- 4
`(b) a permit holder under the Fair Work Act 2009 (Cwlth).'. 5
Division 12 Amendment of Workers' 6
Compensation and Rehabilitation 7
Act 2003 8
75 Act amended 9
This division amends the Workers' Compensation and 10
Rehabilitation Act 2003. 11
76 Amendment of s 107A (Definitions for pt 1A) 12
Section 107A, definition Industrial Act, paragraph (b)-- 13
omit, insert-- 14
`(b) the Fair Work Act 2009 (Cwlth).'. 15
77 Amendment of sch 6 (Dictionary) 16
Schedule 6, definition industrial instrument, paragraph (b)-- 17
omit, insert-- 18
`(b) a federal industrial instrument.'. 19
Page 56
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 4 Amendments relating to trustee companies
[s 78]
Division 13 Amendment of Workplace Health 1
and Safety Act 1995 2
78 Act amended 3
This division amends the Workplace Health and Safety Act 4
1995. 5
79 Amendment of s 90B (Definitions for part) 6
Section 90B, definition employee organisation, paragraph 7
(b)-- 8
omit, insert-- 9
`(b) an employee organisation under the Fair Work Act 2009 10
(Cwlth).'. 11
Part 4 Amendments relating to trustee 12
companies 13
Division 1 Amendment of Trustee Companies 14
Act 1968 15
80 Act amended 16
This division amends the Trustee Companies Act 1968. 17
81 Amendment of s 4 (Definitions) 18
(1) Section 4, definitions corporation, director, financial 19
institution, financial institution's books, foreign company, 20
insurance company, new trustee company, related 21
corporation, trustee company and unincorporated 22
association-- 23
Page 57
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 4 Amendments relating to trustee companies
[s 82]
omit. 1
(2) Section 4-- 2
insert-- 3
`trustee company means a licensed trustee company under the 4
Corporations Act, section 601RAA.'. 5
82 Amendment of s 4AA (Powers conferred on trustee 6
companies are additional powers) 7
Section 4AA, `by any other Act'-- 8
omit, insert-- 9
`under any other Act or the Corporations Act'. 10
83 Omission of s 4A (Subsidiaries, holding companies and 11
related corporations) 12
Section 4A-- 13
omit. 14
84 Omission of ss 36 and 36A 15
Sections 36 and 36A-- 16
omit. 17
85 Relocation and renumbering of s 43 (When legatee to 18
bear commission on legacy) 19
Section 43-- 20
relocate and renumber, in part 8, as section 68A. 21
86 Omission of pt 4 22
Part 4, as amended-- 23
omit. 24
Page 58
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 4 Amendments relating to trustee companies
[s 87]
87 Omission of ss 5053 1
Sections 50 to 53-- 2
omit. 3
88 Omission of pt 6 4
Part 6-- 5
omit. 6
89 Relocation and renumbering of s 62 (Appointment of 7
attorney by trustee company) 8
Section 62-- 9
relocate and renumber, in part 8, as section 68B. 10
90 Omission of pt 7 11
Part 7-- 12
omit. 13
91 Replacement of pt 8, hdg (General) 14
Part 8, heading-- 15
omit, insert-- 16
`Part 8 Miscellaneous'. 17
92 Insertion of new s 68C 18
After section 68B-- 19
insert-- 20
`68C Compulsory transfer determinations 21
`(1) This section applies if-- 22
(a) ASIC cancels the licence of a trustee company (the 23
transferring company) and makes a determination 24
Page 59
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 4 Amendments relating to trustee companies
[s 92]
under the Corporations Act, section 601WBA that there 1
is to be a transfer of estate assets and liabilities from the 2
transferring company to another licensed trustee 3
company (the receiving company); and 4
(b) ASIC issues a certificate of transfer under the 5
Corporations Act, section 601WBG for the transfer; and 6
(c) either the transferring company or the receiving 7
company is registered in Queensland. 8
`(2) When the certificate of transfer comes into force, the 9
receiving company becomes the successor in law of the 10
transferring company in relation to estate assets and liabilities 11
of the transferring company, to the extent of the transfer. 12
Note-- 13
Under the Corporations Act, section 601WBG(2)(d), the certificate of 14
transfer is required to state when the certificate comes into force. 15
`(3) Without limiting subsection (2)-- 16
(a) if the transfer is a total transfer--all the estate assets and 17
liabilities of the transferring company, wherever those 18
assets and liabilities are located, become assets and 19
liabilities of the receiving company (in the same 20
capacity as they were assets and liabilities of the 21
transferring company) without any transfer, conveyance 22
or assignment; and 23
(b) if the transfer is a partial transfer--all the estate assets 24
and liabilities included in the list mentioned in the 25
Corporations Act, section 601WBG(2)(c), wherever 26
those assets and liabilities are located, become assets 27
and liabilities of the receiving company (in the same 28
capacity as they were assets and liabilities of the 29
transferring company) without any transfer, conveyance 30
or assignment; and 31
(c) to the extent of the transfer, the duties, obligations, 32
immunities, rights and privileges applying to the 33
transferring company apply to the receiving company. 34
`(4) If the certificate includes provisions of a kind mentioned in 35
the Corporations Act, section 601WBG(3)-- 36
Page 60
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Part 4 Amendments relating to trustee companies
[s 93]
(a) if the provisions state that particular things are to happen 1
or are taken to be the case--those things are, by force of 2
this section, taken to happen, or to be the case, in 3
accordance with those provisions; and 4
(b) if the provisions state a mechanism for determining 5
things that are to happen or are taken to be the 6
case--things determined in accordance with the 7
mechanism are, by force of this section, taken to 8
happen, or to be the case, as determined in accordance 9
with that mechanism.'. 10
93 Omission of s 69 (Other companies may apply for similar 11
powers) 12
Section 69-- 13
omit. 14
94 Omission of s 73 (Provisions relating to ex trustee 15
companies) 16
Section 73-- 17
omit. 18
95 Renumbering of pts 18 19
Parts 1 to 8-- 20
renumber as parts 1 to 5. 21
96 Insertion of new pt 6 22
After part 5-- 23
insert-- 24
Page 61
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 4 Amendments relating to trustee companies
[s 96]
`Part 6 Transitional provisions for Fair 1
Work (Commonwealth Powers) 2
and Other Provisions Act 2009 3
`74 Definitions for pt 6 4
`In this part-- 5
amendment Act means the Fair Work (Commonwealth 6
Powers) and Other Provisions Act 2009. 7
commencement means the commencement of this section. 8
repealed, followed by a provision number, means that 9
provision as it existed before its repeal by the amendment Act. 10
trustee company means a trustee company under section 4 as 11
in force immediately before the commencement. 12
`75 Court may review rate of commission 13
`(1) This section applies if a person made an application to the 14
Court or a Judge to review the rate of commission, as 15
mentioned in repealed section 41(4), before the 16
commencement. 17
`(2) Repealed section 41 continues to apply, despite its repeal, in 18
relation to the application. 19
`76 Court may review fee 20
`(1) This section applies if a person made an application to the 21
Court or a Judge to review a fee, as mentioned in repealed 22
section 45(1), before the commencement. 23
`(2) Repealed section 45 continues to apply, despite its repeal, in 24
relation to the application. 25
Page 62
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 4 Amendments relating to trustee companies
[s 96]
`77 Filing and passing accounts 1
`(1) This section applies to an account filed in the office of the 2
Registrar of the Supreme Court, as mentioned in repealed 3
section 50(3), before the commencement. 4
`(2) Repealed section 50(3) continues to apply, despite its repeal, 5
in relation to the account. 6
`78 Court may order account 7
`(1) This section applies if a person made an application to an 8
officer of a trustee company for an account of the property and 9
assets of an estate, as mentioned in repealed section 51(1), 10
before the commencement. 11
`(2) Repealed sections 51 and 52 continue to apply, despite their 12
repeal, in relation to the application. 13
`79 Investment of capital in name of Treasurer 14
`(1) This section applies if a trustee company was required to 15
invest part of its paid-up capital in the name of the Treasurer 16
of the State of Queensland in trust for the trustee company, as 17
mentioned in repealed section 56(1), before the 18
commencement. 19
`(2) The securities and investments mentioned in the section in 20
existence at the time of the repeal are to be transferred by the 21
Treasurer as soon as practicable after the repeal to the trustee 22
company or another person nominated by the trustee 23
company. 24
Note-- 25
The timing of the transfer may be affected by the nature, and the terms 26
and conditions, of the security or investment. 27
`(3) Repealed section 56(3) continues to apply, despite its repeal, 28
in relation to interest and income mentioned in the subsection, 29
whether the interest and income is held by the Treasurer at the 30
time of the repeal or received afterwards. 31
Page 63
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 4 Amendments relating to trustee companies
[s 96]
`80 Offences 1
`(1) This section applies if a person is alleged to have committed 2
an offence against the Trustee Companies Act 1968 before the 3
commencement. 4
`(2) Proceedings for the offence may be started or continued, and 5
the court may hear and decide the proceedings, as if the Fair 6
Work (Commonwealth Powers) and Other Provisions Act 7
2009 had not commenced. 8
`(3) This section applies despite the Criminal Code, section 11. 9
`81 Special transitional provisions 10
`(1) The Governor in Council may, by regulation (a transitional 11
regulation), make additional provisions of a saving or 12
transitional nature for the purposes of-- 13
(a) the enactment of the Fair Work (Commonwealth 14
Powers) and Other Provisions Act 2009, part 4; or 15
(b) the transition from the regulation of trustee companies 16
under this Act to the regulation of trustee companies 17
under the Corporations Act; or 18
(c) applying, complementing or otherwise giving effect to 19
the provisions of the Corporations Act regulating trustee 20
companies. 21
`(2) A provision of a transitional regulation may, if the regulation 22
so provides, take effect from the commencement of this 23
section or from a later day. 24
`(3) To the extent to which a provision takes effect under 25
subsection (2) from a day earlier than the day of the 26
regulation's publication in the gazette, the provision does not 27
operate to the disadvantage of a person by-- 28
(a) decreasing the person's rights; or 29
(b) imposing liabilities on the person. 30
`(4) A transitional regulation must declare it is a transitional 31
regulation. 32
Page 64
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 4 Amendments relating to trustee companies
[s 97]
`(5) This section and a transitional regulation expire at the end of 2 1
years after the commencement.'. 2
97 Omission of sch 2 3
Schedule 2-- 4
omit. 5
Division 2 Repeal 6
98 Repeal of regulation 7
The Trustee Companies Regulation 1996, SL No. 94 is 8
repealed. 9
Division 3 Amendment of Foreign Ownership 10
of Land Register Act 1988 11
99 Act amended 12
This division amends the Foreign Ownership of Land Register 13
Act 1988. 14
100 Amendment of s 10 (Trustee company common funds) 15
Section 10, from `(within' to `State)', second mention-- 16
omit, insert-- 17
`(within the meaning of the Trustee Companies Act 1968) was 18
acquired through the investment of moneys forming part of a 19
common fund of the trustee company,'. 20
Page 65
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 4 Amendments relating to trustee companies
[s 101]
Division 4 Amendment of Guardianship and 1
Administration Act 2000 2
101 Act amended 3
This division amends the Guardianship and Administration 4
Act 2000. 5
102 Amendment of s 48 (Remuneration of professional 6
administrators) 7
(1) Section 48(2)-- 8
omit, insert-- 9
`(2) The remuneration may not be more than the amount the 10
tribunal considers fair and reasonable, having regard to-- 11
(a) the nature and complexity of the service; and 12
(b) the care, skill and specialised knowledge required to 13
provide the service; and 14
(c) the responsibility displayed in providing the service; and 15
(d) the time within which the service was provided; and 16
(e) the place where, and the circumstances in which, the 17
service was provided.'. 18
(2) Section 48(3) after `Act'-- 19
insert-- 20
`or the Corporations Act'. 21
103 Insertion of new ch 12, pt 10 22
Chapter 12, after part 9-- 23
insert-- 24
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Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 4 Amendments relating to trustee companies
[s 104]
`Part 10 Transitional provision for Fair 1
Work (Commonwealth Powers) 2
and Other Provisions Act 2009 3
`268 Remuneration of professional administrators 4
`(1) This section applies if the tribunal orders, before the 5
commencement, that an administrator for an adult as 6
mentioned in section 48(1) is entitled to remuneration from 7
the adult. 8
`(2) Repealed section 48(2) continues to apply, despite its repeal, 9
in relation to the remuneration, until the tribunal makes a 10
further order about the administrator's remuneration. 11
`(3) In this section-- 12
commencement means the commencement of this section. 13
repealed section 48(2) means section 48(2) as it existed 14
before its repeal by the Fair Work (Commonwealth Powers) 15
and Other Provisions Act 2009.'. 16
Division 5 Amendment of Trusts Act 1973 17
104 Act amended 18
This division amends the Trusts Act 1973. 19
105 Amendment of s 5 (Definitions) 20
Section 5, definition trustee corporation-- 21
omit, insert-- 22
`trustee corporation means the public trustee or a trustee 23
company under the Trustee Companies Act 1968.'. 24
Page 67
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 5 Amendment of Adoption Act 2009
[s 106]
Part 5 Amendment of Adoption Act 1
2009 2
106 Act amended 3
This part amends the Adoption Act 2009. 4
107 Insertion of new s 331A 5
After section 331-- 6
insert-- 7
`331A Interim orders 8
`An interim order in force under the repealed Act immediately 9
before the commencement day continues to have effect-- 10
(a) in the case of an interim order for a child who is not a 11
non-citizen child--as if it were an interim order made 12
under part 9, division 2; or 13
(b) in the case of an interim order for a non-citizen 14
child--as if it were an interim order made under part 9, 15
division 3.'. 16
Part 6 Amendment of Trans-Tasman 17
Mutual Recognition 18
(Queensland) Act 2003 19
108 Act amended 20
This part amends the Trans-Tasman Mutual Recognition 21
(Queensland) Act 2003. 22
109 Insertion of new s 15 and schedule 23
After section 14-- 24
Page 68
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 6 Amendment of Trans-Tasman Mutual Recognition (Queensland) Act 2003
[s 109]
insert-- 1
`15 Authorisation to make gazette notice 2
`The Governor is authorised for section 7 to make, for the 3
Commonwealth Act, section 43(1), a gazette notice in the 4
form stated in the schedule. 5
`Schedule Authorised gazette notice 6
section 15 7
TRANS-TASMAN MUTUAL RECOGNITION 8
(QUEENSLAND) AUTHORISATION NOTICE 9
(No. 1) 2009 10
1 Short title 11
This notice may be cited as the Trans-Tasman Mutual 12
Recognition (Queensland) Authorisation Notice (No. 1) 2009. 13
2 Endorsement of proposed Commonwealth regulations 14
amending the Commonwealth Act 15
The Governor endorses the proposed Commonwealth 16
regulation, set out in the schedule, to amend the 17
Commonwealth Act in relation to the Summary Offences Act 18
1953 (SA). 19
Page 69
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 6 Amendment of Trans-Tasman Mutual Recognition (Queensland) Act 2003
[s 109]
Schedule Proposed Commonwealth 1
regulation 2
section 2 3
Trans-Tasman Mutual 4
Recognition Act 1997 5
Amendment Regulations 2009 (No. )1 6
Select Legislative Instrument 2009 No. 7
8
I, QUENTIN BRYCE, Governor-General of the Commonwealth of 9
Australia, acting with the advice of the Federal Executive Council, make 10
the following Regulations under the Trans-Tasman Mutual Recognition Act 11
1997. 12
13
Dated 2009 14
Governor-General 15
By Her Excellency's Command 16
[DRAFT ONLY NOT FOR SIGNATURE] 17
Minister for Innovation, Industry, Science and Research 18
Page 70
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 6 Amendment of Trans-Tasman Mutual Recognition (Queensland) Act 2003
[s 109]
1 Name of Regulations 1
These Regulations are the Trans-Tasman Mutual Recognition 2
Act 1997 Amendment Regulations 2009 (No. ). 3
2 Commencement 4
These Regulations commence on the day after they are 5
registered. 6
3 Amendment of Trans-Tasman Mutual Recognition Act 7
1997 8
Schedule 1 amends the Trans-Tasman Mutual Recognition Act 9
1997. 10
Schedule 1 Amendment of Schedule 2 to 11
the Trans-Tasman Mutual 12
Recognition Act 1997 13
(regulation 3) 14
1 Schedule 2, clause 8, after subheading "Other" 15
substitute 16
Environment Protection Act 1993, Part 8, Division 2 (dealing 17
with beverage containers) 18
Summary Offences Act 1953, Section 9B 19
Note
1. All legislative instruments and compilations are registered on the Federal Register
of Legislative Instruments kept under the Legislative Instruments Act 2003. See
http://www.frli.gov.au.'.
Page 71
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Part 7 Amendment of Mutual Recognition (Queensland) Act 1992
[s 110]
Part 7 Amendment of Mutual 1
Recognition (Queensland) Act 2
1992 3
110 Act amended 4
This part amends the Mutual Recognition (Queensland) Act 5
1992. 6
111 Amendment of s 5 (Enactment of uniform mutual 7
recognition legislation) 8
Section 5(1)(b), `(other than the Schedules)'-- 9
omit. 10
Page 72
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Schedule 1
Schedule 1 Other entities that are not 1
public sector employers 2
section 3, definition public sector employer 3
1 a board established under the Grammar Schools Act 1975 4
2 bodies corporate established under the Hospitals Foundations 5
Act 1982 6
3 Island Industries Board established under the Aboriginal and 7
Torres Strait Islander Communities (Justice, Land and Other 8
Matters) Act 1984 9
4 Queensland Performing Arts Trust established under the 10
Queensland Performing Arts Trust Act 1977 11
5 Queensland Theatre Company established under the 12
Queensland Theatre Company Act 1970 13
6 Queensland Treasury Corporation established under the 14
Queensland Treasury Corporation Act 1988 15
7 The Council of The Queensland Institute of Medical Research 16
and the Queensland Institute of Medical Research Trust 17
established under the Queensland Institute of Medical 18
Research Act 1945 19
8 Royal National Agricultural and Industrial Association of 20
Queensland established under the Royal National Agricultural 21
and Industrial Association of Queensland Act 1971 22
9 universities established under an Act 23
Page 73
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Schedule 2
Schedule 2 Text to be included in the 1
provisions of the 2
Commonwealth Fair Work Act 3
section 3, definition scheduled text 4
Division 2B Application of this Act in States that 5
refer matters after 1 July 2009 but 6
on or before 1 January 2010 7
30K Meaning of terms used in this Division 8
(1) In this Division: 9
amendment reference of a State means the reference by the 10
Parliament of the State to the Parliament of the 11
Commonwealth of the matters covered by subsection 30L(4). 12
excluded subject matter means any of the following matters: 13
(a) a matter dealt with in a law referred to in subsection 14
27(1A) of this Act; 15
(b) superannuation; 16
(c) workers compensation; 17
(d) occupational health and safety; 18
(e) matters relating to outworkers (within the ordinary 19
meaning of the term); 20
(f) child labour; 21
(g) training arrangements; 22
(h) long service leave; 23
(i) leave for victims of crime; 24
(j) attendance for service on a jury, or for emergency 25
service duties; 26
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Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Schedule 2
(k) declaration, prescription or substitution of public 1
holidays; 2
(l) the following matters relating to provision of essential 3
services or to situations of emergency: 4
(i) directions to perform work (including to perform 5
work at a particular time or place, or in a particular 6
way); 7
(ii) directions not to perform work (including not to 8
perform work at a particular time or place, or in a 9
particular way); 10
(m) regulation of any of the following: 11
(i) employee associations; 12
(ii) employer associations; 13
(iii) members of employee associations or of employer 14
associations; 15
(n) workplace surveillance; 16
(o) business trading hours; 17
(p) claims for enforcement of contracts of employment, 18
except so far as a law of a State provides for the 19
variation or setting aside of rights and obligations 20
arising under a contract of employment, or another 21
arrangement for employment, that a court or tribunal 22
finds is unfair; 23
(q) rights or remedies incidental to a matter referred to in a 24
preceding paragraph of this definition; 25
except to the extent that this Act as originally enacted deals 26
with the matter (directly or indirectly), or requires or permits 27
instruments made or given effect under this Act so to deal 28
with the matter. 29
express amendment means the direct amendment of the text 30
of this Act (whether by the insertion, omission, repeal, 31
substitution or relocation of words or matter), but does not 32
include the enactment by a Commonwealth Act of a provision 33
that has, or will have, substantive effect otherwise than as part 34
of the text of this Act. 35
Page 75
Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Schedule 2
fundamental workplace relations principles: see subsection 1
30L(9). 2
initial reference of a State means the reference by the 3
Parliament of the State to the Parliament of the 4
Commonwealth of the matters covered by subsection 30L(3). 5
law enforcement officer means: 6
(a) a member of a police force or police service; or 7
(b) a person appointed to a position for the purpose of being 8
trained as a member of a police force or police service; 9
or 10
(c) a person who has the powers and duties of a member of 11
a police force or police service; 12
and, without limiting paragraphs (a), (b) and (c), includes a 13
police reservist, a police recruit, a police cadet, a junior 14
constable, a police medical officer, a special constable, an 15
ancillary constable or a protective services officer. 16
local government employee, of a State, means: 17
(a) an employee of a local government employer of the 18
State; or 19
(b) any other employee in the State of a kind specified in the 20
regulations. 21
local government employer, of a State, means an employer 22
that is: 23
(a) a body corporate that is established for a local 24
government purpose by or under a law of a State; or 25
(b) a body corporate in which a body to which paragraph (a) 26
applies has, or 2 or more such bodies together have, a 27
controlling interest; or 28
(c) a person who employs individuals for the purposes of an 29
unincorporated body that is established for a local 30
government purpose by or under a law of a State; or 31
(d) any other body corporate that is a local government 32
body in the State of a kind specified in the regulations; 33
or 34
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Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Schedule 2
(e) any other person who employs individuals for the 1
purposes of an unincorporated body that is a local 2
government body in the State of a kind specified in the 3
regulations. 4
referral law, of a State, means the law of the State that refers 5
matters, as mentioned in subsection 30L(1), to the Parliament 6
of the Commonwealth. 7
referred provisions means the provisions of this Division to 8
the extent to which they deal with matters that are included in 9
the legislative powers of the Parliaments of the States. 10
referred subject matters means any of the following: 11
(a) terms and conditions of employment, including any of 12
the following: 13
(i) minimum terms and conditions of employment, 14
(including employment standards and minimum 15
wages); 16
(ii) terms and conditions of employment contained in 17
instruments (including instruments such as awards, 18
determinations and enterprise-level agreements); 19
(iii) bargaining in relation to terms and conditions of 20
employment; 21
(iv) the effect of a transfer of business on terms and 22
conditions of employment; 23
(b) terms and conditions under which an outworker entity 24
may arrange for work to be performed for the entity 25
(directly or indirectly), if the work is of a kind that is 26
often performed by outworkers; 27
(c) rights and responsibilities of persons, including 28
employees, employers, independent contractors, 29
outworkers, outworker entities, associations of 30
employees or associations of employers, being rights 31
and responsibilities relating to any of the following: 32
(i) freedom of association in the context of workplace 33
relations, and related protections; 34
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Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Schedule 2
(ii) protection from discrimination relating to 1
employment; 2
(iii) termination of employment; 3
(iv) industrial action; 4
(v) protection from payment of fees for services 5
related to bargaining; 6
(vi) sham independent contractor arrangements; 7
(vii) standing down employees without pay; 8
(viii) union rights of entry and rights of access to 9
records; 10
(d) compliance with, and enforcement of, this Act; 11
(e) the administration of this Act; 12
(f) the application of this Act; 13
(g) matters incidental or ancillary to the operation of this 14
Act or of instruments made or given effect under this 15
Act; 16
but does not include any excluded subject matter. 17
referring State: see section 30L. 18
State public sector employee, of a State, means: 19
(a) an employee of a State public sector employer of the 20
State; or 21
(b) any other employee in the State of a kind specified in the 22
regulations; 23
and includes a law enforcement officer of the State. 24
State public sector employer, of a State, means an employer 25
that is: 26
(a) the State, the Governor of the State or a Minister of the 27
State; or 28
(b) a body corporate that is established for a public purpose 29
by or under a law of the State, by the Governor of the 30
State or by a Minister of the State; or 31
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Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Schedule 2
(c) a body corporate in which the State has a controlling 1
interest; or 2
(d) a person who employs individuals for the purposes of an 3
unincorporated body that is established for a public 4
purpose by or under a law of the State, by the Governor 5
of the State or by a Minister of the State; or 6
(e) any other employer in the State of a kind specified in the 7
regulations; 8
and includes a holder of an office of the State whom the 9
State's referral law provides is to be taken, for the purposes of 10
this Act, to be an employer of law enforcement officers of the 11
State. 12
transition reference of a State means the reference by the 13
Parliament of the State to the Parliament of the 14
Commonwealth of the matters covered by subsection 30L(5). 15
(2) Words or phrases in the definition of excluded subject matter 16
in subsection (1), or in the definition of referred subject 17
matters in subsection (1), that are defined in this Act (other 18
than in this Division) have, in that definition, the meanings set 19
out in this Act as in force on 1 July 2009. 20
30L Meaning of referring State 21
Reference of matters by State Parliament to Commonwealth 22
Parliament 23
(1) A State is a referring State if the Parliament of the State has, 24
after 1 July 2009 but on or before 1 January 2010, referred the 25
matters covered by subsections (3), (4) and (5) in relation to 26
the State to the Parliament of the Commonwealth for the 27
purposes of paragraph 51(xxxvii) of the Constitution: 28
(a) if and to the extent that the matters are not otherwise 29
included in the legislative powers of the Parliament of 30
the Commonwealth (otherwise than by a reference 31
under paragraph 51(xxxvii) of the Constitution); and 32
(b) if and to the extent that the matters are included in the 33
legislative powers of the Parliament of the State. 34
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Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Schedule 2
This subsection has effect subject to subsection (6). 1
(2) A State is a referring State even if: 2
(a) the State's referral law provides that the reference to the 3
Parliament of the Commonwealth of any or all of the 4
matters covered by subsections (3), (4) and (5) is to 5
terminate in particular circumstances; or 6
(b) the State's referral law provides that particular matters, 7
or all matters, relating to State public sector employees, 8
or State public sector employers, of the State are not 9
included in any or all of the matters covered by 10
subsections (3), (4) and (5); or 11
(c) the State's referral law provides that particular matters, 12
or all matters, relating to local government employees, 13
or local government employers, of the State are not 14
included in any or all of the matters covered by 15
subsections (3), (4) and (5). 16
Reference covering referred provisions 17
(3) This subsection covers the matters to which the referred 18
provisions relate to the extent of making laws with respect to 19
those matters by amending this Act, as originally enacted, and 20
as subsequently amended by amendments enacted at any time 21
before the State's referral law commenced, to include the 22
referred provisions. 23
Reference covering amendments 24
(4) This subsection covers the referred subject matters to the 25
extent of making laws with respect to those matters by making 26
express amendments of this Act. 27
Reference covering transitional matters 28
(5) This subsection covers making laws with respect to the 29
transition from the regime provided for by: 30
(a) the Workplace Relations Act 1996 (as it continues to 31
apply because of the Fair Work (Transitional Provisions 32
and Consequential Amendments) Act 2009); or 33
(b) a law of a State relating to workplace relations or 34
industrial relations; 35
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Fair Work (Commonwealth Powers) and Other Provisions Bill 2009
Schedule 2
to the regime provided for by this Act. 1
Effect of termination of reference 2
(6) Despite anything to the contrary in a referral law of a State, a 3
State ceases to be a referring State if any or all of the 4
following occurs: 5
(a) the State's initial reference terminates; 6
(b) the State's amendment reference terminates, and neither 7
of subsections (7) and (8) apply to the termination; 8
(c) the State's transition reference terminates. 9
(7) A State does not cease to be a referring State because of the 10
termination of its amendment reference if: 11
(a) the termination is effected by the Governor of that State 12
fixing a day by proclamation as the day on which the 13
reference terminates; and 14
(b) the day fixed is no earlier than the first day after the end 15
of the period of 6 months beginning on the day on which 16
the proclamation is published; and 17
(c) that State's amendment reference, and the amendment 18
reference of every other referring State (other than a 19
referring State that has terminated its amendment 20
reference in the circumstances referred to in subsection 21
(8)), terminate on the same day. 22
(8) A State does not cease to be a referring State because of the 23
termination of its amendment reference if: 24
(a) the termination is effected by the Governor of that State 25
fixing a day by proclamation as the day on which the 26
reference terminates; and 27
(b) the day fixed is no earlier than the first day after the end 28
of the period of 3 months beginning on the day on which 29
the proclamation is published; and 30
(c) the Governor of that State, as part of the proclamation 31
by which the termination is to be effected, declares that, 32
in the opinion of the Governor, this Act: 33
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(i) is proposed to be amended (by an amendment 1
introduced into the Parliament by a Minister); or 2
(ii) has been amended; 3
in a manner that is inconsistent with one or more of the 4
fundamental workplace relations principles. 5
(9) The following are the fundamental workplace relations 6
principles: 7
(a) that this Act should provide for, and continue to provide 8
for, the following: 9
(i) a strong, simple and enforceable safety net of 10
minimum employment standards; 11
(ii) genuine rights and responsibilities to ensure 12
fairness, choice and representation at work, 13
including the freedom to choose whether or not to 14
join and be represented by a union or participate in 15
collective activities; 16
(iii) collective bargaining at the enterprise level with no 17
provision for individual statutory agreements; 18
(iv) fair and effective remedies available through an 19
independent umpire; 20
(v) protection from unfair dismissal; 21
(b) that there should be, and continue to be, in connection 22
with the operation of this Act, the following: 23
(i) an independent tribunal system; 24
(ii) an independent authority able to assist employers 25
and employees within a national workplace 26
relations system. 27
30M Extended meaning of national system employee 28
(1) A national system employee includes: 29
(a) any individual in a State that is a referring State because 30
of this Division so far as he or she is employed, or 31
usually employed, as described in paragraph 30N(1)(a), 32
except on a vocational placement; and 33
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(b) a law enforcement officer of the State to whom 1
subsection 30P(1) applies. 2
(2) This section does not limit the operation of section 13 (which 3
defines a national system employee). 4
Note: Section 30S may limit the extent to which this section extends the 5
meaning of national system employee. 6
30N Extended meaning of national system employer 7
(1) A national system employer includes: 8
(a) any person in a State that is a referring State because of 9
this Division so far as the person employs, or usually 10
employs, an individual; and 11
(b) a holder of an office to whom subsection 30P(2) applies. 12
(2) This section does not limit the operation of section 14 (which 13
defines a national system employer). 14
Note: Section 30S may limit the extent to which this section extends the 15
meaning of national system employer. 16
30P Extended ordinary meanings of employee and employer 17
(1) A reference in this Act to an employee with its ordinary 18
meaning includes a reference to a law enforcement officer of a 19
referring State if the State's referral law so provides for the 20
purposes of that law. 21
(2) A reference in this Act to an employer with its ordinary 22
meaning includes a reference to a holder of an office of a State 23
if the State's referral law provides, for the purposes of that 24
law, that the holder of the office is taken to be the employer of 25
a law enforcement officer of the State. 26
(3) This section does not limit the operation of section 15 (which 27
deals with references to employee and employer with their 28
ordinary meanings). 29
Note: Section 30S may limit the extent to which this section extends the 30
meanings of employee and employer. 31
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30Q Extended meaning of outworker entity 1
(1) An outworker entity includes a person, other than in the 2
person's capacity as a national system employer, so far as: 3
(a) the person arranges for work to be performed for the 4
person (either directly or indirectly); and 5
(b) the work is of a kind that is often performed by 6
outworkers; and 7
(c) one or more of the following applies: 8
(i) at the time the arrangement is made, one or more 9
parties to the arrangement is in a State that is a 10
referring State because of this Division; 11
(ii) the work is to be performed in a State that is a 12
referring State because of this Division; 13
(iii) the person referred to in paragraph (a) carries on an 14
activity (whether of a commercial, governmental 15
or other nature) in a State that is a referring State 16
because of this Division, and the work is 17
reasonably likely to be performed in that State; 18
(iv) the person referred to in paragraph (a) carries on an 19
activity (whether of a commercial, governmental 20
or other nature) in a State that is a referring State 21
because of this Division, and the work is to be 22
performed in connection with that activity. 23
(2) This section does not limit the operation of the definition of 24
outworker entity in section 12. 25
Note: Section 30S may limit the extent to which this section extends the 26
meaning of outworker entity. 27
30R General protections 28
(1) Part 3-1 (which deals with general protections) applies to 29
action taken in a State that is a referring State because of this 30
Division. 31
(2) This section applies despite section 337 (which limits the 32
application of Part 3-1), and does not limit the operation of 33
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sections 338 and 339 (which set out the application of that 1
Part). 2
Note: Section 30S may limit the extent to which this section extends the 3
application of Part 3-1. 4
30S Division only has effect if supported by reference 5
A provision of this Division has effect in relation to a State 6
that is a referring State because of this Division only to the 7
extent that the State's referral law refers to the Parliament of 8
the Commonwealth the matters mentioned in subsection 9
30L(1) that result in the Parliament of the Commonwealth 10
having sufficient legislative power for the provision so to have 11
effect. 12
© State of Queensland 2009
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