Victorian Consolidated Legislation

Fair Work (Commonwealth Powers) Act 2009 - SECT 3

PART 2 REFERENCE OF MATTERS

Definitions

3. Definitions



(1) In this Part-

amendment reference means the reference under section 4(1)(b); Commonwealth
Fair Work Act means the Fair Work Act 2009 of the Commonwealth; essential
services means any of the following-

   (a)  any matter in respect of which a proclamation has been made under Part
        6 of the Electricity Industry Act 2000;

   (b)  any matter in respect of which a proclamation has been made under Part
        9 of the Gas Industry Act 2001;

   (c)  any vital State project that is declared to be so under the
        Vital State Projects Act 1976;

   (d)  any vital industry that is declared to be so under the
        Vital State Industries (Works and Services) Act 1992; excluded subject
        matter means-

   (a)  a State subject matter; or

   (b)  rights or remedies incidental to a matter referred to in paragraph
        (a)- except to the extent that the Commonwealth Fair Work Act as
        originally enacted so deals with the matter (directly or indirectly),
        or requires or permits instruments made or given effect under the
        Commonwealth Fair Work Act so to deal with the matter; express
        amendment of the Commonwealth Fair Work Act means the direct amendment
        of the text of that Act (whether by the insertion, omission, repeal,
        substitution or relocation of words or matter) but does not include
        the enactment by a Commonwealth Act of a provision that has or will
        have substantive effect otherwise than as part of the text of the
        Commonwealth Fair Work Act; initial reference means the reference
        under section 4(1)(a); initial referred provisions means the scheduled
        text, to the extent to which that text deals with matters that are
        included in the legislative powers of the Parliament of the State; law
        enforcement officer means any of the following-

   (a)  a member of the force within the meaning of the
        Police Regulation Act 1958;

   (b)  a police reservist appointed under Part VI of the
        Police Regulation Act 1958;

   (c)  a protective services officer appointed under Part VIA of the
        Police Regulation Act 1958;

   (d)  a police recruit appointed under section 8A of the
        Police Regulation Act 1958; public sector has the meaning in the
        Public Administration Act 2004 and, in addition, includes any person
        in the service of the State; public sector body has the same meaning
        as in the Public Administration Act 2004; reference means-

   (a)  the initial reference; or

   (b)  the amendment reference; or

   (c)  the transition reference; referred subject matters means any of the
        following-

   (a)  terms and conditions of employment including any of the following-

   (i)  minimum terms and conditions of employment (including employment
        standards and minimum wages);

   (ii) terms and conditions of employment contained in instruments (including
        instruments such as awards, determinations and enterprise-level
        agreements);

   (iii) bargaining in relation to terms and conditions of employment;

   (iv) the effect of transfer of business on terms and conditions of
        employment;

   (b)  terms and conditions under which an outworker entity may arrange for
        work to be performed for the entity (directly or indirectly), if the
        work is of a kind that is often performed by outworkers;

   (c)  rights and responsibilities of employees, employers, independent
        contractors, outworkers, outworker entities, associations of employees
        or associations of employers, being rights and responsibilities
        relating to any of the following-

   (i)  freedom of association and related protections;

   (ii) protection from discrimination relating to employment;

   (iii) termination of employment;

   (iv) industrial action;

   (v)  protection from payment of fees for services related to bargaining;

   (vi) sham independent contractor arrangements;

   (vii) standing down employees without pay;

   (viii) rights of entry and rights of access to records;

   (d)  compliance with, and enforcement of, the Commonwealth Fair Work Act;

   (e)  the administration of the Commonwealth Fair Work Act;

   (f)  the application of the Commonwealth Fair Work Act;

   (g)  matters incidental or ancillary to the operation of the Commonwealth
        Fair Work Act or of instruments made or given effect under the
        Commonwealth Fair Work Act- but does not include any excluded subject
        matter;

referred transition matters means the matters of the making of laws with
respect to the transition from the regime provided for by-

   (a)  the Workplace Relations Act 1996 of the Commonwealth; or

   (b)  a law of this State relating to workplace relations- to the regime
        provided for by the Commonwealth Fair Work Act; scheduled text means
        the text set out in the Schedule; State subject matters means the
        following subject matters-

   (a)  a matter dealt with in the Equal Opportunity Act 1995;

   (b)  superannuation;

   (c)  workers compensation;

   (d)  occupational health and safety;

   (e)  matters relating to outworkers (within the ordinary meaning of the
        term);

   (f)  child labour;

   (g)  training arrangements, except in relation to terms and conditions of
        employment to the extent that those terms and conditions are provided
        for by the National Employment Standards or may be included in a
        modern award;

   (h)  long service leave, except in relation to an employee who is entitled
        under Division 9 of Part 2-2 of the Commonwealth Fair Work Act to long
        service leave;

   (i)  leave for victims of crime;

   (j)  attendance for service on a jury, or for emergency service duties;

   (k)  declaration, prescription or substitution of public holidays, except
        in relation to the rights and obligations of an employee or employer
        in relation to public holidays;

   (l)  the following matters relating to the provision of essential services
        or to situations of emergency-

   (i)  directions to perform work (including to perform work at a particular
        time or place, or in a particular way);

   (ii) directions not to perform work (including not to perform work at a
        particular time or place, or in a particular way);

   (m)  regulation of any of the following-

   (i)  employee associations;

   (ii) employer associations;

   (iii) members of employee associations or employer associations;

   (n)  workplace surveillance;

   (o)  business trading hours;

   (p)  claims for enforcement of contracts of employment, except so far as a
        law of the State provides for the variation or setting aside of rights
        and obligations arising under a contract of employment, or another
        arrangement for employment, that a court or tribunal finds is unfair;
        state of emergency means-

   (a)  any state of emergency or emergency situation that is declared under
        an Act and includes any of the following-

   (i)  a state of emergency declared under the Essential Services Act 1958;

   (ii) a state of emergency declared under the
        Public Safety Preservation Act 1958;

   (iii) a proclamation under the Fuel Emergency Act 1977 declaring that a
        state of emergency exists in relation to fuel;

   (b)  any declaration or proclamation under the
        Public Administration Act 2004 that authorises a public sector body
        Head to take any of the following actions-

   (i)  assign any duties to an employee;

   (ii) require an employee to perform duties with another public sector body;

   (iii) require an employee to perform duties at a place other than the
        employee's usual place of work;

   (iv) direct an employee not to attend for duty;

   (c)  any other similar declaration or proclamation; transition reference
        means the reference under section 4(1)(c).

(2) For the purpose of a reference of matters under this Act-

   (a)  the Chief Commissioner of Police under the Police Regulation Act 1958
        is taken to be the employer of any law enforcement officer; and

   (b)  any law enforcement officer is taken to be an employee in the public
        sector.

(3) Words or phrases in the definition of State subject matters that are
defined in the Commonwealth Fair Work Act have the meaning that is set out in
that Act.