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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FAIR WORK AMENDMENT (PAY PROTECTION) BILL 2017
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Rhiannon)
FAIR WORK AMENDMENT (PAY PROTECTION) BILL 2017
OUTLINE
The Bill amends the Fair Work Act 2009 to extend protections for employees covered by an
enterprise agreement to require employers to pay a base rate of pay, full rate of pay and any
casual loading that is no less than the relevant award or national minimum wage order. This
is done primarily by extending the protections that currently apply against enterprise
agreements undercutting the award or minimum wage order 'base rate of pay' to now apply
to the 'full rate of pay', which is defined in section 18 to include loading, overtime and
penalty rates.
NOTES ON CLAUSES
Clause 1: Short Title
1. This clause provides for the Act to be cited as the Fair Work Amendment (Pay
Protection) Act 2017.
Clause 2: Commencement
2. This clause provides for the commencement of the provision of the amending Act.
Sections 1 to 3 will commence on the day the Act receives the Royal Assent. Schedule 1 will
commence on the day after the Act receives the Royal Assent.
Clause 3 - Schedules
3. Each Act specified in a Schedule to this Act is amended or repealed as is set out in the
applicable items in the Schedule. Any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1--Amendment of the Fair Work Act 2009
Fair Work Act 2009
Item 1 - Subsection 16(3) (note)
4. Item 1 substitutes the "base rate of pay" wherever it occurs for "rate of pay". This is
necessary due to the amendment of section 206 described in Items 4, 5, 6 and 7. Section 206
deals with an employee's rate of pay under an enterprise agreement.
Item 2 - At the end of section18
5. Item 2 adds subsection 18(3) which prescribes that regulations may determine the full
rate of pay for an employee who is a pieceworker for the purpose of section 206. Section 206
deals with an employee's rate of pay under an enterprise agreement.
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Item 3 - Section 169 (paragraph relating to Division 6)
6. Item 3 substitutes "the base rate of pay" for "rate of pay" in the simplified outline of
section 206. This is necessary due to the amendment of section 206 described in Items 4, 5, 6
and 7. Section 206 deals with an employee's rate of pay under an enterprise agreement.
Item 4 - Division 6 of Part 2-4 (heading)
7. Item 4 replaces the heading with Division 6 - Rates of Pay under enterprise
agreements. This is necessary due to further amendments of section 206 described in Items
5, 6 and 7.
Item 5 - Section 206 (heading)
8. Item 5 replaces "Base rate of pay" with "Rates of pay" in the heading. This is
necessary due to further amendments of section 206 described in Items 6 and 7.
Item 6 - Subsection 206(1)
9. Item 6 substitutes 'the base rate of pay" wherever it occurs for "the full rate of pay".
This extends current protections to require the full rate of pay payable to the employee under
the enterprise agreement to be no less than the modern award.
Item 7 - Subsections 206(3) and (4)
10. Item 7 extends current protections to require the base rate of pay and any casual
loading payable to the employee under the enterprise agreement be no less than the national
minimum wage order.
Items 8 and 9 - Section 282
11. Item 8 extends current protections for employees not covered by a modern award and
to whom an enterprise agreement applies to require the employees' base rate of pay and any
casual loading to be no less than the national minimum wage order.
12. Item 9 extends current protections for employees covered by a modern award and to
whom an enterprise agreement applies to require the employees' full rate of pay to be no less
than the award.
Item 10 - In the appropriate position in Schedule 1
13. Item 10 states that the amendments apply to enterprise agreements made before, on or
after the day on which this schedule commences. However amendments also have the effect
they would have if they were confined to enterprise agreements made on or after the day on
which this schedule commences.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Fair Work Amendment (Pay Protection) Bill 2016
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Bill amends the Fair Work Act 2009 to extend protections for employees covered by an
enterprise agreement to require employers to pay a base rate of pay, full rate of pay and any
casual loading that is no less than the relevant award or national minimum wage order. This
is done primarily by extending the protections that currently apply against enterprise
agreements undercutting the award or minimum wage order 'base rate of pay' to now apply
to the 'full rate of pay', which is defined in section 18 to include loading, overtime and
penalty rates.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
Senator Rhiannon
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