Victorian Consolidated Legislation

Fair Work (Commonwealth Powers) Act 2009 - SCHEDULE

TEXT TO BE INCLUDED IN THE PROVISIONS OF THE COMMONWEALTH FAIR WORK ACT

Division 2A-Application of this Act in a referring State

30A. Meaning of terms used in this Division

In this Division: amendment includes the insertion, omission, repeal,
substitution, addition or relocation of words or matter. excluded subject
matter means:

   (a)  a matter dealt with in a law referred to in subsection 27(1A) of this
        Act as originally enacted; or

   (b)  a non-excluded matter within the meaning of subsection 27(2) of this
        Act as so enacted (other than paragraph 27(2)(p) of this Act as so
        enacted); or

   (c)  rights or remedies incidental to a matter referred to in paragraph (a)
        or (b) of this definition;

except to the extent that this Act as so enacted deals with the matter
(directly or indirectly), or requires or permits instruments made or given
effect under this Act so to deal with the matter. express amendment means the
direct amendment of this Act, 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 this Act. law enforcement officer is a
member of a police force, a police reservist, a police recruit or a protective
services officer. referral law, of a State, means the law of the State that
refers matters, as mentioned in subsection 30B(1), to the Parliament of the
Commonwealth. referred provisions means the provisions of this Division to the
extent to which they deal with matters that are included in the legislative
powers of the Parliaments of the States. 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 a 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, this Act;

   (e)  the administration of this Act;

   (f)  the application of this Act;

   (g)  matters incidental or ancillary to the operation of this Act or of
        instruments made or given effect under this Act;

but does not include any excluded subject matter. referring State: see section
30B.



State public sector employee, of a State, means:

   (a)  an employee of a State public sector employer of the State; or

   (b)  any other employee in the State of a kind specified in the
        regulations;

and includes a law enforcement officer to whom subsection 30E(1) applies.
State public sector employer, of a State, means an employer that is:

   (a)  the State; or

   (b)  a body (whether incorporated or unincorporated) established for a
        public purpose by or under a law of the State, by the Governor of a
        State or by a Minister of the State; or

   (c)  a body corporate in which the State has a controlling interest; or

   (d)  any other employer in the State of a kind specified in the
        regulations;

and includes a holder of an office to whom subsection 30E(2) applies.

30B. Meaning of referring State

Reference of matters by State Parliament to Commonwealth Parliament

(1) A State is a referring State if the Parliament of the State has referred
the matters covered by subsections (3), (4) and (5) in relation to the State
to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii)
of the Constitution:

   (a)  if and to the extent that the matters are not otherwise included in
        the legislative powers of the Parliament of the Commonwealth
        (otherwise than by a reference under paragraph 51(xxxvii) of the
        Constitution); and

   (b)  if and to the extent that the matters are included in the legislative
        powers of the Parliament of the State.

This subsection has effect subject to subsection (6).

(2) A State is a referring State even if:

   (a)  the State's referral law provides that the reference to the Parliament
        of the Commonwealth of any or all of the matters covered by
        subsections (3), (4) and (5) is to terminate in particular
        circumstances; or

   (b)  the State's referral law provides that particular matters relating to
        State public sector employees, or State public sector employers, of
        the State are not included in any or all of those matters.

Reference covering referred provisions

(3) This subsection covers the matters to which the referred provisions relate
to the extent of making laws with respect to those matters by amending this
Act, as originally enacted, to include the referred provisions.

Reference covering amendments

(4) This subsection covers the referred subject matters to the extent of
making laws with respect to those matters by making express amendments of this
Act.

Reference covering transitional matters

(5) This subsection covers making laws with respect to the transition from the
regime provided for by:

   (a)  the Workplace Relations Act 1996; or

   (b)  a law of a State relating to workplace relations;

to the regime provided for by this Act. Effect of termination of reference

(6) Despite anything to the contrary in a referral law of a State, a State
ceases to be a referring State if any or all of the following occurs:

   (a)  the reference by the Parliament of the State to the Parliament of the
        Commonwealth of the matters covered by subsection (3) terminates;

   (b)  the reference by the Parliament of the State to the Parliament of the
        Commonwealth of the matters covered by subsection (4) terminates;

   (c)  the reference by the Parliament of the State to the Parliament of the
        Commonwealth of the matters covered by subsection (5) terminates.

30C. Extended meaning of national system employee



(1) A national system employee includes:

   (a)  any individual in a referring State so far as he or she is employed,
        or usually employed, as described in paragraph 30D(1)(a), except on a
        vocational placement; and

   (b)  a law enforcement officer of the State to whom subsection 30E(1)
        applies.

(2) This section does not limit the operation of section 13 (which defines a
national system employee).

Note: Section 30H may limit the extent to which this section extends the
meaning of national system employee.



30D. Extended meaning of national system employer



(1) A national system employer includes:

   (a)  any person in a referring State so far as the person employs, or
        usually employs, an individual; and

   (b)  a holder of an office to whom subsection 30E(2) applies.

(2) This section does not limit the operation of section 14 (which defines a
national system employer).

Note: Section 30H may limit the extent to which this section extends the
meaning of national system employer.

30E. Extended ordinary meanings of employee and employer



(1) A reference in this Act to an employee with its ordinary meaning includes
a reference to a law enforcement officer of a referring State if the State's
referral law so provides for the purposes of that law.

(2) A reference in this Act to an employer with its ordinary meaning includes
a reference to a holder of an office of a State if the State's referral law
provides, for the purposes of that law, that the holder of the office is taken
to be the employer of a law enforcement officer of the State.

(3) This section does not limit the operation of section 15 (which deals with
references to employee and employer with their ordinary meanings).

Note: Section 30H may limit the extent to which this section extends the
meanings of employee and employer.







30F. Extended meaning of outworker entity



(1) An outworker entity includes a person, other than in the person's capacity
as a national system employer, so far as:

   (a)  the person arranges for work to be performed for the person (either
        directly or indirectly); and

   (b)  the work is of a kind that is often performed by outworkers; and

   (c)  one or more of the following applies:

   (i)  at the time the arrangement is made, one or more parties to the
        arrangement is in a referring State;

   (ii) the work is to be performed in a referring State;

   (iii) the person referred to in paragraph (a) carries on an activity
        (whether of a commercial, governmental or other nature) in a referring
        State, and the work is reasonably likely to be performed in that
        State;

   (iv) the person referred to in paragraph (a) carries on an activity
        (whether of a commercial, governmental or other nature) in a referring
        State, and the work is to be performed in connection with that
        activity.

(2) This section does not limit the operation of the definition of outworker
entity in section 12.

Note: Section 30H may limit the extent to which this section extends the
meaning of outworker entity.





30G. General protections



(1) Part 3-1 (which deals with general protections) applies to action taken in
a referring State.

(2) This section applies despite section 337 (which limits the application of
Part 3-1), and does not limit the operation of sections 338 and 339 (which set
out the application of that Part).

Note: Section 30H may limit the extent to which this section extends the
application of Part 3-1.

30H. Division only has effect if supported by reference

A provision of this Division has effect in relation to a referring State only
to the extent that the State's referral law refers to the Parliament of the
Commonwealth the matters mentioned in subsection 30B(1) that result in the
Parliament of the Commonwealth having sufficient legislative power for the
provision so to have effect.

30J. Application of the Acts Interpretation Act 1901



(1) The Acts Interpretation Act 1901, as in force on the day on which this
Division commences, applies to this Act.

(2) Amendments of the Acts Interpretation Act 1901 made after that day do not
apply to this Act.

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