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2008 - 2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FAIR WORK (STATE REFERRAL AND CONSEQUENTIAL AND OTHER AMENDMENTS) BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment and Workplace
Relations, the Honourable Julia Gillard MP)
FAIR WORK (STATE REFERRAL AND CONSEQUENTIAL AND OTHER AMENDMENTS) BILL
2009
OUTLINE
The Fair Work (State Referral and Consequential and Other Amendments) Bill
2009 (the Bill) amends the Fair Work Act 2009 (the FW Act) to enable States
to refer matters to the Commonwealth for the purposes of paragraph
51(xxxvii) of the Constitution with a view to establishing a national
workplace relations system. The Bill makes transitional arrangements for
Victorian employees and employers, who are currently covered by the
Workplace Relations Act 1996 (the WR Act) as a result of a reference of
power and who are expected to be covered by a new reference of power.
The Bill also makes transitional and consequential amendments to other
Commonwealth legislation required as a result of the FW Act and the Fair
Work (Transitional Provisions and Consequential Amendments) Bill 2009 (the
T&C Bill).
State referrals
Schedule 1 to the Bill inserts new Division 2A into Part 1-3 of the FW Act,
which:
. enables a State to refer matters that would extend the application of
the FW Act (so far as not otherwise within Commonwealth power) to the
State by extending the meaning of terms defined in the FW Act
(including national system employer, national system employee and
outworker entity) and the provisions of Part 3-1 (General protections);
. enables a State to refer matters that would support Commonwealth
amendments to the FW Act (so far as not otherwise within Commonwealth
power) in relation to the subject matter of the FW Act as originally
enacted, and arrangements for the transition to the national system;
and
. envisages that State references of these matters may be subject to
certain exclusions relating to public sector employment (including in
relation to law enforcement officers).
It is expected that only Victoria will be a referring State when most of
the FW Act commences (expected to be 1 July 2009, with other provisions
expected to commence on 1 January 2010). However, Division 2A establishes
a framework that could be adapted to subsequent references from other
States.
Schedule 2 to the Bill amends provisions of the T&C Bill and the FW Act to
transition Victorian employers and employees from the system in place under
the WR Act (as extended by the Commonwealth Powers (Industrial Relations)
Act 1996 (Vic)) to the new system created by the FW Act.
Schedule 2 also amends the T&C Bill and the FW Act to insert provisions
establishing a framework for making State reference public sector modern
awards.
It is anticipated that a new reference from Victoria would support
transitional arrangements for Victoria-specific awards and common rules
underpinned by the existing Victorian reference and a process for making
public sector modern awards.
Schedule 3 to the Bill makes amendments to section 12 of the FW Act that
are consequential on amendments to be made by Schedule 1 and a minor
technical amendment to section 27.
Consequential amendments of other legislation
Schedules 4 to 19 to the Bill make transitional and consequential
amendments to 67 Commonwealth Acts which refer to parts of the WR Act that
will be repealed by the T&C Bill. The Schedules replace those references
with references to corresponding concepts in the FW Act. The Schedules
also make more significant amendments to certain other Commonwealth
legislation to provide clarity and consistency with respect to the
operation of that legislation in the new federal workplace relations system
established by the FW Act. The more significant of these amendments are:
. amendments to the Human Rights and Equal Opportunity Commission Act
1986 to enable the Human Rights and Equal Opportunity Commission to
refer to Fair Work Australia industrial instruments alleged to breach
the Age Discrimination Act 2004 and the Disability Discrimination Act
1992;
. amendments to the Migration Act 1958 to align the powers of migration
inspectors with the powers of Fair Work Inspectors under the FW Act;
. amendments to the Privacy Act 1988 to apply that legislation to small
business operators within the meaning of that Act who are also
associations of employees; and
. amendments to the Seat of Government (Administration) Act 1910 and the
Northern Territory (Self-Government) Act 1988 in relation to the
interaction rules between Commonwealth workplace relations laws and
Territory public sector employment laws.
Regulations
Schedule 20 to the Bill allows further transitional or consequential
arrangements relating to amendments made by the Bill, the FW Act and the
T&C Bill to be addressed in regulations made under this proposed Act.
FINANCIAL IMPACT STATEMENT
The measures proposed in this Bill are budget neutral.
NOTES ON CLAUSES
1. The following abbreviations are used in the Notes on Clauses:
|AFPC |Australian Fair Pay Commission |
|AFPCS |Australian Fair Pay and Conditions Standard |
|AIRC |Australian Industrial Relations Commission |
|APCS |Australian Pay and Classification Scale |
|AWA |Australian workplace agreement |
|CP (IR) Act |Commonwealth Powers (Industrial Relations) Act 1996 |
| |(Vic) |
|FW Act |Fair Work Act 2009 |
|FW(RO) Act |Fair Work (Registered Organisations) Act 2009 |
|FWA |Fair Work Australia |
|FWO |Fair Work Ombudsman |
|ITEA |individual transitional employment agreement |
|NES |National Employment Standards |
|NAPSA |notional agreement preserving State awards |
|this Bill |Fair Work (State Referral and Consequential and |
| |Other Amendments) Bill 2009 |
|T&C Bill |Fair Work (Transitional Provisions and Consequential|
| |Amendments) Bill 2009 |
|WR Act |Workplace Relations Act 1996 |
Clause 1 - Short Title
2. This is a formal provision specifying the short title of the Bill.
Clause 2 - Commencement
3. The table in this clause sets out when the provisions of the Bill will
commence.
Clause 3 - Schedule(s)
4. This clause gives effect to the Schedules to the Bill by providing that
each Act specified in the Schedules is amended or repealed as set out in
the items of the Schedules. Any other item in the Schedules to the Bill
has effect according to its terms.
Clause 4 - Definitions
5. This clause defines the meaning of certain terms used by the Bill.
1. Schedule 1 - Referring States
2. Schedule 1 to this Bill amends the FW Act to insert Division 2A of Part
1-3. Division 2A enables States to refer matters to the Commonwealth
with a view to establishing a uniform national workplace relations system
for employees and employers in the private sector, with scope for
referring States to choose the extent to which the FW Act covers their
public sector workforces.
3. States would refer matters under paragraph 51(xxxvii) of the
Constitution, which enables the Commonwealth Parliament to make laws with
respect to matters referred by State Parliaments.
4. A reference of matters is needed if the FW Act is to apply to all
employers and employees in a State. This is because the Commonwealth has
legislative power to regulate most, but not all, employment relationships
in Australia.
5. Most provisions of the FW Act as originally enacted apply to the
employers and employees within the scope of the corporations and other
legislative powers engaged by the definitions of national system employee
and national system employer in sections 13 and 14 of the FW Act.
Division 2A extends the meaning of national system employee and national
system employer to include all employees (including law enforcement
officers who might not be employees at common law) and employers in a
referring State so that provisions of the FW Act that rely on these
definitions apply to all employees and employers in the referring State,
whether covered by sections 13 and 14 or not. It also extends the
general protections in Part 3-1 of the FW Act to all action in a
referring State.
6. A State will only be a referring State if it refers to the Commonwealth
matters which, in effect, give the Commonwealth power to include the text
of Division 2A in the FW Act as originally enacted, to amend the FW Act
in relation to the subject matter of the FW Act as originally enacted and
to make provision for the transition from the existing industrial regime
in the State to the industrial regime under the FW Act.
7. A State would be a referring State even if it did not refer power in
relation to any or all of its public sector employees and employers or an
aspect of a public sector employment relationship. For this purpose, a
public sector employee would include a law enforcement officer. Division
2A would also extend the ordinary meaning of employee in the FW Act to
include law enforcement officers so that they would be covered by the
unlawful termination provisions in Part 6-4 of the FW Act, if a State
referral law so provided.
8. It is expected that the only State that will be a referring State at the
time that most of the FW Act commences (expected to be 1 July 2009) would
be Victoria. If that is the case, the FW Act is likely to have been
amended by the time other States refer power and Division 2A will need to
be amended to accommodate those references. However, Division 2A
establishes a framework that can be adapted to subsequent references from
other States.
Fair Work Act 2009
Item 1 - Section 12 (at the end of note 2 at the end of the definition of
employee)
Item 2 - Section 12 (at the end of note 2 at the end of the definition of
employer)
Item 3 - Section 12 (at the end of the definition of national system
employee)
Item 4 - Section 12 (at the end of the definition of national system
employer)
Item 5 - Section 12 (note at the end of the definition of outworker
entity)
Item 6 - At the end of section 13
Item 7 - Section 14 (note)
Item 8 - At the end of subsection 15(1)
Item 9 - At the end of subsection 15(2)
Item 12 - At the end of section 337
9. These items cross-reference new definitions and application provisions
in new Division 2A by replacing or inserting notes to sections 12, 13,
14, 15 and 337 of the FW Act.
10. Section 12 of the FW Act (the Dictionary) is a list of defined terms in
the FW Act. Terms are either defined in the Dictionary or in another
provision of the FW Act (in which case the Dictionary signposts the
definition in that provision). Notes to some of the terms provide cross-
references to provisions of the FW Act that define those terms.
11. Items 1-9 replace or insert notes to:
. signposts to the meaning of employee and employer in section 12 (items
1 and 2);
. signposts to the meaning of national system employee and national
system employer in section 12 (items 3 and 4);
. the definition of outworker entity in section 12 (item 5);
. the definitions of national system employee and national system
employer in sections 13 and 14 (items 6 and 7);
. the ordinary meaning of employee and employer in subsection 15(1)
(items 8 and 9); and
. section 337, which presently limits the application of Part 3-1
(General protections) (item 12).
Item 10 - Section 24
12. Item 10 replaces the Guide to Part 1-3 of the FW Act in section 24
(which is about the FW Act's application) to reflect the addition of new
Division 2A, which is about the extended application of the FW Act in a
referring State.
Item 11 - After Division 2 of Part 1-3
Division 2A - Application of the FW Act in a referring State
13. This item inserts Division 2A into the FW Act, which gives effect to a
reference of matters from a referring State to the Commonwealth. As
noted above, it is anticipated that the only State that will be a
referring State at the time that most of the FW Act commences would be
Victoria.
New section 30A - Meaning of terms used in this Division
14. New section 30A defines a number of terms used in new Division 2A. The
meaning of these terms is explained below.
New section 30B - Meaning of referring State
15. New subsection 30B(1) defines referring State. A State is a referring
State if its Parliament refers the matters set out in new
subsections 30B(3), 30B(4) and 30B(5) to the Commonwealth Parliament, to
the extent that these matters are not otherwise within Commonwealth
legislative power and are within the State's legislative power.
16. New subsection 30B(2) is explained further below. This provision makes
clear that a State is still a referring State even if the State's
referral law provides for the reference to terminate in certain
circumstances, or if it excludes certain matters relating to State public
sector employment.
Initial reference
17. New subsection 30B(3) gives effect to a reference of matters relating
to the text of new Division 2A (see the definition of referred provisions
in new subsection 30A).
18. New subsection 30B(3) envisages that a referring State would refer the
provisions of new Division 2A to the Commonwealth, to the extent that
they deal with matters within the State's legislative power. The matters
referred by this text cover the regulation of unincorporated and public
sector employers and their employees, outworker entities, and certain
types of adverse action.
19. New sections 30C and 30D (explained further below), among other
provisions, are part of the referred text and extend the existing
definitions of national system employee and national system employer in
the FW Act to include any employee and any employer in a referring State.
. The FW Act generally applies to national system employees and national
system employers, and these extended definitions apply the FW Act in a
referring State, so far as it would not otherwise be supported by
Commonwealth power.
20. It is anticipated that a reference from Victoria would enable the
Commonwealth to amend the FW Act as originally enacted (that is, on 20
March 2009, when the FW Act received Royal Assent) to include Division 2A
to the extent within Victoria's legislative power. This would fix
Victoria's initial reference to matters related to the FW Act as it
exists at a particular time.
. New subsection 30B(3) means that only Victoria is likely to meet the
proposed definition of referring State. However, the framework
established by Division 2A would be able to be amended in future to
accommodate references from other States.
Amendment reference
21. New subsection 30B(4) requires a referring State to refer matters
relating to amendments of the FW Act. Such a reference would enable the
Commonwealth to amend the FW Act (so far as this would not otherwise be
within Commonwealth power) in relation to the referred subject matters
(defined in new section 30A) by making express amendments of the FW Act.
22. New section 30A defines amendment to mean the insertion, omission,
repeal, substitution, addition or relocation of words or matter. Express
amendment is defined to mean the direct amendment of the FW Act, but not
the enactment of a provision having substantive effect other than as part
of the text of the FW Act.
23. The amendment reference provisions of Division 2A would enable the FW
Act (as supported by the Commonwealth's and a referring State's
legislative powers) to be amended to apply to all employers and employees
in the State.
24. The referred subject matters (defined in new section 30A) correspond
with matters regulated by the FW Act to cover:
. terms and conditions of employment, including:
- employment standards, minimum wages and terms and conditions of
employment in instruments;
- bargaining in relation to terms and conditions of employment;
- the effect of a transfer of business on terms and conditions of
employment;
. terms and conditions under which an outworker entity may arrange for
work to be performed for the entity;
. rights and responsibilities of employees and employers and other
persons, in relation to:
- freedom of association and related protections (such as workplace
rights), and protection from discrimination in employment;
- termination of employment (including unfair dismissal and notification
and consultation obligations concerning employment termination);
- industrial action (including the circumstance in which industrial
action is protected and the circumstances in which payment may be made
to an employee during a period of industrial action);
- protection from payment of bargaining services fees;
- sham independent contractor arrangements;
- standing down employees without pay;
- rights of entry and rights of access to records;
. compliance with, and enforcement of, the FW Act;
. the administration and application of the FW Act; and
. matters incidental or ancillary to the operation of the FW Act or its
instruments.
25. The amendment reference framework balances matters of regulatory
interest to a referring State with the Commonwealth's concurrent or
related regulatory interest in many of these areas.
26. It is anticipated that some matters would be excluded from Victoria's
amendment reference. These are reflected in the definition of excluded
subject matters in new section 30A - that is:
. matters dealt with by Victoria's Equal Opportunity Act 1995, which is
preserved in its application to national system employees and employers
by subsection 27(1A) of the FW Act as originally enacted;
. matters dealt with by Victorian laws preserved under paragraph 27(1)(c)
and subsection 27(2) of the FW Act as originally enacted such as
occupational health and safety (OHS), public holidays, outworkers and
workplace surveillance (but not matters prescribed by regulations under
paragraph 27(2)(p) as originally enacted); and
. rights and remedies that are incidental to any of these matters.
27. However, the definition of excluded subject matters does not prevent
the Commonwealth from amending the FW Act in relation to any of these
matters, to the extent that the FW Act as originally enacted deals with
them (directly or indirectly), or requires or permits instruments made or
given effect under the FW Act to deal with them.
28. This framework reflects the fact that section 27 of the FW Act does not
reserve certain matters only to the States, but preserves the operation
of laws on these matters by providing that they are not excluded from the
workplace relations field covered by section 26 of the FW Act. Most of
the preserved State laws under section 27 deal with matters that are also
subject to concurrent or related regulation in the FW Act. For example:
. Subsection 27(1A) of the FW Act preserves the named State anti-
discrimination and equal opportunity Acts, and paragraphs 27(1)(c) and
27(2)(c) preserve State laws relating to OHS. However, Part 3-1 of
the FW Act (General protections) provides protection from
discrimination in relation to employment, and protects workplace rights
(including those set out in a State OHS law).
. Paragraphs 27(1)(c) and 27(2)(l) of the FW Act preserve State laws
dealing with the regulation of employee and employer organisations and
their members. However, various provisions of the FW Act regulate the
rights and obligations of organisations, including in relation to
bargaining, industrial action, standing to apply for court orders and
representation of persons before FWA.
. The matters dealt with by preserved State laws may (depending on
relevant instrument content rules) also be dealt with by federal
instruments such as enterprise agreements and modern awards, subject to
State laws in these areas (see subsection 29(2) of the FW Act).
Transitional reference
29. New subsection 30B(5) requires a referring State to refer matters
relating to the transition to the national system.
30. It is anticipated that Victoria's new reference would enable the
Commonwealth to transition Victorian employers and employees from the
system in place under the WR Act (as extended by the CP (IR) Act) to the
new system created by the FW Act as extended in its operation by the
Victorian Bill.
. Part 21 of the WR Act extends and modifies provisions of that Act in
relation to employers and employees within the scope of the CP (IR)
Act. Schedule 6 to the WR Act gives effect to a number of Victorian
instruments as transitional awards, transitional Victorian reference
awards and common rules.
. The T&C Bill and Schedule 2 to this Bill (explained further below) make
arrangements for the transition of Victorian employers and employees,
and instruments that cover them, into the new system.
Reference exclusions
31. New paragraph 30B(2)(b) makes clear that a State could be a referring
State even if the State's referral law excludes matters relating to State
public sector employment.
32. It is anticipated that Victoria would refer the matters required by
proposed subsections 30B(3), 30B(4) and 30B(5) of Division 2A to meet the
definition of referring State, but that each of the referred matters
would be subject to certain exclusions relating to Victorian public
sector employment (including certain matters relating to law enforcement
officers).
33. The terms State public sector employee and State public sector employer
are defined in new section 30A, and generally operate to recognise
qualifications on matters expected to be referred by Victoria.
. A State public sector employee is an employee of a State public sector
employer, or a State employee specified in the regulations. The
definition includes a law enforcement officer.
. A State public sector employer is an employer that is a State, a body
(whether incorporated or not) established for a public purpose by or
under a law of the State, or by the Governor or a Minister of the
State; a body corporate in which the State has a controlling interest;
or another State employer specified in the regulations. The definition
includes an office-holder deemed to be the employer of a law
enforcement officer by a State's referral law.
34. The FW Act generally applies to these employees and employers because
of new sections 30C and 30D, which extend the FW Act to any employer and
any employee in a referring State.
35. However, the FW Act's application is subject to certain public sector
exclusions in Victoria's anticipated reference, such as those relating
to:
. the number, identity and appointment (other than terms and conditions
of appointment) of public sector employees;
. the number and identity of public sector employees dismissed on the
basis of redundancy, and
. the provision of essential services or a state of emergency.
36. It is also anticipated that Victoria's reference would be subject to
certain exclusions relating to law enforcement officers, including
matters such as probation, promotion, transfer and discipline, and
termination of employment (except, in relation to the latter, to the
extent that Part 6-4 of the FW Act provides remedies for unlawful
termination).
37. As a result of these exclusions the application of the FW Act would
need to be read down in certain circumstances (see new section 30H). For
example:
. while State public sector employees and State public sector employers
could make an enterprise agreement under Part 2-4 of the FW Act, the
agreement could not deal with certain matters pertaining to redundancy;
and
. Part 3-1 (General protections) would not apply in relation to the
probation, transfer, discipline or termination of employment of law
enforcement officers.
Termination of reference
38. New paragraph 30B(2)(a) makes clear that a State could still be a
referring State if the State's referral law provides for the reference to
terminate in certain circumstances, for example, by proclamation of the
Governor in Council of the State.
39. New subsection 30A(6) provides for a State to cease to be a referring
State if any or all of the initial, amendment or transitional references
terminate. This would be the case notwithstanding anything to the
contrary in a State referral law.
New section 30C - Extended meaning of national system employee
New section 30D - Extended meaning of national system employer
40. Generally the FW Act applies to national system employees and national
system employers. The existing definitions of national system employee
and national system employer in sections 13 and 14 of the FW Act provide
constitutional support for most parts of the FW Act by engaging
Commonwealth powers to legislate with respect to trading and financial
corporations and foreign corporations (constitutional corporations), the
Territories, interstate and overseas trade and commerce, and the
Commonwealth's power to regulate its own employment relationships.
41. Most parts of the FW Act regulate the employment relationship between
national system employees and national system employers. Parts 6-3 and 6-
4 are supported by the external affairs power and extend entitlements and
obligations in relation to unpaid parental leave, notice of termination
or payment in lieu of notice and unlawful termination of employment to
employees and employers who are not within the national system
definitions. (See the Explanatory Memorandum to the Fair Work Bill
2008.)
42. New subsections 30C(1) and 30D(1) extend the existing definitions of
national system employee and national system employer to include any
employee and any employer in a referring State who would otherwise be
outside those definitions. In turn, these extended definitions have the
effect of applying the FW Act to any employee and any employer in a
referring State, including public sector employees and employers who are
within scope of a State's reference.
. The extended definitions expressly include law enforcement officers
(who may not be employees at common law) deemed to be employees, and an
office-holder deemed to be the employer of law enforcement officers, by
a State's referral law.
. As noted above, it is anticipated that the FW Act's application would
be subject to certain exclusions relating to Victorian public sector
employment, including certain matters relating to law enforcement
officers.
43. Consistent with sections 13 and 14 of the FW Act, new subsection 30C(1)
encompasses an individual who is employed, or usually employed, by an
employer, and new subsection 30D(1) encompasses a person who employs, or
usually employs, an individual. The Federal Court of Australia
considered the meaning of 'usually employed' in Australian Meat Industry
Employees Union v Belandra Pty Ltd (2003) 126 IR 165.
. The Court held that while an employer ceased operating for a period and
did not have any employees during that time, it was still an employer
for the purposes of then paragraph 298K(1)(c) of the WR Act. Other
cases considered in that decision indicate that a casual or daily hire
employee may still be an employee for the purposes of the WR Act, even
though their employment relationship terminates at the end of each
shift or daily period of employment.
44. The extended definition of national system employee makes clear that a
person on a vocational placement (as defined in section 12 of the FW Act)
is not within the definition.
45. New subsections 30C(2) and 30D(2) have the effect that sections 13 and
14 are not limited by the extended national system definitions. New
subsections 30C(1) and 30D(1) would not affect employees or employers in
Victoria who are already within the national system definitions.
New section 30E - Extended ordinary meanings of employee and employer
46. This provision would give effect to an anticipated reference from
Victoria which would:
. deem a Victorian law enforcement officer to be an employee, and the
Victorian Chief Commissioner of Police to be the employer of such an
officer, for the purpose of Victoria's reference; and
. enable the unlawful termination provisions of Divisions 1 and 2 of Part
6-4 of the FW Act to apply in relation to law enforcement officers.
47. At common law, law enforcement officers may not be employees. The
terms employee and employer have their ordinary meaning in Part 6-4,
which relies on the external affairs power to assist in giving effect to
Australia's international treaty obligations, and can therefore extend to
any employer and any employee.
48. New subsections 30E(1) and 30E(2) ensure that Divisions 1 and 2 of
Part 6-4 of the FW Act can apply in relation to law enforcement officers
(if a State's referral law provides for this), by extending the ordinary
meaning of employee and employer to include (respectively) a law
enforcement officer deemed to be an employee, and an office-holder deemed
to be the employer of a law enforcement officer, by a State referral law.
. Division 2 of Part 6-4 generally applies in relation to any employee in
Australia, subject to clause 723, which prevents a person who can make
a general protections court application from making an unlawful
termination application. Because of anticipated exclusions in the
Victorian Bill, Victorian law enforcement officers would not be able to
make a general protections court application.
49. New subsection 30E(3) provides that the ordinary meaning of employee
and employer (including as affected by section 15 of the FW Act), is not
limited by new subsections 30E(1) and 30E(2).
New section 30F - Extended meaning of outworker entity
50. This provision extends the meaning of outworker entity in a referring
State. Section 12 of the FW Act includes a definition of outworker
entity. Paragraph (e) of the definition in section 12 applies in
relation to a Territory and identifies particular circumstances in which
a person, other than in their capacity as a national system employer,
will be an outworker entity.
51. New section 30F extends this definition by setting out, in relation to
a referring State, particular circumstances in which a person will be an
outworker entity.
52. Under new section 30F the definition of outworker entity will extend to
a person, other than in their capacity as a national system employer,
where:
. the person arranges for work to be performed for the person (either
directly or indirectly);
. the work is of a kind that is often performed by outworkers; and
. the arrangement is connected with the referring State.
53. An arrangement is connected with a referring State if one or more of
the following applies:
. at the time the arrangement is made, one or more parties to the
arrangement is in a referring State;
. the work is to be performed in a referring State;
. the person arranging the work carries on an activity (whether of a
commercial, governmental or other nature) in a referring State, and the
work is reasonably likely to be performed in that State or in
connection with that activity.
54. The description of the required connection to a referring State in new
section 30F picks up a broader range of outworker entities than the
description of the equivalent connection in current paragraph (e) of the
definition of outworker entity in section 12 of the FW Act. A
consequential amendment is therefore also proposed in relation to
paragraph (e) of that definition to align the two provisions (see items
1, 2 and 3 of Schedule 3).
New section 30G - General protections
55. Part 3-1 of the FW Act sets out a range of workplace protections, and
ensures fairness and representation at the workplace, by recognising the
right to freedom of association and preventing discrimination and other
unfair treatment.
56. Part 3-1 largely applies to action by or affecting national system
employers and employees and organisations (see sections 338 and 339).
Action by employees and employers who are within the extended definitions
of national system employee and national system employer under new
subsections 30C(1) and 30D(1) are covered.
57. New subsection 30G(1) extends the application of Part 3-1 to action in
a referring State in the same way that paragraph 338(1)(d) of the FW Act
applies the Part to action taken in a Territory or in a Commonwealth
place. Extension of the Part to all action in a referring State means
that the Part may apply in circumstances such as the following.
. If an unincorporated principal terminated a contractor's contract
because the contractor was a member of a State industrial association
or had given evidence in a proceeding before a State industrial body,
such action is prohibited by Part 3-1 if the termination of the
contract took place in a referring State.
. If a State industrial association, or any other person, coerced an
unincorporated contractor not to engage an unincorporated subcontractor
because the subcontractor had refused to join the association, the
coercion action is prohibited by Part 3-1 if it took place in a
referring State.
58. This provision applies despite section 337 of the FW Act (which limits
the application of Part 3-1), and does not limit the operation of
sections 338 and 339.
New section 30H - Division only has effect if supported by reference
59. New section 30H makes clear that provisions of the FW Act that are
supported by a State's reference only have effect to the extent that the
State refers the matters mentioned in new subsection 30B(1) - that is,
the matters set out in new subsections 30B(3), 30B(4) and 30B(5). This
has the effect that the FW Act is read down in accordance with any
exclusion from a referring State's initial, amendment and transitional
references relating to State public sector employment.
New section 30J - Application of the Acts Interpretation Act 1901
60. New section 30J provides for the Acts Interpretation Act 1901 (the
AI Act), as in force on the day on which Division 2A commences, to apply
to the FW Act, and that amendments of the AI Act made after that day do
not apply to the FW Act.
61. This is a standard provision in Commonwealth legislation based on a
text reference, to ensure that the scope of a reference is certain.
Schedule 2 - Consequential and transitional provisions relating to referral
of matters
62. This Schedule makes transitional and consequential provision in
relation to arrangements in Victoria that are currently underpinned by
the Victorian reference of power in force under the CP (IR) Act. Part 1
amends the T&C Bill to ensure that it operates effectively in relation to
transitional awards and common rules that have effect in relation to
Victorian employers and employees under the Victorian reference.
63. Part 2 inserts new provisions in the T&C Bill and the FW Act dealing
with public sector modern awards and public sector transitional awards
for employers and employees that are within the scope of the Victorian
reference.
64. Division 1 of Part 2 deals with the amendments to the T&C Bill.
Division 2 of Part 2 amends the FW Act to include provisions dealing with
public sector modern awards for employees and employers in the Victorian
public sector that are within the scope of the Victorian reference, and
that are not within the definition of national system employee or
national system employer in sections 13 and 14 of the FW Act.
Part 1 - Treatment of transitional awards and common rules as
transitional instruments etc.
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 1 - Item 2 of Schedule 2
Item 2 - Item 2 of Schedule 2
Item 3 - Item 2 of Schedule 2
Item 4 - Item 2 of Schedule 2
Item 5 - Item 2 of Schedule 2
Item 6 - Item 2 of Schedule 2
Item 7 - Item 2 of Schedule 2
65. These items amend item 2 of Schedule 2 to the T&C Bill to insert
signposts to a number of new definitions and application provisions that
are used in Schedule 3 as amended by this Bill.
66. Item 2 of Schedule 2 to the T&C Bill (the Dictionary) is a list of
every defined term in that Bill. Terms are either defined in the
Dictionary itself or in another provision of the Bill (in which case the
Dictionary signposts the definition in that provision).
67. Item 1 inserts a definition of common rule that relies on the
definition contained in provisions of Schedule 6 to the WR Act that are
continued by proposed item 8A of Schedule 3 (see item 11).
68. Items 2-5 and item 7 cross-reference new definitions that will be
inserted in Schedule 3 (see item 10) to define:
. State reference common rule;
. State reference employee;
. State reference employer;
. State reference transitional award; and
. Victorian employment agreement.
69. Item 6 defines State reference transitional award or common rule to
mean a State reference transitional award or a State reference common
rule, using a single phrase for ease of reference throughout this Bill.
Item 8 - After paragraph 2(2)(a) of Schedule 3
70. This item amends the definition of WR Act instrument in paragraph
2(2)(a) of Schedule 3 to the T&C Bill, to include a State reference
transitional award or common rule in that definition.
Item 9 - Subitem 2(2) of Schedule 3 (note 4)
71. This item inserts note 4 to item 2 of Schedule 3 to the T&C Bill, by
replacing it with a new note identifying the location of transitional
provisions relating to transitional awards other than State reference
transitional awards and State reference common rules in Schedule 20 to
the T&C Bill.
Item 10 - At the end of subitem 2(3) of Schedule 3
72. This item inserts a new note at the end of subitem 2(3) of Schedule 3
to the T&C Bill to clarify that Victorian employment agreements are not
transitional instruments for the purposes of the T&C Bill and to refer to
the provisions in this Bill that deal directly with those agreements.
Item 11 - After subitem 2(3) of Schedule 3
73. This item inserts a new subitem 3A in item 2 of Schedule 3 to the T&C
Bill. The amendment ensures that State reference common rules that come
into effect under this Bill are treated as transitional instruments for
the purposes of the T&C Bill.
Item 12 - Paragraph 2(5)(a) of Schedule 3
74. This item amends paragraph 2(5)(a) of Schedule 3 to the T&C Bill to
include State reference transitional awards or common rules in the
definition of award-based transitional instrument.
Item 13 - After item 2 of Schedule 3
75. This item amends Schedule 3 by inserting a new subitem 2A of Schedule 3
containing definitions of State reference common rule, State reference
employee, State reference employer and State reference transitional
award.
. A State reference common rule is defined to mean a common rule (see
item 1) that covers specified State reference employers and their
employees. A common rule is expressed to cover employers in an
industry in respect of their employees. Common rules only have effect
in relation to Victoria, because the provisions that give effect to
them are underpinned by the CP(IR) Act, in which the Victorian
Parliament referred to the Commonwealth Parliament the matter of
declaring any term of an award or order to be a common rule in the
State for an industry.
. A State reference employee is defined to mean an employee who is a
national system employee only because of Victoria's reference of power
(see also discussion of proposed sections 30B and 30C of the FW Act, as
amended by Schedule 1 to this Bill).
. State reference employer is defined to mean an employer that is a
national system employer only because of Victoria's reference of power
(see also discussion of proposed sections 30B and 30C of the FW Act, as
amended by Schedule 1 to this Bill).
. State reference transitional award is defined to mean a transitional
award that covers one or more specified State reference employers and
their employees. Transitional award is defined in continued Schedule 6
(see item 1 of Schedule 20 to the T&C Bill) and includes a transitional
Victorian reference award.
76. Proposed subitem 2A(5) 'splits' transitional awards that cover both
State reference employers and their employees and other employers and
employees (that is, employers and employees that are not from a referring
State).
77. Subitem 2A(5) ensures that a State reference transitional award only
covers State reference employers, State reference employees and
organisations in relation to State reference employers and State
reference employees.
Item 14 - At the end of Part 2 of Schedule 3
78. This item amends Part 2 of Schedule 3 to the T&C Bill to add a new item
8A dealing with the continuing application of clauses 82 to 87 of
Schedule 6 to the WR Act in relation to State reference common rules. The
effect of item 8A is to ensure that State reference common rules continue
to operate under the new system, and to cover the same classes of
employers and employees covered by common rules under Schedule 6 to the
WR Act.
Item 15 - After item 12 of Schedule 3
79. This item inserts a new item 12A after item 12 of Schedule 3 to the T&C
Bill. New item 12A gives effect to provisions of Part 10 of the WR Act
that deal with variation and revocation of transitional awards so that
these provisions apply from the WR Act repeal day in relation to State
reference transitional awards. This means that terms of a State reference
transitional award, including terms relating to wages, can be varied by
FWA under Part 10 of the WR Act after the WR Act repeal day.
80. After the end of the bridging period, State reference transitional
awards may be terminated to take into account the award modernisation
process. State reference transitional awards will only be able to varied
if the variation is essential to the maintenance of minimum safety net
entitlements (see section 553 of the WR Act), or so that FWA can continue
to deal with a matter that was being dealt with before the end of the
bridging period.
81. However, terms of a State reference transitional award dealing with
wages will only be able to be varied after the bridging period in annual
wage reviews under Division 3 of Part 2-6 of the FW Act.
82. Variation and revocation of State reference common rules is dealt with
separately under proposed item 8A of Schedule 3 (see item 14).
Item 16 - At the end of Schedule 3
83. This item amends Schedule 3 to add new provisions dealing with
Victorian employment agreements. These agreements, which are currently
kept in operation by Division 12 of Part 21 of the WR Act, are individual
agreements which either came into effect under the former Employee
Relations Act 1992 (Vic) (ER Act) and were not replaced by an agreement
under the WR Act, or were deemed into existence on the cessation of an ER
Act collective employment agreement.
84. From the WR Act repeal day, any Victorian employment agreement that is
still in force will no longer be a statutory instrument. Instead, it will
be treated as an enforceable contract between the parties.
Item 17 - Subitem 2(2A) of Schedule 6
85. This item amends subitem 2(2A) of Schedule 6 to the T&C Bill, which
defines enterprise award-based instrument. An enterprise award-based
instrument is an award or NAPSA that regulates terms and conditions of
employment in a single enterprise or part of a single enterprise or one
or more enterprises, if the employers carry on similar business
activities under the same franchise.
86. This amendment ensures that a State reference transitional award may
also be an enterprise award-based instrument.
Item 18 - Subitem 3(1) of Schedule 7
87. This item amends Schedule 7 to the T&C Bill with the effect that a
State reference transitional award or common rule is capable of being a
designated award for the purposes of the no-disadvantage test which will
apply during the bridging period under Division 2 of Schedule 7.
Item 19 - Paragraph 13(2)(a) of Schedule 7
88. Paragraph 13(2)(a) of Schedule 7 to the T&C Bill modifies the
application of section 200 of the FW Act (which deals with requirements
relating to outworkers) in relation to agreements or variations made
during the bridging period, so that references to a modern award in
section 200 of the FW Act are taken to be references to awards.
89. This item amends paragraph 13(2)(a) of Schedule 7 so that a reference
to a modern award in that paragraph is also taken to be a reference to a
State reference transitional award or common rule.
Item 20 - At the end of item 18 of Schedule 7
Item 21 - At the end of item 19 of Schedule 7
90. Items 18 and 19 of Schedule 7 to the T&C Bill set out arrangements for
the application of the better off overall test for enterprise agreements
if award modernisation is not completed at the end of the bridging
period.
91. Items 20 and 21 respectively amend items 18 and 19 of Schedule 7 to the
T&C Bill to ensure that only the relevant 'unmodernised' State reference
transitional award or common rule is used for the purpose of assessing
whether an enterprise agreement passes the better off overall test. A
transitional APCS is not relevant in this context, as State reference
transitional awards and State reference common rules contain terms
dealing with wages.
Item 22 - Item 21 of Schedule 7
92. This item extends the operation of item 21 of Schedule 7 to the T&C
Bill so that it also applies in relation to a State reference
transitional award or common rule. The effect of this amendment is that
where an application for a special low-paid workplace determination is
made during the bridging period, FWA would need to be satisfied that the
employees to be covered by the determination are substantially equivalent
to the minimum safety net of terms and conditions provided by these
instruments and the AFPCS.
Item 23 - Paragraph 25(3)(a) of Schedule 7
93. This item amends paragraph 25(3)(a) of Schedule 7 to the T&C Bill so
that if an employee is covered by a State reference transitional award or
common rule that contains outworker terms, and a workplace determination
is made that will cover the employee, the workplace determination must
also include outworker terms that are not detrimental to the employee in
any respect, when compared to the State reference transitional award or
common rule (see
section 200 of the FW Act) (see also item 15).
Item 24 - Subitem 27(5) of Schedule 8 (before the definition of
instrument)
94. This item amends the definition of instrument in item 27 of Schedule 8
to the T&C Bill so that it also includes a State reference transitional
award (but not a common rule). Schedule 8 to the T&C Bill sets out
transitional arrangements for the assessment of collective agreements and
ITEAs that are lodged with the Workplace Authority before the WR Act
repeal day, and ITEAs lodged during the bridging period. Item 27 of
Schedule 8 deals with the circumstance where there is a transfer of
business and a workplace agreement ceases to operate because it does not
pass the no-disadvantage test.
Item 25 - At the end of item 5 of Schedule 9
95. This item amends item 5 of Schedule 9 to the T&C Bill so that specified
provisions of Part 21 of the WR Act do not apply in relation to State
reference employers and State reference employees.
96. Reflecting the limitations of the current Victorian reference,
subparagraph 861(1)(d)(iii) of the WR Act displaces the guarantee of the
standard FMW (as defined in section 195 of the
WR Act) in relation to some Victorian employers and employees, while
section 865 of the WR Act restricts the power of the AIRC to adjust wages
in relation to employees in Victoria who are not within a work
classification (as defined in that section).
97. This amendment ensures that the transitional standard FMW (as continued
under
subitem 5(3) of Schedule 9 to the T&C Bill) applies in relation to State
reference employers and State reference employees from the WR Act repeal
day, and that the power of the AIRC to adjust wages in relation to
Victoria is no longer restricted to employees within a work
classification. At the end of the bridging period, item 12(2) of
Schedule 9 deems FWA to have made a transitional national minimum wage
order under Part 2-6 of the FW Act at the same wage rate as the
transitional standard FMW immediately before that day.
Item 26 - At the end of paragraph 5(2)(d) of Schedule 10
98. This item amends item 5 of Schedule 10 to the T&C Bill so that the
provisions continuing the application of equal remuneration orders made
under the WR Act also apply in relation to a State reference transitional
award or common rule.
Item 27 - After subitem 2(2) of Schedule 11
Item 28 - Subitem 5(2) of Schedule 11
99. These items amend items 2 and 5 of Schedule 11 to the T&C Bill so that
Division 5 of Part 11 of the WR Act (which deals with transmission of
awards) also has continued application in relation to State reference
transitional awards (but not State reference common rules).
Item 29 - Subitem 8(1) of Schedule 11
Item 30 - At the end of paragraph 8(2)(b) of Schedule 11
100. These items amend item 8 of Schedule 11 to the T&C Bill so that the
extended application of the FW Act by Schedule 11 in relation to a
transfer of business applies in relation to a State reference
transitional award but not a State reference common rule. Common rules
are instruments of general application to an industry and do not need
specific rules to transfer their effect from one employer to another.
Item 31 - Paragraph 13(2)(a) of Schedule 18
101. This item makes a consequential amendment to item 13 of Schedule 18 to
the T&C Bill to correct the reference to a transitional award so that it
does not include a reference to a State reference transitional award or
common rule. These instruments are now within the definition of WR Act
instrument in Schedule 3 to the T&C Bill.
Item 32 - Item 1 of Schedule 20
102. This item amends Schedule 20 to the WR Act by replacing item 1 to
reflect the amendments made to Schedules 2 to 18 to the T&C Bill by the
items above dealing with State reference transitional awards and State
reference common rules.
103. The effect of this amendment is that continued Schedule 6 does not
apply in relation to State reference transitional awards and State
reference common rules from the WR Act repeal day. However, the
instrument content rules and instrument interaction rules contained in
continued Schedule 6, as they apply to State reference transitional
awards and State reference common rules continue to apply from the WR Act
repeal day.
Part 2 - State reference public sector modern awards
Division 1 - State reference public sector transitional award
modernisation
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 33 - Subsection 2(1)(after table item 4)
104. This item makes a consequential amendment to the table in subclause
2(1) of the
T&C Bill so that it also includes a reference to proposed Schedule 6A
(see item 51).
Item 34 - Item 2 of Schedule 2 (at the end of the definition of
modernisation-related reduction in take-home pay)
105. This item amends the definition of modernisation-related reduction in
take-home pay in item 2 of Schedule 2 so that it also includes a
reference to the State reference public sector transitional award
modernisation process, as defined in proposed subitem 13(3) of Schedule
6A.
Item 35 - Item 2 of Schedule 2
Item 36 - Item 2 of Schedule 2
Item 37 - Item 2 of Schedule 2
Item 38 - Item 2 of Schedule 2
Item 39 - Item 2 of Schedule 2
Item 40 - Item 2 of Schedule 2
106. These items insert signpost definitions in item 2 of Schedule 2 to the
T&C Bill that define:
. State reference public sector employee (proposed item 2(2) of Schedule
6A to the
T&C Bill);
. State reference public sector employer (proposed item 2(3) of Schedule
6A to the
T&C Bill);
. State reference public sector modern award (proposed item 3(2) of
Schedule 6A to the T&C Bill);
. State reference public sector modern awards objective (proposed item 7
of Schedule 6A to the T&C Bill);
. State reference public sector transitional award (proposed item 2(1) of
Schedule 6A to the T&C Bill);
. State reference public sector transitional award modernisation process
(proposed item 3(1) of Schedule 6A to the T&C Bill).
Item 41 - Item 2 of Schedule 2 (definition of take-home pay)
Item 42 - Item 2 of Schedule 2 (definition of take-home pay order)
107. These items amend the definitions of take-home pay and take-home pay
order contained in item 2 of Schedule 2 to the T&C Bill, so that the
definitions also cross-reference relevant provisions contained in
proposed Schedule 6A to the T&C Bill.
Item 43 - Subitem 29(1) of Schedule 3 (note)
108. This item amends the note to subitem 29(1) of Schedule 3 to the T&C
Bill, by replacing it with a note to the effect that a modern award
cannot be expressed to cover an employee who is covered by an enterprise
instrument or a State reference public sector transitional award.
Item 44 - Schedule 5 (heading)
Item 45 - Subitem 3(3) of Schedule 5
Item 46 - Subitem 3(3) of Schedule 5 (note)
Item 47 - At the end of subitem 3(3) of Schedule 5
109. These items amend the heading of Schedule 5 and subitem 3(3) of
Schedule 5 to the
T&C Bill so that the limitations on the power of FWA to terminate or vary
a modernisable instrument under that item also apply in relation to State
reference public sector transitional awards.
110. Proposed note 2 to subitem 3(3) cross-references the provisions of
proposed
Schedule 6A to the T&C Bill dealing with termination and variation of
State reference public sector transitional awards in connection with the
State reference public sector transitional award modernisation process.
Item 48 - Item 6 of Schedule 5 (heading)
Item 49 - Subitem 6(1) of Schedule 5
111. These items amend item 6 of Schedule 5 to the T&C Bill, so that the
first 2 year review of modern awards does not apply in relation to State
reference public sector modern awards.
Item 50 - Subitem 2(2) of Schedule 6
112. This item amends item 2 of Schedule 6 so that the definition of
enterprise award-based instrument does not include a State reference
public sector transitional award.
Item 51 - After Schedule 6
113. This item inserts a new Schedule 6A to the T&C Bill dealing with State
reference public sector modern awards.
114. Proposed Schedule 6A gives effect to the State reference public sector
transitional award modernisation process under the T&C Bill.
Schedule 6A - State reference public sector modern awards
Part 1 - Preliminary
Item 1 - Meanings of employer and employee
115. This item provides that in Schedule 6A, the terms employer and
employee have their ordinary meanings.
Part 2 - The State reference public sector transitional award
modernisation process
Division 1 - State reference public sector transitional awards
Item 2 - State reference public sector transitional awards
116. This item inserts new definitions into the T&C Bill relating to the
State reference public sector transitional award modernisation process
(item 51). The item defines:
. State reference public sector employee to mean a State reference
employee (item 10) who is also a State reference public sector employee
(as defined in proposed section 30A of the FW Act dealing with
referring States) (subitem 2(2));
. State reference public sector employer to mean a State reference
employer (item 10) that is also a State reference public sector
employer (as defined in proposed section 30A of the FW Act dealing with
referring States) (subitem 2(3));
. State reference public sector modern award to mean a modern award that
is only expressed to cover one or more specified State reference public
sector employers and State reference public sector employees of those
employers. A State reference public sector modern award must be made by
a Full Bench (subitem 3(2));
. State reference public sector transitional award to mean a State
reference transitional award or common rule that is only expressed to
cover State reference public sector employers and their State reference
public sector employees. A State reference public sector transitional
award also covers organisations in relation to the State reference
public sector employers and State reference public sector employees
covered by the award (subitems 2(1) and 2(4)).
Division 2 - The State reference public sector transitional award
modernisation process
Item 3 - The State reference public sector transitional award
modernisation process
Item 4 - Making State reference public sector modern awards on
application
117. Subitem 3(1) of Schedule 6A establishes the State reference public
sector transitional award modernisation process. This is the process of
making modern awards to cover State reference public sector employers,
State reference public sector employees and organisations in relation to
those employers and employees.
118. State reference public sector modern awards may be made on application
to FWA. Application may be made by a person who is covered by a State
reference public sector transitional award, and must be made between the
WR Act repeal day and 31 December 2013.
119. FWA is required to make a State reference public sector modern award
that covers the persons identified in the application if satisfied that
those persons are covered by a State reference public sector transitional
award and that State reference public sector employers and organisations
who will be covered by the State reference public sector modern award
have agreed to it being made.
120. A State reference public sector modern award may be made before 1
January 2010, and commences operation on the day it is expressed to
commence (item 20 refers), which cannot be retrospective. If FWA makes a
State reference public sector modern award before
1 January 2010, the FW Act applies as if the various modern award content
rules contained in the FW Act had commenced, so that these rules can be
taken into account in the making of the modern award (item 19 refers).
Item 5 - Termination of State reference public sector transitional awards
on application
121. This item provides that a State reference public sector transitional
award may be terminated on application to FWA by a State reference public
sector employer or organisation covered by the award. The application
must be made between the WR Act repeal day and 31 December 2013. This
ensures that State reference public sector employers and State reference
public sector employees are able to become covered by a modern award
without having to apply for the making of a State reference public sector
modern award.
122. FWA may grant the application and terminate the State reference public
sector transitional award as long as it is satisfied that employees who
will lose the coverage of the award if it is terminated will be covered
by an appropriate modern award. In deciding whether to grant the
application, FWA must take into account specified criteria (including the
State reference public sector modern awards objective). FWA may specify
the date from which the termination of the award has effect, but may not
terminate a State reference public sector transitional award before 1
January 2010 (modern awards will commence operation from this time).
Item 6 - Further obligation of FWA to make or vary State reference public
sector modern awards at end of application period
123. This item provides that after 31 December 2013, FWA is required to
deal with any remaining State reference public sector transitional awards
that have not been modernised, either by varying the coverage of an
appropriate State reference public sector modern award, or by making a
new State reference public sector modern award, to replace the remaining
State reference public sector transitional awards.
Item 7 - The State reference public sector modern awards objective
124. If FWA is required to make a State reference public sector modern
award, the modern awards objective and the minimum wages objective apply
to the making of the modern award, together with the State reference
public sector modern awards objective (item 7 of Schedule 6A).
125. The State reference public sector modern awards objective requires FWA
to recognise:
. the need to facilitate arrangements for State reference public sector
employers and State reference public sector employees that are
appropriately adapted to the effective administration of a State; and
. that State reference public sector modern awards may provide terms and
conditions tailored to reflect employment arrangements that have been
developed in relation to State reference public sector employers and
State reference public sector employees.
Item 8 - Terms of State reference public sector modern awards
Item 9 - Coverage terms
126. A State reference public sector modern award must contain coverage
terms (item 9), setting out the employers, employees and organisations
who are covered by the award. Coverage terms may be expressed in terms of
a class or classes of employers and employees, and any organisations must
be specified by name. These awards can only apply to employers that are
State reference public sector employers and to employees who are State
reference public sector employees. These awards may cover specified
organisations in relation to the employers and employees covered by the
award. A State reference public sector modern award cannot cover
outworker entities (outworker entity is defined in section 12 of the FW
Act).
127. Item 8 provides (with some exceptions) that the terms which may be
included in a State reference public sector modern award are the same as
for modern awards generally.
128. Once made, State reference public sector modern awards are treated as
modern awards under the FW Act (item 20 refers) and are generally treated
in the same way as other modern awards in relation to their content.
129. FWA may specify the date from which the modern award has effect, which
must not be before 1 January 2010, to coincide with the commencement of
other modern awards under the FW Act.
Item 10 - Variation and termination of State reference public sector
transitional awards to take account of the modernisation process
130. This item makes clear that once a State reference public sector modern
award is made, it replaces the State reference public sector transitional
award that covered the parties to the modern award because of the effect
of item 29 of Schedule 3 to the T&C Bill.
131. A State reference public sector transitional award that is completely
replaced by a State reference public sector modern award terminates when
the modern award commences operation. If the transitional award is only
partially replaced by the modern award, FWA is required to vary the
coverage terms of the transitional award once the modern award commences
operation so that it is only expressed to cover persons that are not
covered by the modern award.
Item 11 - Notification of the cut-off for the State reference public
sector transitional award modernisation process
132. This item provides that by no later than 1 July 2012, FWA must notify
all parties still covered by a State reference public sector transitional
award that application for the making of a State reference public sector
modern award, or the termination of a State reference public sector
transitional award, must be made by 31 December 2013 and that, if no
application is made before that time, FWA will commence the State
reference public sector transitional award modernisation process in
relation to the award.
Item 12 - Regulations setting out other matters
133. This item provides that the regulations may deal with other matters
relating to the State reference public sector transitional award
modernisation process.
Division 3 - Avoiding reductions in take-home pay
Item 13 - State reference public sector transitional award modernisation
process is not intended to result in reduction in take-home pay
Item 14 - Orders remedying reductions in take-home pay
Item 15 - Ensuring that take-home pay orders are confined to the
circumstances for which they are needed
134. This Division makes clear that the State reference public sector
transitional award modernisation process (as with other award
modernisation processes) is not intended to result in a reduction in the
take-home pay of employees (item 13), and provides a mechanism for
obtaining remedial orders (take-home pay orders) if there is such a
reduction (item 14). The scope for take-home pay orders is highly
constrained. The intention (item 15 refers) is that orders can only be
made where:
. there is an actual reduction in take-home pay - if award rates
decrease, but an employee's pay does not decline (because pay is
maintained by their employer), an order cannot apply; and
. State reference public sector transitional award modernisation is the
operative or immediate reason for a reduction in take-home pay.
135. These provisions are not intended to allow FWA to review entitlements
in State reference public sector modern awards generally. Nor is it
intended that such orders should be able to constrain an employer from
taking action (for example, reorganising roster arrangements) that would
otherwise be lawful.
136. Rather, the intention is to allow FWA to deal with cases in which an
employee suffers a reduction in their take-home pay for working the same
hours, or performing the same quantity of work, due to the State
reference public sector transitional award modernisation process.
Item 16 - Take-home pay order continues to have effect so long as State
reference public sector modern award continues to cover the employee or
employees
137. This item provides that a take-home pay order continues to have effect
in relation to an employee or class of employees (subject to the terms of
the order) while the State reference public sector modern award covers
the employee or employees, even if it stops applying because an
enterprise agreement starts to apply. This ensures that an employee does
not lose the benefit of a take-home pay order when an enterprise
agreement starts to apply.
Item 17 - Inconsistency with State reference public sector modern awards
and enterprise agreements
138. This item provides that a term of a State reference public sector
modern award or enterprise agreement has no effect to the extent that it
is less beneficial than a term in the take-home pay order.
Item 18 - Application of provisions of FW Act to take-home pay orders
139. This item ensures that take-home pay orders will be treated in the
same way as similar types of orders (such as equal remuneration orders)
in subsections 675(2) and 706(2) of the
FW Act.
Division 4 - Application of the FW Act
Item 19 - How the FW Act applies to the modernisation process before the
FW (safety net provisions) commencement day
140. This item provides that if FWA makes a State reference public sector
modern award before 1 January 2010, the FW Act applies as if the various
modern award content rules contained in the FW Act had commenced, so that
these rules can be taken into account in the making of the State
reference public sector modern award.
Item 20 - How the FW Act applies to modern awards made in the State
reference public sector transitional award modernisation process
141. The effect of this item is that a State reference public sector modern
award is generally taken to be a modern award for the purposes of the FW
Act from the date on which the modern award is made.
142. However, subitem (2) ensures that a State reference public sector
modern award comes into operation on the day it is expressed to commence
(rather than on 1 July 2009, as would be the effect of section 49 of the
FW Act).
143. Subitem (3) provides that the regulations may deal with other matters
relating to how the FW Act applies in relation to State reference public
sector modern awards.
Division 2 - Other amendments related to State reference public sector
modern awards
Fair Work Act 2009
Item 52 - Section 12 (at the end of the definition of award modernisation
process)
144. This item amends the definition of award modernisation process in
section 12 of the
FW Act to include the State reference public sector transitional award
modernisation process.
Item 53 - Section 12 (at the end of the definition of coverage terms)
145. This item amends the definition of coverage terms in section 12 of the
FW Act to include a cross-reference to the provisions dealing with
coverage terms for State reference public sector modern awards in new
clause 143B.
Item 54 - Section 12
Item 55 - Section 12
Item 56 - Section 12
Item 57 - Section 12
146. These items insert signpost definitions in section 12 of the FW Act
dealing with definitions used in relation to the State reference public
sector modern awards. The signpost definitions are:
. State reference public sector employee (new subclause 168E(3)).
. State reference public sector employer (new subclause 168E(4)).
. State reference public sector modern award (new subclause 168E(2)).
. State reference public sector modern awards objective (new clause
168F).
Item 58 - At the end of subsection 49(3)
147. This item inserts a note at the end of subsection 49(3) of the FW Act,
to cross-reference new clause 168J of the FW Act, dealing with the
commencement of State reference public sector modern awards.
Item 59 - Section 132 (after the paragraph relating to Division 7)
148. This item amends the table in section 132 of the FW Act so that it
also refers to proposed Division 8 of Part 2-3, dealing with State
reference public sector modern awards.
Item 60 - At the end of section 143
149. This item amends section 143 of the FW Act, so that a modern award
(other than a State reference public sector modern award) cannot cover
employees who are covered by a State reference public sector modern award
or a State reference public sector transitional award.
Item 61 - After section 143A
150. This item inserts a new clause 143B in the FW Act dealing with the
coverage terms of State reference public sector modern awards made under
the FW Act. The coverage terms of modern awards made under proposed
Division 8 of Part 2-3 of the FW Act (see discussion below) are the same
as coverage terms of State reference public sector modern awards made
under the T&C Bill (see discussion of item 51, dealing with the State
reference public sector transitional award modernisation process).
Item 62 - At the end of Part 2-3
151. This item inserts a new Division 8 of Part 2-3 of the FW Act dealing
with State reference public sector modern awards.
152. New clause 168E inserts new definitions in the FW Act relating to
State reference public sector modern awards.
153. A State reference public sector modern award is a modern award that
covers only State reference public sector employers and State reference
public sector employees of those employers.
154. A State reference public sector employee is an employee who is within
the extended definition of national system employee under proposed
section 30C of Division 2A of Part 1-3 of the FW Act, but only because of
a relevant reference of power from a State. A State reference public
sector employee must also be a State public sector employee (this term is
defined in proposed section 30A of Division 2A of Part 1-3 of the FW
Act).
155. A State reference public sector employer is an employer who is within
the extended definition of national system employer under proposed
section 30D of Division 2A of Part 1-3 of the FW Act, but only because of
a relevant reference of power from a State. A State reference public
sector employer must also be a State public sector employer (this term is
defined in proposed section 30A of Division 2A of Part 1-3 of the FW
Act).
156. New clause 168F states the State reference public sector modern awards
objective. This objective applies to State reference public sector modern
awards made under the FW Act in the same way as it applies to State
reference public sector modern awards made under the T&C Bill. It applies
to the performance of FWA's functions in relation to State reference
public sector modern awards under the FW Act.
157. It requires FWA to recognise:
. the need to facilitate arrangements for State reference public sector
employers and State reference public sector employees that are
appropriately adapted to the effective administration of a State; and
. that State reference public sector modern awards may provide terms and
conditions tailored to reflect employment arrangements that have been
developed in relation to State reference public sector employers and
State reference public sector employees.
158. New clause 168G deals with the making of State reference public sector
modern awards. Under the FW Act, these awards may be made on application
by a State reference public sector employer or an organisation that is
entitled to represent the industrial interests of a State reference
public sector employee or a State reference public sector employer.
159. The persons to be covered by the proposed award must be specified in
the application. FWA is required to make a State reference public sector
modern award on application by a person with standing, if it is satisfied
that:
. the employers and organisations that will be covered by the modern
award agree to its being made (this does not require agreement on the
terms of the award itself); and either:
. no person who will be covered by the award is already covered by a
State reference public sector modern award; or
. it is appropriate to vary the coverage of an existing State reference
public sector modern award so that those persons will no longer be
covered by that award. These persons can then become covered by a new
State reference public sector modern award made under the FW Act.
160. A State reference public sector modern award may only be made under
Division 8 of
Part 2-3 of the FW Act or under proposed Schedule 6A to the T&C Bill.
161. New clause 168H has the effect that the prohibition on including State-
based differences in modern awards in section 154 of the FW Act does not
apply to State reference public sector modern awards.
162. New clause 168J deals with the commencement of State reference public
sector modern awards. These awards come into operation on the day they
are expressed to commence, but this date cannot be retrospective.
163. New clause 168K deals with the revocation of State reference public
sector modern awards. FWA may only revoke a State reference public sector
modern award on application under section 158 by a State reference public
sector employer or an organisation entitled to represent the industrial
interests of a State reference public sector employee or State reference
public sector employer.
164. Before granting an application under new clause 168K, FWA must be
satisfied that either:
. the modern award is obsolete or no longer capable of operating; or
. there is an appropriate modern award that will cover employees who are
covered by the State reference public sector modern award if it is
revoked.
165. In deciding whether to revoke a State reference public sector modern
award, FWA must take into account specified criteria (including the State
reference public sector modern awards objective).
166. New clause 168L establishes rules about varying coverage of State
reference public sector modern awards. Application to vary the coverage
of a State reference public sector modern award may be made under section
158 by a State reference public sector employer or an organisation
entitled to represent the industrial interests of a State reference
public sector employee or State reference public sector employer.
167. State reference public sector modern awards cannot be varied so that
they cover persons that are not State reference public sector employers
or State reference public sector employees (or organisations in relation
to those employers or employees).
168. In considering whether to vary the coverage of a State reference
public sector modern award in relation to persons that may be covered by
one of these awards, FWA must take into account specified criteria.
Item 63 - Subsection 292(1)
169. This item amends subsection 292(1) of the FW Act so that FWA is
required to publish wage rates varied as a result of an annual wage
review that is undertaken in relation to a State reference public sector
modern award in the same way as it is required to do this for modern
awards and modern enterprise awards.
Schedule 3 - Other amendments of the Fair Work Act 2009
Item 1 - Section 12
Item 2 - Section 12 (paragraph (e) of the definition of outworker entity)
Item 3 - Section 12 (subparagraph (e)(iii) of the definition of outworker
entity)
170. These items make amendments to the definition of outworker entity in
section 12 of the FW Act that are consequential on the extended
definition of outworker entity in new section 30F, in relation to a
referring State.
171. Section 12 of the FW Act includes a definition of outworker entity.
Paragraph (e) of the definition in section 12 applies in relation to a
Territory and identifies particular circumstances in which a person,
other than in their capacity as a national system employer, will be an
outworker entity.
172. New section 30F extends the meaning of outworker entity in a referring
State by providing, in relation to a referring State, particular
circumstances in which a person is an outworker entity. Under this
section the definition of outworker entity will be extended to a person,
other than in their capacity as a national system employer, where:
. the person arranges for work to be performed for the person (either
directly or indirectly);
. the work is of a kind that is often performed by outworkers; and
. the arrangement is connected with the referring State.
173. An arrangement is connected with a referring State if one or more of
the following applies:
. at the time the arrangement is made, one or more parties to the
arrangement is in a referring State;
. the work is to be performed in a referring State;
. the person arranging the work carries on an activity (whether of a
commercial, governmental or other nature) in a referring State, and the
work is reasonably likely to be performed in that State or in
connection with that activity.
174. The description of the required connection to a referring State in new
section 30E picks up a broader range of outworker entities than the
description of the equivalent connection in paragraph (e) of the
definition of outworker entity in section 12 of the FW Act. A
consequential amendment is therefore needed in relation to paragraph (e)
to align the two definitions.
175. Items 1, 2 and 3 of Schedule 3 amend paragraph (e) to ensure that the
definition of outworker entity in section 12 of the FW Act aligns with
the extended meaning of outworker entity given in new section 30F.
176. Paragraph (e) of the definition in section 12 currently applies in
relation to a Territory and identifies particular circumstances in which
a person, other than in their capacity as a national system employer, is
an outworker entity.
177. Under new paragraph (e), a person will be an outworker entity, other
than in their capacity as a national system employer, where:
. the person arranges for work to be performed for the person (either
directly or indirectly);
. the work is of a kind that is often performed by outworkers; and
. the arrangement is connected with a Territory.
178. The phrase 'connected with a Territory' is defined. An arrangement is
connected with a Territory if one or more of the following applies:
. at the time the arrangement is made, one or more parties to the
arrangement is in a Territory;
. the work is to be performed in a Territory;
. the person arranging the work carries on an activity (whether of a
commercial, governmental or other nature) in a Territory, and the work
is reasonably likely to be performed in that Territory or in connection
with that activity.
Item 4 - Subparagraph 27(1)(d)(i)
179. Item 4 makes a minor technical amendment to subparagraph 27(1)(d)(i)
of the FW Act to correct a typographical error.
180. Under subclause 27(1) of the FW Act, the named State or Territory Acts
dealing with discrimination and equal opportunity are preserved in their
application to national system employees and employers. Paragraph
27(1)(d) saves State or Territory laws dealing with rights and remedies
that are incidental to any of these laws. This item amends subparagraph
27(1)(d)(i) of the FW Act so that it refers to the laws mentioned in
subsection 27(1A) (the named State or Territory Acts dealing with
discrimination and equal opportunity).
181. Schedule 4 - Agriculture, Fisheries and Forestry
Australian Meat and Live-stock Industry (Repeals and Consequential
Provisions) Act 1997
Item 1 - Item 23 of Schedule 5 (definition of award)
182. This item repeals the definition of award in the Australian Meat and
Live-stock Industry (Repeals and Consequential Provisions) Act 1997.
This allows the term to have its ordinary meaning, which includes awards
and NAPSAs continued as transitional award-based instruments under
Schedule 3 to the T&C Bill, transitional awards continued under Schedule
20 to the T&C Bill and FW Act modern awards.
Dairy Industry Service Reform Act 2003
Item 2 - Subsection 22(2) (definition of award)
Item 3 - Subsection 38(2) (definition of award)
183. These items repeal the definitions of award in the Dairy Industry
Service Reform Act 2003. This allows the term to have its ordinary
meaning, which includes awards and NAPSAs continued as transitional award-
based instruments under Schedule 3 to the T&C Bill, transitional awards
continued under Schedule 20 to the T&C Bill and FW Act modern awards.
Horticulture Marketing and Research and Development Services (Repeals and
Consequential Provisions) Act 2000
Item 4 - Subsection 4(1) (definition of award)
184. This item repeals the definition of award in the Horticulture
Marketing and Research and Development Services (Repeals and
Consequential Provisions) Act 2000. This allows the term to have its
ordinary meaning, which includes awards and NAPSAs continued as
transitional award-based instruments under Schedule 3 to the T&C Bill,
transitional awards continued under Schedule 20 to the T&C Bill and FW
Act modern awards.
Pig Industry Act 2001
Item 5 - Section 7 (definition of award)
185. This item repeals the definition of award in the Pig Industry Act
2001. This allows the term to have its ordinary meaning, which includes
awards and NAPSAs continued as transitional award-based instruments under
Schedule 3 to the T&C Bill, transitional awards continued under Schedule
20 to the T&C Bill and FW Act modern awards.
186. Schedule 5 - Attorney-General
Part 1 - General consequential amendments
Age Discrimination Act 2004
Item 1 - Section 5 (paragraph (c) of the definition of Commonwealth law)
187. This item aligns the Age Discrimination Act 2004 with other
discrimination related Acts. The other Acts specifically include
determinations in their definitions of Commonwealth law.
Item 2 - Subsection 23(3) (definition of registered organisation)
Item 3 - Subsection 36(2) (definition of registered organisation)
188. These items ensure that organisations registered, and associations
recognised, under the FW(RO) Act are included in the definition of
registered organisation for the purposes of the Age Discrimination Act
2004.
Australian Capital Territory (Self-Government) Act 1988
Item 4 - Section 28 (note)
189. This item removes the reference to section 17 of the WR Act and
replaces it with a reference to sections 29 and 40 of the FW Act. These
sections deal with inconsistencies between fair work instruments and
Territory laws.
Australian Crime Commission Act 2002
Item 5 - Subsection 19A(8) (definition of prescribed agency)
190. This item is consequential on the replacement of the AIRC with FWA.
Item 6 - Schedule 1
Item 7 - Schedule 1
191. These items update Schedule 1 (provisions to which information
gathering powers are subject) to remove references to provisions of the
WR Act and include a provision of the FW(RO) Act (section 356 - Trade
secrets etc. tendered as evidence).
Australian Federal Police Act 1979
Item 8 - Subsection 4(1) (definition of collective agreement)
Item 12 - Subparagraph 40J(1)(ab)(i)
192. These items ensure that the references in paragraph 40J(1)(ab)(i) to
certain industrial agreements made under the WR Act cover industrial
agreements made under the WR Act and the FW Act.
Item 9 - Subsection 27(4) (definition of industrial instrument)
193. This item ensures that the definition of industrial instrument, for
the purposes of section 27 of the Australian Federal Police Act 1979,
includes modern awards, enterprise agreements, workplace determinations
and national minimum wage orders that will be made under the FW Act or
continued under the T&C Bill (see item 2 of Schedule 3 to that Act).
Item 10 - Subsection 27(4) (note)
194. The item amends the note to subsection 27(4) to pick up the minimum
employment standards under the NES as well as the AFPCS.
Item 11 - Section 28 (note)
195. This item is a consequential amendment changing the reference from the
WR Act to the FW Act.
Item 13 - Subsection 69B(1)
Item 14 - Paragraph 69B(1)(b)
Item 15 - Subsection 69B(2)
Item 16 - Subsection 69B(3)
196. These items are consequential amendments changing references to the WR
Act and provisions of the WR Act to references to the FW Act and
provisions of the FW Act.
Bankruptcy Act 1966
Item 17 - Subsection 5(1)
Item 18 - Paragraph 109(1)(e)
Item 19 - Subparagraph 139Y(1)(b)(i)
197. These items add a definition of industrial instrument to the
Bankruptcy Act 1966 which encompasses all laws and instruments regulating
conditions of employment, and use that definition instead of existing
formulations which refer to the WR Act.
Crimes Act 1914
Item 20 - Section 85ZL (subparagraphs (c)(ii) and (iii) of the definition
of Commonwealth authority)
198. This item ensures that organisations registered, and associations
recognised, under the FW(RO) Act and branches of such organisations and
associations are, like their equivalents under the WR Act, excluded from
the definition of Commonwealth authority.
Criminal Code Act 1995
Item 21 - Dictionary in the Criminal Code (subparagraphs (a)(vi) and
(vii) of the definition of Commonwealth authority)
Item 22 - Dictionary in the Criminal Code (after paragraph (aa) of the
definition of Commonwealth authority)
199. These items ensure that organisations registered, and associations
recognised, under the FW(RO) Act are, like their equivalents under the WR
Act, excluded from the definition of Commonwealth authority.
Item 23 - Dictionary in the Criminal Code (paragraph (n) of the
definition of Commonwealth public official)
Item 24 - Dictionary in the Criminal Code (subparagraphs (n)(vi) and
(vii) of the definition of Commonwealth public official)
Item 25 - Dictionary in the Criminal Code (paragraph (r) of the
definition of Commonwealth public official)
Item 26 - Dictionary in the Criminal Code (subparagraph (r)(vi) of the
definition of Commonwealth public official)
Item 27 - Dictionary in the Criminal Code
200. These items ensure that officials of organisations registered, and
associations recognised, under the FW(RO) Act are, like their equivalents
under the WR Act, excluded from the definition of Commonwealth public
official.
Disability Discrimination Act 1992
Item 28 - Subsection 4(1) (paragraph (c) of the definition of
Commonwealth law)
Item 29 - Subsection 4(1) (paragraph (d) of the definition of
Commonwealth law)
201. These items remove the reference to a decision of the AFPC from the
definition of Commonwealth law.
Item 30 - Subsection 4(1) (definition of registered organisation)
202. This item amends the definition of registered organisation to refer to
organisations registered, and associations recognised, under the FW(RO)
Act, rather than the WR Act.
Item 31 - Paragraph 21A(4)(b)
203. This item is a consequential amendment replacing a reference to the WR
Act with a reference to the FW Act.
Human Rights and Equal Opportunity Commission Act 1986
Item 32 - Subsection 3(1) (paragraph (a) of the definition of trade
union)
204. This item ensures that organisations registered, and associations
recognised, under the FW(RO) Act are included in the definition of trade
union.
Judges' Pensions Act 1968
Items 33, 34, and 35 - Subsection 4(1) (paragraph (a) of the definition
of appropriate current judicial salary)
Item 36 - Subsection 4(1) (at the end of the definition of appropriate
current judicial salary)
205. These items make clear that, despite the repeal of section 79 of the
WR Act, the appropriate current judicial salary for a person who was a
Presidential Member of the AIRC, and who is entitled to a benefit under
the Judges' Pensions Act 1968, continues to be the salary that would have
been payable to them if section 79 of the WR Act had not been repealed.
Item 37 - Paragraph 20(2)(a)
206. This item enables the Secretary to delegate, to the General Manager of
FWA, his or her functions and powers as trustee of the Judges' Pensions
Act 1968 scheme in relation to:
. former AIRC Members who had retired at 1 July 2009;
. former AIRC Members who were taken to have been appointed to FWA on 1
July 2009 and subsequently retire; and
. the President of FWA.
Judiciary Act 1903
Item 38 - Subsection 39B(2)
207. This item amends subsection 39B(2) of the Judiciary Act 1903 to remove
references to a person holding office under the WR Act or the Coal
Industry Act 1946. The reference to the WR Act is not replaced with a
reference to the FW Act and the effect of this is that the Federal Court
has jurisdiction under subsection 39B(1) in matters in which mandamus,
prohibition or an injunction is sought against one of those persons.
Jurisdiction of Courts (Cross-vesting) Act 1987
Item 39 - After paragraph 4(4)(aa)
208. This item ensures that matters arising under the FW Act, the FW(RO)
Act and the T&C Bill are exempt from section 4 of the Jurisdiction of
Courts (Cross-Vesting) Act 1987.
Jury Exemption Act 1965
Item 40 - The Schedule
Item 41 - The Schedule
209. These items are consequential on the replacement of the AIRC and the
AFPC with FWA.
Legislative Instruments Act 2003
Item 42 - Subsection 7(1) (table items 18, 18A and 19)
210. Awards and agreements, and decisions and orders of the AFPC and the
AIRC, made under the WR Act are excluded from the definition of
legislative instrument. This item ensures that:
. awards and agreements made under the WR Act and AFPC and AIRC decisions
and orders continue to be excluded from the definition;
. AFPC and AIRC decisions made under the T&C Bill are excluded from the
definition; and
. awards, agreements, national minimum wage orders and workplace
determinations made under the FW Act, and FWA decisions and orders, are
excluded from the definition.
211. This continues a policy that such instruments, which principally deal
with the terms and conditions of employees and are made by a tribunal,
should not be considered to be legislative instruments and subject to the
requirements of the Legislative Instruments Act 2003.
Northern Territory (Self-Government) Act 1978
Item 43 - Subsections 53(3) and (4)
Item 44 - Subsection 53(4)
Item 45 - Subsection 53(4)
212. These items reflect the replacement of the AIRC with FWA, and the
replacement of the WR Act with the FW Act.
Item 46 - Subsection 53(6)
213. This item inserts a note after subsection 53(6) of the Northern
Territory (Self-Government) Act 1978 that alerts the reader to the
operation of section 40 of the FW Act and regulations made under that
section. In particular, regulations made under section 40 of the FW Act
may affect the interaction between determinations made under laws
referred to in paragraph 53(6)(b) and fair work instruments.
Item 47 - Subsection 53(7)
214. This item repeals subsection 53(7) of the Northern Territory (Self-
Government) Act 1978 which is not consistent with section 40 of the FW
Act. Section 40, which has no counterpart in the WR Act, provides that
public sector employment laws (which include NT and ACT laws, and
instruments made under those laws, dealing with public sector employment)
prevail over fair work instruments unless regulations prescribe to the
contrary. Subsection 53(7) of the Northern Territory (Self-Government)
Act 1978 gives priority to Commonwealth industrial instruments. It is
anticipated that regulations will be made under section 40 of the FW Act
to preserve the current interaction between Commonwealth workplace
relations laws and NT public sector laws.
Seat of Government (Administration) Act 1910
Item 48 - Subsections 5(3) and (4)
Item 50 - Subsection 5(4)
215. These items are consequential on the replacement of the AIRC with the
FWA.
Item 49 - Subsection 5(4)
216. This item is a consequential amendment changing references to the WR
Act to references to the FW Act.
Item 51 - Subsection 5(5)
217. This item repeals subsection 5(5) of the Seat of Government
(Administration) Act 1910 which is not consistent with section 40 of the
FW Act. Section 40, which has no counterpart in the WR Act, provides
that public sector employment laws (which include ACT and NT laws, and
instruments made under those laws, dealing with public sector employment)
prevail over fair work instruments unless regulations prescribe to the
contrary. Subsection 5(5) of the Seat of Government (Administration) Act
1910 gives priority to Commonwealth industrial instruments. It is
anticipated that regulations will be made under section 40 of the FW Act
to preserve the current interaction between Commonwealth workplace
relations laws and ACT public sector laws.
Sex Discrimination Act 1984
Item 52 - Subsection 4(1) (definition of committee of management)
Item 57 - Subsection 4(1) (paragraph (b) of the definition of voluntary
body)
Item 58 - Section 19
218. The Sex Discrimination Act 1984 uses the spellings organization and
organisation inconsistently. This amendment changes all references to
organization rather than organisation.
Item 53 - Subsection 4(1) (paragraph (c) of the definition of
Commonwealth law)
Item 54 - Subsection 4(1) (paragraph (d) of the definition of
Commonwealth law)
219. These items remove a reference to a decision of the AFPC in the
definition of Commonwealth law. There is no amendment to add an express
reference to national minimum wage orders made under the FW Act. The
references to order or award in the current definition are intended pick
up national minimum wage orders.
Item 55 - Subsection 4(1)
Item 56 - Subsection 4(1) (definition of registered organization)
220. These items amend the definition of registered organisation to refer
to organisations registered, and associations recognised, under the
FW(RO) Act, rather than the WR Act.
Item 59 - Section 109
221. Section 109 of the Sex Discrimination Act 1984 provides that the Act
is a prescribed Act for the purposes of section 116 of the WR Act. There
is no equivalent of section 116 in the FW Act. This item repeals section
109.
Part 2 - Amendments relating to discrimination in compliance with
industrial instruments and laws
Division 1 - General
222. The Human Rights and Equal Opportunity Commission Act 1986 permits the
Human Rights and Equal Opportunity Commission (HREOC) to refer to the
AIRC allegedly discriminatory industrial instruments. Section 46PW only
applies to industrial instruments that have allegedly authorised an act
that would be unlawful under the Sex Discrimination Act 1984. The Age
Discrimination Act 2004 and the Disability Discrimination Act 1992 are
not included, and this Division makes amendments to allow HREOC to refer
to FWA instruments which have allegedly authorised acts that would be
unlawful under any of these Acts. Equivalent provision is not made for
the Racial Discrimination Act 1975 because, unlike the other
discrimination Acts, section 10 of the Racial Discrimination Act provides
for equality before the law.
Age Discrimination Act 2004
Item 60 - Paragraph 39(8)(a)
Item 61 - Paragraph 39(8)(b)
Item 62 - Subsection 39(8) (note)
Item 63 - Schedule 1 (after table item 25)
Item 64 - Schedule 1 (table item 48)
223. These items make consequential amendments to the Age Discrimination
Act 2004 to ensure that the term industrial instruments captures
instruments made under the FW Act, including workplace determinations.
Disability Discrimination Act 1992
Item 65 - Paragraph 47(1)(c)
Item 66 - Subsection 47(1) (note)
224. These items make consequential amendments to the Disability
Discrimination Act 1992 to ensure that the term industrial instruments
captures instruments made under the FW Act, including workplace
determinations.
Fair Work Act 2009
Item 67 - Section 12
Item 68 - Subsection 161(2)
Item 69 - Subsection 161(3)
Item 70 - Subsection 218(2)
Item 71 - Subsection 218(3)
Item 72 - Paragraph 279(2)(f)
225. These items ensure that FWA can deal with matters that have been
referred by HREOC relating to breaches of the Age Discrimination Act 2004
and the Disability Discrimination Act 1992.
Human Rights and Equal Opportunity Commission Act 1986
Item 73 - Subsections 46PW(3) and (5)
Item 74 - Subsection 46PW(7) (definition of discriminatory act under an
industrial instrument)
Item 75 - Subsection 46PW(7) (definition of industrial instrument)
226. These items expand section 46PW of the HREOC Act so that industrial
instruments that might breach the Age Discrimination Act 2004 and the
Disability Discrimination Act 1992 can be referred by HREOC to FWA.
Sex Discrimination Act 1984
Item 76 - Paragraph 40(1)(e)
Item 77 - Paragraph 40(1)(f)
Item 78 - Paragraph 40(1)(g)
Item 79 - Subsection 40(1) (note)
227. These items make consequential amendments to the Sex Discrimination
Act 1984 to ensure that the term industrial instruments captures
instruments made under the FW Act, including workplace determinations.
Division 2-Amendments relating to HREOC name change
Fair Work Act 2009
Item 80 - Paragraph 161(2)(a)
Item 81 - Paragraph 218(2)(a)
Item 82 - Paragraph 279(2)(f)
228. These are consequential amendments changing the name HREOC to the
Australian Human Rights Commission. As this change will come into effect
when item 38 of Schedule 3 to the Disability Discrimination and Other
Human Rights Legislation Amendment Bill 2008 commences, these amendments
are contingent on the commencement of that item (see table item 20 of
clause 2 of this Bill).
Part 3 - Application provisions
Item 83 - Application of item 5
229. This item provides that, despite the proposed amendment to subsection
19A(8) of the Australian Crime Commission Act 2002, that Act will
continue to apply to the AIRC as continued in existence under the T&C
Bill.
Item 84 - Application of item 29
230. This item provides that, despite the proposed amendment to subsection
4(1) of the Disability Discrimination Act 1992, that Act will continue to
apply to a decision of the AFPC, whether made before or after the WR Act
repeal day.
Item 85 - Application of item 38
231. For the avoidance of doubt, this item provides that the amendment
proposed by item 38 applies in relation to a decision made by a person
holding office under the FW Act, in their capacity as an officer under
the FW Act, from the commencement of section 3 of the FW Act. The
amendment applies notwithstanding that an officer may hold a dual
appointment to a WR Act institution.
232. The Federal Court will not have jurisdiction to hear an application
for prerogative relief in relation to a decision made by a person holding
office under the WR Act in their capacity as an officer under that Act.
Item 86 - Application of items 40 and 41
233. This item provides that, despite the proposed amendment at items 40
and 41 to the Jury Exemption Act 1965, that Act will continue to apply to
members of the AIRC and the AFPC as those members continue to hold office
under the T&C Bill.
Item 87 - Application of item 54
234. This item provides that, despite the proposed amendment at item 54 to
the Sex Discrimination Act 1984, that Act will continue to apply to
decisions of the AFPC made before or after the WR Act repeal day.
Item 88 - Application of item 77
235. This item provides that, despite the proposed amendment at item 77 to
the Sex Discrimination Act 1984, that Act will continue to apply to a
decision of the AFPC made before the commencement of the amendment.
236. Schedule 6 - Broadband, Communications and the Digital Economy
Telstra Corporation Act 1991
Item 1 - Subsection 9A(2) (definition of industrial instrument)
Item 2 - Subsection 9A(2) (paragraph (b) of the definition of law)
Item 3 - Subsection 9A(2) (definition of post-sale long service leave
rights)
237. These items amend definitions used for transitional provisions
relating to long service leave of Telstra employees. The provisions have
been amended so that they capture instruments and agreements made under
the WR Act and the FW Act without needing to refer to each particular
type of instrument and agreement.
238. Schedule 7 - Defence
Naval Defence Act 1910
Item 1 - Subsection 40(1) (definition of Australian Fair Pay and
Conditions Standard)
Item 2 - Subsection 40(1)
Item 3 - Subsection 40(1) (definition of industrial award)
Item 4 - Subsection 42A(7)
Item 5 - Subsection 42D(3)
239. These items update references to minimum standards in the AFPCS and WR
Act awards to references to minimum standards in the NES and, where
applicable, any relevant national minimum wage order or industrial award.
Schedule 8 - Education, Employment and Workplace Relations
Part 1 - Consequential amendments
Air Passenger Ticket Levy (Collection) Act 2001
Item 1 - Section 5 (definition of Workplace Relations Minister)
240. This item a consequential amendment changing the reference to the WR
Act to a reference to the FW Act.
Building and Construction Industry Improvement Act 2005
241. The BCII Act adopts many concepts used by the WR Act. That Act, with
the exception of the provisions relating to registered organisations,
will be repealed by the T&C Bill and replaced by the FW Act. This Part
makes consequential amendments to the BCII Act to reflect this change.
Item 2 - Subsection 4(1) (definition of Australian Fair Pay and
Conditions Standard)
Item 3 - Subsection 4(1) (definition of AWA)
Item 4 - Subsection 4(1) (definition of award)
Item 5 - Subsection 4(1)
Item 6 - Subsection 4(1) (definition of building agreement)
Item 7 - Subsection 4(1) (definition of building collective agreement)
Item 8 - Subsection 4(1)
Item 9 - Subsection 4(1) (at the end of the definition of Commonwealth
industrial instrument)
Item 10 - Subsection 4(1) (paragraph (a) of the definition of designated
building law)
Item 11 - Subsection 4(1) (definition of employee organisation)
Item 12 - Subsection 4(1)
Item 13 - Subsection 4(1)
Item 14 - Subsection 4(1)
Item 15 - Subsection 4(1)
Item 16 - Subsection 4(1)
Item 17 - Subsection 4(1) (definition of industrial association)
Item 18 - Subsection 4(1) (definition of industrial body)
Item 19 - Subsection 4(1) (definition of industrial dispute)
Item 20 - Subsection 4(1) (paragraph (a) of the definition of industrial
law)
Item 21 - Subsection 4(1) (definition of Industrial Registrar)
Item 22 - Subsection 4(1)
Item 23 - Subsection 4(1) (definition of negotiating party)
Item 24 - Subsection 4(1) (definition of occupier)
Item 25 - Subsection 4(1) (definition of organisation)
Item 26 - Subsection 4(1) (definition of premises)
Item 27 - Subsection 4(1) (definition of pre-reform AWA)
Item 28 - Subsection 4(1) (definition of pre-reform certified agreement)
Item 29 - Subsection 4(1)
Item 30 - Subsection 4(1) (definition of workplace agreement)
Item 31 - Subparagraph 10(a)(i)
Item 32 - Subparagraph 10(b)(i)
Item 33 - Paragraph 10(c)
Item 34 - Paragraph 10(d)
Item 35 - Paragraph 10(e)
Item 36 - Paragraph 10(f)
Item 37 - Subsection 36(1) (paragraph (c) of the definition of
constitutionally-connected action)
Item 38 - Subsection 36(1) (paragraph (e) of the definition of
constitutionally-connected action)
Item 39 - Subsection 36(1) (definition of excluded action)
Item 40 - Subsection 36(4) (paragraph (e) of the definition of industrial
dispute)
Item 41 - Part 3 of Chapter 5 (heading)
Item 42 - Subsection 40(1)
Item 43 - Subsection 40(2) (paragraph (a) of the definition of protected
person)
Item 44 - Subsection 40(2) (paragraph (b) of the definition of protected
person)
Item 45 - Subsection 40(2) (paragraph (d) of the definition of protected
person)
Item 47 - Subsection 42(1)
Item 48 - Paragraph 42(1)(b)
Item 49 - Subsection 42(2)
Item 50 - Paragraph 44(1)(c)
Item 51 - Subsection 44(2)
Item 52 - Subsection 44(3)
Item 53 - Subsection 44(4)
Item 54 - Subsection 44(5)
Item 55 - At the end of paragraph 45(1)(a)
Item 56 - At the end of paragraph 45(1)(b)
Item 57 - Subsection 45(1) (example for subparagraphs (1)(a)(ii) and
(1)(b)(ii))
Item 58 - Subsection 45(2)
Item 59 - Paragraph 45(4)(a)
Item 60 - Subsection 46(2)
Item 61 - Subsection 50(4)
Item 62 - Subsection 64(1)
Item 63 - Paragraph 64(1)(d)
Item 64 - Subsection 64(2)
Item 65 - Subsection 65(8) (paragraph (j) of the definition of designated
official)
Item 66 - Paragraph 67(c)
Item 67 - Paragraph 71(1)(b)
Item 68 - Section 72
Item 69 - Subsection 73(1)
Item 70 - Paragraph 73(1)(a)
Item 71 - Subsection 73(2)
Item 72 - Subsection 73(2)
Item 73 - Subsection 73(3)
Item 74 - Subsections 73(4) and (5)
Item 75 - Subsection 73A(3)
Item 76 - Section 74
Item 77 - Paragraph 74(a)
Item 78 - Paragraph 75(3)(a)
Item 79 - Subsection 75(4)
Item 81 - Paragraph 76(b)
Item 82 - Paragraph 77(1)(b)
Item 83 - Subsection 77(2) (paragraph (j) of the definition of protected
person)
Item 84 - Subparagraph 78(2)(d)(i)
242. These items replace terms used in the WR Act with corresponding terms
used in the FW Act. For example, references to a workplace inspector are
replaced with references to a Fair Work Inspector, and references to the
Industrial Registrar are replaced with references to the General Manager
of FWA. These items also amend, insert or repeal definitions as
necessary to bring the BCII Act into line with the FW Act.
Item 46 - Section 41
243. This item repeals section 41 of the BCII Act because action before the
nominal expiry date of an enterprise agreement is dealt with in the
definition of protected industrial action in section 408 of the FW Act.
Item 80 - After section 75
244. This item includes new provisions (sections 75A and 75B) requiring
that, where jurisdiction is conferred on the Federal Court or Federal
Magistrates Court in relation to the BCII Act, the jurisdiction must be
exercised in the Fair Work Division of the appropriate court. This is
consistent with the approach adopted in sections 563 and 567 of the
FW Act.
Coal Mining Industry (Long Service Leave Funding) Act 1992
Item 85 - Subsection 4(1) (definition of Australian Fair Pay and
Conditions Standard)
Item 86 - Subsection 4(1) (paragraph (a) of the definition of eligible
employee)
Item 88 - Subsection 4(1)
245. These items are consequential on the replacement of the AFPCS with the
NES.
Item 87 - Subsection 4(1) (definition of industrial authority)
246. This item are consequential on the replacement of the AIRC, the
Workplace Authority Director and the Employment Advocate with FWA.
Item 89 - Subsection 4(1) (paragraph (a) of the definition of relevant
industrial instrument)
Item 90 - Subsection 4(1) (paragraphs (d) to (f) of the definition of
relevant industrial instrument)
247. These items amend the definition of relevant industrial instrument in
subsection 4(1) to include awards or agreements that are made or approved
by, or registered with, an industrial authority.
Defence Act 1903
Item 91 - Section 58F
Item 92 - Section 58F
Item 93 - Section 58F (definition of presidential member of the
Commission)
Item 94 - Subsection 58G(4)
Item 97 - Paragraph 58L(2)(c)
Item 95 - Subsection 58K(7)
Item 96 - Subsection 58KB(4)
248. These items make amendments to the provisions of the Defence Act 1903
relating to the Defence Force Remuneration Tribunal. The amendments are
consequential on the replacement of the AIRC with FWA.
249. The President of the Defence Force Remuneration Tribunal is currently
required to be a Presidential Member of the AIRC. These items amend the
membership requirement to require the President to be a Deputy President
of FWA.
250. Items 95 and 96 replace the references to the decisions and principles
of the AIRC with references to decisions and principles of FWA. The
provisions retain a reference to any decisions and principles of the AIRC
in situations where FWA has not yet made a decision or established any
principles.
Long Service Leave (Commonwealth Employees) Act 1976
Item 98 - Paragraph 12(11)(a)
251. This item amends the definition of organisation because organisations
will now be registered and recognised under the FW(RO) Act .
Item 99 - At the end of subsection 15(1)
252. This item ensures that the operation of the Long Service Leave
(Commonwealth Employees) Act 1976 does not affect the making or operation
of an award, order, agreement or determination under the FW Act in
relation to maritime employees.
Item 100 - Subsection 15(4) (definition of maritime employee)
253. This is a consequential amendment changing a reference to the WR Act
to a reference to the FW Act.
Maternity Leave (Commonwealth Employees) Act 1973
Item 101 - Section 8
254. This item replaces a reference to sections 280 and 281 of the WR Act
with a reference to section 84 of the FW Act (which deals with the return
to work guarantee for employees ending unpaid parental leave).
Occupational Health and Safety Act 1991
Item 102 - Subsection 5(1) (paragraph (a) of the definition of registered
organisation)
255. This item ensures that associations registered or recognised under the
FW(RO) Act are covered by the definition of registered organisation in
the Occupational Health and Safety Act 1991.
Occupational Health and Safety (Maritime Industry) Act 1993
Item 103 - Section 4 (paragraph (a) of the definition of registered
union)
256. This item ensures that employee associations registered or recognised
under the
FW(RO) Act are covered by the definition of registered union in the
Occupational Health and Safety (Maritime Industry) Act 1993.
Remuneration Tribunal Act 1973
Item 104 - Paragraph 3(4)(j)
257. This item replaces the reference to an AIRC member in the definition
of public office with a reference to the President of FWA. FWA members,
other than the President, will have their remuneration determined by the
Remuneration Tribunal, as holders of public offices.
Item 105 - Paragraphs 5(1)(a) and (b)
258. This item replaces the reference to the wage-setting decisions of AFPC
with a reference to the national minimum wage orders of FWA and the last
wage-setting decision of the AFPC. The reference to the AFPC's last wage
decision is retained as FWA will not make an order to replace wage-
setting decisions of the AFPC until after the commencement of the FW Act.
Item 106 - Subsection 7(4B)
Item 107 - Subsection 7(4C)
Item 108 - Paragraph 7(9)(af)
259. These items make amendments to the way that the Remuneration Tribunal
determines the travelling allowances to be paid to members of the AIRC
and the AFPC. These amendments are consequential to the AIRC and the AFPC
being replaced by FWA under the FW Act. These provisions relating to the
AIRC will be preserved during the transitional period in which the AIRC
operates in conjunction with FWA. The Remuneration Tribunal will be
empowered to inquire into and determine the travel allowances of the
President of FWA. Provision has not been made for the Tribunal to set
travel allowances for members of FWA (other than the President) as there
is already a general power under subsection 7(4) to determine any matter
that is significantly related to remuneration of holders of public
office. This power has been taken to extend to allowances such as travel
allowances. In the event that the Remuneration Tribunal does not
determine travel allowances for FWA members, these allowances can be
prescribed under subsection 637(2) of the FW Act.
Safety, Rehabilitation and Compensation Act 1988
Item 109 - Paragraph 52(6)(b)
260. This item ensures that the definition of award picks up workplace
determinations made under the FW Act.
Item 110 - Subsection 116(1)
261. This item ensures that determinations and agreements are included as
instruments that can provide for leave of absence with pay while an
employee is on post-determination compensation leave.
Seafarers Rehabilitation and Compensation Act 1992
Item 111 - Section 3 (definition of Australian Fair Pay and Conditions
Standard)
Item 115 - Section 3
262. These items repeal the definition of the AFPCS and replace it with a
definition of the NES.
Item 112 - Section 3 (definition of collective agreement)
Item 113 - Section 3
Item 114 - Section 3
Item 116 - Section 3 (definition of pre-reform certified agreement)
Item 118 - Subsection 13(3)
Item 124 - Subsection 78(7) (definition of industry panel)
263. These items replace references to collective agreement and pre-reform
certified agreement with references to industrial agreement, which will
include industrial awards, determinations and agreements.
Item 117 - Subsection 13(2)
Item 119 - Subsection 13(5)
Item 120 - Paragraph 13(6)(b)
Item 121 - Paragraph 31(14)(a)
Item 125 - Section 137
264. These items remove references to award, determination, collective
agreement, pre-reform certified agreement or the AFPCS and replace them
with references to industrial instrument or the NES.
Item 122 - Subsection 61(6) (definition of award)
Item 123 - Subsection 61(6) (definition of award)
265. These items add agreements to the definition of award.
Social Security Act 1991
Item 126 - Section 16C
Item 127 - Subsection 23(1) (definition of applicable statutory
conditions)
Item 129 - Subsection 23(1) (definition of relevant minimum wage)
266. These items repeal the definitions of applicable statutory conditions
and relevant minimum wage (which contain references to the AFPCS and WR
Act instruments) and replace them with general definitions that do not
refer to particular legislation. Applicable statutory conditions is
defined to mean all minimum terms and conditions of employment (including
wages) applicable under law. Relevant minimum wage is defined to mean
the minimum wage payable under law. These definitions will pick up terms
and conditions applicable under both the WR Act and the FW Act and
instruments made under both Acts.
Item 128 - Subsection 23(1) (definition of Australian Fair Pay and
Conditions Standard)
267. This amendment is consequential to the amendments proposed in items
126 and 127.
Item 130 - Paragraph 120(d)
Item 131 - Paragraph 501D(4)(d)
Item 132 - Paragraph 544B(8)(d)
Item 136 - Paragraph 631C(d)
Item 139 - Paragraph 745L(d)
268. These items are consequential amendments changing references to the WR
Act to references to the FW Act.
Item 133 - Paragraphs 553A(4)(a) to (c)
Item 134 - Subsection 596(4)
Item 135 - Subsection 596(4) (note)
Item 137 - Subsection 660XBE(4)
Item 138 - Subsection 660XBE(4) (note)
Item 140 - Subsection 771HB(4)
Item 141 - Subsection 771HB(4) (note)
269. These amendments update provisions which list courts and tribunals
which can make orders in relation to industrial action. The provisions
now list State industrial authorities as defined in the FW Act (rather
than the WR Act), FWA (as well as the AIRC) and the Federal Magistrates
Court (which can make industrial action orders - see, for example, s 417
of the FW Act).
Item 142 - Paragraph 954A(1)(f)
Item 143 - Paragraph 1061PB(2)(a)
Item 144 - Subsection 1061PB(6) (definition of AFPCS)
Item 146 - Subsection 1061PB(6)
Item 147 - Subparagraph 1067A(10)(c) (i)
270. These items remove references to the AFPCS and replace them with
references to the relevant minimum wage order, a modern award, a
transitional APCS or the NES.
Item 145 - Subsection 1061PB(6) (definition of industrial instrument)
271. This item ensures that workplace determinations are included in the
definition of industrial instrument.
Item 148 - Subparagraph 1067A(10)(c)(ii)
272. These items are consequential on the AFPC being replaced by FWA.
Item 149 - Paragraph 1188BB(d)
273. This item is a consequential amendment changing a reference to the WR
Act to a reference to the FW Act.
Tradesmen's Rights Regulation Act 1946
Item 150 - Section 6 (definition of Australian Pay and Classification
Scale)
Item 153 - Subsections 33E(6) and 41(6) and (7)
274. These items remove references to the wage rate prescribed by an APCS,
award, determination etc and substitute a reference to the wage rate
prescribed by a standard, pay or classification scale, award,
determination etc. The reference to a standard and to pay scales has
been retained to make comprehensive provision for the sources of wage
rates, including because FWA will make the first national minimum wage
order to replace wage-setting decisions of the AFPC after the
commencement of the FW Act.
Item 151 - Section 6 (definition of award)
275. This item repeals the definition of award. This allows the term to
have its ordinary meaning, which includes awards and NAPSAs continued as
transitional award-based instruments under Schedule 3 to the T&C Bill,
transitional awards continued under Schedule 20 to the T&C Bill and FW
Act modern awards.
Item 152 - Section 6 (definition of industrial agreement)
276. This item repeals the definition of industrial agreement. This allows
the term to have its ordinary meaning.
United States Naval Communication Station (Civilian Employees) Act 1968
Item 154 - Paragraph 4(b)
277. This item ensures that organisations registered, and associations
recognised, under the FW(RO) Act are included in the definition of
registered organisation for the purpose of the United States Naval
Communication Station (Civilian Employees) Act 1968.
Part 2 - Transitional provisions
Division 1 - Provisions relating to the Building and Construction
Industry Improvement Act 2005
278. This Division contains transitional rules to provide for the
transition between the BCII Act as in force before the WR Act repeal day
and the BCII Act from that day.
Item 155 - General transitional provision relating to functions and
powers of the ABC Commissioner and ABC inspectors
279. This item allows the ABC Commissioner and ABC inspectors to exercise
powers and functions in relation to the WR Act as in force before the WR
Act repeal day and as continued in force by the T&C Bill where the
BCII Act, as amended, confers powers or functions on the ABC Commissioner
or ABC inspectors in relation to the FW Act.
Item 156 - Transitional provision relating to paragraph 44(1)(c)
280. Paragraph 44(1)(c) is amended by item 50 to refer to a building
enterprise agreement because a building agreement under Part 8 of the
WR Act does not exist under the FW Act. This item continues the effect
of paragraph 44(1)(c) in relation to building agreements under Part 8 of
the WR Act that were entered into before the WR Act repeal day.
Item 157 - Transitional provision relating to paragraph 64(1)(d)
281. Paragraph 64(1)(d) is repealed by item 64 because an agreement made
after the WR Act repeal day cannot be lodged in accordance with the
WR Act provisions. Instead, item 64 amends paragraph 64(1)(d) so that it
refers to an agreement not being approved by FWA. This item
continues 64(1)(d) in relation to an agreement made before the WR Act
repeal day.
Item 158 - Transitional provisions relating to Industrial Registrar
282. This item preserves the BCII Act provisions relating to the Industrial
Registrar for certain purposes. Subitems (1) and (3) retain the
Industrial Registrar's status as a designated person under section 65 and
a protected person under subsection 77(2). Subitem (2) preserves
section 74, providing that the Industrial Registrar must keep the
ABC Commissioner informed in relation to an application lodged before the
WR Act repeal day.
Division 2-Provision relating to the Defence Act 1903
Item 159 - Appointments to continue
283. This item preserves the existing appointment of the President of the
Defence Force Remuneration Tribunal for the remainder of her term while
she continues to be a presidential member of the AIRC.
Division 3 - Provisions relating to the Remuneration Tribunal Act 1973
Item 160 - Transitional
284. This item ensures that, despite the amendment to the definition of
pubic office in paragraph 3(4)(j) of the Remuneration Tribunal Act 1973,
that paragraph continues to apply to members of the AIRC while the AIRC
is in existence. This item also ensures that a reference to the
President of FWA in the definition of public office is taken to include a
reference to the other members of FWA as appointed under item 1 of
Schedule 18 to the T&C Bill.
Item 161 - Transitional
285. This item ensures that, despite the amendments to subsections 7(4B)
and 7(4C) of the Remuneration Tribunal Act 1973, those subsections
continue to apply to the AIRC and the AFPC while they are in existence.
This item also ensures that a reference to the President of FWA is taken
to include a reference to the other members of FWA as appointed under
item 1 of Schedule 18 to the T&C Bill.
Schedule 9 - Families, Housing, Community Services and Indigenous Affairs
Equal Opportunity for Women in the Workplace Act 1999
Item 1 - Subsection 3(1) (paragraph (a) of the definition of trade union)
286. This item ensures that organisations registered, or associations
recognised, under the FW(RO) Act are included in the definition of trade
union.
Social Security Act 1991
Item 2 - Paragraphs 729AA(4)(a) to (c)
Item 3 - Paragraphs 759(4)(a) to (c)
287. These items update references to tribunals which can make orders,
directions or injunctions in relation to industrial action to include a
prescribed State industrial authority within the meaning of the FW Act
and FWA.
288. Schedule 10 - Finance and Deregulation
Airports (Transitional) Act 1996
Item 1 - Paragraphs 59(4)(b), (c), (d) and (da)
Item 2 - At the end of subsection 59(4)
289. These items ensure that instruments continued under the T&C Bill are
included as instruments that could specify the terms and conditions of
transferred employees.
Commonwealth Authorities and Companies Act 1997
Item 3 - Paragraph 7(2)(c)
290. This item excludes organisations registered under the FW(RO) Act from
the definition of Commonwealth authority.
Commonwealth Electoral Act 1918
Item 4 - Section 5 (definition of electoral matters)
291. This item updates the definition of electoral matters to replace the
reference to WR Act ballots with a reference to FW Act and FW(RO) Act
ballots.
Item 5 - Subsection 287(1) (definition of registered industrial
organisation)
292. This item ensures that organisations registered under the FW(RO) Act,
rather than under the WR Act, are included in the definition of
registered organisation.
Superannuation Act 1976
Item 6 - Subsection 3(1) (definition of industrial award)
293. This item amends the definition of industrial award to remove specific
references to WR Act instruments and agreements, and to ensure that it
covers FW Act instruments and agreements such as modern awards, workplace
determinations and enterprise agreements.
Item 7 - Subsection 51(2BB) (paragraph (a) of the definition of approved
organisation)
294. This item amends the definition of approved organisation to refer to
associations recognised under the FW(RO) Act.
Item 8 - Subsection 54C(1)
295. This item amends subsection 54C(1) to replace the reference to an
award or determination with a reference to an industrial award (which
includes modern awards, enterprise agreements and workplace
determinations - see item 6).
Superannuation Act 1990
Item 9 - Subsection 13(1)
Item 10 - At the end of section 13
296. These items amend subsection 13(1) to replace the reference to an
award or determination with a reference to an industrial award, and
define industrial award to mean an industrial award, determination or
agreement (which includes modern awards, enterprise agreements and
workplace determinations made under the FW Act).
Schedule 11 - Health and Ageing
Commonwealth Serum Laboratories Act 1961
Item 1 - Subsection 27(1)
Item 2 - Subsection 27(5)
Item 3 - Paragraph 29(2)(b)
Item 4 - Subsection 29(3) (definition of industrial instrument)
297. These amendments remove specific references to WR Act awards and
agreements and ensure that FW Act modern awards and enterprise agreements
are included in the definition of industrial instrument.
National Health Act 1953
Item 5 - Subsection 98A(4)
Item 6 - Paragraphs 98B(5)(a) and (b)
Item 7 - Subsection 99A(2)
Item 8 - Subsection 99B(1)
Item 9 - Subsections 99D(1) and (10)
298. These items relate to the Pharmaceutical Remuneration Tribunal and are
consequential on the replacement of the AIRC by FWA.
299. References to a Senior Deputy President or a Deputy President of the
AIRC are replaced by references to a Deputy President of FWA. (FWA does
not have Senior Deputy Presidents.)
300. Item 6 replaces the reference to the wage-setting decisions and
statements of the AFPC with a reference to the national minimum wage
orders and statements of FWA and, if no national minimum wage order has
been made, the last wage-setting decision of the AFPC. FWA will make the
first national minimum wage order to replace wage-setting decisions of
the AFPC after the commencement of the FW Act and reference to the last
wage-setting decision of the AFPC therefore needs to be retained for an
interim period.
301. Schedule 12 - Immigration and Citizenship
Fair Work Act 2009
Item 1 - Section 709 (note)
Item 2 - Paragraphs 713(d) and (e)
Item 3 - After section 713
302. A new section 713A clarifies the circumstances in which criminal
limited use immunity applies to information obtained by an inspector
under paragraph 709(e) of the FW Act.
303. Section 713A provides that if the individual had custody of, or access
to, the record or document when it was inspected or copied under
paragraph 709(e), the record or document inspected or copied or any
information, document or thing obtained as a direct or indirect result of
the inspection or copying is not admissible in criminal proceedings
against that individual.
304. These limitations are intended to reflect the limitations that apply
where a document is produced to an inspector by an individual (see
section 713 of the FW Act). The intention is that there be a consistent
approach to criminal limited use immunity in relation to records or
documents obtained by Fair Work Inspectors.
305. Consequential amendments are made to paragraphs 709(e), 713(c) , (d)
and (e) to reflect and refer to the new provision.
Migration Act 1958
Item 4 - Sections 140X, 140Y, 140Z and 140ZA
306. This item amends the Migration Act 1958 immediately after the
commencement of the Migration Amendment (Worker Protection) Act 2008
(Worker Protection Act) by:
. repealing sections 140X to 140Z (inserted into the Migration Act by the
Worker Protection Act), and replacing them with provisions that are
modelled on the powers of Fair Work Inspectors under sections 706 to
714 of the FW Act; and
. repealing section 140ZA (inserted into the Migration Act by the Worker
Protection Act) and replacing it with a provision that is modelled on
section 718 of the FW Act, which deals with the disclosure of
information by the Office of the FWO.
307. It is intended that the powers of inspectors appointed under the
Migration Act be similar in substance and form to those of Fair Work
Inspectors. This consistency between the inspection regimes is
appropriate because the same persons may be appointed as inspectors for
the purposes of the FW Act and for the Migration Act, and these
inspectors may exercise their powers under both Acts simultaneously.
308. There are, however, certain aspects of the amendments to the Migration
Act which do not replicate the FW Act provisions.
309. For example, section 708 of the FW Act only provides for entry to
business premises, and residential premises in limited circumstances. In
comparison, proposed section 140XB of the Migration Act provides for
entry to 'business premises or another place'. It is necessary for
inspectors, for the purposes of sponsorship, to be able to enter places
other than business premises due to the nature of some of the sponsorship
obligations. More specifically, for professional development sponsors
there is a proposed obligation to secure an offer of a reasonable
standard of accommodation (expected to be prescribed in regulations). To
investigate compliance with this obligation, inspectors may need to
inspect the accommodation to confirm that it is of a reasonable standard.
310. Paragraph 712(2)(c) of the FW Act allows a person a minimum of 14 days
to respond to a notice to produce records or documents. Proposed
paragraph 140XF(2)(c) of the Migration Act differs from the FW Act
provision by providing for a minimum of 7 days to respond rather than 14
days.
311. There may be compelling reasons in special cases for requesting
information in as few as 7 days, taking into account the special
vulnerability to exploitation of non-citizens in Australia on temporary
visas. In normal circumstances however inspectors will be expected to
provide sponsors with at least 14 days in which to respond to a written
notice.
312. Schedule 13 - Infrastructure, Transport, Regional Development and
Local Government
Navigation Act 1912
Item 1 - Section 292
313. This item amends section 292 of the Navigation Act 1912 so that it
provides that a transitional APCS, a transitional award, a modern award
or a national minimum wage order (if any or if applicable) which covers
seamen employed in any part of the coasting trade is evidence of the
rates of wages in Australia for those seamen.
314. Schedule 14 - Innovation, Industry, Science and Research
Part 1 - Consequential amendments
Independent Contractors Act 2006
Item 1 - Section 4
Item 3 - Section 4 (definition of workplace inspector)
Item 9 - Paragraph 34(5)(a)
315. These items ensure that the reference to a workplace inspector in the
Independent Contractors Act 2006 is converted to a reference to a Fair
Work Inspector within the meaning of the FW Act.
Item 2 - Section 4 (definition of organisation)
316. This item amends the definition of organisation to refer to
organisations registered, and associations recognised, under the FW(RO)
Act, rather than the WR Act.
Item 4 - Section 6 (definition of State or Territory industrial law)
317. This item ensures that State or Territory industrial law has the same
meaning as in the FW Act, rather than the WR Act.
Item 5 - Subparagraph 8(1)(h)(i)
318. This item is a consequential amendment changing a reference from the
WR Act to the FW Act and the T&C Bill.
Item 6 - Subparagraph 9(1)(e)(i)
Item 7 - Subparagraph 9(1)(e)(iii)
Item 8 - At the end of section 9
319. These items are consequential amendments changing a reference from the
WR Act to the FW Act or the WR Act, as in force immediately before the WR
Act repeal day, or as that Act continues to apply on and after the WR Act
repeal day because of a provision of the T&C Bill. The term WR Act
repeal day is defined by reference to Schedule 2 to the T&C Bill.
Item 10 - Subsection 34(7)
320. This item is a consequential amendment changing the reference from
Division 3 of Part 14 of the WR Act to the equivalent provisions of the
FW Act (Division 4 of Part 4-1).
Part 2 - Transitional provision
Item 11 - Transitional
321. This item relates to the amendment of subsection 34(7) of the
Independent Contractors Act 2006 made by item 10 and ensures that
Division 3 of Part 14 of the WR Act continues to have effect if the
breach to which it relates happened before this amendment commences.
322. Schedule 15 - Parliamentary Service
Part 1 - Consequential amendments
Parliamentary Service Act 1999
Item 1 - Section 7 (definition of APCS)
Item 2 - Section 7 (definition of Australian Fair Pay and Conditions
Standard)
Item 3 - Section 7 (definition of AWA)
Item 4 - Section 7 (definition of award)
Item 5 - Section 7 (definition of collective agreement)
Item 6 - Section 7
Item 7 - Section 7
Item 8 - Section 7
Item 9 - Section 7
Item 10 - Section 7 (definition of pre-reform AWA)
Item 11 - Section 7 (definition of pre-reform certified agreement)
Item 12 - Section 7 (definition of workplace agreement)
Item 13 - Section 7
Item 14 - Section 7
323. These items ensure that the provisions of the Parliamentary Service
Act 1999 which refer to the AFPCS and WR Act instruments are updated to
encompass the NES and FW Act instruments.
Item 15 - Subsection 8(1)
324. This item is a consequential amendment changing a reference to the WR
Act to a reference to the FW Act, and updating the heading to section 8.
Item 16 - Subsection 8(2)
325. This item is a consequential amendment changing a reference to the WR
Act to a reference to the FW Act and the T&C Bill.
Item 17 - Subsection 23(2)
326. This item updates subsection 23(2) so that the Classification Rules
may apply, adopt or incorporate provisions of instruments under the FW
Act, rather than APCSs under the WR Act.
Item 18 - Subsection 23(5)
327. This item updates subsection 23(5) to take account of the instruments
that can be made under the FW Act.
Item 19 - Subsections 24(1) and (2)
328. This item updates subsections 24(1) and (2), including by inserting
new subsection (1A), to take account of the instruments that can be made
under the FW Act.
Item 20 - Subsection 24(4)
329. This item clarifies that a determination made under subsection 24(3)
can override a subsection 24(1) determination, the AFPCS and the NES.
Item 21 - Subsection 29(1) (note)
330. This item is a consequential amendment changing a reference to the WR
Act to a reference to the FW Act.
Part 2 - Saving provision
Item 22 - Saving provision - determinations under subsection 24(1)
331. This item is a saving provision, ensuring the continued operation of
any determinations made under subsection 24(1) of the Parliamentary
Service Act 1999 before the commencement of the amendments made to
subsection 24(1) by this Bill.
332. Schedule 16 - Prime Minister and Cabinet
Part 1 - Consequential amendments
Privacy Act 1988
Item 1 - Subsection 6(1) (subparagraph (c) (ii) of the definition of
agency)
333. This item includes an organisation that is registered under the FW(RO)
Act, or a branch of such an organisation, within the meaning of agency.
Item 2 - After subsection 6E(1A)
Item 3 - Subsection 6E(3)
334. These items include subsections (1B) and (1C) in section 6E of the
Privacy Act. New subsection (1C) requires small business operators who
are protected action ballot agents to comply with the Privacy Act in
connection with their conduct of a protected action ballot under the FW
Act. Protected action ballot agents have access to and collect personal
information during the course of their conduct of a protected action
ballot. This amendment ensures that the handling of that personal
information by small business operators who are protected action ballot
agents (and who may otherwise have been exempt from the Privacy Act) is
regulated by the Privacy Act. The definition of protected action ballot
agent for the Privacy Act means a person, other than the Australian
Electoral Commission, that conducts a protected action ballot under Part
3-3 of the FW Act.
335. Item 3 defines protected action ballots for the purpose of this
proposed section.
336. Proposed subsection 6E(1C) of the Privacy Act has the effect of
classifying a small business operator that is an employee association
registered or recognised under the FW(RO) Act as an organisation for the
purposes of the Privacy Act. The amendment ensures that all registered
or recognised employee associations are subject to the Privacy Act when
they collect and handle personal information in the course of their union
activities.
337. The legislative note under proposed subsections 6E(1B) and (1C) refers
to the power for regulations to modify the application of the Privacy Act
in different ways for different small business operators. The power is
provided for in the Acts Interpretation Act 1901. It is not intended at
this stage to prescribe any modifications of the Privacy Act in relation
to protected action ballot agents or employee associations.
Public Service Act 1999
Item 4 - Section 7 (definition of APCS)
Item 5 - Section 7 (definition of Australian Fair Pay and Conditions
Standard)
Item 6 - Section 7 (definition of AWA)
Item 7 - Section 7 (definition of award)
Item 8 - Section 7 (definition of collective agreement)
Item 9 - Section 7
Item 10 - Section 7
Item 11 - Section 7
Item 12 - Section 7
Item 13 - Section 7 (definition of pre-reform AWA)
Item 14 - Section 7 (definition of pre-reform certified agreement)
Item 15 - Section 7 (definition of workplace agreement)
Item 16 - Section 7
Item 17 - Section 7
338. These items ensure that the provisions of the Public Service Act 1999
which refer to the AFPCS and WR Act instruments are updated to encompass
the NES and FW Act instruments.
Item 18 - Subsections 8(1)
339. This item is a consequential amendment changing a reference to the WR
Act to a reference to the FW Act, and updating the heading to section 8.
Item 19 - Subsection 8(2)
340. This item is a consequential amendment changing a reference to the WR
Act to a reference to the FW Act and the T&C Bill.
Item 20 - Subsection 23(2)
341. This item updates subsection 23(2) so that the Classification Rules
may apply, adopt or incorporate provisions of instruments under the FW
Act, rather than APCSs under the WR Act.
Item 21 - Subsection 23(5)
342. This item updates subsection 23(5) to take account of the instruments
that can be made under the FW Act.
Item 22 - Subsections 24(1) and (2)
343. This item updates subsections 24(1) and (2), including by inserting
new subsection (1A), to take account of the instruments that can be made
under the FW Act.
Item 23 - At the end of subsection 24(4)
344. This item clarifies that a determination made under subsection 24(3)
can override a subsection 24(1) determination, the AFPCS and the NES.
Item 24 - Subsection 29(1) (note)
345. This item is a consequential amendment changing a reference to the WR
Act to a reference to the FW Act.
Item 25 - Paragraphs 72(3)(a) and (b)
346. This item updates subsection 72(3) to take account of the instruments
that can be made under the FW Act.
Item 26 - Paragraph 72(4)(a)
347. This item updates subsection 72(4) to take account of the instruments
that can be made under the FW Act.
Item 27 - Subsection 72(6)
348. This item ensures that workplace determination in section 72 has the
same meaning as in the FW Act.
Part 2 - Saving provision
Item 28 - Saving provision - determinations under subsection 24(1)
349. This item is a saving provision, ensuring the continued operation of
any determinations made under subsection 24(1) of the Public Service Act
1999 before the commencement of the amendments made to subsection 24(1)
by this Bill.
Schedule 17 - Resources, Energy and Tourism
Moomba-Sydney Pipeline System Sale Act 1994
Item 1 - Subsection 3(1) (definition of award)
350. This item repeals the definition of award in the Moomba-Sydney
Pipeline System Sale Act 1994. This allows the term to have its ordinary
meaning, which includes awards and NAPSAs continued as transitional award-
based instruments under Schedule 3 to the T&C Bill, transitional awards
continued under Schedule 20 to the T&C Bill and FW Act modern awards.
Offshore Petroleum and Greenhouse Gas Storage Act 2006
Item 2 - Clause 3 of Schedule 3 (definition of registered organisation)
351. This item ensures that organisations registered, and associations
recognised, under the FW(RO) Act are included in the definition of
registered organisation.
Item 3 - Clause 3 of Schedule 3 (paragraph (a) of the definition of
workforce representative)
Item 4 - Clause 3 of Schedule 3 (paragraph (a) of the definition of
workforce representative)
Item 5 - Clause 3 of Schedule 3 (paragraph (b) of the definition of
workforce representative)
Item 6 - Clause 3 of Schedule 3 (paragraph (b) of the definition of
workforce representative)
352. These items ensure that organisations registered, and associations
recognised, under the FW(RO) Act are included in the definition of
workforce representative.
Snowy Hydro Corporatisation Act 1997
Item 7 - Paragraph 23(5)(b)
353. This item ensures that the awards covered by this provision (pre-
reform awards within the meaning of the WR Act) continue to be covered by
the provision (by updating the reference to the WR Act to a reference to
the T&C Bill). The other paragraphs of subsection 23(5) do not need to be
updated because they identify instruments and agreements by reference to
the WR Act as in force at a particular time.
Schedule 18 - Treasury
Part 1 - Consequential amendments
Commonwealth Volunteers Protection Act 2003
Item 1 - Subsection 4(1) (paragraph (b) of the definition of Commonwealth
authority)
354. This item provides that organisations registered, and associations
recognised, under the FW(RO) Act are excluded from the definition of
Commonwealth authority.
Corporations Act 2001
Item 2 - Subparagraphs 764A(1)(d)(i), (e)(i) and (f)(i)
Item 3 - Paragraph 765A(1)(u)
355. These items ensure that employee organisations registered, and
employee associations recognised, under the FW(RO) Act are exempt from
certain provisions of the Corporations Act 2001 relating to financial
products.
Financial Sector (Business Transfer and Group Restructure) Act 1999
Item 4 - Subsection 43(7)
356. This item replaces a reference to the WR Act with a reference to the
FW Act, the FW(RO) Act and the T&C Bill.
Fringe Benefits Tax Assessment Act 1986
Item 5 - Paragraph 65J(1)(f)
357. This item ensures that associations registered and recognised under
the FW(RO) Act, rather than the WR Act, are referred to in this
provision.
Income Tax Assessment Act 1997
Item 6 - Section 50-15 (table item 3.1)
358. This item ensures that associations registered and recognised under
the FW(RO) Act, rather than the WR Act, are referred to in this
provision.
Item 7 - Paragraph 290-80(1)(b)
359. This item updates the reference to a NAPSA to refer to a NAPSA within
the meaning of the T&C Bill.
Item 8 - Subsection 290-80(2) (note)
Item 9 - At the end of section 290-80
360. These items remove references to WR Act agreements and replace those
references with a reference to enterprise agreements within the meaning
of the FW Act, and clarify that a determination does not include a
workplace determination made under the FW Act or the WR Act.
Income Tax (Transitional Provisions) Act 1997
Item 10 - Paragraph 82-10(1)(a)
361. This item ensures that a payment received under a collective agreement
or AWA continues to be covered by section 82-10 by updating the
references to the WR Act to references to the T&C Bill.
Insurance Act 1973
Item 11 - Subsection 3(1) (paragraph (e) of the definition of insurance
business)
362. This item is a consequential amendment changing the reference to an
organisation within the meaning of the WR Act to an organisation
registered or recognised under the FW(RO) Act.
Life Insurance Act 1995
Item 12 - Paragraph 11(3)(b)
363. This item is a consequential amendment changing the reference to an
organisation within the meaning of the WR Act to an organisation
registered or recognised under the FW(RO) Act.
Superannuation Guarantee (Administration) Act 1992
Item 13 - Paragraph 5B(1)(a)
Item 14 - Paragraph 5B(1)(aa)
364. These items are consequential on the replacement of the AIRC by FWA.
Item 15 - Paragraph 5B(1)(b)
Item 16 - Subsection 5B(2)
365. These items update references to the WR Act to references to the FW
Act, the FW(RO) Act and the T&C Bill.
Item 17 - Section 12A
Item 18 - At the end of subsection 32C(6)
366. These items ensure that references to various industrial instruments
are given their meaning under either the FW Act or the T&C Bill. AWA,
collective agreement, ITEA, NAPSA, old IR agreement, pre-reform AWA, pre-
reform certified agreement and preserved State agreement all have their
meaning as defined in item 4 of Schedule 2 of the T&C Bill. Enterprise
agreement has the same meaning as in the FW Act and workplace
determination means a workplace determination made under the FW Act or
the WR Act.
Item 19 - Subsection 32C(6) (note)
Item 20 - Subsection 32C(6A) (note)
Item 21 - Subsection 32C(6B) (note)
367. These items update references to the WR Act to references to the T&C
Bill or the FW Act.
Item 2 - Subsection 32C(7)
368. This item ensures that superannuation contributions under old
Victorian agreements continue to satisfy the choice of fund requirements.
Superannuation Industry (Supervision) Act 1993
Item 23 - Subsection 10(1) (paragraph (c) of the definition of registered
organisation)
369. This item ensures that organisations registered, and associations
recognised, under the FW(RO) Act are covered by the definition of
registered organisation.
Trade Practices Act 1974
Item 24 - Subsection 45DD(4)
Item 25 - Subsection 45DD(4)
Item 29 - Subclause 45DD(4) of the Schedule
Item 30 - Subclause 45DD(4) of the Schedule
370. These items remove the references to an industrial instrument within
the meaning of the WR Act and replace them with a reference to a
workplace instrument within the meaning of the FW Act. There is no
definition of industrial instrument in the FW Act but there is a
definition of workplace instrument in the FW Act which covers similar
instruments.
Item 26 - Subsection 45DD(8) (note)
Item 31 - Subclause 45DD(6) of the schedule (note)
371. These items are consequential amendments changing the reference to
section 170MT of the WR Act to a reference to the equivalent provision of
the FW Act (section 415). Sections 170MT and 415 are the sections that
deal with immunity in relation to industrial action.
Item 27 - Subsection 87AA(2) (definition of industrial authority)
Item 28 - Subsection 93AB(11) (definition of trade union)
372. There were definitions of State industrial authority and trade union
in the WR Act on which the Trade Practices Act 1974 relied. There are no
definitions of these terms in the FW Act. These amendments provide
definitions of both industrial authority and trade union for the purposes
of the Trade Practices Act.
Part 2 - Application provision
Item 32 - Superannuation Guarantee (Administration) Act 1992
373. This item ensures that, despite the amendments made to the
Superannuation Guarantee (Administration) Act 1992 at items 13,14, 15 and
16 of this Schedule, section 5B of that Act continues to operate in
relation to the AIRC, the AFPC and the WR Act as they are preserved by
the T&C Bill.
374. Schedule 19 - Veterans' Affairs
Military Rehabilitation and Compensation Act 2004
Item 1 - Subsection 89(3) (note 1)
Item 2 - Subsection 132(2) (note 1)
Item 3 - Paragraph 178(a)
Item 4 - Section 179
Item 5 - Subparagraph 185(2)(b)(ii)
Item 7 - Paragraph 193(2)(b)
375. These items replace references to the WR Act federal minimum wage or
an APCS with references to the relevant minimum wage set by a national
minimum wage order under the FW Act.
Item 6 - Subparagraph 185(2)(b)(ii)
Item 8 - Paragraph 193(2)(b)
376. These items are consequential amendments changing references to the WR
Act to references to the FW Act.
377. Schedule 20 - Regulations
Item 1 - Regulations may deal with transitional etc. matters
Item 2 - Regulations may make consequential amendments of Acts
378. These items include a power for regulations to be made to enable any
consequential issues that emerge in the future to be dealt with without
requiring a further Bill.
Item 3 - Regulations may take effect from date before registration
379. This item allows for regulations to be made with retrospective effect.
This is necessary to prevent unforeseen difficulties that may arise in
the transition from the legal framework of the WR Act to the new Fair
Work system.
380. However, as it would not be appropriate for a regulation to impose
retrospective liability under a civil penalty provision, any
regulations made under this power may not retrospectively subject a
person to civil liability. The reason for this regulation making power
is to deal with any issues that have been overlooked in the Bill and not
to penalise a person for any potential breaches of a regulation that may
apply retrospectively. Subitem (2) provides that if a regulation takes
effect before it is registered, a person cannot be convicted of an
offence or ordered to pay a penalty in relation to conduct contravening
the regulation that occurred prior to registration.