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2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FAIR WORK LEGISLATION AMENDMENT (SECURE JOBS, BETTER PAY) BILL
2022
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by the authority of the Minister for Employment and Workplace Relations,
the Hon Tony Burke MP)
Outline and Financial Impact Statement
AMENDMENTS TO THE FAIR WORK LEGISLATION AMENDMENT (SECURE
JOBS, BETTER PAY) BILL 2022
OUTLINE
These amendments amend the Fair Work Act 2009 (FW Act) and related legislation in Parts
6, 9, 10, 11, 14, 16, 17, 18, 19, 20, 21 and 23A of Schedule 1 to the Fair Work Legislation
Amendment (Secure Jobs, Better Pay) Bill 2022 (Bill). The amendments would also amend
Part 27 of the Bill and insert new Part 28 into the Bill.
The amendments:
• include among the factors that the FWC must take into account in deciding which
terms to include in a workplace determination, the significance to the employers
and employees who will be covered by the workplace determination of any
arrangements or benefits in a relevant enterprise agreement;
• authorise the FWC to have regard to 'reasonably foreseeable employees', make
determinations on views about whether certain working arrangements are
reasonably foreseeable, and amend an agreement with retrospective effect if
necessary to address a concern that the agreement does not pass the BOOT as part
of the new reconsideration process;
• provide that employers who employ fewer 20 employees may not be added to a
single interest employer agreement or authorisation without their agreement;
• provide that the operations and business activities of common interest employers
must be reasonably comparable for the purposes of making or varying a single
interest authorisation or agreement;
• provide that, for employers with 50 or more employees, the onus is on the employer
to establish that it is not a common interest employer or its operations and business
activities are not reasonably comparable with the other employers;
• provide the FWC with discretion to refuse an application by a bargaining
representative of an employee to add a new employer to a single interest employer
agreement or authorisation if the FWC is satisfied that, on the day it will approve
the relevant application, less than 9 months have passed since the most recent
nominal expiry date of an effectively bargained agreement that covered the
employer and relevant employees;
• provide that the Minister may make a declaration in relation to a particular industry,
occupation or sector to facilitate entry into the supported bargaining stream;
• provide that work in the "civil construction" sector is to be considered "general
building and construction work", which would mean that work in that sector would
not be subject to multi-enterprise bargaining;
• make clear that work in the asphalt industry is not considered to be "general
building and construction work";
• allow bargaining representatives to apply to the FWC for an order permitting an
employer to put a multi-enterprise agreement to a vote if satisfied that employee
organisations' failure to provide their written agreement is unreasonable;
• allow a pregnant employee to request a flexible working arrangement;
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Outline and Financial Impact Statement
• clarify the types of orders the FWC may make when an employer has not
adequately responded to a request for a flexible working arrangement;
• insert new Part 28 into the Bill, which would make technical amendments in
relation to paid family and domestic violence leave to enable regulations to
prescribe requirements for pay slips in relation to reporting of paid family and
domestic violence leave so that it could be recorded on an employee's pay slip as,
for example, ordinary hours or training;
• omit the prescription of malignant mesothelioma from the Bill so that the disease
can instead be prescribed by regulations under the Safety, Rehabilitation and
Compensation Act 1988 (SRC Act);
• amend subparagraph 7(9)(a) of the SRC Act to specify that an employee is taken to
have been employed as a firefighter if firefighting duties made up a not
insubstantial portion of their duties; and
• introduce the ability for the Australian Capital Territory (ACT) to establish an
"ACT firefighting advisory committee" to assist in the determination of whether
firefighting or related duties have made up a "not insubstantial" portion of the
duties for ACT volunteer firefighters covered by the SRC Act.
FINANCIAL IMPACT STATEMENT
Nil.
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Statement of Compatibility with Human Rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Amendments to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill
2022
1. A detailed statement of compatibility with human rights was prepared for the Fair Work
Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (the Bill).
2. The amendments to the Bill are 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 amendments
3. The amendments to the Bill that are relevant to human rights are outlined below.
Paid family and domestic violence leave
4. On 1 February 2023, the Fair Work Amendment (Paid Family and Domestic Violence
Leave) Act 2022 will insert a new regulation-making power into the FW Act to enable
regulations to be made preventing an employer from recording paid family and
domestic violence leave on an employee's pay slip. In accordance with these
amendments, the Fair Work Regulations 2009 could be amended to require paid family
and domestic violence leave to be recorded as, for example, 'miscellaneous' or
'special' leave. The new regulation-making power would not enable paid family and
domestic violence leave to be recorded as something other than leave, such as ordinary
working hours, overtime or training.
Excluded work
5. Part 23A of the Bill would introduce a scheme precluding multi-enterprise agreements
(other than greenfields agreements) from covering employees in relation to the
performance of certain types of work.
6. Work in the industry of "general building and construction" as defined in paragraph
4.3(a) of the Building and Construction General On-Site Award 2020 (with carve-outs
defined by reference to a number of other modern awards) would be excluded from
coverage by multi-enterprise agreements (other than greenfields agreements).
7. Amendments to the Bill would also exclude work in the civil construction sector as
defined in paragraph 4.3(b) of the Building and Construction General On-Site Award
2020 from coverage by multi-enterprise agreements (other than greenfields
agreements).
8. In addition, amendments to the Bill would make clear that work in the asphalt industry
within the meaning of clause 4.2 of the Asphalt Industry Award 2020 as in force at the
applicable time would not be "general building and construction work". This will mean
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Statement of Compatibility with Human Rights
that it will be clear that multi-enterprise bargaining is available for workers in that
industry.
Flexible work
9. Amendment 15 would expand the circumstances in which an employee may request
flexible work arrangements, to include situations where an employee is pregnant. The
proposed procedure and dispute resolution mechanisms under this Bill would apply to
these employees.
10. Amendment 12 would amend the dispute resolution mechanism to require the FWC to
first deal with a dispute other than by arbitration, except in exceptional circumstances.
11. Where the FWC does arbitrate a dispute, amendment 13 would clarify the types of
orders the FWC can make where an employer has not adequately responded to an
employee's request.
Human rights implications
12. The definition of 'human rights' in the Human Rights (Parliamentary Scrutiny) Act
2011 relates to the core seven United Nations human rights treaties. Amendments to the
Bill engages the following rights:
• the right to work and to just and favourable conditions of work under Articles 6 and
7 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR);
• the right to maternity leave contained within Article 11(2)(b) of the Convention on
the Elimination of All Forms of Discrimination against Women (CEDAW) and
Article 10(2) of the ICESCR;
• the right to freedom of association, including the right to form and join trade unions
under Article 22 of the ICCPR and Article 8 of the ICESCR;
• the right to equality and non-discrimination under Article 2 of the ICCPR and
Article 2 of the ICESCR and Article 26 of the ICCPR. and
• the right to privacy and reputation under Article 17 of the ICCPR.
13. The content of the right to work, the right to just and favourable conditions of work and
the right to freedom of association in the ICESCR and ICCPR can be informed by
specific obligations in treaties of the International Labour Organisation (ILO), such as
the Right to Organise and Collective Bargaining Convention 1949 (No. 98) (ILO
Convention 98), that protects the right of employees to collectively bargain for terms
and conditions of employment, and the Freedom of Association and Protection of the
Right to Organise Convention 1948 (No. 87), which provides employer and employee
organisations with protection for their organisational autonomy.
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Statement of Compatibility with Human Rights
Right to work and rights in work
14. Article 6 of the ICESCR requires the state parties to the Covenant to recognise the right
to work and to take appropriate steps to safeguard this right. The United Nations
Committee on Economic, Social and Cultural Rights has started that the right to work
in Article 6(1) encompasses the need to provide the worker with just and favourable
conditions of work.
15. The United Nations Committee on Economic Social and Cultural Rights in General
Comment 18 has also stated that the right to work includes:
the right not to be deprived of work unfairly. This definition underlines the
fact that respect for the individual and his dignity is expressed through the
freedom of the individual regarding the choice to work, while emphasizing the
importance of work for personal development as well as for social and
economic inclusion.
16. There can also be no discrimination in access to and maintenance of employment on the
grounds enumerated in Article 2(2) of the ICESCR.
17. Article 7 of the ICESCR requires the state parties to the Covenant to recognise the right
of everyone to the enjoyment of just and favourable working conditions.
Flexible work
18. Amendment 15 would support pregnant employees to access flexible work
arrangements. In doing so, it would promote Articles 6 and 7 of the ICESCR by
enabling pregnant employees to continue to engage in work on terms and conditions
that justly recognise their circumstances.
The right to freedom of association
19. Article 22 of the ICCPR protects the right to freedom of association, including the right
to form and join trade unions. Article 8(1)(c) and (d) of the ICESCR also support the
right to freedom of association by providing that States Parties undertake to ensure the
right to form and join trade unions and the right to strike, including picketing activities.
There are also specific obligations relating to freedom of association in the ILO's
Freedom of Association and Protection of the Right to Organise Convention 1948
(No. 87) and Right to Organise and Collective Bargaining Convention 1949 (No. 98).
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Excluded work
20. Work that is general building and construction work is proposed under the Bill to be
excluded from coverage by a multi-enterprise agreement (other than a greenfields
agreement). Amendments would expand the meaning of "general building and
construction work" to include work in the civil construction industry, due to the
overlapping nature of the industries.
21. The amendments would not in any way limit the ability of employees who perform
work in the civil construction industry to choose to join a trade union, nor limit the right
of the union to represent the employee in bargaining for a single-enterprise agreement
or in dispute resolution processes.
22. Although the measure limits the ability of workers who perform work in the civil
construction sector to bargain at the multi-enterprise level, the scope of the work that
has been excluded from coverage has been carefully defined to ensure that the
exclusion is appropriately limited.
Special protection during pregnancy
23. Article 10(2) of the ICESCR states that "special protection should be accorded to
mothers during a reasonable period before and after childbirth".
Flexible work
24. Amendment 15 would give pregnant employees a right to request adjustments to their
working arrangements which would assist them to engage in work while protecting
their wellbeing during pregnancy. This provision positively engages the right to special
protection during pregnancy under Article 10(2) of the ICESCR.
Right to privacy and reputation
25. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful
interference with their privacy, family, home and correspondence. This includes respect
for informational privacy, including in respect of storing, using, and sharing private
information and the right to control the dissemination of personal and private
information. Privacy guarantees a right to secrecy from the publication of personal
information. It also prohibits unlawful attacks on a person's reputation.
Paid family and domestic violence leave
26. The amendments would positively engage the right to privacy by enabling paid family
and domestic violence leave to be recorded as something other than leave on an
employee's pay slip, including as ordinary hours, overtime or training. This would
prevent perpetrators from drawing inferences about employees taking paid family and
domestic violence leave and avoid associated risks for victim-survivors.
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Statement of Compatibility with Human Rights
Conclusion
27. The Bill is compatible with human rights because it promotes human rights, including
civil, political, social, economic and labour rights. To the extent that it may limit human
rights, those limitations are reasonable, necessary and proportionate.
Minister for Employment and Workplace Relations, the Hon Tony Burke MP
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Notes on amendments
NOTES ON AMENDMENTS
In these notes on amendments, the following abbreviations are used:
ACT Australian Capital Territory
Bill Fair Work Legislation Amendment (Secure Jobs, Better Pay)
Bill 2022
BOOT Better off overall test
FW Act Fair Work Act 2009
FW Transitional Act Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009
FWC Fair Work Commission
NES National Employment Standards
SRC Act Safety, Rehabilitation and Compensation Act 1988
Protected action ballots
Amendment 35: Schedule 1, item 584, page 195 (lines 1 to 8).
1. This amendment would remove item 584 from the Bill to restore the FWC's
discretion to determine the timetable for the conduct of protected action ballots. The
requirement that the FWC specifies a date for the close of the ballot which will enable
the ballot to be conducted as expeditiously as practicable remains in subsection
443(3A).
Fixed term contracts
Amendment 11: Schedule 1, item 441, page 123 (lines 32 to 33)
2. This amendment would replace proposed subparagraph 333E(5)(d)(ii), which is part
of the prohibition of consecutive contracts, with two new subparagraphs. This
amendment would make no change to the prohibition on options to renew or extend in
the current contract, which is replicated in new subparagraph 333E(5)(d)(ii).
However, the amendment would mean that an option to renew or extend would not be
prohibited in the previous contract. Instead, the prohibition would only apply where
an option to extend in the previous contract has actually been exercised, and then an
additional contract is subsequently entered into (new subparagraph 555E(5)(d)(iia)).
3. This amendment would ensure that parties to a contract are able to exercise an option
to renew or extend their first fixed term contract, subject to the two year limit set out
at proposed subsection 333E(3). However, where a party exercises an option to extend
the first fixed term contract, the amendment would prevent the parties from
subsequently entering a consecutive fixed term contract. This amendment is necessary
to ensure that parties are able to renew, or extend, their contract at least once but not
more.
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Notes on amendments
Expert panels
Amendment 2: Schedule 1, item 371, page 86 (line 21)
Amendment 3: Schedule 1, item 371, page 86 (line 28)
Amendment 4: Schedule 1, item 371, page 87 (line 5)
Amendment 5: Schedule 1, item 371, page 87 (line 11)
Amendment 6: Schedule 1, item 371, page 87 (line 17)
4. These amendments would amend proposed new subsections 617(6)-(10) of the FW
Act to replace references to matters 'relating to' the Care and Community Sector with
matters that 'the President considers might relate to' the Care and Community Sector
(or not, as the case may be). This would make it clear that it is for the President to
make an assessment as to whether a particular matter might relate to the Care and
Community Sector, such that those subsections would require a determination,
modern award or equal remuneration order made in respect of that matter to be made
by an Expert Panel constituted for that purpose.
Amendment 7: Schedule 1, item 371, page 87 (after line 22), after subsection 617(10)
5. This amendment would insert a new subsection 617(10A) into the FW Act to clarify
that for the purposes of proposed new subsections 617(6)-(10), where the President of
the FWC considers that a matter might relate to the Care and Community Sector, it
does not matter if the President also considers that the matter might relate to another
sector. This recognises that a particular matter that comes before the FWC may affect
more than one sector and the operation of subsections 617(6)-(10) is not limited to
matters that might solely affect the Care and Community Sector.
Amendment 8: Schedule 1, item 372, page 88 (before line 1), before section 617A
6. This amendment would insert a new section 617AA to clarify, for the avoidance of
doubt, that where a Full Bench and an Expert Panel consist of the same FWC
members, the Full Bench and the Expert Panel's functions and powers are not
mutually limited. That is, the functions and powers of those FWC members as a Full
Bench are not limited by the purposes for which an Expert Panel consisting of those
same members was constituted. Likewise, the functions and powers of those FWC
members as an Expert Panel are not limited by the functions and powers of the Full
Bench.
7. This makes clear that provided the requirements of sections 681 and 620 of the FW
Act are met, the same FWC members can be selected to constitute both a Full Bench
and an Expert Panel, and further, to the extent that the management and decision-
making requirements for Full Benches and Expert Panels can be satisfied, that those
FWC members could perform their functions and exercise their powers as both a Full
Bench and as an Expert Panel in relation to a particular matter.
8. Proposed new subsection 617AA(4) further clarifies that a reference in this section to
a Full Bench or and Expert Panel performing a function or exercising a power
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Notes on amendments
includes a reference to making, varying or revoking relevant determinations, modern
awards or equal remuneration orders.
Technical correction
Amendment 9: Schedule 1, item 437, page 118 (line 24)
Amendment 10: Schedule 1, item 437, page 119 (line 1)
9. Item 437 would be amended to insert new Part 6-4E, rather than Part 6-4D.
Flexible working arrangements
Amendment 12: Schedule 1, item 463, page 135 (lines 18 to 25)
10. This amendment would omit new subsection 65B(4) and substitute a new subsection.
The new provision would clarify that the FWC must first deal with a dispute
regarding a flexible working arrangement by dispute resolution methods other than by
arbitration, unless exceptional circumstances apply (for instance, if an urgent
determination is required). It would also clarify by way of a note that the FWC will
commonly resolve disputes by conciliation, but can also resolve disputes by
mediation, making a recommendation or expressing an opinion.
11. The effect of this amendment would be to require the FWC to deal with disputes
about flexible working arrangements through non-binding dispute resolution in the
first instance (unless there are exceptional circumstances, such as a need for urgent
arbitration).
12. It does not limit the ability of the FWC to arbitrate disputes if other means of dispute
resolution do not resolve the matter. This amendment clarifies the policy intention
that the FWC would ordinarily utilise conciliation (or another means of non-binding
dispute resolution) before proceeding to arbitration.
Amendment 13: Schedule 1, item 463, page 136 (lines 14 to 20)
Amendment 14: Schedule 1, item 463, page 136 (after line 26), at the end of subsection
65C(1)
13. This amendment would omit paragraphs 65C(1)(c) to (e) and substitute a new
paragraph 65C(1)(e) to provide that, in circumstances where the FWC is satisfied that
the employer has not responded adequately to the employee's request under new
section 65A, including by not engaging in adequate discussion with the employee, or
by not responding at all, the FWC would be enabled to make an order that the
employer take further steps as considered appropriate by the FWC.
14. The effect of this amendment is to clarify that, when making orders relating to new
section 65A, the FWC may give directions to the parties, as it considers appropriate in
the circumstances, to facilitate resolution of the dispute.
15. A new note to subsection 65C(1) would provide an example indicating that an order
under new paragraph 65C(1)(e) could include an order requiring the employer to give
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Notes on amendments
a response, or a further response, to the employee setting out any matters the FWC
considers should be included, having regard to the matters in section 65A.
Amendment 15: Schedule 1, Part 11, page 138 (after line 9), at the end of the Part
16. This amendment would insert new proposed paragraph 65(1A)(aa) to allow a
pregnant employee to request flexible working arrangements.
17. The effect of this amendment will be to expand the circumstances in which an
employee has a protected right to request flexible working arrangements, to support
employees to engage in work during pregnancy.
Amendment 62: Schedule 1, item 660, page 256 (line 7)
18. This amendment would provide that new paragraph 65(1A)(aa) would apply in
relation to any request made under subsection 65(1) on or after the commencement of
Part 11.
Better off overall test
Amendment 20: Schedule 1, page 169 (before line 3), before item 525
19. This amendment inserts new items 524A and 524B, which would amend section 12 of
the FW Act to repeal the definition of 'prospective award covered employee' and
insert a new signpost definition of 'reasonably foreseeable employee', referring to
subsection 193(5).
Amendment 21: Schedule 1, item 526, page 170 (lines 6 and 7)
20. This amendment inserts new items 526 and 526A-D. The effect of these amendments
is that in applying the BOOT to both greenfields and non-greenfields agreements, the
FWC would also be required to consider 'reasonably foreseeable employees'.
21. 'Reasonably foreseeable employee' would be defined in subsection 193(5) as a person
who - if he or she were an employee of an employer covered by the agreement at the
'test time' - would be covered by the agreement and the relevant modern award.
22. When considering reasonably foreseeable employees, new subsection 193A(6) would
provide that the FWC must only have regard to patterns or kinds of work, or types of
employment, that are reasonably foreseeable.
Amendment 22: Schedule 1, , page 170 (lines 17 and 18)
Amendment 23: Schedule 1, item 528, page 170 (lines 26 to 28)
23. These amendments make minor technical changes to new section 193A, which make
clear that when applying the BOOT to both greenfields and non-greenfields
agreements, the FWC must undertake a global assessment in relation to each
employee "concerned".
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Amendment 24: Schedule 1, item 528, page 171 (line 20), at the end of subsection 193A(6)
24. New subsection 193A(6) provides that when applying the BOOT, the FWC may only
have regard to patterns or kinds of work, or types of employment, if they are
reasonably foreseeable at the test time.
25. This amendment amends subsection 193A(6) to provide that in considering what is
reasonably foreseeable, the FWC must have regard to the nature of the enterprise or
enterprises to which the agreement relates.
26. Enterprise is defined in section 12 as a business, activity, project or undertaking.
27. The FWC must have regard to the reasonably foreseeable patterns or kinds of work,
or types of employment, for both existing award covered employees and foreseeable
employees (see, e.g., Re Loaded Rates Agreements [2018] FWCFB 3610 and Hart v
Coles Supermarkets [2016] FWCFB 2887).
28. The FWC would no longer be required to consider hypothetical working
arrangements that are not reasonably foreseeable, given the nature of the particular
enterprise, and employers would accordingly no longer need to provide undertakings
in relation to such arrangements (as occurred, for example, with an undertaking about
the holding of a liquor licence and work in a cool room, despite the enterprise not
serving liquor or having a cool room - see Re Officeworks Limited [2019] FWCA
6900).
Amendment 25: Schedule 1, item 528, page 171 (after line 20), after subsection 193A(6)
29. This amendment would insert a new subsection 193A(6A), which would provide that
if a view is expressed by a relevant employer, employee or bargaining representative
as to whether a particular pattern or kind of work, or type of employment, is
reasonably foreseeable, then the FWC must determine the matter.
Amendment 26: Schedule 1, item 531, page 172 (line 24), at the end of subsection 211(4A)
Amendment 29: Schedule 1, item 534, page 176 (line 3), at the end of subsection 227B(2)
30. These are technical amendments to new subsections 211(4A) and 227B(2), which
modify the operation of new subsection 193A(6A) when the BOOT is being applied
as part of an application to approve a variation of an enterprise agreement
(Subdivision A of Division 7 of Part 2-4) or the new reconsideration process
(Division 7A of Part 2-4). The modifications reflect that at the variation or
reconsideration stage, there are no longer bargaining representatives for an enterprise
agreement and it is no longer necessary to distinguish between a greenfields and non-
greenfields agreement.
Amendment 27: Schedule 1, item 534, page 174 (line 5)
Amendment 28: Schedule 1, item 534, page 174 (line 26) to page 175 (line 4)
31. These amendments would remove new subsection 227A(3) from the BOOT
reconsideration process, resulting in reconsideration no longer being available to 'new
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Notes on amendments
employees' in circumstances where an enterprise agreement provides different terms
and conditions for those employees than it does for 'original employees' when they
engage in the same kinds of work. This entry point into the reconsideration process is
not required because the BOOT would be applied to 'reasonably foreseeable
employees'.
Amendment 30: Schedule 1, item 534, page 176 (line 21)
Amendment 31: Schedule 1, item 534, page 176 (after line 21), at the end of section 227B
32. These amendments would provide that if the FWC has a concern that an enterprise
agreement does not pass the BOOT as part of the new reconsideration process, it must
amend the agreement with retrospective effect if it considers it necessary to address
the concern.
33. The amendments would omit and substitute a new paragraph 227B(4)(b), to the effect
that an amendment which is necessary to address a BOOT concern can operate from
either 7 days after the FWC makes the amendment, or another day specified in the
amendment, which may be a day before the amendment is made.
34. They would also add a new subsection 227B(5), providing that the FWC must specify
a day before the amendment is made if it considers that it is necessary for the
amendment to operate from the earlier day to address the concern to which the
amendment relates.
Amendment 32: Schedule 1, item 534, page 177 (after line 13), at the end of Division 7A
35. This amendment would add a new section 227E, which provides that a court would
not be able to make a pecuniary penalty order under Division 2 of Part 4-1 in relation
to conduct that contravenes a term of an enterprise agreement only because of the
retrospective effect of an amendment made under new paragraph 227B(3)(b).
36. A note to subsection 227E(2) indicates that this section would not affect the powers of
a court to make other kinds of orders under Division 2 of Part 4-1, for example, orders
awarding compensation for loss that a person has suffered because of the
contravention.
Amendment 33: Schedule 1, Part 16, page 177 (after line 13), at the end of the Part
37. This amendment would add new items 534A and 534B, which amend subsection
546(1) to add a new note. The note would indicate that pecuniary penalty orders
cannot be made in relation to conduct that contravenes a term of an enterprise
agreement only because of the retrospective effect of an amendment to the agreement
made by the FWC as part of the new reconsideration process.
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Agreement of bargaining representatives
Amendment 16: Schedule 1, page 160 (after line 6), after item 488
38. Section 12 of the FW Act contains the Dictionary. This amendment would insert a
new signpost definition of 'voting request order' that would refer to subsections
240A(1) and (2).
Amendment 17: Schedule 1, item 506B, page 162 (lines 12 to 16)
39. This amendment would omit and substitute a new subsection 180A(2), which would
provide that an employer must not request that employees approve a proposed multi-
enterprise agreement by voting for it unless each bargaining representative for the
agreement that is an employee organisation has provided their written agreement to
the making of the request, or a 'voting request order' permits the employer to make
the request.
40. A note to proposed new subsection 180A(2) indicates that voting request orders can
be made where failure to provide written agreement to the making of a request is
unreasonable in the circumstances.
Amendment 18: Schedule 1, item 511A, page 166 (lines 10 to 13)
41. Amendment 17 would omit and substitute a new subsection 207A(2), which would
provide that an employer must not request that employees approve a proposed
variation of a multi-enterprise agreement by voting for it unless each employee
organisation covered by the agreement has provided their written agreement to the
making of the request or a 'voting request order' permits the employer to make the
request.
42. A note to proposed new subsection 207A(2) indicates that voting request orders can
be made where failure to provide written agreement to the making of a request is
unreasonable in the circumstances.
Amendment 19: Schedule 1, page 167 (after line 15), after item 519
43. This amendment would insert a new Subdivision E of Division 8 of Part 2-4, dealing
with 'voting request orders'.
44. Proposed new subsection 240A(1) would provide that, after the notification time for a
proposed multi-enterprise agreement, a bargaining representative may apply to the
FWC for a voting request order if each bargaining representative that is an employee
organisation has been asked, and one or more has failed, to provide the employer with
their written agreement to the employer making a request that employees approve the
agreement by voting for it.
45. The effect of a voting request order is to permit the employer to put the multi-
enterprise agreement to a vote (see new paragraph 180A(2)(b)).
46. New subsections 240A(2) and (3) make similar amendments in relation to a voting
request order for a proposed variation of a multi-enterprise agreement. An employer,
an employee organisation covered by the agreement, or an affected employee may
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Notes on amendments
apply to the FWC for such an order if each employee organisation covered by the
agreement has been asked, and one or more has failed, to provide the employer with
their written agreement to the proposed variation being put to a vote.
47. Proposed new section 240B sets out when the FWC must make a voting request order
in relation to a proposed multi-enterprise agreement or variation.
48. New paragraph 240B(a) would provide that the FWC must, on application, make a
voting request order if satisfied that for each employee organisation that has failed to
provide written agreement to the making of the request, the failure was unreasonable
in the circumstances.
49. New subsection 240B(b) would provide that if the request relates to approval of a
proposed enterprise agreement (rather than a variation), the FWC must also be
satisfied that the making of the request by the employer would not be inconsistent
with or undermine good faith bargaining for the agreement.
Single interest employer authorisations
Amendment 43: Schedule 1, item 629, page 216 (line 25)
50. This amendment would be a technical amendment to support the inclusion of a new
subparagraph 216DC(1)(b)(vi).
Amendment 44: Schedule 1, item 629, page 216 (after line 25), at the end of
paragraph 216DC(1)(b)
51. This amendment would add a new subparagraph to paragraph 216DC(1)(b), which
contains the factors of which the FWC must be satisfied before approving a variation
of a single interest employer agreement to add an employer and its employees.
52. New subparagraph 216DC(1)(b)(v) would require the FWC also to be satisfied that, if
the employers are common interest employers, the operations and business activities
of the new employer are reasonably comparable with the other employers covered by
the agreement.
53. Employers of very different sizes might, depending on all of the circumstances, be
found to have clearly identifiable common interests for the purpose being included in
a multi-enterprise agreement. This amendment would ensure that the FWC must also
be satisfied that the operations and business activities of the employer are also
reasonably comparable.
54. This amendment would also include a new subsection 216DC(1AA) that would
provide that, if an application for a variation of a single interest employer agreement
to add an employer and its employees is made by an employee organisation under
section 216DB in respect of an employer that has 50 or more employees, it is
presumed that the operations and business activities of the employer are reasonably
comparable with those of the other employers that are covered by the agreement,
unless the contrary is proved.
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55. The matters specified in subparagraph 216DC(1)(b)(v) concern whether relevant
employers are reasonably comparable in terms of their operations and business
activities. Such evidence is likely to concern the nature and size of the employers and
their operations and business activities. While some of this information may be
available - at least in part - to employees, particularly in smaller enterprises, much of
it will only be known to the employer or to employees only as it pertains to their role,
i.e. in a partial or fragmentary way. This is particularly acute in terms of the nature of
the employer's enterprise, the employer's business activities and operations. In most
cases, such information will be most readily available to employers or their
bargaining representatives.
56. These are considerations that must be balanced in determining who should bear the
burden of establishing that the relevant test is or is not met. Having regard to the
burden that could be imposed on enterprises with 20 to 49 employees, it is appropriate
in such cases to require employees and their bargaining representative/s to establish
that the relevant test is met when making the variation application.
57. In respect of employers with 50 or more employees, due to their increased size and
complexity of their operations, they are more likely to be in a position to provide the
relevant evidence going to these matters. In such circumstances, it would also be
much more difficult for employees and their representatives to provide sufficient
evidence to establish that the test is met. It is appropriate therefore that the
amendments provide for a rebuttable presumption and an opportunity for employers
(with 50 or more employees) to establish that the relevant test is not met in relation to
their business.
Amendment 45: Schedule 1, item 629, page 216 (lines 28 to 29)
Amendment 46: Schedule 1, item 629, page 218, (after line 4), after subsection 216DC(3A)
Amendment 47: Schedule 1, item 629, page 218 (line 18)
58. These amendments would also relate to the approval by the FWC of a variation of a
single interest employer agreement to cover the new employer and its employees
where the application for the variation was made by an employee organisation under
section 216DB.
59. New subparagraph 216DC(1A)(a) as amended would provide that the variation could
be approved if, subject to meeting all other requirements, the employer that would be
covered by the agreement employed at least 20 employees at the time the application
for approval of the variation was made.
60. New subsection 216DC(3AB) would provide that, if an application for a variation of a
single interest employer agreement to add an employer and its employees is made by
an employee organisation under section 216DB in respect of an employer that has 50
or more employees, it is presumed that the common interest test in
subsection 216DC(3) is met, unless the contrary is proved.
61. The matters specified in subsection 216DC(3) concern whether the relevant
employers have clearly identifiable common interests. Determining whether the
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relevant employers have clearly identifiable common interests will likely require
evidence to be provided of a range of characteristics of the employers, including the
nature, size and scope of operations, the terms and conditions of employment across
the organisations, the relevant regulatory regime and geographical location. While
some of this information will be available - at least in part - to employees (such as
the geographical location of their employer's operations); some of the information
will not and much of it will only be known to the employers themselves or to
employees only as it pertains to their role, i.e. in a partial or fragmentary way. In most
cases, such information will be most readily available to employers or their
bargaining representatives.
62. These are considerations which must be balanced in determining who should bear the
burden of establishing that the relevant test is met or not met. Having regard to the
burden that could be imposed on enterprises with 20 to 49 employees, it is appropriate
in such cases to require employees and their bargaining representative/s to establish
that the relevant test is met when making the variation application.
63. In respect of employers with 50 or more employees, due to their increased size and
complexity of their operations, they are more likely to be in a position to provide the
relevant evidence going to these matters. In such circumstances, it would also be
much more difficult for employees and their representatives to provide sufficient
evidence to establish that the test is met. It is appropriate therefore that the
amendments provide for a rebuttable presumption and an opportunity for employers
(with 50 or more employees) to establish that the relevant test is not met in relation to
their business.
64. New subsection 216DC(3AC) would provide that, for the purposes of calculating the
number of employees employed at the time that the application for approval of the
variation was made (which is relevant for paragraphs (1AA)(b), (1A)(a) and
(3AB)(b)), 'employee' has its ordinary meaning and all the employees of the
employer are to be counted. However, casual employees are not to be counted unless
they are regular casual employees and associated entities of the employer are taken to
be one entity.
65. This provision would make the calculation consistent with the counting method for
the definition of small business employer in existing section 23 of the FW Act. The
new subsection would make clear that:
• the term 'employee' has its ordinary meaning - this means that all relevant
employees will be counted, not just national system employees; and
• all such employees employed by the employer at the time that the application was
made are to be counted; and
• a casual employee is not to be counted unless, at that time, the employee is a regular
casual employee of the employer; and
• associated entities of the employer are taken to be one entity.
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66. Section 12 of the FW Act defines an employee to be a regular casual employee at a
particular time if, at the time, the employee is a casual employee and has been
employed by the employer on a regular and systematic basis.
67. New subsection 216DC(3B) as amended would provide the FWC with discretion to
refuse to approve a variation of a single interest employer agreement to cover a new
employer and employees, if the FWC is satisfied the variation should not be
approved, having regard to whether the employer is bargaining in good faith for a
proposed enterprise agreement covering substantially the same group of employees,
the parties have a history of effectively bargaining for an enterprise agreement and
less than 9 months have passed since the most recent nominal expiry date of such an
agreement.
Amendment 48: Schedule 1, item 633A, page 222 (line 10)
68. This amendment would be a technical amendment to support the inclusion of a new
subparagraph 249(1)(b)(v).
Amendment 49: Schedule 1, item 633A, page 222 (after line 10), at the end of
paragraph 249(1)(b)
69. This amendment would add a new subparagraph to paragraph 249(1)(b), which
contains the factors of which the FWC must be satisfied before making a single
interest employer authorisation in relation to a proposed agreement.
70. New subparagraph 249(1)(b)(vi) would require the FWC to be satisfied that, in
respect of each employer that is a common interest employer, the operations and
business activities of that employer are reasonably comparable with those of other
employers that would be covered by the proposed agreement that relates to the single
interest employer authorisation.
71. Employers of very different size, scope and scale might, depending on all the
circumstances, be found to have clearly identifiable common interests for the purpose
of bargaining together. This amendment would ensure that the FWC must also be
satisfied that the operations and business activities of an employer are reasonably
comparable with the other employers. It may be open to the Fair Work Commission to
conclude that despite two employers of a similar size, scope and scale operating in the
same industry, they are not 'reasonably comparable' once the full extent of their
business activities and operations are considered.
72. This amendment would also insert new subsection 249(1AA) that would provide that,
if an application for a single interest employer authorisation is made by a bargaining
representative under paragraph 248(1)(b) in respect of an employer that has 50 or
more employees, it is presumed that the operations and business activities of the
employer are reasonably comparable with those of the other employers that are
covered by the agreement, unless the contrary is proved.
73. The matters specified in subparagraph 249(1)(b)(vi) concern whether relevant
employers are reasonably comparable in terms of their operations and business
activities. Such evidence is likely to concern the nature and size of the employers, and
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their operations and business activities. While some of this information may be
available - at least in part - to employees, particularly in smaller enterprises, much of
it will only be known to the employer or to employees only as it pertains to their role,
i.e. in a partial or fragmentary way. This is particularly acute in terms of the nature of
the employer's enterprise, the employer's business activities and operations. In most
cases, such information will be most readily available to employers or their
bargaining representatives.
74. These are considerations which must be balanced in determining who should bear the
burden of establishing that the relevant test is met or not met. Having regard to the
burden that could be imposed on enterprises with 20 to 49 employees, it is appropriate
in such cases to require employees and their bargaining representative/s to establish
that the relevant test is met when making the application for the authorisation.
75. In respect of employers with 50 or more employees, due to their increased size and
complexity of their operations, they are more likely to be in a position to provide the
relevant evidence going to these matters. In such circumstances, it would also be
much more difficult for employees and their representatives to provide sufficient
evidence to establish that the test is met. It is appropriate therefore that the
amendments provide for a rebuttable presumption and an opportunity for employers
(with 50 or more employees) to establish that the relevant test is not met in relation to
their business.
Amendment 50: Schedule 1, item 633A, page 222 (line 20)
Amendment 51: Schedule 1, item 634A, page 223 (after line 33), after subsection 249(3A)
Amendment 52: Schedule 1, item 636A, page 224 (line 30)
76. These amendments would also relate to an application for a single interest employer
authorisation by an employee bargaining representative under new
paragraph 248(1)(b) of the FW Act.
77. New paragraph 249(1B)(a) would provide that an employer could be included in a
single interest employer authorisation without their consent following such an
application if the employer employed at least 20 employees at the time the application
for the authorisation was made (subject to all other requirements being met).
78. New subsection 249(3AB) would provide that, if an application for a single interest
employer authorisation is made by a bargaining representative under section 248(1)(b)
in respect of an employer that has 50 or more employees, it is presumed that the
common interest test in subsection 249(3) is met in relation to that employer, unless
the contrary is proved.
79. The matters specified in subsection 249(3) concern whether the relevant employers
have clearly identifiable common interests. Determining whether the relevant
employers have clearly identifiable common interests will likely require evidence to
be provided of a range of characteristics of the employers, including the nature, size
and scope of operations, the terms and conditions of employment across the
organisations, the relevant regulatory regime and geographical location. While some
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Notes on amendments
of this information will be available - at least in part - to employees (such as the
geographical location of their employer's operations), much of it will only be known
to the employers themselves or to employees only as it pertains to their role, i.e. in a
partial or fragmentary way. In most cases, such information will be most readily
available to employers or their bargaining representatives.
80. These are considerations which must be balanced in determining who should bear the
burden of establishing that the relevant test is met or not met. Having regard to the
burden that could be imposed on enterprises with 20 to 49 employees, it is appropriate
in such cases to require employees and their bargaining representative/s to establish
that the relevant test is met when making the application for the authorisation.
81. In respect of employers with 50 or more employees, due to their increased size and
complexity of their operations, they are more likely to be in a position to provide the
relevant evidence going to these matters. In such circumstances, it would also be
much more difficult for employees and their representatives to provide sufficient
evidence to establish that the test is met. It is appropriate therefore that the
amendments provide for a rebuttable presumption and an opportunity for employers
(with 50 or more employees) to establish that the relevant test is not met in relation to
their business.
82. New subsection 216DC(3AC) would provide that, for the purposes of calculating the
number of employees employed at the time that the application for the authorisation
was made (which is relevant for paragraphs (1AA)(b), (1A)(a) and (3AB)(b)),
'employee' has its ordinary meaning and all the employees of the employer are to be
counted. However, casual employees are not to be counted unless they are regular
casual employees and associated entities of the employer are taken to be one entity.
83. This provision would make the calculation consistent with the counting method for
the definition of small business employer in existing section 23 of the FW Act. The
new subsection would make clear that:
• the term 'employee' has its ordinary meaning - this means that all relevant
employees will be counted, not just national system employees; and
• all such employees employed by the employer at the time that the application was
made are to be counted; and
• a casual employee is not to be counted unless, at that time, the employee is a regular
casual employee of the employer; and
• associated entities of the employer are taken to be one entity.
84. Section 12 of the FW Act defines an employee to be a regular casual employee at a
particular time if, at the time, the employee is a casual employee and has been
employed by the employer on a regular and systematic basis.
85. New subsection 250(3) as amended would provide the FWC with discretion not to
include an employer in a single interest employer authorisation if the FWC is satisfied
that the employer is bargaining in good faith for a proposed enterprise agreement
covering substantially the same group of employees of the employer, the parties have
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a history of effectively bargaining for an enterprise agreement and less than 9 months
have passed since the most recent nominal expiry date of such an agreement.
Amendment 53: Schedule 1, item 637, page 225 (lines 14 to 23)
86. This amendment would amend item 637 of the Bill, to omit subsection 251(2) and
substitute new subsections 251(2)-(2D) into the FW Act. These new provisions would
set out mechanisms for the variation of a single interest employer authorisation to
remove an employer that has been included in the authorisation.
87. New subsection 251(2) would require the FWC to vary an authorisation to remove an
employer if an application has been made and one of the two sets of requirements has
been met. An application may be made under new subsection 251(1) by either the
employer who wishes to be removed or by a bargaining representative of an employee
who will be covered by the proposed enterprise agreement to which the single interest
employer authorisation relates.
88. New subsection 251(2A) would contain a set of requirements that, if met, would
require the FWC to vary an authorisation if an application has been made to remove
an employer. This set of requirements would be met if the FWC is satisfied that:
• the employers specified in the authorisation and the bargaining representatives of
the employees of those employers have had an opportunity to express to the FWC
their views (if any) on the application; and
• because of a change in the employer's circumstances, it is no longer appropriate for
the employer to be specified in the authorisation.
89. A change in the employer's circumstances would need to be a substantial and
operative change and not merely a change of mind or preference. For example, if an
employer no longer employed any employees within the scope of the proposed
agreement that relates to the authorisation, the FWC may be satisfied that it is no
longer appropriate for the employer to be specified in the authorisation.
90. New subsection 251(2B) would contain a different set of requirements that, if met,
would require the FWC to vary an authorisation if an application has been made to
remove an employer. This set of requirements would be met if the FWC is satisfied
that:
• the application was made by a bargaining representative of an employee who will
be covered by the proposed enterprise agreement to which the authorisation relates;
• the FWC is satisfied that the employer proposed to be removed (the relevant
employer) employed fewer than 50 employees at the time the application was made;
• the employers specified in the authorisation and the bargaining representatives of
the employees of those employers have had the opportunity to express to the FWC
their views (if any) on the application;
• the employees (the relevant employees) who are employed by the relevant employer
and that would be covered by the proposed enterprise agreement to which the
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Notes on amendments
authorisation relates have, on request by the bargaining representative, approved the
removal of the relevant employer's name by voting for the removal; and
• there are no reasonable grounds for believing that the removal of the relevant
employer's name has not been genuinely approved by the relevant employees
(subparagraph 251(2B)(b)(iv)).
91. A note to new subsection 251(2B) would refer the reader to existing section 343 of
the FW Act which, among other things, would provide that a person must not coerce
another person to exercise a workplace right in a particular way. Section 343 would
prohibit an employer or a bargaining representative from coercing an employee to
vote for or against the removal of the employer from the authorisation.
92. This amendment would provide a mechanism for the employees of a small or
medium-sized business to decide that they no longer wish the employer to be included
in the single interest employer authorisation. Once the employer is no longer
specified in a single interest employer authorisation, the employer may seek to make a
different type of agreement with its employees (such as a single-enterprise agreement
or a cooperative workplace agreement) or may be included in a supported bargaining
authorisation or a different single interest employer authorisation.
93. New subsection 251(2C) would provide that any vote on the removal of the employer
may be by ballot or by an electronic method. However, that new subsection does not
limit how the vote may be held.
94. New subsection 251(2D) would provide that the relevant employees are taken to have
approved the removal of the employer's name if at least 50% of the relevant
employees cast a vote and more than 50% of the valid votes approved the removal.
This reflects the same thresholds that apply to the approval of protected action in a
protected action ballot in section 459 of the FW Act.
Amendment 54: Schedule 1, item 638, page 226 (line 21)
95. This amendment would be a technical amendment to support the inclusion of new
subparagraph 251(4)(b)(v).
Amendment 55: Schedule 1, item 638, page 226 (after line 21), at the end of
paragraph 251(4)(b)
96. This amendment would add a new subparagraph to paragraph 251(4)(b), which
contains the factors of which the FWC must be satisfied before varying a single
interest employer authorisation to add a new employer.
97. New subparagraph 251(4)(b)(v) would require the FWC to be satisfied that, if the
employers are common interest employers, the operations and business activities of
the new employer are reasonably comparable with the employers specified in the
authorisation.
98. Employers of very different sizes might, depending on all the circumstances, be found
to have clearly identifiable common interests for the purpose of bargaining together.
This amendment would ensure that the FWC is also satisfied that the operations and
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Notes on amendments
business activities of such an employer are reasonably comparable with the other
employers already included in the authorisation.
99. This amendment would also include a new subsection 251(4A) that would provide
that, if an application for a variation of a single interest employer authorisation to add
an employer and its employees is made by an employee organisation under
section 251(3) in respect of a common interest employer that has 50 or more
employees, it is presumed that the operations and business activities of the employer
are reasonably comparable with those of the other employers that are specified in the
authorisation and that the common interest test is met, unless the contrary is proved.
100. The matters specified in subparagraph 251(4)(b)(v) concern whether relevant
employers are reasonably comparable in terms of their operations and business
activities and subsection 249(3) contains the common interest test. Such evidence is
likely to concern the nature and size of the employers, their operations of the
enterprises, relevant regulatory regime/s, their geographic locations and business
activities. While some of this information will be available - at least in part - to
employees (such as the geographical location of their employer's operations), much of
it will only be known to the employers themselves or to employees only as it pertains
to their role, i.e. in a partial or fragmentary way. In most cases, such information will
be most readily available to employers or their bargaining representatives. This is
particularly acute in terms of the nature of the employers' enterprises and the
employers' business activities and operations.
101. These are considerations which must be balanced in determining who should bear the
burden of establishing that the relevant test is met or not met. Having regard to the
burden that could be imposed on enterprises with 20 to 49 employees, it is appropriate
in such cases to require employees and their bargaining representative/s to establish
that the relevant test is met when making the application for the variation of the
authorisation.
102. In respect of employers with 50 or more employees, due to their increased size and
complexity of their operations, they are more likely to be in a position to provide the
relevant evidence going to these matters. In such circumstances, it would also be
much more difficult for employees and their representatives to provide sufficient
evidence to establish that the test is met. It is appropriate therefore that the
amendments provide for a rebuttable presumption and an opportunity for employers
(with 50 or more employees) to establish that the relevant test is not met in relation to
their business.
Amendment 56: Schedule 1, item 638, page 226 (line 25)
Amendment 57: Schedule 1, item 638, page 227 (after line 1), after subsection 251(5)
Amendment 58: Schedule 1, item 638, page 227 (line 31)
103. These amendments also relate to an application to vary a single interest employer
authorisation to add an employer.
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104. New subsection 251(5)(a) as amended would provide that a single interest employer
authorisation could be varied to include an employer without the consent of the
employer if the employer employed at least 20 employees at the time that the
application for the variation of the authorisation was made (subject to all other
requirements being met).
105. New subsection 251(5A) would provide that, for the purposes of calculating the
number of employees employed at the time that the application for the variation of the
authorisation was made (which is relevant for paragraphs (2B)(b)(i), (4A)(b) and
(5)(a)), 'employee' has its ordinary meaning and all the employees of the employer
are to be counted. However, casual employees are not to be counted unless they are
regular casual employees and associated entities of the employer are taken to be one
entity.
106. This provision would make the calculation consistent with the counting method for
the definition of small business employer in existing section 23 of the FW Act. The
new subsection would make clear that:
• the term 'employee' has its ordinary meaning - this means that all relevant
employees will be counted, not just national system employees; and
• all such employees employed by the employer at the time that the application was
made are to be counted; and
• a casual employee is not to be counted unless, at that time, the employee is a regular
casual employee of the employer; and
• associated entities of the employer are taken to be one entity.
107. Section 12 of the FW Act defines an employee to be a regular casual employee at a
particular time if, at the time, the employee is a casual employee and has been
employed by the employer on a regular and systematic basis.
108. New subsection 251(8) as amended would provide the FWC with discretion not to
include an employer in a single interest employer authorisation if the FWC is satisfied
that the employer is bargaining in good faith for a proposed enterprise agreement
covering substantially the same group of employees of the employer, the parties have
a history of effectively bargaining for an enterprise agreement and less than 9 months
have passed since the most recent nominal expiry date of such an agreement.
Bargaining disputes
Amendment 34: Schedule 1, page 187 (after line 18), after item 552
109. This amendment would insert a new paragraph into section 275 of the FW Act, which
contains the factors the FWC must take into account in deciding which terms to
include in a workplace determination.
110. New paragraph 275(ca) would require the FWC, when deciding which terms to
include in a workplace determination, to take into account the significance to the
employers and employees of any arrangements or benefits in an enterprise agreement
that, immediately before the determination is made, applies to any of the employers in
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respect of any of the employees. This provision is designed to ensure existing
workplace arrangements and benefits are given due consideration by the FWC in
setting the arbitrated terms of a workplace determination.
Supported bargaining
111. These amendments relate to a proposed new power of the Minister to make a
declaration in relation to a particular industry, occupation or sector in order to
facilitate access to the supported bargaining stream.
Amendment 36: Schedule 1, item 597, page 202 (line 8)
Amendment 37: Schedule 1, item 597, page 202 (line 14), at the end of section 216AC
112. Amendments 36 and 37 relate to how a relevant Ministerial declaration of a particular
industry, occupation or sector would interact with an application to vary a supported
bargaining agreement to add an employer and their affected employees, with consent.
113. One of the requirements for approving a variation of an existing supported bargaining
agreement to add an employer (with consent) is that the FWC must be satisfied that
had the application for the initial supported bargaining authorisation specified the
employer and affected employees, then it would have been required to make the
authorisation (new paragraph 216AB(1)(a) and section 216AC).
114. Amendment 36 is technical amendment which would allow the FWC to disregard new
paragraph 243(2A)(a) for this purpose, i.e., disregard that no application for the
authorisation specifying the affected employees was actually made.
115. Amendment 37 would modify new paragraph 243(2A)(b) to provide that this
requirement would be satisfied if the affected employees are, at the time of the
application for approval of the variation, employees in an industry, occupation or
sector declared by the Minister.
116. Where there is a relevant Ministerial declaration, to approve the variation, the FWC
would not need to be satisfied of the general requirements for entry into the supported
bargaining stream (i.e., that it would have been appropriate for the relevant employers
and employees to bargain together, having regard to prevailing pay and conditions in
the industry or sector, whether the employers have common interests and the number
of bargaining representatives being manageable, or that at least some of the
employees are represented by an employee organisation). The FWC would not
approve the variation if satisfied that there are serious public interest grounds for not
approving it. The restrictions from being added if covered by an in-term single-
enterprise agreement and in relation to general building and construction work would
continue to apply.
Amendment 38: Schedule 1, item 611, page 208 (line 3)
117. This is a technical amendment that would omit and substitute a new heading to
subsection 243(1), 'Supported bargaining authorisation-main case'.
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Amendment 39: Schedule 1, item 611, page 208 (after line 23), at the end of
subsection 243(1)
118. This amendment would add a note to subsection 243(1), clarifying that the subsection
is subject to restrictions on making supported bargaining authorisations that relate to
employees covered by an in-term single-enterprise agreement and general building
and construction work, as set out in section 243A.
Amendment 40: Schedule 1, item 611, page 208 (after line 32), after subsection 243(2)
Supported bargaining authorisation-declared industry etc.
119. This amendment would insert new subsections 243(2A) and (2B).
120. New subsection 243(2B) would provide that the Minister may, by legislative
instrument, declare an industry, occupation or sector, if satisfied that doing so is
consistent with the objects of supported bargaining, as set out in section 241.
121. Legislative instruments are published on the Federal Register of Legislation. Section
17 of the Legislation Act 2003 provides that before a legislative instrument is made,
the maker must be satisfied that there has been undertaken any consultation that is
reasonably practicable and considered by the maker to be appropriate. The maker may
consider the extent to which any consultation drew on the knowledge of persons
having expertise in fields relevant to the proposed instrument and ensured that persons
likely to be affected by the proposed instrument had an adequate opportunity to
comment on its proposed content. This may include consultation with representative
organisations. Failure to consult will not invalidate the instrument but the Senate
Standing Committeee for the Scrutiny of Delegation Legislation will examine each
legislative instrument subject to disallowance and will consider among other things,
whether those likely to be affected by the instrument were adequately consulted in
relation to it.
122. New subsection 243(2A) would provide that the FWC must make a supported
bargaining authorisation if an application has been made and the employees specified
in the application are employees in an industry, occupation or sector declared by the
Minister under subsection 243(2B).
123. The effect of a declaration is that the FWC would not need to be satisfied of the
general requirements for entry into the supported bargaining stream, i.e., that it is
appropriate for the relevant employers and employees to bargain together, having
regard to prevailing pay and conditions in the industry or sector, whether the
employers have common interests and the number of bargaining representatives being
manageable, or that at least some of the employees are represented by an employee
organisation.
124. A note to new subsection 243(2A) would indicate that the subsection is subject to
restrictions on making supported bargaining authorisations that relate to employees
covered by an in-term single-enterprise agreement and general building and
construction work, as set out in section 243A.
Fair Work Legislation 19 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Notes on amendments
Amendment 41: Schedule 1, item 611, page 209 (before line 8), before subsection 243A(1)
125. This amendment would insert a new header and subsection 243A(1A) to clarify that
section 243 - which provides for when the FWC must make a supported bargaining
authorisation - is subject to the restrictions on making such authorisations in section
243A.
Amendment 42: Schedule 1, item 614, page 210 (lines 3 to 11)
126. This amendment would substitute new subsections 244(4) and (4A).
127. New subsection 244(4) would provide that if an application is made under subsection
244(3) for a variation of a supported bargaining authorisation to add the name of an
employer, the FWC must do so if satisfied that it is in the public interest, taking into
account:
• any declaration by the Minister under subsection 243(2B) of an industry,
occupation or sector that includes the employer's employees specified in the
application;
• if there is no such declaration, the matters set out in paragraph 243(1)(b), which
include that it is appropriate for the relevant employers and employees to bargain
together, having regard to prevailing pay and conditions in the industry or sector,
whether the employers have common interests and the number of bargaining
representatives being manageable; and
• any other matters the FWC considers appropriate.
128. New subsection 244(4A) would clarify that despite subsection 244(4), the FWC must
not vary the authorisation if subsection 243(A)(1) would prevent the FWC from
making a supported bargaining authorisation specifying the employees. The
restriction in subsection 243(A)(1) relates to employees covered by a single-enterprise
agreement that has not passed its nominal expiry date.
Excluded work
Amendment 59: Schedule 1, item 651B, page 238 (lines 11 to 14)
129. This amendment would expand the definition of "general building and construction
work" to work done, by an employee in the civil construction sector as defined in
paragraph 4.3(b) of the Building and Construction General On-Site Award 2020 as in
force at the applicable time. The "applicable time" would be defined in proposed new
subsection 23B(2).
130. The effect of this amendment would be to exclude work in the civil construction
sector from multi-enterprise bargaining under the FW Act (except in relation to a
greenfields agreement).
Amendment 60: Schedule 1, item 651B, page 238 (lines 16 to 19)
131. This amendment would omit subparagraph 23B(1)(b)(i) from the Bill and is
consequential upon the proposed amendments to paragraph 23B(1)(a) that would
Senate 20 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Notes on amendments
include work in the civil construction sector within the meaning of "general building
and construction work".
Item 61, Schedule 1, item 651B, page 239 (line 27), at the end of paragraph 23B(1)(b)
132. This amendment would provide that work in the asphalt industry within the meaning
of clause 4.2 of the Asphalt Industry Award 2020 as in force at the applicable time is
not excluded work. It would also provide that the construction, repair, maintenance or
demolition of power houses or other structures that use eligible renewable energy
sources (within the meaning of section 17 of the Renewable Energy (Electricity) Act
2000) to generate electricity is not excluded work.
Employment as a firefighter
133. The proposed amendments require firefighting duties to constitute a "not
insubstantial" portion of a firefighter's duties to be covered by the presumptive
provisions concerning diseases. The "not insubstantial" threshold recognises that
firefighters may perform duties other than firefighting and the fact that the
presumption is based on occupational exposure through firefighting. The new
threshold maintains a robust test and is consistent with the requirement that
firefighters must have been exposed to the hazards of the scene of a fire. The
proposed amendments also introduce the ability for the ACT to establish an "ACT
firefighting advisory committee" to assist in the determination of whether firefighting
or related duties have made up a "not insubstantial" portion of the duties for volunteer
firefighters covered by the SRC Act.
Amendment 63: Schedule 1, item 667, page 266 (lines 12 to 15)
134. This would remove item 667 from the Bill so that malignant mesothelioma can
instead be prescribed by regulations for the purposes of subsection 7(8) of the SRC
Act.
Amendment 67: Schedule 1, item 669, page 267 (lines 8 to 16)
135. This would update item 669 of the Bill to clarify that the amendment to subsection
7(8) of the SRC Act included in item 666 of the Bill applies in relation to a decision
made under the SRC Act (including a decision on reconsideration or review under
Part VI of that Act), after the commencement of this item, in relation to primary site
oesophageal cancer sustained by an employee on or after 4 July 2011.
Amendment 64: Schedule 1, item 667A, page 266 (lines 16 to 26)
136. Item 667A would amend subparagraph 7(9)(a) of the SRC Act to omit the reference to
"substantial portion of duties" and instead specify that an employee is taken to have
been employed as a firefighter if firefighting duties made up a "not insubstantial
portion" of their duties.
Amendment 65: Schedule 1, item 667B, page 267 (line 1)
137. This would amend the text in item 667B of the Bill to reflect the changes to item
667A made by these amendments.
Fair Work Legislation 21 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Notes on amendments
Amendment 66: Schedule 1, page 267 (after line 7), after item 668
138. Item 668A introduces the ability for the ACT to establish an 'ACT firefighting
advisory committee' to assist in the determination of whether firefighting or related
duties have made up a 'not insubstantial' portion of the duties for ACT volunteer
firefighters covered by the SRC Act. If there is an ACT firefighting advisory
committee, the ACT must obtain and have regard to advice from the advisory
committee when determining whether firefighting or related duties made up a not
insubstantial portion of the duties of ACT volunteer firefighters for the purposes of
paragraph 7(9)(a) of the SRC Act.
Paid family and domestic violence leave
Amendment 1: Clause 2, page 5 (at the end of the table)
139. This amendment would insert two new table items into the commencement table for
the Bill. These table items provide for the commencement of new Part 28 of
Schedule 1 to the Bill, which relates to paid family and domestic violence leave.
140. New table item 36 would provide that Division 1 of Part 28 of Schedule 1 would
commence on the later of the day after the Bill receives the Royal Assent or
immediately after the commencement of Schedule 1 to the Fair Work Amendment
(Paid Family and Domestic Violence Leave) Act 2022.
141. New table item 37 would provide that Division 2 of Part 28 of Schedule 1 would
commence on the later of the day after the Bill receives the Royal Assent or
immediately after the commencement of Schedule 2 to the Fair Work Amendment
(Paid Family and Domestic Violence Leave) Act 2022.
Amendment 68: Schedule 1, page 267 (after line 16), at the end of the Schedule
142. This amendment would insert new Part 28 into the Bill, which would make technical
amendments to the FW Act in relation to paid family and domestic violence leave.
Division 1--Main amendments
Item 670: After paragraph 536(2)(c)
143. This item would insert a new regulation-making power into subsection 536(2) of the
FW Act to enable regulations to be made prescribing how a period of paid family and
domestic violence leave should be reported on a pay slip. The new regulation-making
power would be at paragraph 536(2)(d). Paragraph 536(2)(c) would be inserted by the
Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022.
144. This would enable a regulation to be made that requires paid family and domestic
violence leave to be reported as, for example, ordinary time worked, overtime or
allowances, rather than as a type of leave such as 'miscellaneous leave' or 'other
leave'.
Senate 22 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
Notes on amendments
Item 671: After subsection 536(3)
145. This item would insert clause 536(3A) into the FW Act, which would clarify that a
pay slip is not false or misleading because it complies with regulations made for the
purposes of paragraph 536(2)(d). This is necessary because subsection 536(3) is a
civil remedy provision, which provides that an employer must not give a pay slip that
the employer knows is false or misleading.
146. Clause 536(3A) would ensure that an employer would not contravene
subsection 536(3) of the FW Act or be liable to a civil penalty if it provided an
employee with a pay slip that complied with the requirements in the Fair Work
Regulations 2009 by, for example, recording a period of paid family and domestic
violence leave as a period of work.
Division 2--Other amendments
Item 672: Subsection 539(2) (after table item 34)
Item 673: After paragraph 557(2)(p)
Item 674: Subsection 757B(4)
Item 675: Section 757BA
147. These items would make minor technical amendments to align the civil remedy
framework that applies to alleged contraventions of the paid family and domestic
violence leave pay slip requirements by non-national system employers with those
that apply to alleged contraventions by national system employers.
148. Item 672 would insert new table item 34AAA into the table of civil remedy provisions
in subsection 539(2) of the FW Act dealing with alleged contraventions of
section 757BA. The new table item would provide that an employee or inspector can
make a court application for an alleged contravention of the pay slip requirements
related to paid family and domestic violence leave by a non-national system
employer. The application could be brought in the Federal Court, the Federal Circuit
and Family Court of Australia (Division 2) or an eligible state or territory court. The
maximum penalty for the contravention would be 600 for a serious contravention
(defined in section 557A) or otherwise 60 penalty units.
149. This aligns with the table item in subsection 539(2) that applies to alleged
contraventions of the pay slip requirements by national system employers (table
item 29).
150. Table item 34AA will be inserted by Schedule 1 of the Fair Work Amendment (Paid
Family and Domestic Violence Leave) Act 2022 on 1 February 2023. Item 34AAA
would be inserted by the Bill the day after the Bill receives the Royal Assent, or
immediately after the commencement of Schedule 1 of the Fair Work Amendment
(Paid Family and Domestic Violence Leave) Act 2022, whichever is later.
151. Item 673 would apply the course of conduct rule in section 557 of the FW Act to
contraventions of section 757BA.
Fair Work Legislation 23 Senate
Amendment (Secure Jobs,
Better Pay) Bill 2022
Notes on amendments
152. Item 674 would remove section 757BA from the definition of extended paid family
and domestic violence leave provisions in subsection 757B(4) of the FW Act. This
amendment is consequential to the amendment making section 757BA a standalone
civil remedy provision.
153. Item 675 would repeal and replace section 757BA, which relates to obligations on
non-national system employers to comply with paid family and domestic violence
leave pay slip requirements. New section 757BA is similar to former 757BA, however
the new section would add a requirement that non-national system employers comply
with regulations made under paragraph 536(2)(d) (which would be inserted by
item 670), in addition to regulations made under paragraph 536(2)(c). New
section 757BA would also be a civil remedy provision.
Senate 24 Fair Work Legislation
Amendment (Secure Jobs,
Better Pay) Bill 2022
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