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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Labour Relations Legislation Amendment
Bill 2006
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Amendments as to
reasonable hours of work
3. The Act amended in this Part 3
4. Section 3 amended 3
5. Part 2A inserted 3
Part 2A -- Reasonable hours of work
9A. Maximum hours of work 3
9B. Reasonable additional hours 5
6. Section 29 repealed 5
Part 3 -- Amendments as to right of
entry
7. The Act amended in this Part 6
8. Section 49J amended 6
Part 4 -- Amendments as to State
Wage order
9. The Act amended in this Part 7
10. Section 26 amended 7
11. Section 30 amended 7
12. Section 40B amended 7
13. Section 50 amended 7
14. Sections 50A and 50B inserted 8
123--1 page i
Labour Relations Legislation Amendment Bill 2006
Contents
50A. Commission to determine rates of pay for
purposes of MCE Act and awards 8
50B. Matters relevant to setting rates for
apprentices and trainees 11
15. Section 51 repealed 12
16. Section 51B amended 12
17. Sections 51BA to 51BE inserted 12
51BA. Notification of hearing 12
51BB. Right to be heard 13
51BC. Commissioner may deal with certain
proceedings 13
51BD. Registrar may prepare and publish
provisions resulting from General Order 13
51BE. Publication of order 14
18. Section 51C amended 14
19. Part II Division 3A Subdivision 2 repealed 14
20. Section 51N amended 14
21. Minimum Conditions of Employment Act 1993
amended 14
22. Transitional provisions 15
Part 5 -- Amendments as to good
faith bargaining
23. The Act amended in this Part 17
24. Section 7 amended 17
25. Part II Division 3B inserted 17
Division 3B -- Collective agreements and good faith
bargaining
51O. Meaning of terms used in this Division 18
51P. Representation by organisation 19
51Q. Bargaining agents 19
51R. Initiating bargaining for collective
agreement 20
51S. Good faith bargaining for collective
agreement 21
51T. Application of sections 42D and 42E 21
26. Section 84A amended 22
Part 6 -- Amendments as to annual
and other leave
27. The Act amended in this Part 23
28. Section 3 amended 23
29. Section 8 amended 24
30. Part 4 Division 2 heading amended 25
page ii
Labour Relations Legislation Amendment Bill 2006
Contents
31. Sections 19 to 20A replaced by sections 19 to 20B
and transitional provision 25
19. Entitlement to paid leave for illness, injury
or family care 25
20. Employee may use entitlement as paid
sick leave 26
20A. Employee may use entitlement as paid
carer's leave 26
20B. Unpaid carer's leave 27
32. Section 21 amended 27
33. Section 22 amended 28
34. Section 23 amended 28
35. Section 27 amended 28
36. Section 32 amended 29
37. Section 33 amended 30
38. Section 38 amended 31
39. Sections 38A and 38B inserted 33
38A. How and when a request or requirement
as to parental leave or return to work can
be made 33
38B. Grounds for determining a request or
making a requirement as to parental leave
or return to work 34
40. Section 44 amended 35
41. Section 45 amended 36
42. Section 46 repealed 36
Part 7 -- Amendments as to long
service leave
Division 1 -- Amendments to the Construction
Industry Portable Paid Long Service Leave
Act 1985
43. The Act amended in this Division 37
44. Section 3 amended 37
45. Section 21 amended 38
46. Section 22 amended 38
47. Section 24A amended 39
48. Section 27 repealed 39
49. Section 29 replaced 39
29. Public holidays 39
50. Section 51 amended 40
51. Section 56 inserted 40
56. Transitional provisions 40
page iii
Labour Relations Legislation Amendment Bill 2006
Contents
52. Schedule amended 40
Division 1 -- The appointed day
Division 2 -- The Labour Relations Legislation
Amendment Act 2006
3. Service prior to commencement day 41
Division 2 -- Amendments to the Long Service
Leave Act 1958
53. The Act amended in this Division 43
54. Long title amended 43
55. Section 4 amended 43
56. Section 8 amended 44
57. Section 8A repealed 47
58. Section 9 amended 47
59. Section 12 inserted 48
12. Industrial inspectors may institute
proceedings 48
60. Section 26 amended 48
61. Section 26A amended 49
62. Part VII Division 5 repealed 49
Division 3 -- Repeal of the LSL General Order
63. Meaning of terms used in this Division 50
64. LSL General Order repealed 50
65. Transitional provision -- references to the LSL
General Order 51
Part 8 -- Amendments as to civil
penalties
66. The Act amended in this Part 52
67. Section 7 amended 52
68. Section 81AA amended 52
69. Section 81CA amended 52
70. Section 83E amended 53
page iv
Western Australia
LEGISLATIVE ASSEMBLY
Labour Relations Legislation Amendment
Bill 2006
A Bill for
An Act to --
· amend the Minimum Conditions of Employment Act 1993;
· amend the Industrial Relations Act 1979;
· amend the Long Service Leave Act 1958;
· amend the Construction Industry Portable Paid Long Service
Leave Act 1985; and
· repeal the Long Service Leave General Order,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Labour Relations Legislation Amendment Bill 2006
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Labour Relations Legislation Amendment
Act 2006.
5 2. Commencement
(1) Subject to subsection (2), this Act comes into operation on the
day on which it receives the Royal Assent.
(2) Part 7 Division 1 comes into operation on --
(a) the day on which this Act receives the Royal Assent if
10 that day is the first day of a quarter; or
(b) if paragraph (a) does not apply -- the first day of the
first quarter that commences after the day on which this
Act receives the Royal Assent.
(3) In this section --
15 "quarter" means a period of 3 months commencing on
1 January, 1 April, 1 July or 1 October.
page 2
Labour Relations Legislation Amendment Bill 2006
Amendments as to reasonable hours of work Part 2
s. 3
Part 2 -- Amendments as to reasonable hours of work
3. The Act amended in this Part
The amendments in this Part are to the Minimum Conditions of
Employment Act 1993*.
5 [* Reprinted as at 4 October 2002.
For subsequent amendments see Western Australian
Legislation Information Tables for 2004, Table 1, p. 291-2.]
4. Section 3 amended
Section 3(1) is amended as follows:
10 (a) in the definition of "minimum condition of
employment" by inserting before paragraph (a) --
"
(aa) the requirement as to maximum hours of
work prescribed by Part 2A;
15 ";
(b) by inserting in the appropriate alphabetical position --
"
"public holiday", in respect of an area in the State,
means a day mentioned in Schedule 1 that is a
20 public holiday in that area;
".
5. Part 2A inserted
After section 9 the following Part is inserted --
"
25 Part 2A -- Reasonable hours of work
9A. Maximum hours of work
(1) An employee is not to be required or requested by an
employer to work more than --
page 3
Labour Relations Legislation Amendment Bill 2006
Part 2 Amendments as to reasonable hours of work
s. 5
(a) either --
(i) the employee's ordinary hours of work
as specified in an industrial instrument
that applies to the employment of the
5 employee; or
(ii) if there is no industrial instrument that
specifies the employee's ordinary hours
of work, 38 hours per week;
and
10 (b) reasonable additional hours as determined
under section 9B.
(2) For the purpose of subsection (1), in calculating the
number of hours that an employee has worked in a
particular week, the hours worked by the employee are
15 taken to include any hours of authorised leave taken by
the employee during the week.
(3) Nothing in this section, or section 5(2), restricts the
number of ordinary hours of work that may be
specified in an industrial instrument.
20 (4) In this section --
"authorised leave" means leave, or an absence,
whether paid or unpaid, that is authorised --
(a) by an employee's employer;
(b) by or under a term or condition of an
25 employee's employment; or
(c) by or under a law, or an instrument in force
under a law, of the State or the
Commonwealth;
"industrial instrument" means --
30 (a) an award; or
(b) an employer-employee agreement.
page 4
Labour Relations Legislation Amendment Bill 2006
Amendments as to reasonable hours of work Part 2
s. 6
9B. Reasonable additional hours
(1) For the purposes of section 9A(1)(b), in determining
whether additional hours that an employee is required
or requested by an employer to work are reasonable
5 additional hours, all relevant factors are to be taken
into account.
(2) The factors that may be taken into account include, but
are not limited to, the following --
(a) any risk to the employee's health and safety
10 that might reasonably be expected to arise if the
employee worked the additional hours;
(b) the employee's personal circumstances
(including family responsibilities);
(c) the conduct of the operations or business in
15 relation to which the employee is required or
requested to work the additional hours;
(d) any notice given by the employer of the
requirement or request that the employee work
the additional hours;
20 (e) any notice given by the employee of the
employee's intention to refuse to work the
additional hours;
(f) whether any of the additional hours are on a
public holiday in the area of the State where the
25 employee is required or requested to work;
(g) the employee's hours of work over the 4 weeks
ending immediately before the employee is
required or requested to work the additional
hours.
30 ".
6. Section 29 repealed
Section 29 is repealed.
page 5
Labour Relations Legislation Amendment Bill 2006
Part 3 Amendments as to right of entry
s. 7
Part 3 -- Amendments as to right of entry
7. The Act amended in this Part
The amendments in this Part are to the Industrial Relations
Act 1979*.
5 [* Reprint 10 as at 8 July 2005.
For subsequent amendments see Acts Nos. 34 of 2004 and
14 of 2005.]
8. Section 49J amended
After section 49J(6) the following subsection is inserted --
10 "
(6a) The Registrar must not revoke an authority under
subsection (6) if --
(a) proceedings pursuant to an application made
under subsection (5) in relation to the authority
15 are pending or in progress; or
(b) appeal proceedings in respect of a decision
made under subsection (5) in relation to the
authority are pending or in progress, or the time
within which such proceedings may be
20 instituted has not elapsed.
".
page 6
Labour Relations Legislation Amendment Bill 2006
Amendments as to State Wage order Part 4
s. 9
Part 4 -- Amendments as to State Wage order
9. The Act amended in this Part
The amendments in this Part are to the Industrial Relations
Act 1979* unless otherwise specified.
5 [* Reprint 10 as at 8 July 2005.
For subsequent amendments see Acts Nos. 34 of 2004 and
14 of 2005.]
10. Section 26 amended
After section 26(1) the following section is inserted --
10 "
(1a) Subsection (1)(d) does not apply when the Commission
is exercising its jurisdiction under section 50A.
".
11. Section 30 amended
15 Section 30(2) is repealed.
12. Section 40B amended
Section 40B(1)(a) is amended by deleting "section 51" and
inserting instead --
" section 50A ".
20 13. Section 50 amended
Section 50(9) and (10) are repealed.
page 7
Labour Relations Legislation Amendment Bill 2006
Part 4 Amendments as to State Wage order
s. 14
14. Sections 50A and 50B inserted
After section 50 the following sections are inserted --
"
50A. Commission to determine rates of pay for purposes
5 of MCE Act and awards
(1) The Commission shall before 1 July in each year, of its
own motion make a General Order (the "State Wage
order") --
(a) setting --
10 (i) the minimum weekly rate of pay
applicable under section 12 of the
MCE Act to employees who have
reached 21 years of age and who are not
apprentices or trainees;
15 (ii) the minimum weekly rate or rates of pay
applicable under section 14 of the
MCE Act to apprentices;
(iii) the minimum weekly rate or rates of pay
applicable under section 15 of the
20 MCE Act to trainees;
(b) adjusting rates of wages paid under awards;
(c) having regard to the statement of principles
issued under paragraph (d) --
(i) varying each award affected by the
25 exercise of jurisdiction under
paragraph (b) to ensure that the award is
consistent with the order; and
(ii) if the Commission considers it
appropriate to do so, making other
30 consequential changes to specified
awards;
and
page 8
Labour Relations Legislation Amendment Bill 2006
Amendments as to State Wage order Part 4
s. 14
(d) setting out a statement of principles to be
applied and followed in relation to the exercise
of jurisdiction under this Act to set the wages,
salaries, allowances or other remuneration of
5 employees or the prices to be paid in respect of
their employment.
(2) The Commission may, in relation to awards generally
or specified awards, do any or all of the following for
the purposes of subsection (1)(b) --
10 (a) adjust all rates of wages;
(b) adjust individual rates of wages;
(c) adjust a series of rates of wages;
(d) adjust specialised rates of wages.
(3) In making an order under this section, the Commission
15 shall take into consideration --
(a) the need to --
(i) ensure that Western Australians have a
system of fair wages and conditions of
employment;
20 (ii) meet the needs of the low paid;
(iii) provide fair wage standards in the
context of living standards generally
prevailing in the community;
(iv) contribute to improved living standards
25 for employees;
(v) protect employees who may be unable
to reach an industrial agreement;
(vi) encourage ongoing skills development;
and
30 (vii) provide equal remuneration for men and
women for work of equal or comparable
value;
page 9
Labour Relations Legislation Amendment Bill 2006
Part 4 Amendments as to State Wage order
s. 14
(b) the state of the economy of Western Australia
and the likely effect of its decision on that
economy and, in particular, on the level of
employment, inflation and productivity in
5 Western Australia;
(c) to the extent that it is relevant, the state of the
national economy;
(d) to the extent that it is relevant, the capacity of
employers as a whole to bear the costs of
10 increased wages, salaries, allowances and other
remuneration;
(e) for the purposes of subsection (1)(b) and (c),
the need to ensure that the Western Australian
award framework represents a system of fair
15 wages and conditions of employment;
(f) relevant decisions of other industrial courts and
tribunals; and
(g) any other matters the Commission considers
relevant.
20 (4) Without limiting the generality of this section and
section 26(1), in the exercise of its jurisdiction under
subsection (1)(b) and (c) the Commission shall ensure,
to the extent possible, that there is consistency and
equity in relation to the variation of awards.
25 (5) A State Wage order takes effect on 1 July in the year it
is made and is applicable in respect of an employee,
apprentice or trainee on and from the commencement
of the first pay period of the employee, apprentice or
trainee on or after that date.
30 (6) A State Wage order in effect under this section when a
subsequent order is made under subsection (1) ceases
to apply in respect of an employee, apprentice or
trainee on the day on which the subsequent order
page 10
Labour Relations Legislation Amendment Bill 2006
Amendments as to State Wage order Part 4
s. 14
commences to apply in respect of the employee,
apprentice or trainee.
(7) A State Wage order shall not be added to or varied.
(8) Nothing in subsection (7) affects the Commission's
5 powers under section 27(1)(m).
50B. Matters relevant to setting rates for apprentices and
trainees
(1) For the purposes of section 50A(1)(a)(ii) and (iii), the
Commission may --
10 (a) set a minimum weekly rate of pay in relation to
apprentices or trainees generally;
(b) subject to subsections (2) and (3), set a
minimum weekly rate of pay in relation to
apprentices or trainees who belong to particular
15 classes of apprentice or trainee; or
(c) do a combination of the things authorised by
paragraphs (a) and (b).
(2) The Commission may set a minimum weekly rate of
pay in relation to apprentices or trainees who have
20 reached 21 years of age that is different from a rate or
rates for apprentices or trainees who are under 21 years
of age.
(3) The Commission shall ensure that at any particular
time there is applicable in relation to each class of
25 apprentice and each class of trainee --
(a) a minimum weekly rate of pay set in respect of
that class; or
(b) the minimum weekly rate of pay in relation to
apprentices or trainees, as is relevant to the
30 case, generally.
page 11
Labour Relations Legislation Amendment Bill 2006
Part 4 Amendments as to State Wage order
s. 15
(4) In setting a minimum weekly rate of pay in relation to
apprentices or trainees generally or in relation to
apprentices or trainees who belong to a particular class
of apprentice or trainee, the Commission may use such
5 means as in its opinion are appropriate including, but
not limited to --
(a) setting the rate in figures;
(b) setting the rate as a proportion of --
(i) the minimum weekly rate of pay
10 referred to in section 50A(1)(a)(i); or
(ii) any award or other wages instrument;
(c) adopting some or all of the provisions of any
award or other wages instrument; or
(d) setting out any other method for the calculation
15 or assessment of the rate.
".
15. Section 51 repealed
Section 51 is repealed.
16. Section 51B amended
20 Section 51B(1) is amended by deleting "The Commission" and
inserting instead --
" Except as provided in section 50A, the Commission ".
17. Sections 51BA to 51BE inserted
After section 51B the following sections are inserted in Part II
25 Division 3 --
"
51BA. Notification of hearing
(1) The Commission shall ensure that notice of each initial
hearing to be conducted for the purposes of making a
30 General Order under this Division is --
page 12
Labour Relations Legislation Amendment Bill 2006
Amendments as to State Wage order Part 4
s. 17
(a) given by written notice to the Council, the
Chamber, the Mines and Metals Association,
the Minister, and any other person the
Commission is of the opinion may be of
5 assistance; and
(b) published in the required manner and in any
other manner the Commission thinks fit.
(2) Subsection (1) does not apply when the Commission is
exercising its jurisdiction under section 51A.
10 51BB. Right to be heard
The Commission shall not make a General Order under
this Division until it has afforded --
(a) each person given notice under
section 51BA(1)(a); and
15 (b) any other employer, employee, or other person
permitted by the Commission to be heard,
an opportunity to be heard in relation to the matter.
51BC. Commissioner may deal with certain proceedings
The Chief Commissioner may direct a Commissioner
20 to deal with any conciliation or interlocutory or
procedural matter arising during the determination of a
General Order under this Division.
51BD. Registrar may prepare and publish provisions
resulting from General Order
25 When the Commission makes a General Order under
this Division which affects awards and industrial
agreements, or awards or industrial agreements, in
force under this Act, the Commission may, in respect
of each award or industrial agreement so affected,
30 direct the Registrar to prepare and publish in the
required manner the provisions of that award or
page 13
Labour Relations Legislation Amendment Bill 2006
Part 4 Amendments as to State Wage order
s. 18
industrial agreement resulting from the operation of
that General Order.
51BE. Publication of order
The Registrar shall publish in the required manner any
5 General Order made under this Division.
".
18. Section 51C amended
Section 51C(1) is amended by deleting the definition of
"award".
10 19. Part II Division 3A Subdivision 2 repealed
Part II Division 3A Subdivision 2 is repealed.
20. Section 51N amended
(1) Section 51N(1) is repealed.
(2) Section 51N(3) is amended by deleting "(1) or".
15 21. Minimum Conditions of Employment Act 1993 amended
(1) The amendments in this section are to the Minimum Conditions
of Employment Act 1993*.
[* Reprinted as at 4 October 2002.
For subsequent amendments see Western Australian
20 Legislation Information Tables for 2004, Table 1, p. 291-2.]
(2) Section 12 is amended by deleting "section 51F" and inserting
instead --
" section 50A(1)(a)(i) ".
(3) Section 14 is amended by deleting "section 51F" in both places
25 where it occurs and inserting instead --
" section 50A(1)(a)(ii) ".
page 14
Labour Relations Legislation Amendment Bill 2006
Amendments as to State Wage order Part 4
s. 22
(4) Section 15 is amended by deleting "section 51F" in both places
where it occurs and inserting instead --
" section 50A(1)(a)(iii) ".
22. Transitional provisions
5 (1) In this section --
"commencement day" means the day on which Part 4 of the
Labour Relations Legislation Amendment Act 2006 comes
into operation;
"section 50A" means section 50A of the Industrial Relations
10 Act 1979 as in force immediately after the commencement
day;
"section 51" means section 51 of the Industrial Relations
Act 1979 as in force immediately before the
commencement day;
15 "State Wage order" means a General Order made under
section 50A.
(2) Any --
(a) General Order of effect under section 51; and
(b) order of effect under section 51F of the Industrial
20 Relations Act 1979 as in force immediately before the
commencement day,
remains of effect until a State Wage order takes effect.
(3) Despite section 50A, the first State Wage order --
(a) may be made after 1 July;
25 (b) if it is made after 1 July, comes into effect on a date
specified by the Commission; and
(c) if it comes into effect on a date after 1 July, is applicable
in respect of an employee, apprentice or trainee on and
from the commencement of the first pay period of the
30 employee, apprentice or trainee on or after that date.
page 15
Labour Relations Legislation Amendment Bill 2006
Part 4 Amendments as to State Wage order
s. 22
(4) A date specified under subsection (3)(b) must not be a date that
is earlier than the day on which the order is made.
(5) Despite section 50A(1)(b), the Commission must not adjust
rates of wages paid under awards in a State Wage order made in
5 relation to the period ending 30 June 2007 if, during 2006 and
before that State Wage order is made, the Commission has made
a General Order under section 50 of the Industrial Relations
Act 1979 adjusting rates of wages paid under awards generally.
page 16
Labour Relations Legislation Amendment Bill 2006
Amendments as to good faith bargaining Part 5
s. 23
Part 5 -- Amendments as to good faith bargaining
23. The Act amended in this Part
The amendments in this Part are to the Industrial Relations
Act 1979*.
5 [* Reprint 10 as at 8 July 2005.
For subsequent amendments see Acts Nos. 34 of 2004 and
14 of 2005.]
24. Section 7 amended
Section 7(5) is amended as follows:
10 (a) in paragraph (a) by inserting after "industrial
agreement" --
"
or collective agreement (as that term is defined
in the Commonwealth Act)
15 ";
(b) in paragraph (b) by inserting after "industrial
agreement" --
"
or collective agreement (as that term is defined
20 in the Commonwealth Act)
".
25. Part II Division 3B inserted
Before Part II Division 4 the following Division is inserted --
page 17
Labour Relations Legislation Amendment Bill 2006
Part 5 Amendments as to good faith bargaining
s. 25
"
Division 3B -- Collective agreements and good faith
bargaining
51O. Meaning of terms used in this Division
5 (1) In this Division --
"bargaining agent" has the meaning given by
section 51Q;
"initiating party", in relation to a proposed collective
agreement, means the person who initiates
10 bargaining for the agreement under section 51R;
"negotiating party", in relation to a proposed
collective agreement, means --
(a) the initiating party;
(b) if the initiating party is an employer -- any
15 organisation that is --
(i) proposed to be bound by the proposed
collective agreement; or
(ii) acting under section 51P on behalf of
the employees whose employment is
20 proposed to be subject to the proposed
collective agreement;
(c) if the initiating party is an organisation of
employees -- the employer who is proposed
to be bound by the proposed collective
25 agreement;
"organisation" means --
(a) an organisation as defined in the
Commonwealth Act; or
(b) a transitionally registered association as
30 defined in Schedule 10 clause 1 of the
Commonwealth Act.
page 18
Labour Relations Legislation Amendment Bill 2006
Amendments as to good faith bargaining Part 5
s. 25
(2) In this Division each of the following terms has the
meaning given to it by the Commonwealth Act --
(a) "collective agreement";
(b) "employee";
5 (c) "employer";
(d) "employment";
(e) "nominal expiry date".
51P. Representation by organisation
An organisation may act under this Division on behalf
10 of employees whose employment is proposed to be
subject to a proposed collective agreement if --
(a) at least one of those employees has requested
the organisation in writing to act on behalf of
the employees; and
15 (b) the employee making the request is a member
of the organisation or is eligible to become a
member of the organisation.
51Q. Bargaining agents
(1) For the purposes of this Division, a person is a
20 bargaining agent if --
(a) that person has been appointed in writing by a
negotiating party to be that party's bargaining
agent in relation to a proposed collective
agreement;
25 (b) a copy of the appointment has been provided to
the other negotiating party; and
(c) the appointment has not been terminated.
(2) An appointment of a bargaining agent may be
terminated at any time by notice of termination given
30 by the negotiating party who appointed the agent in
writing to the agent.
page 19
Labour Relations Legislation Amendment Bill 2006
Part 5 Amendments as to good faith bargaining
s. 25
(3) A copy of a notice of termination must be given to each
other negotiating party.
(4) For the purposes of section 123(3)(c) of the Legal
Practice Act 2003 a bargaining agent is authorised to
5 provide advice and other services in relation to
bargaining for a collective agreement.
51R. Initiating bargaining for collective agreement
(1) Bargaining for a proposed collective agreement may be
initiated by an organisation of employees or an
10 employer (the "initiating party") giving to each other
negotiating party and filing in the office of the
Registrar a written notice that complies with
subsection (3).
(2) Subject to section 51P, an organisation of employees
15 may initiate bargaining under subsection (1) on behalf
of employees whose employment will be subject to the
proposed collective agreement.
(3) A notice complies with this subsection if it is
accompanied by particulars of --
20 (a) the business to be covered by the proposed
collective agreement;
(b) the types of employees whose employment will
be subject to the proposed collective agreement
and the other persons who will be bound by the
25 proposed collective agreement;
(c) the proposed nominal expiry date of the
proposed collective agreement; and
(d) any other matter prescribed by regulations
made by the Governor for the purposes of this
30 section.
(4) If bargaining is initiated under subsection (1) with
more than one negotiating party to the proposed
page 20
Labour Relations Legislation Amendment Bill 2006
Amendments as to good faith bargaining Part 5
s. 25
collective agreement, all the parties are to bargain
together unless the Commission, on the application of a
negotiating party, directs that that party may bargain
separately with another negotiating party.
5 51S. Good faith bargaining for collective agreement
(1) If bargaining for a collective agreement has been
initiated under section 51R the negotiating parties must
bargain in good faith for the agreement.
(2) Without limiting the meaning of the expression,
10 "bargaining in good faith" includes --
(a) doing the things set out in section 42B(2)(a) to
(d) and (f) to (h); and
(b) recognising a bargaining agent duly appointed
for the purpose of bargaining for the collective
15 agreement.
(3) A code of good faith in force under section 42C
applies, with necessary changes and to the extent that is
practicable, in relation to bargaining for a collective
agreement.
20 51T. Application of sections 42D and 42E
(1) Section 42D and, subject to subsection (2), section 42E
apply, with necessary changes, in relation to bargaining
for a collective agreement and, for that purpose, any
reference in those sections to a term used in this
25 Division has the meaning given to that term in this
Division.
(2) The Commission must not give any direction or make
any order or declaration requiring, or having the effect
of requiring, a negotiating party to enter into a
30 collective agreement or to include any matter in, or
exclude any matter from, a collective agreement.
".
page 21
Labour Relations Legislation Amendment Bill 2006
Part 5 Amendments as to good faith bargaining
s. 26
26. Section 84A amended
Section 84A(1)(a) is amended by deleting "or 74" and inserting
instead --
" , 51S or 74 ".
page 22
Labour Relations Legislation Amendment Bill 2006
Amendments as to annual and other leave Part 6
s. 27
Part 6 -- Amendments as to annual and other leave
27. The Act amended in this Part
The amendments in this Part are to the Minimum Conditions of
Employment Act 1993*.
5 [* Reprinted as at 4 October 2002.
For subsequent amendments see Western Australian
Legislation Information Tables for 2004, Table 1, p. 291-2.]
28. Section 3 amended
(1) Section 3(1) is amended by deleting the definition of "casual
10 employee".
(2) Section 3(1) is amended by inserting in the appropriate
alphabetical positions --
"
"annual leave" means leave provided for under
15 Division 3 of Part 4;
"carer's leave" means leave taken by an employee to
provide care or support to a member of the
employee's family or household who requires care
or support because of --
20 (a) an illness or injury of the member; or
(b) an unexpected emergency affecting the
member;
"continuous service" means service under an
unbroken contract of employment and includes
25 any period of leave or absence authorised by the
employer or by an employer-employee agreement,
an award, a contract of employment or this Act;
"member of the employee's family or household"
means any of the following persons --
30 (a) the employee's spouse or de facto partner;
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Labour Relations Legislation Amendment Bill 2006
Part 6 Amendments as to annual and other leave
s. 29
(b) a child, step-child or grandchild of the
employee (including an adult child,
step-child or grandchild);
(c) a parent, step-parent or grandparent of the
5 employee;
(d) a sibling of the employee;
(e) any other person who, at or immediately
before the relevant time for assessing the
employee's eligibility to take leave, lived
10 with the employee as a member of the
employee's household;
".
29. Section 8 amended
(1) Section 8(1) is repealed and the following subsection is inserted
15 instead --
"
(1) After the completion of any year of service by an
employee, the employer and employee may agree that
the employee may forgo taking annual leave to which
20 the employee became entitled in relation to that year of
service if --
(a) the amount of annual leave forgone does not
exceed 50% of the whole amount of annual
leave to which the employee became entitled in
25 relation to that year of service;
(b) the employee is given an equivalent benefit in
lieu of the amount of annual leave forgone; and
(c) the agreement is in writing.
".
page 24
Labour Relations Legislation Amendment Bill 2006
Amendments as to annual and other leave Part 6
s. 30
(2) After section 8(2) the following subsections are inserted --
"
(3) The employer must not --
(a) require the employee to forgo taking an amount
5 of annual leave; or
(b) exert undue influence or undue pressure on the
employee in relation to the making of a
decision by the employee whether or not to
forgo taking an amount of annual leave.
10 (4) A contravention of subsection (3) is not an offence but
that subsection is a civil penalty provision for the
purposes of section 83E of the IR Act.
".
30. Part 4 Division 2 heading amended
15 The heading to Part 4 Division 2 is amended by inserting after
"injury" --
" or family care ".
31. Sections 19 to 20A replaced by sections 19 to 20B and
transitional provision
20 (1) Sections 19 to 20A are repealed and the following sections are
inserted instead --
"
19. Entitlement to paid leave for illness, injury or
family care
25 (1) An employee, other than a casual employee, is entitled
for each year of service to paid leave under this
subsection for the number of hours the employee is
required ordinarily to work in a 2 week period during
that year, up to 76 hours.
30 (2) An entitlement under subsection (1) accrues pro rata
on a weekly basis.
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Labour Relations Legislation Amendment Bill 2006
Part 6 Amendments as to annual and other leave
s. 31
(3) Entitlements under subsection (1) are cumulative.
(4) Entitlements under subsection (1) can only be used
under sections 20 and 20A.
(5) In subsection (1) --
5 "year" does not include any period of unpaid leave.
20. Employee may use entitlement as paid sick leave
(1) Subject to subsection (2), an employee who is unable
to work as a result of the employee's illness or injury,
is entitled to use any part of the employee's entitlement
10 under section 19(1) as paid leave for periods of absence
from work resulting from the illness or injury.
(2) If an employee's illness or injury is attributable to --
(a) the employee's serious and wilful misconduct;
or
15 (b) the employee's gross and wilful neglect,
in the course of the employee's employment, the
employee is not entitled to be paid for any period of
absence from work resulting from the illness or injury.
20A. Employee may use entitlement as paid carer's leave
20 (1) Subject to subsection (3), an employee is entitled to use
any part of the employee's entitlement under
section 19(1) as paid carer's leave.
(2) Subsection (3) applies to an employee if, at a particular
time ("the time"), the employee --
25 (a) is employed by an employer; and
(b) for a continuous period of 12 months
immediately before the time, has been in
continuous service with the employer.
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Labour Relations Legislation Amendment Bill 2006
Amendments as to annual and other leave Part 6
s. 32
(3) The employee is not entitled to take paid carer's leave
at the time if, during the period of 12 months ending at
the time, the employee has already taken a total amount
of paid carer's leave that is as much as the entitlement
5 accrued by the employee under section 19(1) during
that period.
20B. Unpaid carer's leave
(1) Subject to subsection (2), an employee is entitled to
unpaid carer's leave of up to 2 days for each occasion
10 (a "permissible occasion") on which a member of the
employee's family or household requires care or
support because of --
(a) an illness or injury of the member; or
(b) an unexpected emergency affecting the
15 member.
(2) An employee is entitled to unpaid carer's leave for a
particular permissible occasion only if the employee
cannot take paid carer's leave during the period.
(3) In subsection (2) --
20 "paid carer's leave" means paid carer's leave
authorised by the employer or by an
employer-employee agreement, an award, a
contract of employment or section 20A(1).
".
25 (2) Nothing in Part 4 Division 2 of the Minimum Conditions of
Employment Act 1993 requires an untaken entitlement that arose
under section 19(1) or 20A(1) of that Act as enacted before the
commencement of this section to be carried over from the year
in which the entitlement arose to the next year.
30 32. Section 21 amended
Section 21 is amended as follows:
(a) by deleting paragraph (a);
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Labour Relations Legislation Amendment Bill 2006
Part 6 Amendments as to annual and other leave
s. 33
(b) in paragraph (b) by deleting "an entitlement under
section 19(1) or 20A(1)" and inserting instead --
" leave under section 20(1), 20A(1) or 20B(1) ".
33. Section 22 amended
5 Section 22 is amended by deleting paragraphs (a) and (b) and
"or" after paragraph (a) and inserting instead --
"
(a) to use the employee's entitlement under
section 19(1) as paid leave under section 20(1);
10 (b) to use the employee's entitlement under
section 19(1) as paid carer's leave under
section 20A(1); or
(c) to unpaid carer's leave under section 20B(1),
".
15 34. Section 23 amended
After section 23(2) the following subsection is inserted --
"
(2a) Entitlements under subsection (1) are cumulative.
".
20 35. Section 27 amended
Section 27(1) is repealed and the following subsection is
inserted instead --
"
(1) Subject to section 28, on the death of a member of an
25 employee's family or household the employee is
entitled to paid bereavement leave of up to 2 days.
".
page 28
Labour Relations Legislation Amendment Bill 2006
Amendments as to annual and other leave Part 6
s. 36
36. Section 32 amended
(1) Section 32 is amended as follows:
(a) by inserting before "In" the subsection designation
"(1)";
5 (b) by deleting the definition of "continuous service" and
inserting --
"
"employee" does not include a casual employee who is
not eligible as described in subsection (2) or (3);
10 ".
(2) At the end of section 32 the following subsections are
inserted --
"
(2) A casual employee is "eligible" if the employee --
15 (a) has been engaged by a particular employer on a
regular and systematic basis for a sequence of
periods of employment during a period of at
least 12 months; and
(b) but for an expected birth of a child to the
20 employee or the employee's spouse or de facto
partner or an expected placement of a child
with the employee with a view to the adoption
of the child by the employee, would have a
reasonable expectation of continuing
25 engagement by the employer on a regular and
systematic basis.
(3) Without limiting subsection (2), a casual employee is
also "eligible" if --
(a) the employee was engaged by a particular
30 employer on a regular and systematic basis for
a sequence of periods during a period (the
"first period of employment") of less than
12 months;
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Labour Relations Legislation Amendment Bill 2006
Part 6 Amendments as to annual and other leave
s. 37
(b) at the end of the first period of employment, the
employee ceased, on the employer's initiative,
to be so engaged by the employer;
(c) the employer later again engaged the employee
5 on a regular and systematic basis for a further
sequence of periods during a period (the
"second period of employment") that started
not more than 3 months after the end of the first
period of employment;
10 (d) the combined length of the first period of
employment and the second period of
employment is at least 12 months; and
(e) the employee, but for an expected birth of a
child to the employee or the employee's spouse
15 or de facto partner or an expected placement of
a child with the employee with a view to the
adoption of the child by the employee, would
have a reasonable expectation of continuing
engagement by the employer on a regular and
20 systematic basis.
".
37. Section 33 amended
(1) Section 33(1) is amended by deleting ", other than a casual
employee,".
25 (2) Section 33(4) is repealed and the following subsections are
inserted instead --
"
(4) An employee may request the employer to extend the
period of parental leave to which the employee is
30 entitled under subsection (1) for a further consecutive
period of not more than 52 consecutive weeks.
(5) An employee may request the employer to extend the
period of parental leave which the employee is entitled
page 30
Labour Relations Legislation Amendment Bill 2006
Amendments as to annual and other leave Part 6
s. 38
under subsection (3) to take at the same time as the
employee's spouse or de facto partner for a further
consecutive period of not more than 7 consecutive
weeks.
5 (6) The entitlement of an employee to parental leave is
reduced by any period of parental leave taken by the
employee's spouse or de facto partner in relation to the
same child, except --
(a) the period of one week's leave referred to in
10 subsection (3); or
(b) if a request to extend the period of one week's
leave referred to in subsection (3) is agreed to
by the employer, that period as so extended.
(7) If a request to extend the period of an employee's
15 parental leave is agreed to by the employer, the
reference in subsection (6) to the employee's
entitlement to parental leave is a reference to that
extended entitlement.
".
20 38. Section 38 amended
After section 38(3) the following subsections are inserted --
"
(4) An employee may request the employer to permit the
employee, on finishing parental leave, to work on a
25 modified basis in a position to which the employee is
entitled under subsection (1) or (2).
(5) If, on finishing parental leave, an employee has been
permitted by the employer to work on a modified basis
in a position to which the employee is entitled under
30 subsection (1) or (2), the employee may subsequently
request the employer to permit the employee to resume
working on the same basis as the employee worked
immediately before starting parental leave.
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Labour Relations Legislation Amendment Bill 2006
Part 6 Amendments as to annual and other leave
s. 38
(6) If, on finishing parental leave, an employee has been
permitted by the employer to work on a modified basis
in a position to which the employee is entitled under
subsection (1) or (2), the employer may subsequently,
5 if entitled to do so under subsection (7)(a) or (b),
require the employee to resume working on the same
basis as the employee worked immediately before
starting parental leave.
(7) A requirement can be made under subsection (6) if, and
10 only if --
(a) the requirement is made on grounds relating to
the adverse effect that the employee continuing
to work on a modified basis would have on the
conduct of the operations or business of the
15 employer and those grounds would satisfy a
reasonable person; or
(b) the employee no longer has a child who has not
reached the compulsory education period as
defined in section 6 of the School Education
20 Act 1999.
(8) In subsections (4) to (7) --
"modified basis" means a basis that involves the
employee working --
(a) on different days or at different times, or
25 both; or
(b) on fewer days or for fewer hours, or both,
than the employee worked immediately before
starting parental leave.
(9) If --
30 (a) before the employee started parental leave a
change took place in the days on which, times
at which or hours for which the employee
worked; and
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Labour Relations Legislation Amendment Bill 2006
Amendments as to annual and other leave Part 6
s. 39
(b) the change was a direct result of the employee's
pregnancy,
a reference in subsection (5), (6) or (8) or
section 38A(5) or (7) to how the employee worked
5 immediately before starting parental leave is a
reference to the employee's work immediately before
the change took place.
".
39. Sections 38A and 38B inserted
10 After section 38 the following sections are inserted --
"
38A. How and when a request or requirement as to
parental leave or return to work can be made
(1) A request under section 33(4) or (5) or 38(4) or (5) is
15 to be made by notice in writing.
(2) A request under section 33(4) is to be made at least
4 weeks before the day on which the employee finishes
the period of parental leave to which the employee is
entitled under section 33(1).
20 (3) A request under section 33(5) can be made at any time
before the end of the week referred to in section 33(3).
(4) A request under section 38(4) is to be made at least
7 weeks before the day on which the employee finishes
parental leave.
25 (5) A request under section 38(5) is to be made at least
6 weeks before the day on which the employee wishes
to resume working on the same basis as the employee
worked immediately before starting parental leave.
(6) Subject to subsection (2), (3) or (4), whichever is
30 applicable, a request under section 33(4) or (5) or 38(4)
can be made even if the birth or placement occurred
page 33
Labour Relations Legislation Amendment Bill 2006
Part 6 Amendments as to annual and other leave
s. 39
before the coming into operation of section 39 of the
Labour Relations Legislation Amendment Act 2006.
(7) A requirement under section 38(6) is to be made by
notice in writing at least 6 weeks before the day on
5 which the employer wishes the employee to resume
working on the same basis as the employee worked
immediately before starting parental leave, and the
notice is to set out the reasons for the requirement.
38B. Grounds for determining a request or making a
10 requirement as to parental leave or return to work
(1) The employer is to agree to a request under
section 33(4) or (5) or 38(4) unless --
(a) the employer, having considered the
employee's circumstances, is not satisfied that
15 the request is genuinely based on the
employee's parental responsibilities; or
(b) there are grounds to refuse the request relating
to the adverse effect that agreeing to the request
would have on the conduct of the operations or
20 business of the employer and those grounds
would satisfy a reasonable person.
(2) The employer is to agree to a request under
section 38(5) unless there are grounds to refuse the
request relating to the adverse effect that agreeing to
25 the request would have on the conduct of the
operations or business of the employer and those
grounds would satisfy a reasonable person.
(3) The employer is to give the employee written notice of
the employer's decision on a request under
30 section 33(4) or (5) or 38(4) or (5) and, if the request is
refused, the notice is to set out the reasons for the
refusal.
page 34
Labour Relations Legislation Amendment Bill 2006
Amendments as to annual and other leave Part 6
s. 40
(4) Without limiting subsection (1) or section 38(7)(a) the
grounds on which a refusal under subsection (1)(b), or
a requirement under section 38(6), may be based
include the following --
5 (a) cost;
(b) lack of adequate replacement staff;
(c) loss of efficiency;
(d) impact on the production or delivery of
products or services by the employer.
10 (5) If a request is made under section 33(4) or (5) or 38(4)
or (5), the subject matter of the request may be
enforced as a minimum condition of employment in a
manner set out in section 7, and in any enforcement
proceedings the onus lies on the employer to
15 demonstrate that the refusal of such a request was
justified under subsection (1) or (2), whichever is
applicable.
".
40. Section 44 amended
20 (1) Section 44(3) is amended by deleting the penalty.
(2) After section 44(3) the following subsections are inserted --
"
(4) A contravention of subsection (3) is not an offence but
that subsection is a civil penalty provision for the
25 purposes of section 83E of the IR Act.
(5) Subsection (4) extends to a contravention that occurred
within the period of 12 months ending on the coming
into operation of section 40 of the Labour Relations
Legislation Amendment Act 2006 unless the employer
30 was charged with an offence in respect of that
contravention.
".
page 35
Labour Relations Legislation Amendment Bill 2006
Part 6 Amendments as to annual and other leave
s. 41
41. Section 45 amended
(1) Section 45(1) is amended by deleting the penalty.
(2) After section 45(1) the following subsections are inserted --
"
5 (1a) A contravention of subsection (1) is not an offence but
that subsection is a civil penalty provision for the
purposes of section 83E of the IR Act.
(1b) Subsection (1a) extends to a contravention that
occurred within the period of 12 months ending on the
10 coming into operation of section 41 of the Labour
Relations Legislation Amendment Act 2006 unless the
employer was charged with an offence in respect of
that contravention.
".
15 42. Section 46 repealed
Section 46 is repealed.
page 36
Labour Relations Legislation Amendment Bill 2006
Amendments as to long service leave Part 7
Amendments to the Construction Industry Portable Paid Long Division 1
Service Leave Act 1985
s. 43
Part 7 -- Amendments as to long service leave
Division 1 -- Amendments to the Construction Industry Portable
Paid Long Service Leave Act 1985
43. The Act amended in this Division
5 The amendments in this Division are to the Construction
Industry Portable Paid Long Service Leave Act 1985*.
[* Reprint 2 as at 4 November 2005.]
44. Section 3 amended
(1) Section 3(1) is amended as follows:
10 (a) in the definition of "award" by deleting "Conciliation
and Arbitration Act 1904" and inserting instead --
" Workplace Relations Act 1996 ";
(b) by deleting the definition of "ordinary pay" and
inserting instead --
15 "
"ordinary pay", of a person, means the rate of pay
(disregarding any leave loading) to which the
person is entitled for leave (other than long service
leave) to which the person is entitled;
20 ";
(c) in the definition of "union" by deleting "the Conciliation
and Arbitration Act 1904" and inserting instead --
" Schedule 1 of the Workplace Relations Act 1996 ".
(2) After section 3(3) the following subsection is inserted --
25 "
(3a) For the purposes of the definition of "ordinary pay" in
subsection (1), if the person is not entitled to paid leave
(other than long service leave), the ordinary pay of the
page 37
Labour Relations Legislation Amendment Bill 2006
Part 7 Amendments as to long service leave
Division 1 Amendments to the Construction Industry Portable Paid Long
Service Leave Act 1985
s. 45
person is the rate of pay to which the person is entitled
for ordinary hours of work.
".
45. Section 21 amended
5 (1) Section 21(1) is amended as follows:
(a) in paragraph (a) by deleting "13 weeks after completing
15" and inserting instead --
" 8 ÃrrxÃhsrÃpyrvtà ÃÃÃô0
(b) in paragraph (b) by deleting "8 ÃrrxÃhsrÃpyrvtÃ
10 10" and inserting instead --
" 4 ÃrrxÃhsrÃpyrvtÃ$ÃÃÃô.
(2) Section 21(3) is repealed and the following subsection is
inserted instead --
"
15 (3) In subsection (1) --
"ordinary pay" means the average ordinary pay of the
person over the period in which the person
completed his or her most recent 220 days of
service in the construction industry.
20 ".
46. Section 22 amended
(1) Section 22(1) is amended as follows:
(a) by deleting "15" in the 4 places where it occurs and
inserting instead --
25 " 10 ";
(b) in paragraph (a) by deleting "10" and inserting
instead --
" 7 ";
(c) in paragraph (b)(ii) by deleting "one-fifteenth" and
30 inserting instead --
" one-tenth ".
page 38
Labour Relations Legislation Amendment Bill 2006
Amendments as to long service leave Part 7
Amendments to the Construction Industry Portable Paid Long Division 1
Service Leave Act 1985
s. 47
(2) Section 22(2) is amended as follows:
(a) by deleting "10" and inserting instead --
" 7 ";
(b) in paragraph (b) by deleting "15" and inserting
5 instead --
" 10 ".
47. Section 24A amended
Section 24A(1) is amended as follows:
(a) by deleting "10" and inserting instead --
10 " 7 ";
(b) by deleting "13" and inserting instead --
" 8 ÃÃÃô0
(c) by deleting "15" and inserting instead --
" 10 ".
15 Note: The heading to section 24A will be altered by deleting "10" and
inserting instead "7".
48. Section 27 repealed
Section 27 is repealed.
49. Section 29 replaced
20 Section 29 is repealed and the following section is inserted
instead --
"
29. Public holidays
If --
25 (a) a public holiday occurs during a period of long
service leave taken by an employee under
section 21 or 24A; and
page 39
Labour Relations Legislation Amendment Bill 2006
Part 7 Amendments as to long service leave
Division 1 Amendments to the Construction Industry Portable Paid Long
Service Leave Act 1985
s. 50
(b) the employee is otherwise entitled to that
holiday under the employee's conditions of
employment,
the period of long service leave is increased by one day
5 for each such public holiday.
".
50. Section 51 amended
(1) Section 51 is amended by inserting before "Where" the
subsection designation "(1)".
10 (2) At the end of section 51 the following subsection is inserted --
"
(2) In this section --
"ordinary pay" has the meaning given in
section 21(3).
15 ".
51. Section 56 inserted
After section 55 the following section is inserted --
"
56. Transitional provisions
20 The provisions of the Schedule have effect in relation
to the several matters specified in it.
".
52. Schedule amended
The Schedule is amended as follows:
25 (a) in the heading to the Schedule by inserting after
"Schedule" --
" -- Transitional provisions ";
(b) by deleting "[Section 21(3)]" and inserting instead --
" [s. 56] ";
page 40
Labour Relations Legislation Amendment Bill 2006
Amendments as to long service leave Part 7
Amendments to the Construction Industry Portable Paid Long Division 1
Service Leave Act 1985
s. 52
(c) by deleting the heading immediately above clause 1 and
inserting instead --
"
Division 1 -- The appointed day
5 ";
(d) at the end of the Schedule by inserting --
"
Division 2 -- The Labour Relations Legislation Amendment
Act 2006
10 3. Service prior to commencement day
(1) If an employee has completed at least 6 but less than
15 years service in the construction industry prior to the
commencement day, then, despite section 21(1)(a), the
employee cannot take long service leave under
15 section 21(1)(a) until after --
(a) if the employee has completed at least 14 years
service prior to that day -- the later of the
commencement day or completing 14 years
8 months service;
20 (b) if the employee has completed at least 13 but not
14 years service prior to that day -- completing
14 years 4 months service;
(c) if the employee has completed at least 12 but not
13 years service prior to that day -- completing
25 14 years service;
(d) if the employee has completed at least 11 but not
12 years service prior to that day -- completing
13 years 8 months service;
(e) if the employee has completed at least 10 but not
30 11 years service prior to that day -- completing
13 years 4 months service;
(f) if the employee has completed at least 9 but not
10 years service prior to that day -- completing
13 years service;
page 41
Labour Relations Legislation Amendment Bill 2006
Part 7 Amendments as to long service leave
Division 1 Amendments to the Construction Industry Portable Paid Long
Service Leave Act 1985
s. 52
(g) if the employee has completed at least 8 but not
9 years service prior to that day -- completing
12 years 4months service;
(h) if the employee has completed at least 7 but not
5 8 years service prior to that day -- completing
11 years 8months service; or
(i) if the employee has completed at least 6 but not
7 years service prior to that day -- completing
11 years service.
10 (2) Subclause (1) does not apply in respect of a period of
service prior to the commencement day in respect of which
the employee has become entitled to take long service leave.
(3) An employee who becomes entitled to take long service
leave under section 21(1)(a) in accordance with
15 subclause (1) also becomes entitled to take long service
leave under section 21(1)(b), in respect of the period of
service that exceeds 10 years, pro rata.
(4) Subclause (3) does not apply to an employee if, before being
granted the long service leave, the employee completes
20 15 years service.
(5) If an employee takes long service leave in accordance with
subclause (3), the employee is entitled, after completing
15 years service, to take the remainder of his or her
entitlement under section 21(1)(b) not already taken in
25 accordance with subclause (3).
(6) In this clause --
"commencement day" means the day on which the Labour
Relations Legislation Amendment Act 2006 Part 7
Division 1 came into operation.
30 ".
page 42
Labour Relations Legislation Amendment Bill 2006
Amendments as to long service leave Part 7
Amendments to the Long Service Leave Act 1958 Division 2
s. 53
Division 2 -- Amendments to the Long Service Leave Act 1958
53. The Act amended in this Division
The amendments in this Division are to the Long Service Leave
Act 1958*.
5 [* Reprint 3 as at 16 May 2003.
For subsequent amendments see Western Australian
Legislation Information Tables for 2004, Table 1, p. 267.]
54. Long title amended
The long title is amended by deleting "certain employees whose
10 employment is not regulated under the Industrial Relations
Act 1979" and inserting instead --
" certain Western Australian employees ".
55. Section 4 amended
(1) Section 4(1) is amended as follows:
15 (a) by inserting in the appropriate alphabetical position --
"
"industrial inspector" means an Industrial Inspector
as defined in the Industrial Relations Act 1979;
";
20 (b) by deleting the definition of "Commission in Court
Session";
(c) in the definition of "ordinary pay" by deleting
"commissions, bonuses,".
(2) Section 4(2) is amended as follows:
25 (a) by deleting paragraph (a);
(b) in paragraph (b) by deleting "where no ordinary time
rate of pay is fixed under the provisions of paragraph (a)
the ordinary time rate of pay shall be deemed to be" and
inserting instead --
page 43
Labour Relations Legislation Amendment Bill 2006
Part 7 Amendments as to long service leave
Division 2 Amendments to the Long Service Leave Act 1958
s. 56
"
where the employee is employed on piece or
bonus work or any other system of payment by
results, the employee's rate of pay during any
5 period when the employee is on long service
leave is
";
(c) in paragraph (c) by deleting "an employee" and inserting
instead --
10 " a full-time, part-time or casual employee ";
(d) in paragraph (c) by deleting ", subject to paragraph (a),".
56. Section 8 amended
(1) Section 8(2) is amended as follows:
(a) by deleting "Subject to subsections (4) and (5), an" and
15 inserting instead --
" An ";
(b) by deleting "15" in the 4 places where it occurs and
inserting instead --
" 10 ";
20 (c) by deleting "13" in both places where it occurs and
inserting instead --
" 8 ÃÃÃô0
(d) in paragraph (b) by deleting "10" and inserting
instead --
25 " 5 ";
(e) in paragraph (b) by deleting "8 ´ÃhqÃvrvtÃ
instead --
" 4 ÃÃÃô
page 44
Labour Relations Legislation Amendment Bill 2006
Amendments as to long service leave Part 7
Amendments to the Long Service Leave Act 1958 Division 2
s. 56
(2) Section 8(3) is amended as follows:
(a) by deleting "Subject to subsection (5), where" and
inserting instead --
" Where ";
5 (b) by deleting "10" and inserting instead --
" 7 ";
(c) by deleting "13" and inserting instead --
" 8 ÃÃÃô0
(d) by deleting "15" in the both places where it occurs and
10 inserting instead --
" 10 ".
(3) Section 8(4), (5) and (6) are repealed and the following
subsections are inserted instead --
"
15 (4) If an employee has completed at least 6 but less than
15 years continuous employment prior to the
commencement day, then, despite subsection (2)(a), the
employee cannot take long service leave under
subsection (2)(a) until after --
20 (a) if the employee has completed at least 14 years
continuous employment prior to that day -- the
later of the commencement day or completing
14 years 8 months continuous employment;
(b) if the employee has completed at least 13 but
25 not 14 years continuous employment prior to
that day -- completing 14 years 4 months
continuous employment;
(c) if the employee has completed at least 12 but
not 13 years continuous employment prior to
30 that day -- completing 14 years continuous
employment;
page 45
Labour Relations Legislation Amendment Bill 2006
Part 7 Amendments as to long service leave
Division 2 Amendments to the Long Service Leave Act 1958
s. 56
(d) if the employee has completed at least 11 but
not 12 years continuous employment prior to
that day -- completing 13 years 8 months
continuous employment;
5 (e) if the employee has completed at least 10 but
not 11 years continuous employment prior to
that day -- completing 13 years 4 months
continuous employment;
(f) if the employee has completed at least 9 but not
10 10 years continuous employment prior to that
day -- completing 13 years continuous
employment;
(g) if the employee has completed at least 8 but not
9 years continuous employment prior to that
15 day -- completing 12 years 4 months
continuous employment;
(h) if the employee has completed at least 7 but not
8 years continuous employment prior to that
day -- completing 11 years 8 months
20 continuous employment; or
(i) if the employee has completed at least 6 but not
7 years continuous employment prior to that
day -- completing 11 years continuous
employment.
25 (5) Subsection (4) does not apply in respect of a period of
continuous employment prior to the commencement
day in respect of which the employee has become
entitled to take long service leave.
(6) An employee who becomes entitled to take long
30 service leave under subsection (2)(a) in accordance
with subsection (4) also becomes entitled to take long
service leave under subsection (2)(b), in respect of the
period of continuous employment that exceeds
10 years, pro rata.
page 46
Labour Relations Legislation Amendment Bill 2006
Amendments as to long service leave Part 7
Amendments to the Long Service Leave Act 1958 Division 2
s. 57
(7) Subsection (6) does not apply to an employee if, before
being granted the long service leave, the employee
completes 15 years continuous employment.
(8) If an employee takes long service leave in accordance
5 with subsection (6), the employee is entitled, after
completing 15 years continuous employment, to take
the remainder of his or her entitlement under
subsection (2)(b) not already taken in accordance with
subsection (6).
10 (9) In subsections (4) and (5) --
"commencement day" means the day on which the
Labour Relations Legislation Amendment
Act 2006 Part 7 Division 2 came into operation.
".
15 57. Section 8A repealed
Section 8A is repealed.
58. Section 9 amended
(1) Section 9(3) is amended by deleting all of the subsection from
and including "unless" and inserting instead --
20 "
unless --
(a) the employee requests in writing to be paid
before the period of leave commences, in which
case the employee is to be so paid; or
25 (b) the employee and employer agree to another
method of payment.
".
page 47
Labour Relations Legislation Amendment Bill 2006
Part 7 Amendments as to long service leave
Division 2 Amendments to the Long Service Leave Act 1958
s. 59
(2) Section 9(4) is repealed and the following subsection is inserted
instead --
"
(4) If --
5 (a) a public holiday occurs during a period of long
service leave taken by an employee under
section 8(2)(a) or (b); and
(b) the employee is otherwise entitled to that
holiday under the employee's conditions of
10 employment,
the period of long service leave is increased by one day
for each such public holiday.
".
59. Section 12 inserted
15 After section 11 the following section is inserted in Part IV --
"
12. Industrial inspectors may institute proceedings
An industrial inspector may institute proceedings under
section 11 in his or her own name, whether or not an
20 employee is to be a party to the proceedings.
".
60. Section 26 amended
(1) Section 26(2) is amended by deleting the penalty.
(2) After section 26(2) the following subsections are inserted --
25 "
(3) A contravention of subsection (2) is not an offence but
that subsection is a civil penalty provision for the
purposes of the Industrial Relations Act 1979
section 83E.
page 48
Labour Relations Legislation Amendment Bill 2006
Amendments as to long service leave Part 7
Amendments to the Long Service Leave Act 1958 Division 2
s. 61
(4) Subsection (3) extends to a contravention that occurred
within the period of 12 months ending on the coming
into operation of the Labour Relations Legislation
Amendment Act 2006 Part 7 Division 2 unless the
5 employer was charged with an offence in respect of
that contravention.
".
61. Section 26A amended
(1) Section 26A(1) is amended by deleting the penalty.
10 (2) After section 26A(1) the following subsections are inserted --
"
(1a) A contravention of subsection (1) is not an offence but
that subsection is a civil penalty provision for the
purposes of the Industrial Relations Act 1979
15 section 83E.
(1b) Subsection (1a) extends to a contravention that
occurred within the period of 12 months ending on the
coming into operation of the Labour Relations
Legislation Amendment Act 2006 Part 7 Division 2
20 unless the employer was charged with an offence in
respect of that contravention.
".
(3) Section 26A(2) is amended by deleting "under the Industrial
Relations Act 1979".
25 62. Part VII Division 5 repealed
Part VII Division 5 is repealed.
page 49
Labour Relations Legislation Amendment Bill 2006
Part 7 Amendments as to long service leave
Division 3 Repeal of the LSL General Order
s. 63
Division 3 -- Repeal of the LSL General Order
63. Meaning of terms used in this Division
In this Division --
"Commission" means The Western Australian Industrial
5 Relations Commission;
"employer" has the meaning given to that term in the Long
Service Leave Act 1958 section 4;
"industrial instrument" means --
(a) an award under the Coal Industry Tribunal of
10 Western Australia Act 1992;
(b) an order under the Coal Industry Tribunal of Western
Australia Act 1992 or an agreement that comes within
section 12(4) or 17(1) of that Act;
(c) an award as defined in the Industrial Relations
15 Act 1979 section 7(1);
(d) an industrial agreement as defined in the Industrial
Relations Act 1979 section 7(1);
(e) an order of the Commission under the Industrial
Relations Act 1979;
20 (f) an employer-employee agreement under the
Industrial Relations Act 1979 Part VID; or
(g) any other agreement between a person and an
employer, as such, that deals with long service leave;
"LSL General Order" means the General Order relating to
25 long service leave made by the Commission on
27 January 1978 and published in the Western Australian
Industrial Gazette on 22 February 1978 at page 120 and the
Schedule attached to that order published in that Gazette on
25 January 1978 at pages 1 to 6.
30 64. LSL General Order repealed
The LSL General Order is repealed.
page 50
Labour Relations Legislation Amendment Bill 2006
Amendments as to long service leave Part 7
Repeal of the LSL General Order Division 3
s. 65
65. Transitional provision -- references to the LSL General
Order
(1) The object of this section is to ensure that where, before
commencement, a person's long service leave rights,
5 entitlements or obligations arose under an industrial instrument
by reference to the LSL General Order that person's long
service leave rights, entitlements or obligations arise, after
commencement, under the instrument by reference to the Long
Service Leave Act 1958.
10 (2) Unless the contrary intention appears or the context otherwise
requires, a reference in an industrial instrument to the LSL
General Order, or a provision of that Order, is, after
commencement, to be read as a reference to the Long Service
Leave Act 1958, or the corresponding provision of that Act,
15 (whichever is relevant) and the instrument is to be construed so
as to give effect to the object of this section.
(3) Subsection (2) applies to references that, after commencement,
have ongoing effect.
(4) A provision of the Long Service Leave Act 1958 corresponds to
20 a provision of the LSL General Order if the provisions deal with
substantially the same matter.
(5) In this section --
"commencement" means the coming into operation of the
Labour Relations Legislation Amendment Act 2006 Part 7
25 Division 2.
page 51
Labour Relations Legislation Amendment Bill 2006
Part 8 Amendments as to civil penalties
s. 66
Part 8 -- Amendments as to civil penalties
66. The Act amended in this Part
The amendments in this Part are to the Industrial Relations
Act 1979*.
5 [* Reprint 10 as at 8 July 2005.
For subsequent amendments see Acts Nos. 34 of 2004 and
14 of 2005.]
67. Section 7 amended
Section 7(1) is amended in the definition of "civil penalty
10 provision" by inserting after "Act" --
" , or any other written law, ".
68. Section 81AA amended
Section 81AA is amended as follows:
(a) after paragraph (bc) by deleting the semicolon and
15 inserting a full stop;
(b) by deleting paragraph (c).
69. Section 81CA amended
Section 81CA(1) is amended in the definition of "prosecution
jurisdiction" as follows:
20 (a) after paragraph (a) by inserting --
" or ";
(b) after paragraph (d) by deleting "; or" and inserting a full
stop;
(c) by deleting paragraphs (c) and (e).
page 52
Labour Relations Legislation Amendment Bill 2006
Amendments as to civil penalties Part 8
s. 70
70. Section 83E amended
After section 83E(6) the following subsection is inserted --
"
(6a) Subsection (6)(c) does not apply in the case of a
5 contravention of section 8(3), 44(3) or 45(1) of the
MCE Act or of section 26(2) or 26A(1) of the Long
Service Leave Act 1958.
".
page 53
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