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2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
WORKPLACE RELATIONS AMENDMENT (WORK CHOICES) BILL 2005
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment and Workplace
Relations, the Honourable Kevin Andrews MP)
WORKPLACE RELATIONS AMENDMENT (WORK CHOICES) BILL 2005
OUTLINE
This Bill will amend the Workplace Relations Act 1996 (the WR Act) to
create a more flexible, simpler and fairer system of workplace relations
for Australia. The Bill will carry forward the evolution of Australia's
workplace relations system to improve productivity, increase wages, balance
work and family life, and reduce unemployment.
The major reforms to be implemented by the Bill will:
. simplify the complexity inherent in the existence of six workplace
relation jurisdictions in Australia by creating a national
workplace relations system based on the corporations power that
will apply to a majority of Australia's employers and employees;
. establish an independent body called the Australian Fair Pay
Commission (AFPC), to set and adjust minimum and award
classification wages, minimum wages for juniors,
trainees/apprentices and employees with disabilities, minimum
wages for piece workers and casual loadings;
. enhance compliance with the WR Act;
. enshrine in law minimum conditions of employment (annual leave,
personal/carer's leave (including sick leave), parental leave
(including maternity leave) and maximum ordinary hours of work),
which, along with the wages set by the AFPC, will be called the
Australian Fair Pay and Conditions Standard (the Standard) and
will apply to all employees in the national system;
. place a greater emphasis on direct bargaining between employers
and employees by replacing the certification and approval process
for making agreements with a simpler streamlined lodgment only
process;
. improve regulation of industrial action while protecting the right
to take lawful industrial action by requiring the Australian
Industrial Relations Commission (AIRC) to determine and
application for an order to stop or prevent unprotected industrial
action within 48 hours, requiring secret ballots before protected
industrial action, expanding the grounds on which the AIRC can
suspend or terminate a bargaining period, and creating a new power
for the Minister for Employment and Workplace Relations to suspend
or terminate a bargaining period in particular circumstances;
. retain a system of awards that will be simplified to ensure that
they provide minimum safety net entitlements;
. provide for the transfer of industrial instruments to a successor,
assignee or transmittee employer, for a maximum period of 12
months (with the exception of Australian Pay and Classification
Scales) and to oblige new employers to give notification to
transferring employees. Additionally, to provide for the transfer
of certain entitlements accrued under the Standard to a successor,
assignee or transmittee employer;
. protect certain award conditions (public holidays, rest breaks
(including meal breaks), incentive-based payments and bonuses,
annual leave loadings, allowances, penalty rates, and
shift/overtime loadings) in the agreement making process so that
these conditions can only be modified or removed by specific
provisions in an agreement;
. preserve specific award conditions (long service leave,
superannuation, jury service and notice of termination) for all
current and new award reliant employees, and permit other award
conditions (annual leave, personal/carer's leave, parental leave)
to apply to current and new award reliant employees if they are
better than the conditions provided in the Standard;
. encourage employers and employees to resolve their disputes
without the interference of third parties by introducing a model
dispute settlement procedure that includes a range of dispute
settling options for all award and Standard reliant employers and
employees, and employers and employees covered by agreements that
do not contain dispute settling procedures;
. improve protections for employers and employees by extending the
compliance regime in the WR Act to cover the Standard, agreement
making, and State award and agreement reliant employers and
employees that are brought into the national system; and
. put in place comprehensive transitional arrangements for employers
and employees entering the federal system and employers and
employees currently in the federal award system who will not be
covered by the new federal system.
FINANCIAL IMPACT STATEMENT
The Government's proposed workplace relations reforms will move towards a
national workplace relations system for the first time and significantly
simplify the workplace relations system.
Estimated costs associated with the proposed workplace relations reforms
are as follows:
| |2005-06 |2006-07 |2007-08 |2008-09 |Total |
| |(mill) |(mill) |(mill) |(mill) |(mill) |
|Compliance |$13.3 |$46.5 |$41.9 |$39.8 |$141.5 |
|Agreement Making |$6.7 |$14.8 |$18.3 |$21.8 |$61.5 |
|WorkChoices Advertising |$44.3 | | | |$44.3 |
|Campaign | | | | | |
|WorkChoices Information |$10.8 | | | |$10.8 |
|and Education | | | | | |
|Australian Fair Pay |$5.8 |$7.7 |$7.8 |$7.8 |$29.1 |
|Commission | | | | | |
|Awards Review Taskforce |$7.4 |$1.7 |- |- |$9.0 |
|WorkChoices Legislation |$58.5 |$30.4 |$21.1 |$21.2 |$131.3 |
|Development & | | | | | |
|Implementation | | | | | |
|Unlawful Dismissal |$4.0 |$11.5 |$6.8 |$6.4 |$28.6 |
|Dispute Resolution |$0.7 |$2.1 |$3.4 |$5.2 |$11.4 |
|Australian Industrial |$1.9 |$1.4 |-$3.9 |-$6.1 |-$6.7 |
|Relations Commission | | | | | |
|Attorney General's |$5.3 |$7.8 |$7.8 |$7.8 |$28.8 |
|Department | | | | | |
|Estimated costs: |$158.7 |$123.9 |$103.2 |$103.8 |$489.6 |
Final details of these costs will be considered in the Additional Estimates
context and will be outlined in appropriation Bills and the Department of
Employment and Workplace Relations' Portfolio Additional Estimates
Statements when published later this year.
REGULATION IMPACT STATEMENT
Background
Since coming to office in 1996, the Australian Government (the Government)
has significantly reformed the federal workplace relations system to
introduce flexibilities and reduce third party intervention. These reforms
have contributed to increased productivity and economic prosperity.
However, further Government reform initiatives are required to meet the
economic challenges confronting Australia, such as the aging Australian
workforce.
Despite the WR Act going some way towards achieving a less prescriptive and
more centralised approach to workplace relations, the system still confers
significant rights on third parties over and above the rights of employers
and employees. It places artificial demands on workplaces and creates
barriers to opportunities for genuine direct employer/employee
relationships. Application of the federal workplace relations laws is
still dependent on interpretation by the Australian Industrial Relations
Commission (AIRC), with intervention by unions, which may override the
wishes of employees in a workplace. The current system still imposes a
complex and costly regulatory burden on employers and employees, resulting
in a negative impact on productivity and employment.
While the primary focus of the federal workplace relations system is on
workplace agreements underpinned by a minimum safety net, it is not a
genuine safety net. The current process for reviewing the safety net is
subject to AIRC arbitration and union intervention. Unions invariably make
ambit claims to raise award wages and conditions above the level which
represents a real and effective safety net. The current safety net of
complex and prescriptive awards can act as a disincentive to agreement
making. There is still a need for establishing genuine minimum standards,
over and above which employers and employees at workplace level should be
free to negotiate further wages and conditions through simplified agreement
making processes without the interference of third parties.
The existing system of six different industrial relations systems creates
confusion for enterprises with workplaces in more than one state, resulting
in compliance obligations under different industrial laws. The limitations
of operating with six different systems have been recognised by numerous
stakeholders and commentators from a wide political spectrum for many
years.
These problems were recently noted by the International Monetary Fund,
which commented:[1]
Further reforms of industrial relations are needed to expand labor
demand and facilitate productivity gains. Labor market reforms to
date have substantially reduced rigidities, but centralised awards
still set minimum working conditions in 20 areas through the
requirement that conditions in collective and individual contracts not
fall below those in awards - the no disadvantage test - and large
employers face up to six different industrial relations systems at the
Federal and State levels.
Australia currently has over 130 different pieces of employment related
legislation, over 4000 different awards and six different workplace
relations systems operating across the country. There are too many rules
and regulations that make it too hard for many employees and employers to
get together and reach agreement. There is also too much red tape, too
much complexity, and too much confusion.
Agreement Making and Productivity
Award wages and conditions form a complex safety net against which
employers must negotiate productivity improvements through agreement
making. This complicated threshold can act as a disincentive for agreement
making and therefore inhibit productivity growth. The chart below shows a
reduction in award reliance has had a significant effect on productivity
growth.
Award-reliance by industry as at May 2004 and labour productivity
growth by industry June 1990 to June 2004.
[pic]
Source: ABS Employee Earnings and Hours, May 2004 (Cat No 6306.0), Table
15; ABS AusStats, National Accounts (Cat No 5204.025).
The following chart shows the number of current federal agreements and the
number of employees covered since March 1997.
[pic]
Source: Workplace Agreements Database, DEWR
It is clear that agreement making is fairly cyclical with peaks in the
number of federal agreements current in each quarter. Agreement numbers
and employee coverage within the private sector continue to grow.
Individual bargaining allows businesses to tailor arrangements to their
needs. Negotiations at workplace level can result in agreements that
accommodate productivity offsets, while the award system does not.
The first chart shows a strong correlation between productivity growth and
the use of workplace agreements in an industry. However, the chart below
shows that there are tentative signs of easing in productivity growth.
This chart shows average annual productivity growth in each 'growth cycle'
since 1965.
[pic]
Source: ABS Cat. No. 5204.0, Australian System of National Accounts
Current AIRC agreement making processes are time consuming and expensive
for businesses. Further reform is required to drive increased agreement
making, facilitate greater flexibility, and increase productivity.
An example of the high cost of AIRC processes is the current practice of
conducting formal hearings to vet all collective agreements, despite the
fact that this is not a legislative requirement. An instance of where a
formal hearing would not have been necessary involves Gibbo's Bulk Haulage
(GBH) who lodged an application to certify an agreement on 14 July 2003.
GBH is a business based in Coolaman, New South Wales. The AIRC held a
hearing into the matter on 7 August 2003 which required a company director,
an employee and the company's representative to travel to Sydney. It also
meant that GBH could not use one of its trucks that day, causing a loss of
income. The AIRC hearing lasted seven minutes and neither the company
director nor the employee representative were asked to say anything.
The only result was a request for further information. GBH supplied that
information and the AIRC later certified the agreement after a further
hearing on 24 September 2003. The Government's view is that there was no
need for GBH to waste the time and resources involved in hearings into this
agreement.
Objective
The Government's objective is to move towards a national framework for
workplace relations in Australia with the aim of raising productivity and
hence living standards. The national framework should be structured to
reduce unnecessary restrictions on labour market flexibility and reduce the
burden on employers and employees in complying with workplace relations
regulation. The Government considers that increased labour market
flexibility and reduced regulation will contribute to greater productivity.
Options
One option (Option A) would be to maintain the status quo and not introduce
further reforms beyond meeting the Government's election commitments and
legislative measures that have previously been either stalled or rejected
by the Senate. This option would represent a modest achievement but would
not go far enough. For instance, it would not address the complexity
arising from having six different workplace relations systems operating
across the country.
The preferred option (Option B) is to establish a more flexible workplace
relations framework which revises methods of setting minimum wages,
simplifies agreement making processes and the safety net which underpins
agreement making, while retaining appropriate protections for employees.
This option will:
. move Australia towards one, simple national system of workplace
relations, relying primarily on the corporations power of the
Constitution;
. establish the Australian Fair Pay Commission (AFPC) to protect minimum
and award classification wages;
. enshrine a set of key minimum conditions of employment in federal
legislation for the first time;
. introduce the Australian Fair Pay and Conditions Standard (the
Standard) to protect workers' wages and conditions in the agreement-
making process;
. simplify the workplace agreement-making process;
. provide modern award protection for those not covered by agreements;
. provide a more flexible framework for dispute resolution;
. better balance the unfair dismissal laws; and
. expand and improve the federal union right of entry regime.
Under this option, awards and the AIRC will continue to operate. The AIRC
will concentrate on what should be its key role - the resolution of
disputes.
Impact Analysis
Option A - Status Quo
Costs and benefits to business
There is limited benefit to business if the status quo is maintained.
Business would benefit from the measures already contained in legislation
that the Government will reintroduce into Parliament and the delivery of
election commitments. Many business groups have indicated that these
measures, while worthwhile, do not go far enough in achieving a genuinely
flexible Australian workplace relations system. For a number of years,
business groups have strongly maintained that the current system is
unwieldy, costly and unnecessarily bureaucratic. They have consistently
called for further deregulation of the labour market and simplification of
procedures.
There are costs to business if the current system is maintained without
further reforms, not least having to deal with six separate industrial
relations systems. The award system is very complex for business. For
example, there are approximately 4,000 federal and state awards, and
employers often have to grapple with multiple state and federal awards
applying to the one business.
With the rise of the internet and other communications media, even small
businesses can operate across state boundaries, while some larger
businesses have to deal with all six different systems. Small businesses
particularly struggle with the current workplace relations system, as they
do not have the large human resources infrastructure to deal with the
complex and costly procedures imposed by current labour regulation.
Costs and benefits to employees
The current workplace relations system will be detrimental to employees
over the longer term by failing to stimulate further productivity growth
and perpetuating barriers to labour market participation. Continued reform
will unlock further gains in productivity and promote employment growth.
Wage setting arrangements which pay greater attention to economic
considerations are likely to facilitate entry into the labour market for
the more disadvantaged job seekers. A failure to reform Australia's wage
setting arrangements will see many unemployed persons continue to
effectively be locked out of the labour market.
The complexity of the current system also means that many employees are
unaware of their current minimum entitlements. In addition, retaining the
current certification/approval process means that employees will continue
to experience uncertainty arising from processing delays. To the extent
that this (combined with the retention of the No Disadvantage Test (NDT))
creates disincentives for agreement-making, employees may also lose out on
benefits that result from having industrial instruments which can be
tailored to reflect their particular needs and circumstances.
Costs and benefits to Government
There is only a modest benefit if the status quo is maintained. While this
option would see some further flexibilities in the workplace through
implementation of the Government's election commitments and the
reintroduction of legislative measures previously stalled in the Senate,
fundamental barriers to further productivity improvements and job growth
would remain. This would compromise the Government's overall workplace
relations reform agenda.
The cost of maintaining the current system without further reforms will be
a continuing disincentive to bargaining, and for those employers and
employees, continuing reliance on an outdated and complex award system for
determining wages and conditions in Australia.
Summary
The Government and businesses favour further deregulation to create
flexibilities, modify outmoded forms of determining wages and conditions,
and simplify procedures for agreements. While some employees may benefit
in the short term if the status quo is maintained, there will be longer
term costs to productivity, labour market entry and employment growth.
Option B - A New Workplace Relations system: Work Choices
Move towards one, simple national system of workplace relations,
relying on the corporations power of the Constitution
Costs and benefits to business
This option would deliver a unified national system for most employers - a
reform that business groups have consistently called for. The multiple
jurisdictions create complexity and uncertainty around coverage and
compliance.
The present system, with state and federal jurisdictions, does not make it
clear for employers whether state or federal industrial instruments apply
to their employees.[2] It is at present also possible for employers to be
subject to both state and federal industrial instruments in respect of
particular types of employees. Determining appropriate coverage and
managing employees in different jurisdictions is an administrative cost to
employers.
The ABS provides clear evidence of the confusion caused by the present
workplace relations system. It does not publish separate statistics on
federal and state award coverage because employers are unable to reliably
determine which award jurisdiction covers their employees.
The present system also encourages 'jurisdiction shopping' on the part of
unions to avoid legislative restrictions. For example, differing federal
and state right of entry provisions, which permit union access to
workplaces can be exploited to circumvent access restrictions in a
particular jurisdiction.
Use of the corporations power, together with other heads of power such as
the Territories power and powers referred by Victoria, to expand the
federal system would mean that up to 85 per cent of Australian employees
would be covered by the federal system[3].
The remaining 15 per cent of employees would continue to be covered by
their respective state jurisdictions. However, it is possible that states
might subsequently choose to refer their powers to the Commonwealth, as
maintaining state jurisdictions for such a low proportion of workers may be
too costly and difficult.
The corporations power will also introduce a more precise test for
determining whether a business falls within the federal workplace relations
system, this will make the issue of jurisdiction much more transparent for
employers.
If legislated, the proposed reforms would expressly state an intention to
'cover the field' thereby ousting any conflicting state law. The states
would be limited to regulating only those employers which do not come
within the scope of the corporations power, the Territories power, the
power covering Commonwealth employees, or the Victorian referral of
industrial relations powers.
Forty-nine per cent of small businesses employing staff are currently
incorporated and would benefit from coming under the federal system, which
would create a single, easy to understand, and less costly system for
complying with minimum wages and conditions and procedures for lodging
agreements. The Victorian referral of power and the use of the Territories
power in the Australian Capital Territory and Northern Territory, means
that federal coverage of small business employees will be increased even
further.
Costs and benefits to employees
Many employees currently do not know which award applies to them, or in
which jurisdiction they may seek redress for an employer's non-compliance
with award provisions. Approximately 50 per cent of Australian workers are
currently covered by the federal system. By introducing one set of minimum
standards of which employees and employers alike may be aware, through
expanded coverage of the proposed federal system, a further 35 per cent of
employees would enjoy the benefits of a single, simple system for setting
minimum wages and conditions and processing agreements.
Those remaining 15 per cent of employees not covered by the federal system
will still be covered by the relevant state jurisdiction. However, it is
hoped that states may subsequently decide to refer their workplace
relations powers to the Commonwealth.
Costs and benefits to Government
The Government would benefit from making considerable progress towards a
unified workplace relations system, covering up to 85 per cent of the
Australian workforce[4]. A unified system would ideally be established by
the states referring their powers in this area. However, failing that, the
Government can rely on the corporations power to 'cover the field' as far
as possible. 'Covering the field' to oust state laws was canvassed by the
then Minister for Employment and Workplace Relations and Small Business,
the Hon Peter Reith MP, in 2000, and the Government has attempted to use
the corporations power in a number of Bills to expand federal coverage in
discrete areas.
The Government's proposed workplace relations reforms will, among other
things, move towards a national workplace relations system for the first
time and significantly simplify the workplace relations system.
The reforms will complement other key Government initiatives such as
welfare to work reform by providing enhanced scope for individuals
returning to the labour market to negotiate working arrangements to suit
their circumstances and improved employment opportunities through a
stronger economy. The reforms will also decrease the regulatory burden on
business, particularly small business.
Summary
Assuming that the states do not agree to refer their workplace relations
powers to the Government, Option B would rely on the corporations and other
powers to extend the coverage of the federal workplace relations system to
cover up to 85 per cent of Australian workers[5]. The result would be a
single national set of minimum wages and conditions for the overwhelming
majority of Australian employees. The system would significantly reduce
the current regulatory burden on business, and bring a further 35 per cent
of Australian employees under one single fair and balanced workplace
relations system.
Establish the Australian Fair Pay Commission to protect minimum and
award classification wages
Under Work Choices the Government will:
. establish the AFPC independent of the Government to set and adjust
minimum and classification wages, minimum wages for juniors,
trainees/apprentices and employees with disabilities, minimum wages
for piece workers and casual loadings;
. guarantee that previously award based classification wages cannot fall
below the level set after inclusion of any increase determined by the
2005 Safety Net Review, although they will be capable of upwards
adjustment by the AFPC; and
. ensure that the AFPC will meet its primary objective of promoting the
economic prosperity of the people of Australia by having regard to:
- the capacity for the unemployed and low paid to obtain and remain
in employment;
- employment and competitiveness across the economy;
- providing a safety net for the low paid; and
- providing minimum wages for junior employees, and employees to whom
training arrangements apply to ensure those employees are
competitive in the labour market.
Costs and benefits to business
Businesses will benefit from a clearer and simpler system of wage setting.
At present the minimum rates of pay are set out in awards and can differ
markedly between different industries. Under the proposed reforms the AFPC
will set and adjust minimum and classification wages for juniors,
trainees/apprentices and employers with disabilities, minimum wages for
piece workers and casual loadings. This will provide a more streamlined
classification wages structure and will give businesses greater certainty
about the appropriate rate of pay for their employees.
In addition, the more consultative approach of the AFPC should lead to
decisions which better reflect the needs of all interested stakeholders,
including the unemployed.
A cost to businesses will be the need to be conscious of changes to the
minimum wages as set and adjusted by the AFPC. However, this does not
represent an additional regulatory burden on businesses, as businesses that
employ award reliant employees must already be conscious of changes to the
minimum wage that occur through the annual Safety Net Review case.
In fact, changes to the minimum wage will be easier to follow under Work
Choices as minimum wages will change at the same time for all federal
employees, and notice of this change will be widely communicated by the
AFPC. In contrast, under the present system awards must be individually
varied to take into account changes to the minimum wage, and this may occur
at any point in time. As a result of this process, employers and employers
must be constantly alert for changes to the award.
Costs and benefits to employees
The Government has guaranteed that minimum and classification wages in
awards will be protected at the level set after the increase from the
AIRC's 2005 Safety Net Review. Minimum wages and award classification
wages will not fall below this level.
Establishing genuine minimum wages and conditions will assist in achieving
increased labour market participation. At present, low skilled workers or
the unemployed may be priced out of the labour market. Australia has the
highest ratio between the minimum wage and median wage in the OECD -
currently 58.8 per cent. Our minimum wage is significantly higher than a
number of similar countries including New Zealand (53.6 per cent), the UK
(43.2 per cent), Canada (39.5 per cent), and the US (32.2 per cent).[6]
Furthermore, Australia has thousands of minimum wages through the award
system. Wage increases achieved through safety net adjustments, unlike
those achieved through agreement-making, are not based on productivity
improvements. Moreover, large award wage increases can adversely impact
upon employment opportunities for unemployed people and the low paid,
pricing them out of the labour market.
In 2004, the Government undertook a longitudinal study to examine long term
outcomes for clients of its employment assistance programs. The study
particularly examined how disadvantaged people fare in the labour market up
to two years after assistance has ceased. This study confirmed a key
finding of a body of related studies in that a substantial number of low
paid workers do move to higher paying jobs over time - 'in the case of more
disadvantaged job seekers, taking even low paid, casual jobs will increase
their chances of finding better paid, more permanent employment'.[7]
Data from the Household Income and Labour Dynamics in Australia survey show
that of employees aged 21 years and older who were in low paid jobs in
2001, 37 per cent were in higher paid jobs in 2002 and 43 per cent were in
higher paid jobs in 2003. Of employees who were in low paid jobs in 2001
and 2002, 31 per cent were in higher paid jobs in 2003. Less than 20 per
cent of all employees were in low paid jobs in 2003.[8]
By introducing a genuine safety net, based on minimum standards set by the
AFPC and through legislation, more jobs will be available, allowing new
entrants and returning and low skilled workers enhanced access to the
labour market. This will in turn provide a stepping stone for low paid
workers to move into higher paying jobs over time.
Costs and benefits to Government
The AFPC represents a long overdue shift from the historically adversarial
process for wage setting in Australia. At present, the process for varying
minimum wages is the AIRC's annual Safety Net Review case. This process
involves the AIRC making its decision about minimum wages based on the
submissions of interested parties. Rather than arbitrary and artificial
claims between employer organisations and unions, the AFPC will adopt a
consultative approach with all interested stakeholders.
The Government, and the economy as a whole, will benefit from the less
adversarial approach to wage setting as it will take greater account of the
needs of low wage workers and the unemployed and will encourage further
employment growth. In this way, the creation of a genuine minima may also
help reduce associated welfare costs.
A cost to the Government will be the establishment and ongoing costs of the
AFPC. Although, there will also be cost savings for the Government as the
AIRC will no longer need to run its annual Safety Net Review.
Summary
A new independent body called the AFPC will be established. The primary
objective of the AFPC will be to promote economic prosperity and job
creation for the people of Australia. The AFPC will set and adjust minimum
and classification wages for juniors, trainees/apprentices and employers
with disabilities, minimum wages for piece workers and casual loadings.
Enshrine a set of key minimum conditions of employment in federal
legislation for the first time
Under Work Choices the Government will ensure that all federal employees
are entitled to the following key minimum conditions of employment which
will be set in legislation:
. at least 4 weeks paid annual leave per year;
. at least 10 days paid personal/carer's leave (including sick leave)
after 12 months of service;
. at least 52 weeks of unpaid parental leave (including maternity leave)
at the time of the birth or adoption of a child; and
. a maximum of 38 ordinary hours of work per week.
Costs and benefits to business
Businesses will benefit from increased certainty about their obligations,
as these key minimum conditions of employment will be enshrined in federal
legislation for the first time. This will create a consistent federal
standard for all businesses within the federal workplace relations system.
This proposal may create additional costs for businesses as they will be
required to meet the key minimum conditions of employment. However, the
Government believes these costs are appropriate as the key minimum
conditions of employment represent a genuine safety net of employment
conditions that should be guaranteed for all employees. In addition, these
costs will be offset by the fact that employers will have a simpler system
for agreement making. Under Work Choices the complex and subjective NDT
will be replaced with the Standard thereby providing a much clearer and
simpler test for agreement making.
Costs and benefits to employees
Employees will benefit from guaranteed minimum conditions of employment
which will be enshrined in federal legislation. This legislative approach
will ensure that no employee can receive less than the minimum conditions
set under Work Choices. In addition, where an award reliant employee's
conditions of employment are more generous than the legislative minima, the
employee will continue to receive the more generous entitlement. This will
apply to both current and future employees who are employed under a
particular award.
Costs and benefits to Government
The provision of legislated key minimum conditions of employment will be a
cost neutral proposal for the Government.
Summary
The Government will enshrine in law key minimum conditions of employment:
annual leave, personal/carer's leave (including sick leave), parental leave
(including maternity leave) and maximum ordinary hours of work. Employees
will be guaranteed these key minimum conditions of employment, and award
reliant employees (both current and new) will also retain the benefit of
more generous award provisions.
Introduce the Australian Fair Pay and Conditions Standard to protect
workers' wages and conditions in the agreement-making process
Under Work Choices the Government will:
. provide that the minimum conditions of employment together with wages
as set by the AFPC, will no longer be 'allowable award matters' but
instead form the basis of a minimum employment standard for all
employees in the federal jurisdiction - the Standard; and
. provide that the Standard will replace the current NDT for all
collective and individual agreements with no capacity to 'trade off'
these minimum employment standards, other than the ability to cash out
up to two weeks worth of annual leave entitlement in any one year.
Costs and benefits to business
A new system of setting minimum wages and conditions will benefit business.
The system will be considerably less complicated and bureaucratic, with
employers having to be cognisant of only one set of standards rather than
numerous prescriptive awards. Replacing the NDT with a clearer set of
minimum wages and conditions will remove a significant layer of complexity
with regards to agreement making, and will provide additional incentives to
negotiate at the enterprise or workplace level. Under the current NDT,
individual conditions of employment may be lower than an award standard but
overall the agreement must not reduce award standards.
A further benefit for employers will be enhanced choice and flexibility in
agreeing directly with employees their workplace pay and conditions beyond
the minimum standards. Agreement-making at the workplace level is
particularly suited to tailoring working arrangements in ways that assist
employees to balance work and family, free from the one-size-fits-all
constraints of award prescription. An increasing number of organisations
have found that agreement-making under the Workplace Relations Act 1996 (WR
Act) provides a wide variety of options for new and innovative initiatives
that benefit both employees and the business.
Business may feel that the proposal does not go far enough in deregulating
the workplace relations system. Many business groups have called for more
radical cutting back of allowable award matters, or for the abolition of
awards altogether. However, the proposed reform represents an evolutionary
approach which provides flexibility and reduces complexity while retaining
appropriate employee protections.
Costs and benefits to employees
Employees will benefit from the enhanced choice and flexibility available
when agreeing with their employer about workplace pay and conditions beyond
the minimum standards. Agreement-making at the workplace level is
particularly suited to tailoring working arrangements in ways that assist
employees to balance work and family, free from the one-size-fits-all
constraints of award prescription. An increasing number of organisations
have found that agreement-making under the WR Act provides a wide variety
of options for new and innovative initiatives that benefit both employees
and the business.
As at 30 June 2005, 94 per cent of employees covered by certified
agreements were covered by an agreement with at least one family friendly
or flexible hours provision, and 79 per cent were covered by an agreement
with at least three such provisions[9]. Over 70 per cent of Australian
Workplace Agreements (AWAs) approved in 2002-2003 contained at least one
provision relating to either family friendly leave or family friendly
flexible work arrangements. Of these agreements, more than half had three
or more such provisions. Agreement-making is also delivering tailored
working arrangements to the employees who value them most. For example,
women covered by certified agreements and AWAs are more likely to have
access to family friendly provisions than men.[10]
Aside from providing enhanced options for flexible conditions, the new
system will be easier to understand and will be widely promoted through a
comprehensive education campaign.
The new system will also be underpinned by employee protections. The WR
Act currently provides an extensive compliance regime to ensure that
employees get their correct terms and conditions of employment as set out
in awards, collective agreements and AWAs. The compliance regime allows
specified persons (usually employers, employees, unions or inspectors) to
enforce civil penalties and/or recovery of underpayments where employees
are not properly paid. The legislation will extend this compliance regime
to include enforcing the Standard.
A cost to employees will be the changing basis for the safety net of wages
and conditions. The safety net is currently based on the award system but
under Work Choices will be based on the wages and conditions contained
within the Standard. This change will mean that employees will have a
different basis for agreement making and agreements will no longer be
required to address all of the allowable award matters.
However, the Standard will provide a clearer basis for agreement making
than the present NDT. The Standard will continuously apply to an
agreement, whereas the NDT applies only at the time of certification. This
means that under the Standard no employee can lawfully receive less than
the set minimum wages and conditions, while under the NDT an agreement
could comply with its requirements at the time of certification but fall
below the minimum standard over the life of the agreement.
In addition, under the NDT all conditions of employment are tradeable,
whereas under the Standard these conditions will be enshrined in
legislation and in general cannot be traded off as part of an agreement.
An exception to this rule is the entitlement to four weeks annual leave, of
which, two weeks may be cashed out per year, solely at an employee's
request.
Critics of the reforms may argue that employees will be disadvantaged by
the proposed safety net. However, the reforms will ensure a genuine safety
net of conditions exists to underpin agreement making.
On top of the legislated conditions of employment, key award conditions
will also be protected under Work Choices, these conditions are:
. public holidays;
. rest breaks (including meal breaks);
. incentive-based payments and bonuses;
. annual leave loadings;
. allowances;
. penalty rates; and
. shift / overtime loadings.
These key conditions will be protected and will only be able to be changed
or removed in an agreement where they are expressly changed or removed by
an agreement approved by an employee (in the case of an AWA) or group of
employees (in the case of a collective agreement). Where an agreement does
not specifically alter or remove these protected conditions, the relevant
award provision will be read into the agreement.
This protection will supplement the Standard and ensure that employers and
employees give due consideration to the protected award conditions when
making their agreement.
Costs and benefits to Government
The Government and the Australian economy will benefit from introducing
this proposed reform. Reducing award matters and having minimum wages and
conditions set and adjusted by the AFPC and through legislation will result
in a genuine safety net, applying to all employees in the federal
jurisdiction. Replacing the current, global NDT with a set of simple and
easily comprehended minima will also help the Government clearly
communicate to employers and employees the minimum wages and conditions
which Australian workers are entitled to receive.
Summary
Introduction of the Fair Pay and Conditions Standard will result in a
significant simplification of the agreement making process by replacing the
current complex and confusing NDT. Business and employees would benefit
from this simplified process which would create a genuine minimum safety
net.
Simplify the workplace agreement-making process
Under Work Choices, the Government will replace the current time consuming
and legalistic agreement certification and approval process with a
streamlined, simpler and less costly lodgment based process to be
administered by the Office of the Employment Advocate (OEA).
Costs and benefits to business
Business will benefit from replacing the current agreement approval
processes with a single, cheap and administratively straight-forward
lodgment-only process for all agreements - collective and individual - with
the OEA. This was originally included in the Workplace Relations and Other
Legislation Amendment Bill 1996 but omitted in order to secure passage of
the legislation. While there is no statutory requirement for the AIRC to
hold formal hearings for agreement certification, it has become practice.
Unnecessary formal hearings are disruptive and costly for business. Small
businesses might sometimes have to close for a day to attend proceedings
(refer paragraphs 13 and 14). Employer groups have often identified
simplified agreement making processes as essential in reducing the
regulatory burden on business.
Average processing times by the AIRC for certified agreements is 26.7 days.
Sixty-seven per cent of AWAs lodged with the OEA are approved within 20
working days.
A lodgment only process with the OEA will address the unnecessary
administrative burden, reduce lengthy processing times, and provide a
greater incentive for employers and employees to embrace agreement making.
No approval process would be required, however, agreements will need to
comply with the Standard. To ensure employee entitlements are protected,
an improved compliance regime will also be introduced as part of the
legislation.
In addition, under Work Choices, the OEA will assume responsibility for
explaining agreements to employees. This was previously a responsibility
of the employer and could represent a significant regulatory burden as
employers were required to have regard to the individual needs of employees
when explaining the content of new agreements. As the OEA will now take on
this function, the proposed reforms will further reduce the regulatory
burden of agreement making for businesses.
Costs and benefits to employees
Employees will also benefit from a simplified agreement lodgment process.
Agreements will come into effect much more quickly and will have to meet a
clear, single set of minima, that is, the Standard. The new system will be
easier to understand and will be widely promoted through a comprehensive
education campaign.
Costs and benefits to Government
The current agreement approval process is bureaucratic, requiring an
application for certification to the AIRC. Agreements have to be assessed
and approved by the AIRC against a number of factors, including the NDT
based on any federal or state award covering the employees and any other
federal, state or territory law. AWAs are assessed and approved by the
OEA, and similarly, a number of factors are considered including the NDT
based on awards.
A simplified lodgment process administered by one body, the OEA, will
considerably simplify the current process. A simplified lodgment process
will remove previous administrative disincentives to agreement making and
encourage employers and employees to tailor their working arrangements to
their own needs and circumstances. This will benefit the Government
through increased productivity growth when compared to productivity levels
in award reliant industries. In turn, productivity growth can lead to
increased employment growth and eventually increased taxation revenue for
the Government and reduced welfare expenditure.
Summary
Simplified agreement approval processes in the new system will
significantly reduce the amount of time and level of bureaucracy associated
with agreement making. This will particularly benefit small businesses,
which generally lack the capacity of their larger counterparts to absorb
the costs of highly prescriptive regulation, such as, by allocating a
dedicated human resources infrastructure.
Provide modern award protection for those not covered by agreements
Under Work Choices the Government will:
. establish the Award Review Taskforce to examine and report to
Government on an approach to award rationalisation (including
consideration of how that process could best be coordinated with award
simplification).
. preserve key award conditions covering annual leave, personal/carer's
leave and parental leave, for current and future award reliant
employees, so that these employees will continue to enjoy these
preserved award conditions if they are more generous than the Standard.
. preserve key award conditions covering superannuation (until 30 June
2008), long service leave, jury service and notice of termination, for
current and future award reliant employees.
Under Work Choices, awards can continue to contain provisions dealing with
the following matters:
. ordinary time hours of work and the times within which they are
performed, rest breaks, notice periods and variations to working hours;
. incentive-based payments and bonuses;
. annual leave loadings;
. public holidays;
. ceremonial leave;
. allowances;
. loadings for working overtime or shift work;
. penalty rates;
. redundancy pay for employers with 15 or more employees;
. stand-down provisions;
. dispute settling procedures;
. type of employment, such as full-time employment, casual employment,
regular part-time employment and shift work; and
. conditions for outworkers, including non-conditions provisions such as
chain of contract arrangements, registration of employers, employer
record keeping and inspection.
Changes to allowable award matters - The following matters will be allowed
in awards consistent with the list set out above, but with some change from
current arrangements, including:
. public holidays - awards will be allowed to provide for those public
holidays declared by or under a law of a state or territory to be
observed generally within that state or territory, or a region of that
state or territory. However, the definition of public holidays will be
refined to exclude inappropriate holidays in awards, such as union
picnic days.
. redundancy pay - redundancy pay will be allowable only in cases of
genuine redundancy.
. part-time employment - all awards under Work Choices must contain
provisions permitting the employment of regular part-time workers.
. awards to provide minimum entitlements - the new legislation will
specify that awards will provide a safety net of basic minimum
entitlements.
. outworker conditions - outworkers' pay will be removed from awards and
be set and reviewed by the AFPC.
- The Government will also retain additional award protections for
outworkers. All outworker provisions that do not relate to pay
(including chain of contract arrangements, registration of
employers, employer record keeping and inspection) will remain in
awards as allowable award matters. Maintaining such matters in
awards is designed to avoid any potential problems that could place
these workers at a disadvantage.
- The workplace relations legislation will provide that the relevant
award outworker provisions form the 'minimum' for agreements
between an employer and an outworker (that is, the relevant award
outwork provisions will be read into agreements).
. facilitative provisions - an award may include facilitative provisions
that allow agreement at the workplace or enterprise level, between
employers and employees (including individual employees), on how a term
in the award is to operate. For example, employers and employees can
agree on variations to the spread of daily hours in a particular
enterprise. While this flexibility is supported at the workplace level
and facilitative provisions will be retained, the Government believes
that, where possible, these matters are best addressed through
agreement making such as collective agreements or AWAs. In addition,
the new workplace relations legislation will specify that facilitative
provisions must not require majority agreements (thus enabling
agreement between an employer and an employee).
. allowances - allowances will be defined to specify that awards may only
contain monetary allowances in particular instances, such as where the
allowance reimburses the employee for expenses incurred in the course
of employment.
. incidental matters - the AIRC will be able to include provisions in an
award that are incidental to allowable matters where these provisions
are essential for making a particular provision operate in a practical
way, including machinery provisions (for example, definitions, titles,
commencement dates, parties bound).
Cost and benefits to business
A modern system of award protection will benefit business and employees.
Award rationalisation and simplification is a necessary step as awards
remain overly prescriptive and detailed documents which are difficult for
employers and workers to understand. Further award simplification is also
needed to ensure that awards provide a true safety net of minimum
conditions for award reliant employees.
Businesses in particular will benefit from increased surety about employee
entitlements, as at present it can be very difficult to determine how a
particular entitlement should be calculated. This uncertainty may lead to
inadvertent breaches of award conditions. The proposed reforms will more
clearly set out which employment conditions can be included in awards and
will reduce the unnecessary proliferation of awards so that the relevant
award can be more easily identified.
A cost for business will be the initial increase in administrative costs,
as the employer must keep aware of changes to the award system. However,
this administrative burden should only exist while the award
rationalisation and simplification processes are being carried out and it
is no more onerous than the current requirement to keep abreast of award
variations.
Cost and benefits to employees
Employees will benefit from increased surety about their entitlements. At
present it can be difficult for employees to determine which award, if any,
applies to the work that they do. The Award Review Taskforce will make
recommendations to Government about rationalising the number of awards, so
that employees can determine with ease which award applies to their
personal circumstance. This will not be an exercise in cutting award
conditions.
A potential cost to employees might be the changing range of allowable
award matters. However, under Work Choices employees will still be able
to enjoy the benefits of their award conditions, as well as, the protection
of legislated conditions of employment.
Cost and benefits to Government
The Government will benefit from the effects of award simplification and
rationalisation. Awards are currently overly prescriptive and can act as a
barrier to effective workplace bargaining, this in turn may lead to a less
efficiently functioning labour market and reduced productivity growth for
the economy.
The award rationalisation and simplification processes will be undertaken
by the AIRC, following Government consideration of recommendations by the
Award Review Taskforce. A cost to Government will be the expense of
resourcing these bodies, however the benefits of reform outweigh these
administrative costs.
Summary
Awards have become overly complex and difficult for employers and employers
to understand or interpret. The Government will ensure that the award
system is reviewed so that it can maintain relevance in a modern workplace
relations system.
Promote responsible bargaining through a more flexible framework for
dispute resolution
Under Work Choices the Government will:
. facilitate greater choice about how to resolve workplace level
disputes; and
. provide more effective regulation of industrial action - balancing
the right to take protected industrial action when bargaining
against protecting the legitimate interests of affected parties.
The Government's proposal will facilitate employers and employees resolving
disputes between themselves. Where this fails they should choose how best
to manage a dispute. The Government will:
. include a model Dispute Settling Procedure (DSP) in the legislation for
employers and employees to use when resolving their workplace disputes.
The model DSP will be included in all awards as well as agreements
which are lodged without their own DSP; and
. establish a system of registered private alternative dispute resolution
(ADR) providers that will support genuine choice between the AIRC's
dispute settling expertise and other dispute resolution specialists.
The model DSP sets out a 'staged' approach to dispute resolution commencing
with workplace level discussions and proceeding to ADR if the matter
remains unresolved. 'ADR' includes mediation, conciliation, and assisted
negotiation. The employers and employees can choose between referring a
matter to a private ADR provider or to the AIRC for assistance.
Disputes about the application of the award are dealt with under a DSP that
is set out in the award. Under Work Choices, DSPs for disputes about the
application of the award will remain an allowable matter, but be
standardised using the model DSP to ensure that employers and employees are
responsible for settling such disputes. The model DSP will replace all
award DSPs from the commencement of the new legislation. This will mean
that from the commencement of the new legislation, disputes about the
application of awards will be settled using the model DSP.
The model DSP will also apply to disputes about the Fair Pay and Conditions
Standard.
The model DSP will apply to disputes about the application of an AWA or a
collective agreement where that agreement is lodged with the OEA without
its own DSP (as a DSP is a compulsory content requirement).
In relation to industrial action, the legislation will ensure that the AIRC
will continue to supervise protected industrial action. The AIRC will
retain its powers to issue orders to prevent or stop unprotected industrial
action.
However, legislation will require that the AIRC hear and determine an
application for such an order in a maximum of 48 hours. If the AIRC cannot
determine the application to stop or prevent industrial action in that time
it will be required to issue an interim order, unless it is contrary to the
public interest.
The WR Act will be amended to require secret ballots before protected
industrial action can be taken. Employees or the union or unions will
apply to the AIRC for a secret ballot order. The AIRC will be able to make
such an order only if the employees or union are genuinely trying to reach
agreement with the employer, and if no pattern bargaining is taking place.
Protected action can only be taken by:
. a union that is a negotiating party to the proposed agreement; or
. a member of a union who is employed by the employer and will be subject
to the proposed agreement; or
. an officer or employee of a union acting in that capacity; or
. an employee who is a negotiating party to the proposed agreement.
To maintain the integrity of workplace agreements, Work Choices will make
it clear that industrial action is prohibited during the life of an
agreement.
The WR Act will be amended to require the AIRC either to suspend or
terminate a bargaining period on particular grounds. In general, the
existing grounds set out in the WR Act will be retained.
One existing ground for terminating a bargaining period will be removed.
That is where the bargaining period relates to employees covered by a
former paid rates award as these have been phased out under the WR Act.
Three new grounds will be added:
. suspension or termination if 'pattern bargaining' is taking place;
. a cooling-off suspension where this would assist the parties to resolve
the matters at issue; and
. a suspension where third parties are threatened with significant harm
from industrial action.
The AIRC will be required to suspend or terminate a bargaining period if
one of the relevant grounds applies but will retain its discretion to
choose suspension or termination. If a bargaining period is terminated
because it threatens life, personal safety, health or welfare of the
population or is likely to cause significant damage to the economy, the
matter will be referred to the AIRC for a Workplace Determination. The
AIRC will be required to consider AFPC determinations with respect to
wages. In addition, to encourage agreement making, the range of other
matters that the AIRC could consider when making Workplace Determinations
will be limited to a list set out in the legislation.
The Minister for Employment and Workplace Relations will be permitted to
issue a Declaration where protected industrial action threatens life,
personal safety, health or welfare of the population or is likely to cause
significant damage to the economy. This new remedy is similar to state
essential services legislation, and will ensure the Government can respond
to industrial action taken by parties covered by Work Choices that has
significantly damaging and wide-ranging effects on essential services.
Cost and benefits to business
Businesses will benefit from the proposed emphasis on dispute resolution at
a workplace level. This will allow businesses to reduce their reliance on
institutionalised dispute resolution processes and will ensure that they
have a say in how workplace conflict is managed and resolved. Businesses
will be able to choose between a greater variety of dispute resolution
processes (including mediation) rather than the more formal AIRC processes.
In the event that a dispute escalates and industrial action is taken,
businesses will also benefit from the better regulation of industrial
action to balance the rights of the bargaining parties against the
legitimate interests of affected parties. This will particularly be the
case for businesses providing essential services that will benefit from the
provisions allowing the Minister to terminate protected action threatening
the Australian economy or population.
While businesses may chose to pay for dispute resolution services from a
private practitioner, the Government will assist in this respect by
subsidising alternative dispute resolution services delivered by registered
providers.
Cost and benefits to employees
Employees will be able to have a greater say regarding the manner in which
disputes are resolved. This is because the legislation will recognise a
broader range of dispute resolution mechanisms. The Government will also
provide subsidies where the parties opt for a registered provider, thereby
facilitating access to private alternative dispute resolution services and
providing a genuine choice between the AIRC and non-AIRC practitioners.
Also, as consumers of essential services, employees will benefit from
measures to mitigate disruption caused by protected industrial action.
A potential cost to employees is that the proposed system will include a
number of measures to protect the legitimate interests of parties affected
by industrial disputation. This may constrain protected industrial action
in some instances. However, the Government believes this is a necessary
balance between the right to take protected industrial action when
bargaining and the interests of affected parties.
Cost and benefits to Government
The proposed reforms will benefit the Government by promoting more
harmonious employment relationships, which in turn should lead to greater
economic productivity. It will also benefit the Government by encouraging
parties to resolve disputes at the workplace level and assisting to
minimise the incidence of economically and socially damaging disputation.
A cost to Government will be the establishment and maintenance of a
register of dispute resolution providers. A further cost will also be the
provision of subsidies to eligible parties who choose to use a provider
listed on the register. However, these costs will be balanced by reduced
expenditure on AIRC dispute resolution processes.
Summary
The proposed reforms will facilitate greater choice about how to resolve
workplace level disputes and will provide more effective regulation of
industrial action.
Better balance the unfair dismissal laws
Under Work Choices the Government will:
. exempt businesses with up to, and including, 100 employees from the
operation of unfair dismissal laws, as the costs of unfair dismissal
cases weigh more heavily on small and medium businesses than on larger
businesses;
. better balance the unfair dismissal laws for businesses with over 100
employees so that employees covered will be required to have been
employed for six months before they can pursue an unfair dismissal
remedy. This is an extension of the current three month qualifying
period; and
. streamline measures to help ease the burden of unfair dismissal on
businesses by allowing the AIRC to conduct specific matters 'on the
papers', that is, without a formal hearing.
Cost and benefits to business
Small to medium businesses will greatly benefit from the proposed reforms
to unfair dismissal laws, as the proposed exemption will reduce the costs
of recruitment or termination for these businesses. These costs weigh more
heavily on small to medium businesses than on larger businesses as they
often do not have the necessary expertise or resources to successfully deal
with an unfair dismissal claim.
A recent survey of 900 businesses conducted by Australian Business Limited
shows that employers are paying former employees $5000 - $25,000 rather
than defend themselves against speculative and vexatious claims.
A study by Benoit Freyens and Paul Oslington shows that the average cost of
contested dismissals can reach almost $15,000 or 35.7 per cent of annual
wage costs. These are costs small and medium sized businesses can ill
afford.[11]
The Sensis Business Index for August 2005 confirms that current unfair
dismissal laws are a major annoyance for small and medium businesses and
inhibit jobs growth. In total, over the past year, 28 per cent of small
businesses have not hired additional employees due to fear of unfair
dismissal action. Over the past year, 20 per cent of small businesses have
faced some sort of unfair dismissal action. Half of these were threatened
with action, the other half actually faced action.[12]
The MYOB Australian Small Business Survey for September 2005 similarly
shows that 33 per cent of small businesses agree the current unfair
dismissal laws were a reason for not recruiting staff.[13]
The results from both the Sensis Business Index and MYOB Australian Small
Business Survey reinforce the importance of reforming Australia's
cumbersome unfair dismissal system which is inhibiting jobs growth.
Businesses with more than 100 employees will also benefit from the proposed
reforms. The Government will better balance the unfair dismissal laws so
that employees covered will be required to have been employed for six
months before they can pursue an unfair dismissal remedy. This is an
extension of the current three month qualifying period and will allow
businesses more time to assess whether an employee is suitable for their
business.
Businesses will also benefit from a more streamlined approach to processing
unfair dismissal claims. The AIRC will be able to deal with certain
matters 'on the papers', that is, without a formal hearing and terminations
which occur on the ground of operational requirements (redundancy) will be
excluded from the unfair dismissal regime (but not from the unlawful
terminational regime). This will reduce the costs of unfair dismissal
applications and allow for more timely processing of claims.
A cost to business of the proposed unfair dismissal law exemptions is that
employees might instead attempt to make unlawful dismissal claims.
However, the reasons for dismissal which would be considered unlawful are
already clearly prescribed within the Workplace Relations Act 1996 and will
not be changed as a result of the reforms. Therefore, businesses should
already be aware of their obligations under the unlawful dismissal
provisions.
The Government will also provide $5 million for a 'best practice' education
and training program on fair and proper employment termination practices.
This will assist employers to understand their obligations under the
reformed unfair and unlawful termination of employment provisions.
Cost and benefits to employees
The proposed exemptions will reduce barriers to job creation and will
benefit potential employees who may have previously been excluded from the
labour market.
Research by the Melbourne Institute of Applied Economic and Social Research
at the University of Melbourne, released in October 2001, found that the
present unfair dismissal laws made it difficult for the most vulnerable job
seekers to find work.[14]
The research, commissioned by the Department of Employment and Workplace
Relations, surveyed some 1802 small and medium businesses with less than
200 employees.
The research showed that dismissal laws contributed to the loss of about
77, 000 jobs from businesses which used to employ staff and now no longer
employ anyone.
However, the impact on jobs growth would appear to be greater than the
estimates in this study as the figures do not take into account jobs that
have been lost by businesses which have reduced their workforce due to the
laws, but still have employees. Nor do they include jobs which would have
been created if there were no unfair dismissal laws.
The survey also showed that the laws impact negatively on the most
disadvantaged job seekers. It found that businesses were now less inclined
to hire young people, the long-term unemployed, and those with lower levels
of education, turning instead to casuals and others on fixed term contracts
or longer probationary periods.
Employees will also benefit from a more streamlined approach to processing
unfair dismissal claims. The AIRC will be able to deal with certain
matters 'on the papers', that is, without a formal hearing. This will
reduce the costs of unfair dismissal applications and allow for more timely
processing of claims.
A cost to employees is that some employees will no longer be able to seek
remedies for unfair dismissal if they are employed by a business with up
to, and including, 100 employees. However, it is important to note that
employees will continue to enjoy protection against unlawful dismissal. It
will remain unlawful to dismiss an employee on the grounds of race, colour,
sex, age, union membership, pregnancy, family responsibilities and a range
of other factors. An employer will still be prohibited from dismissing an
employee due to the employee holding a position as a health and safety
representative or being involved with a health and safety complaint or
investigation. Freedom of association laws will continue to ensure that an
employer cannot dismiss, or otherwise victimise, an employee because he or
she is, or is not, a member of a union. Anti-discrimination laws will
continue to protect workers against discrimination and harassment in the
workplace.
Cost and benefits to Government
The Government, along with the economy as a whole, will benefit from
reforms to unfair dismissal laws. The Government believes that the time
and cost of defending an unfair dismissal claim, even one without merit,
can be substantial and these costs discourage employers from putting on
more staff, because they fear that if the employee turns out to be
unsuitable the employer may face an unfair dismissal claim without merit.
Providing exemptions from unfair dismissal laws for businesses with up to
100 employees will remove this barrier to employment growth among small to
medium businesses and could lead to a reduction in the rate of
unemployment.
The Government will also benefit from a more streamlined approach to unfair
dismissal processing as certain applications will be able to be dealt with
'on the papers', that is, without a formal hearing. This will lead to
reduced Government expenditure on AIRC unfair dismissal processing.
However, this saving will be balanced by an increase in the number of
unfair dismissal applications as more employees will be covered by the
federal workplace relations system.
Summary
The Government will introduce an exemption from unfair dismissal laws for
businesses with up to, and including, 100 employees, as the costs of unfair
dismissal claims weigh more heavily on smaller businesses which may not
have the necessary expertise or resources to deal with an unfair dismissal
claim. The Government will allow larger businesses more time to assess
whether an employee is suitable for their business, by requiring that an
employee must have been employed for at least six months before an unfair
dismissal claim can be made. The Government will also streamline the
unfair dismissal application process by enabling the AIRC to deal with
certain applications 'on the papers'.
Expand and improve the federal union right of entry regime
Right of entry provisions will be changed so as to:
. tighten the requirements for the granting of an entry permit, including
introducing a 'fit and proper person' test;
. cover the field using the corporations and territories powers so that
for businesses in the new system, right of entry can only be exercised
under the new legislation;
. make it clear there is no right of entry for discussion purposes where
all employees are on AWAs;
. only allow entry to investigate a breach of an AWA if the employee
party to the AWA provides written consent;
. require a union official to provide to the employer particulars of a
breach that he or she is proposing to investigate;
. confirm a union official can only access the records of union members
when investigating a breach, unless an order is made by the AIRC that
non-member records can be inspected; and
. require a union official to comply with a reasonable request by an
employer that the meeting or interview should be conducted in a
particular room or areas of the premises and that a specified route
should be taken to that venue.
The new legislation will allow for union entry permits to be either
suspended or made subject to limiting conditions by the AIRC in addition to
the current power to revoke a permit.
The grounds on which a permit may be revoked will be expanded. The
revocation or suspension of a permit will be mandatory in cases where the
permit holder has:
. been found by the AIRC to have breached the prohibition on making
misrepresentations about his or her powers under their right of entry
permit;
. had their right of entry under a state law cancelled, suspended or has
been disqualified from exercising or applying for right of entry under
a state law;
. been ordered to pay a penalty in respect of a contravention of the
right of entry provisions; and
. when exercising a right of entry under an Occupational Health and
Safety (OHS) law engaged in conduct that was not authorised by that
law.
Instances of systematic abuse of right of entry laws will be limited. The
AIRC will be given the ability to make orders if it is satisfied that a
union or one of its officials has engaged in improper conduct. The type of
orders the AIRC may make include revoking or suspending all permits that
have been issued in respect of the union or imposing limiting conditions on
some or all of the permits.
The right of entry provisions will still allow a union permit holder entry
for OHS purposes under state legislation where the union official has a
federal right of entry permit and the official has complied with all
requirements of the relevant state OHS legislation.
The conscientious objection provisions of the WR Act will also be improved.
The current WR Act requires the Industrial Registrar to issue a
conscientious objection certificate to an employer whose conscientious
beliefs do not allow them to belong to an association. Where an employer
holds a conscientious objection certificate, unions cannot exercise right
of entry to hold discussions with employees provided certain conditions are
met.
One of the conditions for obtaining a conscientious objection certificate
is that all the employer's employees must agree to the certificate being
issued. This is an unreasonable restraint on the exercise of the
conscientious objection and the Government is proposing to remove this
restriction.
Cost and benefits to business
This option will deliver a net benefit to business. Constitutional
corporations that are currently subject to union entry under multiple
federal and state industrial laws and/or instruments will be covered by a
single, national right of entry scheme, affording them greater certainty as
to their rights and responsibilities. Under this option, employers and
occupiers of premises will be protected from union officials exploiting
regulatory overlap to ignore certain statutory responsibilities or
unlawfully exercise additional rights. Better controls on permits and an
enhanced compliance regime, encompassing a range of new civil penalty
provisions, will help ensure that right of entry is exercised responsibly
within the new system.
This option will reduce the extent of disruptive union entry into
Australian workplaces, contributing to more productive, profitable and
higher pay enterprises. This objective will be achieved by improving
clarity and strengthening control and compliance mechanisms within the new
system, in the manner discussed above, and by imposing further explicit
limitations on entry. For example, unions will be required to demonstrate
reasonable evidence of a suspected breach affecting their membership prior
to entry. Where the union entry is for the purposes to holding discussions
with employees, employers and occupiers will have greater control regarding
the location of the discussions, while the AIRC will have the power to make
orders addressing excessive or disruptive recruitment conduct.
Cost and benefits to employees
This option will benefit employees. Providing for the AIRC to make orders
in relation to excessive or disruptive recruitment conduct will help to
protect employees' rights to freedom of association, by preventing
instances of harassment to take out or retain union membership during
repeated workplace visits.
Where entering to investigate a suspected breach, union officials' access
to non-member records would be restricted, in most instances. This is
consistent with the Government's view that unions should operate as
membership-based service organisations. It should help unions to provide
better services to their members, while ensuring the privacy of non-
members. The Office of Workplace Services (OWS) will investigate breaches
affecting non-members.
Cost and benefits to Government
The option seeks to expand the federal right of entry regime by 'covering
the field to the exclusion of state industrial laws and instruments. This
could see some costs shifted from state governments to the Australian
Government. For example, there may be requirement to administer an
increased number of federal permits. This option also introduces new
statutory functions for federally funded bodies, including the AIRC (eg
issuing orders for abuse of the permit system); the Industrial Registrar
(eg approving entry notices, undertaking 'fit and proper person' tests in
relation to permit issue); and the Federal Court (issuing interim
injunctions to prevent breaches of new and existing civil penalty
provisions).
Costs should be more than fully offset by an extensive range of anticipated
benefits to the Australian Government and economy, in respect of this
option. Benefits may include savings derived from reduced regulatory
overlap, and the administration of a simpler and more harmonious regime.
Increased certainty regarding rights and responsibilities, and more
responsible use of permits, should help to avoid right of entry disputes.
The option would also reduce unnecessary and disruptive union entry to
workplaces, resulting in more productive, profitable and higher pay
enterprises.
Summary
This option is expected to reduce the extent of disruptive union entry into
Australian workplaces, contributing to more productive, profitable and
higher pay enterprises, to the benefit of employers, employees, and
Government.
Impact on Small Business
Small business will benefit significantly from Option B, in that it will
introduce a simple and more universally applicable and understood set of
minimum wages and conditions, as opposed to the myriad of state and federal
awards that currently exist. This will facilitate compliance. This will
greatly simplify the negotiation of agreements, thereby increasing small
business access to the flexibilities to be gained by tailoring arrangements
to the needs of the workplace. In addition, a lodgment-only process for
all agreements will remove a significant layer of complexity and will
reduce the uncertainty and frustration caused by processing delays.
Following the reforms, it is estimated that the federal system will cover
up to 85 per cent of employees[15]. About 15 per cent of employees, mainly
those employed by small non-incorporated businesses, will not be covered by
the federal legislation relying on the corporations power. Unincorporated
businesses currently in the federal system will be able to remain covered
by federal provisions based on the conciliation and arbitration power for a
transitional period of up to five years while they consider whether to
incorporate and remain in the federal system, or move into the relevant
state system. This will help ensure minimum disruption and loss of
flexibility for those employers and their employees. However, it is
important to note that 49 per cent of small businesses that employ staff
are already incorporated and small businesses operating with the ACT, NT or
Victoria will also fall within the federal jurisdiction[16].
To ensure that small business operators are not confused by the proposed
changes, a targeted awareness and education campaign (developed by the
Department of Employment and Workplace Relations in consultation with the
Office of Small Business) will be undertaken. Additional assistance and
advice will be available through the OEA, the Department of Employment and
Workplace Relations, and employer organisations.
Consultation
There has been informal consultation with a large number of key
stakeholders. They include a range of industry organisations and
individual enterprises, unions, and legal firms. Business groups have
generally called for a unified system, further simplification of awards and
simplified agreement processes. Some have suggested more radical reform.
Unions have generally called for retention of the current system, with no
contraction of the AIRC's role and no further reduction in allowable award
matters.
The proposed changes to the workplace relations system were discussed with
State and Territory Ministers at the August 2005 meeting of the Workplace
Relations Ministers Council and the June 2005 meeting of the National
Workplace Relations Consultative Committee. Further consultation about the
proposed reforms is scheduled to take place at a meeting of the Committee
on Industrial Legislation (COIL) in November 2005.
Conclusion and Recommended Option
The underlying principle of the Government's workplace relations reform
agenda since 1996 has been the establishment of a genuine safety net, with
the actual conditions of employment negotiated at the workplace through
agreement between employers and employees. Unfortunately, the current
safety net is not a genuine one and agreement making remains overly costly
and bureaucratic.
The reforms proposed in Options B will balance employee rights with sound
economic management. They will deliver a much simplified system based on a
genuine safety net of minimum wages and conditions. They will reduce
unnecessary regulation and make significant progress towards implementing a
single, unified workplace relations system for Australia.
The recommendation to Parliament is that Option B be agreed.
Transitional Arrangements
As a result of the legislation, all employees of constitutional
corporations currently covered by state industrial relations systems will
move into the federal system. The terms of former state awards and
agreements will become enforceable under the federal system as transitional
agreements.
Former state agreements will operate under federal legislation in a similar
way to federal agreements. They will keep their nominal expiry date, and
will continue to operate until terminated or replaced by a new agreement.
Some content in former state agreements, such as union preference clauses,
that is currently prohibited, or inhibits the ability of the parties to
bargain, will be prohibited.
Constitutional corporations that have employees with terms and conditions
covered by a state award will have their awards preserved as transitional
agreements between the relevant employers and employees. However, where
employees on former state awards have conditions less than the Fair Pay and
Conditions Standard, the more generous conditions will apply. This will
protect the existing terms and conditions of employment of employees
currently covered by state awards other than prohibited content. These
transitional agreements will cease to operate after three years.
There will be a separate transitional system for employers and employees
currently in the federal system where the employer will not be covered by
the new federal system.
This transitional system will operate for a period of five years and be
based on the conciliation and arbitration power for a limited period. This
transitional arrangement will provide employers that are unincorporated
businesses currently in the federal system a chance to decide whether they
want to incorporate and remain in the federal system.
Current federal collective agreements in settlement of an industrial
dispute will continue to operate after commencement of the new system.
These agreements will run for up to five years. Non-constitutional
corporations that are part of the transitional system will not be able to
negotiate new agreements in the new national system.
At the end of the transitional period transitional agreements will cease to
operate, and any unincorporated business remaining in the federal system
will automatically revert to the relevant state industrial relations
system.
Awards that bind a non-constitutional corporations will become
'transitional' awards at the commencement of the new system. The
transitional awards will apply only to non-constitutional corporations
covered by awards in the current federal system.
At the end of the transitional period transitional awards covering will
cease to operate, and any unincorporated business remaining in the federal
system will automatically revert to the relevant state industrial relations
system.
Implementation and Review
The proposal requires substantial amendment to the WR Act. The Department
of Employment and Workplace Relations will monitor and evaluate the effect
of such legislative change.
Broadly speaking, implementation will require carefully developed
transitional arrangements which focus on guaranteeing employee protections
and a comprehensive targeted communication strategy to widely publicise the
reforms.
NOTES ON CLAUSES
Clause 1 - Short title
1. This is a formal provision specifying the short title of the Act.
Clause 2 - Commencement
2. This clause would specify when the various provisions of the Bill are
proposed to commence. The time of commencement for particular provisions
would be set out in a table in subclause 2(1).
3. Item 1 of the table would provide that the preliminary provisions of
the Bill (short title, commencement and effect of Schedules) would commence
on Royal Assent.
4. Item 2 of the table would provide that Schedule 1 (which contains the
principal amendments of the WR Act) would commence on a single day to be
fixed by Proclamation. However, if any provisions in Schedule 1 are not
proclaimed to commence within six months of the Act receiving Royal Assent,
they would commence on the day following that period of six months. It is
expected that Schedule 1 would be proclaimed to commence before the
expiration of the 6 month period.
5. Item 3 of the table would provide that Schedule 2 would commence in
the same way as Schedule 1. It is intended that this Schedule would be
proclaimed to commence prior to the reform commencement (ie before Schedule
1 and the principal amendments to the WR Act commence). This would allow
state registered associations to transitionally register before the
substantive changes to the WR Act commence. As some or all of their
members would become covered by the federal system, this would enable the
associations to represent those members under the federal system from the
reform commencement.
6. Item 4 of the table would provided that Schedule 3 (school-based
trainees) would commence in the same way as Schedule 1. It is expected
that this Schedule would be proclaimed to commence on 1 January 2006. This
is to ensure that the provisions are operational for the 2006 school year.
7. Item 5 of the table would provide that Part 1 of Schedule 4 to the
Bill (power to make transitional and consequential regulations) would
commence on Royal Assent. This would enable the making of regulations
which need to be made so that they can commence at the same time as other
provisions of the Bill.
8. Item 6 of the table would provide that Part 2 of Schedule 4 to the
Bill (transitional, application and savings provisions) would commence at
the same time as Schedule 1 to the Bill.
9. Item 7 of the table would provide that Schedule 5 (renumbering of the
Act) would commence in the same way as Schedule 1. It is expected that
Schedule 5 would be proclaimed to commence before the expiration of the 6
month period but after the commencement of any amendments made to the Act
by regulations.
10. Subclause 2(2) would provide that Column 3 of the table contains
additional information that is not part of the amendment Act. Information
in this column could be added to or edited in any published version of this
Act.
Clause 3 - Schedule(s)
11. This clause would provide that an Act that is specified in a Schedule
is amended or repealed as set out in that Schedule, and any other item in a
Schedule operates according to its terms.
Schedule 1 ~ Main Amendments
Item 1 - section 3
1. Proposed item 1 would repeal section 3 in the pre-reform Act and
replace it with a new principal object section.
Proposed section 3 - Principal object
2. Proposed section 3 would describe the principal object of the
Workplace Relations Act 1996 (WR Act) that reflects the proposed
more flexible, simpler and fairer system of workplace relations for
Australia
Item 2 - Section 4
3. Proposed item 2 would repeal section 4 in the pre-reform Act and
replace it with a new definitions section.
4. Proposed subsection 4(1) would provide that in this Act the
following definitions apply unless a contrary intention appears.
This means that the replacement definitions in subsection 4(1) would
apply across the whole Bill unless expressly or impliedly displaced
by the context in which they are used.
5. Proposed subsection 4(1) contains a number of proposed 'sign post'
definitions including those relating to agreements, awards and the
Standard. These definitions would refer the reader to particular
provisions which provide substantive definitions.
6. Proposed 'sign post' definitions relating to awards include
definitions for:
. allowable award matters;
. award rationalisation request;
. award simplification process;
. pre-reform award;
. preserved award entitlement;
. preserved award term.
7. Proposed 'sign post' definitions relating to the Standard include
definitions for the:
. APCS;
. Australian Fair Pay and Conditions Standard (the Standard);
. new APCS;
. preserved APCS.
8. Otherwise, only key definitions are explained below. The
definitions appear in alphabetical order in the Bill. The key
definitions that are explained here are in alphabetical order.
Definitions - Section 4(1)
9. The proposed definition of applies to employment generally is used
in the definition of State or Territory industrial law in subsection
4(1) and in paragraph 7C(1)(a) (which would exclude the operation of
such laws to employers and employees within the general
constitutional coverage of the amended WR Act). The definition
would be used for the purpose of describing certain State and
Territory laws. It would identify a State or Territory law that
applies to all employers and employees in the relevant State or
Territory even though:
. for constitutional reasons, the law does not or is not intended to
apply to certain employers and employees (for instance, employers
and employees bound by federal awards or Commonwealth employers
and employees);
. some categories of employers and employees are excluded from the
operation of the law (for instance, by industry sector or by
classification of employee);
. the law applies to other persons (for instance, independent
contractors or industrial arbitrators); or
. an exercise of power under the law does not affect all the
employers and employees (or other persons) to whom the law applies
(for instance, an exercise of power to make an award or to dismiss
an unfair dismissal application).
10. The proposed definition would encompass laws such as the industrial
relations Acts named in paragraph (a) of the definition of State or
Territory industrial law in subsection 4(1), a long service leave
law applying to all employers and employees subject to exclusions
(such as for public sector employers and employees), a law applying
minimum conditions of employment for the relevant State or Territory
and a law that provides leave entitlements to all employees except
casual employees.
11. The proposed definition would not encompass a law which, for
instance, applies only to an industry sector (such as a law
regulating employment conditions in the coal mining industry or a
public sector employment law) and to a law that regulates only one
employer and its employees (such as a law establishing a body
corporate and making provision for the determination of conditions
of employment of employees of that body corporate).
12. The proposed definition of Australian-based employee would be used
for the purposes of the provisions of the amended WR Act which would
give extraterritorial operation to provisions of the amended WR Act
(see proposed section 7AA).
13. Proposed paragraph (a) of the definition would specify as an
Australian-based employee an employee whose primary place of work is
in Australia, or in Australia's exclusive economic zone or in, on or
over Australia's continental shelf (as defined in subsection 4(1)).
The expression 'primary place of work' would not be defined. An
Australian-based employee would be an employee working primarily
(although not necessarily exclusively) in Australia or the defined
areas of Australian waters.
14. Proposed paragraph (b) of the definition would specify as an
Australian-based employee a Commonwealth employee or an employee of
a Commonwealth authority (as defined in subsection 4(1)). An
exception would be made for employees engaged outside Australia and
the external Territories to perform duties outside Australia and
those Territories (for instance, locally engaged staff engaged under
section 74 of the Public Service Act 1999).
15. Proposed paragraph (c) of the definition would specify as an
Australian-based employee an employee prescribed by the regulations
as an Australian-based employee. This would allow regulations to be
made in cases where, for instance, there is doubt about whether the
primary place of work of a class of employees is in Australia.
16. The proposed definition of Australian employer would be used for the
purposes of the provisions of the amended WR Act which would give
extraterritorial operation to provisions of the amended WR Act (see
proposed section 7AA).
17. Proposed paragraphs (a) to (e) of the definition would specify as
Australian employers the Commonwealth and the entities listed in the
definition of employer in proposed subsection 4AB(1) which are
formed in Australia. Proposed paragraph (f) of the definition would
specify as an Australian employer an employer that carries on
activities in Australia (or Australia's exclusive economic zone or
continental shelf) whose central management and control is in
Australia. The employers who would be covered by paragraphs (a) to
(f) of the definition would be the employers within the general
constitutional coverage of the amended WR Act who have a substantial
connection with Australia.
18. Proposed paragraph (g) of the proposed definition would authorise
the making of regulations to prescribe an employer as an Australian
employer. This would allow regulations to be made to prescribe
employers as Australian employers in other cases where it is
considered desirable that the amended WR Act should apply to the
employers as Australian employers on the basis of a connection with
Australia.
19. The proposed definition of Australia's continental shelf would be
used for the purposes of the provisions of the amended WR Act which
would give extraterritorial operation to certain provisions of the
amended WR Act (see proposed section 7AA and the proposed
definitions of Australian-based employee and Australian employer).
20. The proposed definition of Australia's exclusive economic zone would
be used for the purposes of the provisions of the amended WR Act
which would give extraterritorial operation to certain provisions of
the amended WR Act (see proposed section 7AA and the proposed
definitions of Australian-based employee and Australian employer).
21. The proposed definition of award at subsection 4(1) is an award made
by the AIRC under section 118E or a pre-reform award.
22. The proposed definition of Commonwealth authority would define the
expression to mean both a body corporate established for a public
purpose under a Commonwealth law and a body incorporated under a law
in which the Commonwealth has a controlling interest. The proposed
definition would be used in a number of provisions of the amended WR
Act, including the definition of employer in proposed subsection
4AB(1) (specifying the employers who would fall within the general
constitutional coverage of the amended WR Act).
23. The proposed definition of constitutional corporation would define
the expression to mean a corporation to which paragraph 51(xx) of
the Constitution (the corporations power) applies. The corporations
power applies to a trading or financial corporation formed within
the limits of the Commonwealth and to a foreign corporation. The
proposed definition would be used in a number of provisions of the
amended WR Act, including the definition of employer in proposed
subsection 4AB(1) (specifying the employers who would fall within
the general constitutional coverage of the amended WR Act).
24. The proposed definition of constitutional trade or commerce would
define the expression to mean trade or commerce between Australia
and a place outside Australia, among the States, between a State and
a Territory, between 2 Territories or within a Territory. This is
trade and commerce to which paragraph 51(i) of the Constitution
applies (the interstate and overseas trade and commerce power), and
trade and commerce which the Commonwealth can regulate under section
122 of the Constitution (the Territories power). The proposed
definition would be used in the definition of employer in proposed
subsection 4AB(1) (specifying the employers who would fall within
the general constitutional coverage of the amended WR Act).
25. The proposed definition of Peak Council would be a national or
State council or federation that is effectively representative of a
significant number of organisations representing employers or
employees in a range of industries. The only change from the
existing definition in the WR Act is the addition of the words 'or
State'. This would enable State council or federations who meet the
requirements of this definition to have the same rights in relation
to the representation of parties before the AIRC, as set out in
section 42 of the WR Act, as national councils or federations.
26. The proposed definition of State or Territory industrial law in
subsection 4(1) would be used in the provision of the amended WR Act
excluding the operation of certain State and Territory laws (see
proposed paragraph 7C(1)(a)) and in other provisions of the amended
WR Act, including provisions dealing with union right of entry and
preserved State instruments. It would identify certain State and
Territory laws dealing wholly, or in a substantial aspect, with
industrial matters, and laws prescribed for the purposes of the
definition.
27. Paragraph (a) of the proposed definition would specify the present
industrial relations Acts of those States that have not referred
industrial relations power to the Commonwealth, as amended from time
to time (see section 10A of the Acts Interpretation Act 1901).
28. Paragraph (b) of the proposed definition would specify any State or
Territory Act which applies generally to employers and employees in
the State or Territory (and not, for instance, only to a particular
industry sector - see the proposed definition of applies to
employment generally) and which has a main purpose of regulating
industrial matters (such as settling industrial disputes, regulating
industrial action, determining minimum or other terms and conditions
of employment, providing for employment agreements and regulating
termination of employment or freedom of association).
29. Paragraph (c) of the proposed definition would specify legislative
instruments (such as regulations) made under a State or Territory
Act described in either paragraph (a) or paragraph (b) of the
definition of State or Territory industrial law.
30. Paragraph (d) of the proposed definition would authorise the making
of regulations to prescribe a State or Territory law (whether an Act
or other law, and including a provision of a law) as a State or
Territory industrial law.
Item 3 - After section 4
31. This item would insert new sections 4AA, 4AB and 4AC which are
explained below.
New section 4AA - Employee
32. Proposed subsection 4AA(1) would operate in conjunction with
proposed section 4AB (which defines employer for the purposes of the
amended WR Act) to provide the constitutional underpinnings for much
of the amended WR Act. Subsection 4AA(1) would define an employee
for the purposes of the amended WR Act as, in essence, an individual
so far as he or she is employed by an employer. Subsection 4AB(1)
would define employer as listed persons or entities whose industrial
rights and obligations can be regulated by the Commonwealth.
Subsection 4AA(1) would therefore define employee as a person
employed by one of the persons or entities listed in proposed
subsection 4AB(1).
33. Much of the amended WR Act (for example, the provisions in relation
to the Standard, awards, agreement making and unfair dismissal, and
most of the industrial action provisions) would operate by reference
to the meanings of employer and employee in proposed sections 4AA
and 4AB. In the substantive provisions, industrial rights and
obligations would be imposed on employers and employees (such as the
Standard), and references to employer and employee would have the
meaning given by subsections 4AA(1) and 4AB(1). By this mechanism,
the provisions imposing the industrial rights and obligations would
be confined to regulation of rights and obligations within
Commonwealth legislative power.
34. The legislative note to subsection 4AA(1) would make clear that the
definition of employee in that subsection (read with the definition
of employer in subsection 4AB(1)) would not cover all of the
employees whose industrial rights and obligations would be regulated
by the amended WR Act. Part XV would extend the application of the
amended WR Act to employees and employers in Victoria who would not
fall within the definitions in subsections 4AA(1) and 4AB(1)
(supported by the industrial relations powers referred to the
Commonwealth by the Commonwealth Powers (Industrial Relations) Act
1996 (Vic)).
35. Proposed subsection 4AA(2) would provide an exception to the meaning
of employee given by subsection 4AA(1). It would provide that a
reference to employee would have its ordinary meaning if the
reference is listed in clause 2 of Schedule 1. This list would be
able to be amended by regulations (see proposed clause 5 of Schedule
1).
36. The list would be included in the amended WR Act because the word
employee would be used in a range of contexts in the amended WR Act
and, in some of those contexts, the word would be used in its
ordinary meaning of a person employed by another person or an
entity.
37. For instance, Part IX (Right of entry) and Part XA (Freedom of
association) would use the words in their ordinary meaning because
they operate in relation to premises and conduct respectively (not
employers and employees) and the constitutional support for those
Parts depends on limitations within those Parts as to the premises
and conduct regulated by those Parts. Thus the meaning of employer
and employee would not be, and would not need to be, limited to the
meaning given by proposed subsections 4AA(1) and 4AB(1).
38. Other examples of the use of the word 'employee' in its ordinary
meaning would be references to State or Territory laws dealing with
employees, and references to associations or organisations of
employees. In both cases, the reference would be to employees
generally, not to employees of the employers listed in proposed
subsection 4AB(1).
39. The list in clause 2 would be used to clarify the intention in some
cases of use of the ordinary meaning of employee, but not in every
case where the word is not used in its constitutionally linked
meaning. Proposed subsection 4AA(2) would be expressed not to limit
the circumstances in which a contrary intention may appear for
subsection 4AA(1) purposes. In many instances, the context in which
the word employee is used would indicate a sufficiently clear
contrary intention for the purposes of subsection 4AA(1) so that the
word would in any case be construed according to its ordinary
meaning.
40. In addition, in some parts of the amended WR Act (such as Part VIA
in relation to unlawful termination and Part XV in relation to
Victoria), employee would in any case be defined differently for the
purposes of the provisions in question (generally because the
constitutional support for the provisions would not be the same as
for most of the amended WR Act). In those cases, a contrary
intention for the purposes of subsection 4AA(1) would be expressed.
41. Whether or not employee is used in the constitutionally linked
meaning or the ordinary meaning, proposed section 4AA would provide
that employee extends to a person usually employed (in the ordinary
sense) and does not extend to a person on a vocational placement
(see proposed subsections 4AA(1), (3) and (4)).
New section 4AB - Employer
42. As explained in relation to proposed section 4AA, proposed section
4AB would operate in conjunction with proposed section 4AA (which
would define employee for the purposes of the amended WR Act) to
provide the constitutional underpinnings for much of the amended WR
Act. Proposed subsection 4AB(1) would define employer as listed
persons or entities whose industrial rights and obligations may be
regulated by the Commonwealth. The inclusion of the persons and
entities listed in subsection 4AB(1) would rely on the corporations
power (paragraph 51(xx) of the Constitution), the Commonwealth's
power to regulate Commonwealth employers and employees, the trade
and commerce power (paragraph 51(i) of the Constitution) and the
Territories power (section 122 of the Constitution).
43. Legislative note 1 to proposed subsection 4AB(1) would note that,
for the purposes of proposed paragraph 4AB(1)(f), Australia includes
the Territory of Christmas Island and the Territory of Cocos
(Keeling) Islands. This means that the definition of employer would
not extend to an employer carrying on an activity in an external
Territory unless the employer falls within one of the paragraphs of
proposed subsection 4AB(1) other than paragraph (f).
44. Legislative note 2 to proposed subsection 4AB(1) would perform the
same function as the legislative note to proposed subsection 4AA(1).
45. Proposed subsection 4AB(2) would perform the same function, in
relation to employer, as corresponding subsection 4AA(2) performs in
relation to employee. The explanatory notes in relation to
subsection 4AA(2) apply equally to the operation of subsection
4AB(2).
46. Whether or not employer is used in the constitutionally linked
meaning or the ordinary meaning, proposed section 4AB would provide
that employer extends to a person or entity who is usually an
employer (in the ordinary sense) (see the references to 'usually
employs' in each paragraph of proposed subsection 4AB(1), and
proposed subsection 4AB(3)).
New section 4AC - Employment
47. Proposed subsection 4AC(1) would provide that, subject to a contrary
intention, employment means employment of an employee by an employer
where employee and employer have their constitutionally linked
meaning (the meanings given by subsections 4AA(1) and 4AB(1)).
48. Proposed subsection 4AC(2) would perform the same function, in
relation to employment, as corresponding subsections 4AA(2) and
4AB(2) perform in relation to employee and employer. The
explanatory notes in relation to subsection 4AA(2) apply equally to
the operation of subsection 4AC(2).
Item 4 - Section 4A
49. Section 4A presently gives effect to Schedule 1B to the WR Act.
Section 4A would be repealed and replaced with a new provision that
would give effect to Schedule 1B and to the new Schedules to the WR
Act. The note explains the subject matter of each Schedule.
Item 5 - Sections 5 and 5AA
50. This item would repeal sections 5 and 5A of the WR Act. Those
provisions extend the operation of the present provisions of the WR
Act in reliance on the interstate trade and commerce power in
paragraph 51(i) of the Constitution. Under the amended Act, the
trade and commerce power would be attracted by paragraph (d) of the
definition of employer in subsection 4AB(1).
Item 6 - Section 7
51. This item would insert new sections 7 and 7AA which are explained
below.
Section 7 - Modifications for Christmas Island and Cocos (Keeling)
Island
52. Proposed section 7 would authorise the making of regulations
modifying the operation of the amended WR Act to the Territories of
Christmas Island and Cocos (Keeling) Islands. This would enable a
modified workplace relations regime to be applied in those
Territories if circumstances in those Territories make modification
necessary or desirable.
53. Under the present WR Act, section 7 provides an equivalent
regulation making power in relation to Christmas Island but not
Cocos (Keeling) Islands. The proposed provision would extend the
power to make modifications of the WR Act for Cocos (Keeling)
Islands. This would mean that the capacity to modify the WR Act
would be available for both external Territories to which the WR Act
applies. Where appropriate, the same modifications could be made
for both Territories, although the regulation making power would
extend to making different modifications for each Territory or
making modifications for one but not the other.
54. Proposed section 7 would not expressly extend the amended WR Act to
Christmas Island (as it does under the present WR Act). The amended
WR Act would apply to persons, acts, omissions, matters and things
in Australia, including Christmas Island and Cocos (Keeling) Islands
(see legislative Note 1 to proposed subsection 7AA(1)). It is not
necessary to make provision to extend the amended WR Act to
Christmas Island or Cocos (Keeling) Islands.
New section 7AA - Extraterritorial application
55. In the absence of express provision, the amended WR Act would
generally apply only to persons, acts, omissions, matters and things
in and of Australia. Australia, for this purpose, includes the
coastal sea and Christmas Island and Cocos (Keeling) Island (see
legislative Note 1 to proposed subsection 7AA(1)).
56. Various provisions of the Bill would extend the application of the
amended WR Act to persons, acts, omissions, matters and things
outside Australia. Proposed subsection 7AA(1) would insert a table
showing the provisions which would be given extraterritorial
application and identifying each extraterritorial application
provision.
57. Broadly, the scheme of the extraterritorial application provisions
would be to apply minimum Australian terms and conditions of
employment (the Standard and awards) to Australian-based employees
of Australian employers who are outside the Australian exclusive
economic zone and continental shelf. But the provisions would also
allow workplace agreements to be made by Australian employers with
non-Australian-based employees, and by non-Australian employers with
Australian-based employees, wherever the work was to be performed.
In those cases, the Standard would apply in respect of that
employment.
58. Equal remuneration orders would be available in relation to
remuneration regulated by Australian law or a contract made in
Australia. Termination of employment remedies would be available to
an Australian-based employee wherever the termination conduct
occurred. Freedom of association remedies would be available in
relation to conduct by a registered organisation or an Australian-
based employee (or a group including either of these) which
adversely affects an Australian employer, and in relation to conduct
by an Australia employer (or a group including an Australian
employer) which adversely affects an Australian-based employee.
Right of entry by workplace inspectors and unions, and industrial
action remedies, would not be available outside Australia and
Australia's exclusive economic zone and continental shelf.
59. The extraterritorial application of the amended WR Act would be
within recognised limits under international law - that is, in
general terms, there must be a sufficient connection between the law
and Australia. However, as with any extraterritorial application of
law, an inconsistency might arise between the provisions of the
amended WR Act and the legislation of a country outside Australia in
whose territory work was performed. In those circumstances, it may
not be possible to enforce the provisions of the amended WR Act.
60. Special provision would be made for application of the amended WR
Act in the waters of the Australian exclusive economic zone and
continental shelf. The extraterritorial extensions would apply in
the exclusive economic zone only to employees of Australian
employers. However, regulations could extend the operation of
provisions of the amended WR Act to other employees in the exclusive
economic zone. In making regulations, account would be taken of
Australia's international law obligations in relation to foreign-
flagged ships and foreign-registered aircraft.
61. Any extraterritorial application of the provisions of the amended WR
Act to employees in, on or over the continental shelf beyond the
exclusive economic zone would be prescribed by regulation. In
making regulations, account would be taken of Australia's
international law obligations in relation to foreign-flagged ships
and foreign-registered aircraft and its obligations in relation to
matters concerning the continental shelf (including under agreements
with other countries in relation to particular areas of the
continental shelf).
62. Provisions of the amended WR Act (sections 89C and 115B) would also
authorise the making of regulations to dis-apply the Standard or
awards (or both) to employees in Australia on the basis of
insufficiency of connection between the employment and Australia
(for example, flight crew of a foreign airline who transit in and
out of Australia).
63. Proposed subsections 7AA(2) and (4) would authorise the making of
regulations modifying the operation of the amended WR Act to all or
parts of Australia's exclusive economic zone or the continental
shelf beyond the exclusive economic zone. This would enable a
modified workplace relations regime to be applied in those areas of
waters if the circumstances in those areas make modification
necessary or desirable. The modifications could be made in relation
to different parts of the exclusive economic zone and continental
shelf (see proposed subsections 7AA(3) and (5)).
64. Proposed subsection 7AA(6) would define modifications to include
additions, omissions and substitutions so that a broad range of
modifications would be authorised by subsections 7AA(2) and (4).
65. Proposed subsection 7AA(6) would also provide a specific definition
of this Act for the purposes of section 7AA. This is because the
definition of this Act in subsection 4(1) (which would otherwise
apply) does not extend to the Registration and Accountability of
Organisations Schedule and regulations made under it. The specific
definition would ensure that subsections 7AA(2) and (4) would
authorise modifications of that Schedule and those regulations.
Item 7 - Section 7B
Item 8 - At the end of section 7B
66. Item 7 would make a minor amendment consequential on the amendment
made by Item 8.
67. Item 8 would insert a proposed subsection 7B(2) that deals with the
application of Criminal Code
68. Proposed subsection 7B(2) would displace the application of Part 2.7
of the Criminal Code to the extent that Part 2.7 would otherwise be
relevant to the amended WR Act. Part 2.7 provides for the
geographical jurisdiction applicable to offences under Commonwealth
laws. Proposed section 7AA and the extraterritorial application
provisions mentioned in that section, and proposed subsections 86(6)
and (7), would implement a scheme for the extraterritorial
application of the amended WR Act. That scheme would be appropriate
to the workplace relations regime that would exist under the amended
WR Act. That scheme would extend to the offence provisions of the
amended WR Act and it would not be necessary or appropriate to rely
on the operation of Part 2.7 of the Criminal Code in relation to the
application of those provisions.
Item 9 - At the end of Part I
69. This item would insert new sections 7D, 7D and 7E which are
explained below.
New section 7C - Act excludes some State and Territory laws
70. Proposed section 7C would ensure that the amended WR Act would
operate to the exclusion of present and future State and Territory
industrial regimes in their application to employers and employees
who would fall within the general constitutional coverage of the
amended WR Act (that is, employers and employees within the meaning
of proposed subsections 4AA(1) and 4AB(1)).
71. This object would be achieved, first, by the exclusion by proposed
paragraph 7C(1)(a) of a State or Territory industrial law in its
application to constitutionally covered employers and employees.
72. The proposed definition of State or Territory industrial law in
subsection 4(1) would specify the present industrial relations Acts
of the States by name, and paragraph 7C(1)(a) would exclude those
Acts in their application to constitutionally covered employers and
employees.
73. The proposed definition would also specify any State or Territory
Act which applies generally to employers and employees in the State
or Territory and which has a main purpose of regulating industrial
matters (such as settling industrial disputes, regulating industrial
action, determining minimum or other terms and conditions of
employment, providing for employment agreements and regulating
termination of employment or freedom of association). Paragraph
7C(1)(a) would therefore also exclude the application (to
constitutionally covered employers and employees) of State or
Territory Acts, other than the Acts mentioned by name in the
definition of State or Territory industrial law, that deal wholly
with the regulation of industrial matters or contain substantial
provision for the regulation of industrial matters.
74. The proposed definition of State and Territory industrial law would
also specify legislative instruments (such as regulations) made
under a State or Territory Act (mentioned by name or not) described
in the definition, and State or Territory laws prescribed for the
purpose. These laws would therefore also be excluded by paragraph
7C(1)(a) in their application to constitutionally covered employers
and employees.
75. Proposed paragraphs 7C(1)(b), (c), (d) and (e) would exclude the
application of State or Territory laws dealing with certain other
industrial matters in their application to constitutionally covered
employers and employees. The excluded laws would be laws applying
to employers and employees generally which deal with forms of leave
other than long service leave and laws providing for equal
remuneration and unfair contracts remedies and for union right of
entry. These exclusions would apply to any provision of an Act or
other law (such as regulations). They would apply even if the law
was not, or was not contained in, a State or Territory industrial
law as defined in subsection 4(1).
76. The Commonwealth Powers (Industrial Relations) Act 1996 (Vic) would
not be excluded by the operation of proposed subsection 7C(1). That
Act would not itself regulate workplace relations and would not be a
State or Territory industrial law. In any case, subsection 7C(1)
would exclude State and Territory laws only so far as they would
otherwise apply in relation to a constitutionally covered employee
or employer. The referral of matters to the Commonwealth by the
Victorian Commonwealth Powers Act does not apply to employees or
employers whether constitutionally covered or not (it provides
powers to the Commonwealth) but, in any case, the Victorian
Commonwealth Powers Act refers matters only to the extent not
otherwise within Commonwealth legislative power (and
constitutionally covered employers and employees are within
Commonwealth legislative power).
77. Proposed subsection 7C(2) would make clear that certain State or
Territory laws that might otherwise be excluded in their application
to constitutionally covered employers and employees would be
intended to apply to constitutionally covered employers and
employees.
78. Proposed paragraph 7C(2)(a) specifies a law dealing with the
prevention of discrimination or the promotion of EEO (or both) as a
law which would not be excluded by proposed subsection 7C(1). But
this would apply only where the law is not itself, or is not
contained in, a State or Territory industrial law (as defined in
subsection 4(1)). The proposed paragraph would, for instance, save
the application (to constitutionally covered employers and
employees) of State and Territory anti-discrimination legislation
(such as the Anti-Discrimination Act 1977 (NSW) and the Equal
Opportunity Act 1994 (WA)). However, it would not, for instance,
save the application to those employers and employees of provisions
contained in State industrial relations Acts which prohibit
termination of employment on the grounds of sex, race, pregnancy or
the like.
79. The reference to EEO in proposed paragraph 7C(2)(a) would be read in
its ordinary meaning which is 'a government policy to ensure that
people with equal ability to do a job will have an equal chance of
being hired for or promoted to it, meaning that extraneous factors
such as sex, race, ethnic origin or marital status will not
influence their chances of recruitment or promotion' (Macquarie
Dictionary, revised 3rd edition).
80. Proposed paragraph 7C(2)(b) would authorise the making of
regulations to prescribe a law (whether an Act or other law, and
including a provision of a law) of a State or Territory as a law
which is not excluded by proposed subsection 7C(1).
81. Proposed paragraph 7C(2)(c) would provide that a law dealing with a
matter described in proposed subsection 7C(3) (a non-excluded
matter) would not be excluded by proposed subsection 7C(1).
82. Proposed subsection 7C(3) would list a range of non-excluded matters
including, for instance, workers compensation, occupational health
and safety, long service leave, jury service leave and industrial
action affecting essential services. Laws dealing with those
matters regulate relationships between employers and employees and,
in the absence of the proposed subsection, some of these laws would,
and others might, have been excluded in their application to
constitutionally covered employers and employees by proposed
subsection 7C(1). Paragraph 7C(2)(c), read with subsection 7C(3),
would ensure that laws dealing with the non-excluded matters would
apply to constitutionally covered employers and employees.
83. The legislative note to subsection 7C(3) would deal with union right
of entry under a State or Territory occupational health and safety
law. Paragraph 7C(1)(e) would exclude State or Territory laws
providing for union right of entry. However, paragraph 7C(2)(c),
read with paragraph 7C(3)(c), would save State or Territory laws
dealing with occupational health and safety, including union right
of entry under an occupational health and safety law. The
legislative note would note that, despite this, union right of entry
under a State or Territory occupational health and safety law would
be subject to the requirements imposed by proposed Part IX.
84. The application to constitutionally covered employers and employees
of laws described in proposed subsection 7C(2) (including laws
dealing with the non-excluded matters) would be subject to proposed
subsection 7C(4) (regulations), proposed section 7D (exclusion by
award or workplace agreement) and inconsistent provisions elsewhere
in the amended WR Act.
85. Proposed subsection 7C(4) would authorise the making of regulations
to prescribe a State or Territory law as a law which is excluded by
the operation of the amended WR Act. This provision would allow a
law to be prescribed for the purpose of exclusion without
prescribing it as a State or Territory industrial law (a definition
which would be used in the amended WR Act in contexts other than
that of excluding State and Territory laws).
86. Proposed subsection 7C(5) would provide a specific definition of
this Act for the purposes of section 7C. This is because the
definition of this Act in subsection 4(1) (which would otherwise
apply) does not extend to the Registration and Accountability of
Organisations Schedule and regulations made under it. The specific
definition would ensure that State or Territory laws could be
excluded by that Schedule and those regulations.
New section 7D - Awards, agreements and Commission orders prevail
over State and Territory laws etc
87. Proposed subsection 7D(1) would provide that an award or workplace
agreement prevails over a State or Territory law, a State award or a
State employment agreement to the extent of any inconsistency. For
this purpose a 'State award' includes an award, order, decision or
determination of a State industrial authority (see definitions of
State award and State industrial authority in subsection 4(1)).
88. This subsection would indicate the Parliament's intention that the
provisions of the amended WR Act which authorise the making of the
instruments covered by subsection 7D(1) authorise exhaustive
regulation of the subject-matter dealt with by those instruments to
the exclusion of State or Territory law, State awards and State
agreements. To the extent that such a law, award (including order
etc) or agreement is not excluded by the operation of section 7C,
its operation would be excluded by an inconsistent award or
workplace agreement made under the amended WR Act.
89. For instance, proposed paragraphs 7C(2)(c) and 7C(3)(e) would
provide that a State or Territory long service leave law would not
be excluded in its application to a constitutionally covered
employer and employee. However, if the employer is bound by a
federal award which gives the employee a long service leave
entitlement, the award entitlement would prevail over the State or
Territory law.
90. Another instance would be a workplace agreement which made provision
for a dispute resolution process in respect of a dispute arising
under the workplace agreement. The process in the agreement would
prevail over any State or Territory law that purported to provided a
different mechanism for resolving a dispute arising out of the
workplace agreement (such as provisions for conciliation and
arbitration of an industrial dispute in a law applying only to an
industry sector).
91. Proposed subsection 7D(2) would ensure that, despite proposed
subsection 7D(1), an award or workplace agreement would operate
subject to State or Territory laws dealing with specified matters,
that is occupational health and safety, workers compensation,
apprenticeship and matters as prescribed.
92. Proposed subsection 7D(3) would make provision similar to proposed
subsection 7D(1) in relation to an order of the AIRC made under Part
VIA of the amended WR Act (equal remuneration and termination
orders). The subsection would indicate the Parliament's intention
that Part VIA authorises the AIRC to make orders which operate to
the exclusion of State or Territory laws, State awards and State
employment agreements. Thus, for instance, an order of the AIRC in
an unlawful termination proceeding would prevail over an order of a
State or Territory court or tribunal in relation to the same
termination (under, for instance, an anti-discrimination law).
New section 7E - Act may exclude State and Territory laws in other
case
93. Proposed subsection 7E(1) would indicate that proposed sections 7C
and 7D do not comprehensively state the Parliament's intention in
relation to the interaction between the amended WR Act and State or
Territory law and instruments.
94. As the legislative note to subsection 7E(1) would make clear, there
would be other provisions of the amended WR Act that would provide
expressly for the relationship, in particular circumstances, between
provisions of the amended WR Act and State or Territory law and
instruments.
95. In addition, subsection 7E(1) would make clear that:
. where no express provision is made about the relationship between
the amended WR Act and State or Territory law and instruments,
other provisions of the amended WR Act might nevertheless, by
implication, leave no room for the operation of State or Territory
law; and
. the existence of sections 7C and 7D should not affect the drawing
of that implication.
96. Subsection 7E(2) would provide a specific definition of this Act for
the purposes of section 7E. This is because the definition of this
Act in subsection 4(1) (which would otherwise apply) does not extend
to the Registration and Accountability of Organisations Schedule and
regulations made under it. The specific definition would ensure
that subsection 7E(1) would apply to that Schedule and those
regulations.
Item 10 - After Part 1
97. This item would insert a new Part 1A in the WR Act to make provision
for the Australian Fair Pay Commission (AFPC).
Part 1A - Australian Fair Pay Commission
98. This Part would provide for the establishment of the AFPC. The AFPC
will set and adjust:
. the standard Federal Minimum Wage;
. special Federal Minimum Wages for junior employees, employees with
disabilities or employees under training arrangements;
. basic periodic rates of pay and basic piece rates of pay payable
for APCS classification levels; and
. casual loadings.
Division 1 - Preliminary
Section 7F - Definitions
99. Proposed section 7F would provide various definitions for Part 1A.
Only key definitions are explained here.
100. AFPC would mean the Australian Fair Pay Commission established under
proposed section 7G.
101. Wage review would mean a review conducted by the AFPC to determine
whether it should exercise any of its wage-setting powers.
102. Wage-setting decision would mean a decision made by the AFPC in the
exercise of its wage-setting powers.
103. Wage-setting function would be defined by proposed section 7I.
104. Wage-setting powers would be defined to mean the powers of the AFPC
under Division 2 of Part VA.
Division 2 - Australian Fair Pay Commission
105. This Division would establish the AFPC and set out its powers and
functions, including its wage setting functions and parameters and
provide for the arrangements for the appointment and entitlements of
the AFPC Chair and AFPC Commissioners.
Subdivision A - Establishment and functions
Section 7G - Establishment
106. Proposed section 7G would establish the AFPC and provide that it
consists of the AFPC Chair and four AFPC Commissioners.
Section 7H - Functions of the AFPC
107. Proposed section 7H would set out the functions of the AFPC.
Broadly, these are to exercise its wage-setting function (defined in
proposed section 7I), any other functions conferred on the AFPC, and
promoting understanding of matters related to these functions.
Subdivision B - AFPC's wage-setting function
Section 7I - AFPC's wage-setting function
108. Proposed section 7I would set out the AFPC's wage-setting function
which is to conduct wage reviews, and exercise its wage-setting
powers as necessary depending on the outcomes of these wage reviews.
109. The legislative note would explain that the wage-setting powers are
set out in Division 2 of Part VA.
Section 7J - AFPC's wage-setting parameters
110. Proposed section 7J would provide that the objective of the AFPC is
to promote the economic prosperity of the people of Australia having
regard to:
. the capacity of the unemployed and low paid to obtain and remain
in employment;
. employment and competitiveness across the economy;
. providing a safety net for the low paid; and
. providing minimum wages for junior employees, and employees to
whom training arrangements apply and employees with disabilities
that ensure those employees are competitive in the labour market.
Section 7K - Wage reviews and wage-setting decisions
111. Proposed section 7K would outline the operation of the AFPC in
relation to its wage-setting function. Subsection 7K(1) would
provide that the AFPC may determine the timing, scope and frequency
of wage reviews, the manner in which wage reviews are to be
conducted and when wage-setting decisions are to come into effect.
Subsection 7K(2) would provide that for the purposes of performing
its wage-setting function the AFPC may inform itself in any way it
thinks appropriate, including by:
. undertaking or commissioning research;
. consulting with any other body, person or organisation; or
. monitoring and evaluating the impact of its wage-setting
decisions.
112. Subsection 7K(3) would provide that subsections 7K(1) - (2) would
have effect subject to the WR Act and any regulations made under the
Act. Subsection 7K(4) would require the AFPC's wage-setting
decisions to be expressed as decisions of the AFPC as a body, to be
in writing and include reasons. It would also make clear that a
wage-setting decision is not a legislative instrument.
Section 7L - Constitution of the AFPC for wage reviews
113. Proposed section 7L would provide that for the purposes of
exercising its wage-setting powers the AFPC must be constituted by
the AFPC Chair and four AFPC Commissioners.
114. However, subsection 7L(2) would provide that if the AFPC Chair
considers it necessary due to the unavailability of an AFPC
Commissioner, the AFPC may be constituted by the AFPC Chair and not
less than two AFPC Commissioners.
115. Subdivision D (AFPC Chair) and Subdivision E (AFPC Commissioners)
set out additional requirements concerning appointments to the AFPC.
Section 7M - Publishing wage-setting decisions etc.
116. Proposed section 7M would provide that the AFPC must publish its
wage-setting decisions and may publish other information about wages
or its wage-setting function. Subsection 7M(3) provides that the
publication may be done in a way the AFPC considers appropriate.
Subdivision C - Operation of the AFPC
Section 7N - AFPC to determine its own procedures
117. Proposed section 7N would provide that the AFPC may determine the
procedures it would use in performing its functions, subject to
Subdivision B of this Division and any procedures prescribed by
regulations.
Section 7O - Annual report
118. Proposed section 7O would require the AFPC to provide an annual
report on the operation of the AFPC to the Minister for presentation
to Parliament. The report would be prepared as soon as practicable
after the end of each financial year.
119. It is envisaged that this report and the annual report by the AFPC
Secretariat under section 7ZJ would be published and presented to
Parliament concurrently.
Subdivision D - AFPC Chair
Section 7P - Appointment
120. Proposed section 7P would provide for the AFPC Chair to be appointed
by the Governor-General by written instrument. Subsection 7P(2)
would provide that the AFPC Chair can be appointed on either a full-
time or part-time basis for the period (not exceeding 5 years)
specified in the instrument of appointment.
121. Subsection 7P(3) would require that the AFPC Chair have high levels
of skills and experience in business or economics. Section 33 of
the Acts Interpretation Act 1901 provides that appointment includes
re-appointment.
Section 7Q - Remuneration
122. Proposed section 7Q would provide for the Remuneration Tribunal to
determine the remuneration of the AFPC Chair. In the absence of a
determination, the AFPC Chair would be paid the remuneration and
allowances that are prescribed.
123. Subsection 7Q(3) would provide that this section has effect subject
to the Remuneration Tribunal Act 1973. This will ensure that
general provisions of that Act are not displaced by this section.
Section 7R - Leave of absence
124. Proposed section 7R would provide that if the AFPC Chair is
appointed on a full-time basis the Remuneration Tribunal is to
determine his or her recreation leave entitlements.
125. The Minister may grant a full-time AFPC Chair leave of absence,
other than recreation leave, on such terms and conditions as he or
she determines.
126. Subsection 7R(2) would allow the Minister to grant a part-time AFPC
Chair leave of absence, including recreation leave, on such terms
and conditions as he or she determines.
Section 7S - Engaging in other paid employment
127. Proposed section 7S would require a full-time AFPC Chair to obtain
approval from the Minister before engaging in other paid employment.
Section 7T - Disclosure of interests
128. Proposed section 7T would require the AFPC Chair to give the
Minister notice in writing of all financial or other interests that
could conflict with the proper performance of the AFPC Chair's
duties.
Section 7U - Resignation
129. Proposed section 7U would provide that the AFPC Chair may resign by
written notice given to the Governor-General and sets out when the
resignation takes effect.
Section 7V - Termination of appointment
130. Proposed subsection 7V(1) would allow the Governor-General to
terminate the appointment of the AFPC Chair if the AFPC Chair:
. becomes bankrupt or takes specified steps related to insolvency;
or
. contravenes, without reasonable excuse, the requirement to
disclose to the Minister any interest that could conflict with his
or her duties (proposed section 7T); or
. has or acquires interests (including by being an employer or
employee) that the Minister considers could conflict unacceptably
with the proper performance of his or her duties; or
. in the case of a full-time AFPC Chair, is absent from duty (except
on authorised leave) for 14 consecutive days or for 28 days in any
12 month period, or engages in other paid employment without the
Minister's approval (proposed section 7S); or
. in the case of a part-time AFPC Chair, is absent from duty (except
on authorised leave) to an extent that the Minister considers
excessive.
131. Subsection 7V(2) would allow the Governor-General to terminate the
AFPC Chair's appointment for misbehaviour or on the ground of
physical or mental incapacity. To avoid doubt, subsections 7V(3)-
(4) would set out certain limitations on termination on the ground
of physical or mental incapacity.
Section 7W - Other terms and conditions
132. Proposed section 7W would provide that the AFPC Chair holds office
on the terms and conditions that are determined by the Minister in
relation to matters not covered by the WR Act.
Section 7X - Acting AFPC Chair
133. Proposed section 7X would provide that the Minister may appoint a
person who meets the requirements set out in subsection 7P(3) as an
acting AFPC Chair when necessary, including on a recurring basis.
Subsection 7X(2) would provide that any act done under such an
appointment is not to be invalid only because of a defect or
irregularity in connection with the appointment.
Subdivision E - AFPC Commissioners
Section 7Y - Appointment
134. Proposed section 7Y would provide for an AFPC Commissioner to be
appointed by the Governor-General by written instrument. Subsection
7Y(2) would provide that an AFPC Commissioner is to be appointed on
a part-time basis for the period (not exceeding four years)
specified in the instrument of appointment. Subsection 7Y(3) would
require that an AFPC Commissioner have experience in one or more of
the areas of business, economics, community organisations or
workplace relations. Section 33 of the Acts Interpretation Act 1901
provides that appointment includes re-appointment.
Section 7Z - Remuneration
135. Proposed section 7Z would provide for the Remuneration Tribunal to
determine the remuneration of an AFPC Commissioner. In the absence
of a determination, an AFPC Commissioner would be paid the
remuneration and allowances that are prescribed. Subsection 7Z(3)
would provide that this section has effect subject to the
Remuneration Tribunal Act 1973. This will ensure that general
provisions of that Act are not displaced by this section.
Section 7ZA - Leave of absence
136. Proposed section 7ZA would provide that the AFPC Chair may grant an
AFPC Commissioner leave of absence on such terms and conditions as
he or she determines.
Section 7ZB - Disclosure of interests
137. Proposed section 7ZB would require an AFPC Commissioner to give the
Minister notice in writing of all financial or other interests that
could conflict with the proper performance of his or her duties.
Section 7ZC - Resignation
138. Proposed section 7ZC would provide that an AFPC Commissioner may
resign by written notice given to the Governor-General and sets out
when the resignation takes effect.
Section 7ZD - Termination of appointment
139. Subsection 7ZD(1) would allow the Governor-General to terminate the
appointment of an AFPC Commissioner if the AFPC Commissioner:
. becomes bankrupt or takes specified steps related to insolvency;
or
. contravenes, without reasonable excuse, the requirement to
disclose to the Minister any interest that could conflict with his
or her duties (proposed section 7ZB);
. has or acquires interests (including by being an employer or
employee) that the Minister considers could conflict unacceptably
with the proper performance of his or her duties; or
. is absent from duty (except on authorised leave) to an extent that
the Minister considers excessive.
140. Subsection 7ZD(2) would allow the Governor-General to terminate an
AFPC Commissioner's appointment for misbehaviour or on the ground of
physical or mental incapacity. To avoid doubt, subsections 7ZD(3) -
(4) would set out certain limitations on termination on the ground
of physical or mental incapacity.
Section 7ZE - Other terms and conditions
141. Proposed section 7ZE would provide that an AFPC Commissioner would
hold office on the terms and conditions that are determined by the
Minister in relation to matters not covered by this Act.
Section 7ZF - Acting AFPC Commissioners
142. Proposed section 7ZF would provide that the Minister may appoint a
person who meets the requirements set out in subsection 7Y(3) as an
acting AFPC Commissioner when necessary, including on a recurring
basis. Subsection 7ZF(2) would provide that any act done under such
an appointment is not to be invalid only because of a defect or
irregularity in connection with the appointment.
Division 3 - AFPC Secretariat
143. This Division would establish the AFPC Secretariat as a separate
statutory agency to assist the AFPC and provide for appointment of
the Director of the Secretariat and the engagement of staff and
consultants.
Subdivision A - Establishment and function
Section 7ZG - Establishment
144. Proposed subsection 7ZG(1) would establish the AFPC Secretariat.
145. Subsection 7ZG(2) would provide that the AFPC Secretariat consists
of the Director and the staff of the Secretariat.
Section 7ZH - Function
146. Proposed section 7ZH would provide that the function of the AFPC
Secretariat is to assist the AFPC in the performance of its
functions.
Subdivision B - Operation of the AFPC Secretariat
Section 7ZI - AFPC Chair may give directions
147. Proposed section 7ZI would allow the AFPC Chair to give directions
to the Director of the Secretariat about the performance of the
function of the AFPC Secretariat and require the Director to comply
with such directions.
148. To avoid doubt, subsection 7ZI(3) would provide that the AFPC Chair
cannot give directions in relation to the performance of functions
or powers by the Director under the Financial Management and
Accountability Act 1997 or the Public Service Act 1999.
Section 7ZJ - Annual report
149. Proposed section 7ZJ would require the Director of the Secretariat
to provide an annual report on the operation of the AFPC Secretariat
to the Minister for presentation to Parliament. The report must be
prepared as soon as practicable after the end of each financial
year.
150. It is envisaged that this report and the annual report by the AFPC
under section 7O would be published and presented to Parliament
concurrently.
Subdivision C - The Director of the Secretariat
Section 7ZK - Appointment
151. Proposed section 7ZK would provide for the Director of the
Secretariat to be appointed by the Minister by written instrument.
152. Subsection 7ZK(2) would provide that the Director of the Secretariat
is to be appointed on a full-time basis for the period (not
exceeding five years) specified in the instrument of appointment.
Section 7ZL - Remuneration
153. Proposed section 7ZL would provide that the Remuneration Tribunal is
to determine the remuneration of the Director of the Secretariat.
In the absence of a determination, the Director of the Secretariat
would be paid the remuneration and allowances that are prescribed.
154. Subsection 7ZL(3) would provide that this section has effect subject
to the Remuneration Tribunal Act 1973. This would ensure that
general provisions of that Act are not displaced by this section.
Section 7ZM - Leave of absence
155. Proposed section 7ZM would provide for the Remuneration Tribunal to
determine the recreation leave entitlements of the Director of the
Secretariat.
156. Subsection 7ZM(2) would allow the Minister to grant the Director of
the Secretariat leave of absence, including recreation leave, on
such terms and conditions as he or she determines.
Section 7ZN - Engaging in other paid employment
157. Proposed section 7ZN would require the Director of the Secretariat
to obtain approval from the Minister before engaging in other paid
employment.
Section 7ZO - Disclosure of interests
158. Proposed section 7ZO would require the Director of the Secretariat
to give the Minister notice in writing of all financial or other
interests that could conflict with the proper performance of his or
her duties.
Section 7ZP - Resignation
159. Proposed section 7ZP would provide that the Director of the
Secretariat may resign by written notice given to the Minister and
sets out when the resignation takes effect.
Section 7ZQ - Termination of appointment
160. Proposed subsection 7ZQ(1) would allow the Minister to terminate the
appointment of the Director of the Secretariat if the Director of
the Secretariat:
. becomes bankrupt or takes specified steps related to insolvency;
or
. contravenes, without reasonable excuse, the requirement to
disclose to the Minister any interest that could conflict with his
or her duties (proposed section 7ZO); or
. has or acquires interests (including by being an employer or
employee) that the Minister considers could conflict unacceptably
with the proper performance of his or her duties; or
. engages in other paid employment without the Minister's approval
(proposed section 7ZN); or
. is absent from duty (except on authorised leave) for 14
consecutive days or for 28 days in any 12 month period.
161. Subsection 7ZQ(2) would require the Minister to terminate the
Director of the Secretariat's appointment if the Minister is of the
opinion that the Director's performance has been unsatisfactory for
a significant period of time.
162. Subsection 7ZQ(3) would allow the Minister to terminate the Director
of the Secretariat's appointment for misbehaviour or on the ground
of physical or mental incapacity.
163. To avoid doubt, subsections 7ZQ(4) - (5) would set out certain
limitations on termination on the ground of physical or mental
incapacity.
Section 7ZR - Other terms and conditions
164. Proposed section 7ZR would provide that the Director of the
Secretariat would hold office on the terms and conditions that are
determined by the Minister in relation to matters not covered by the
WR Act.
Section 7ZS - Acting Director of the Secretariat
165. Proposed section 7ZS would provide that the Minister may appoint an
acting Director of the Secretariat when necessary, including on a
recurring basis. Subsection 7ZS(2) would provide that any act done
under such an appointment is not to be invalid only because of a
defect or irregularity in connection with the appointment.
Subdivision D - Staff and consultants
Section 7ZT - Staff
166. Proposed section 7ZT would provide that the staff of the AFPC
Secretariat are to be engaged under the Public Service Act 1999
(subsection 7ZT(1)).
167. Subsection 7ZT(2) would provide that for the purposes of the Public
Service Act 1999 the Director of the Secretariat and staff of the
AFPC Secretariat would constitute a Statutory Agency with the
Director as the Head of that Statutory Agency.
Section 7ZU - Consultants
168. Proposed section 7ZU would provide that the Director of the
Secretariat may, on behalf of the Commonwealth, engage consultants
with suitable qualifications and experience for the AFPC or the AFPC
Secretariat. The terms and conditions of engagement of consultants
would be determined by the Director of the Secretariat and recorded
in writing.
Item 11 - New section 33
169. This item repeals pre-reform section 33, which provides that the
AIRC may exercise powers on its own motion or after an application
by a specified party, subject to any limitation or restriction in
the WR Act or Schedule 1B.
170. Proposed section 33 would provide a general position that the AIRC
may perform a function or exercise a power on its own initiative,
but would not be able to do so if the function or power is:
. one that may be performed or exercised on application by a
specified person or class of persons; and
. there is not an express provision allowing the AIRC to perform the
function or exercise the power on its own initiative.
171. This will mean that the AIRC can act on its own motion in
appropriate circumstances.
Item 12 - Subsection 36(3)
172. This item would repeal pre-reform subsection 36(3) as it relates to
pre-reform section 111AAA of the WR Act, which is being repealed.
Item 13 - Section 39
173. This item would repeal pre-reform section 39, which requires the
President of the AIRC convene a conference of the AIRC at least once
a year to discuss matters relating to the operation of pre-reform
Part VI and Part II of the WR Act and, in particular, to discuss
means for 'ensuring speed in the settlement of industrial disputes'.
174. The repeal of this provision would not prevent the President of the
AIRC, at his or her discretion, from convening a conference of
members of the AIRC to discuss the AIRC's operations and how it
performs its functions.
Item 14 - At the end of Division 2 of Part II
175. This item would insert new sections 41A and 41B into the WR Act.
New section 41A - Co-operation with the States by President
New Section 41B - Co-operation with the States by Registrar
176. These sections would deal with co-operation by the President of the
AIRC and the Industrial Registrar with their respective State
counterparts. They replace pre-reform sections 171 and 172, which
would be repealed.
177. Proposed sections 41A and 41B would provide the President and
Industrial Registrar with the discretion to invite their State
counterparts to hold discussions, rather than the mandatory
requirement in pre-reform sections 171 and 172 to make such
invitations.
Item 15 - Subsection 42(3)
178. This item would repeal and replace subsection 42(3) and insert new
subsections 42(3A) -(3D).
179. Proposed subsection 42(3) would provide that a party to a proceeding
(including an employing authority) before the AIRC may be
represented by counsel, solicitor or agent, if the following two
conditions are satisfied:
. all parties to the proceedings expressly agreed that the party be
represented by counsel, solicitor or agent; and
. the AIRC grants leave for the party to be represented.
180. Proposed subsection 42(3A) would also provide that a party to a
proceeding (including an employing authority) before the AIRC may be
represented by counsel, solicitor or agent if:
. a party applies to the AIRC to be represented by counsel,
solicitor or agent; and
. the AIRC grants leave for the party to be represented.
181. There are no limitations or restrictions on who can be an 'agent'
for the purposes of proposed subsections 42(3) and 42(3A). As there
is no professional or regulating body for agents, unlike the legal
profession, there is no independent body to discipline an agent who
systematically acts unethically from representing parties.
Applicants also have no avenue for complaint if an agent acts
improperly in their individual cases.
182. This can cause problems, as stated by the AIRC in Oram v Derby Gem
Pty Ltd [Print PR946375] (Oram). In Oram, the applicant's
application was dismissed by the AIRC as a result of her agent
continually failing to comply with the directions of the AIRC. This
included failing to appear when directed and failing to file
documents as required. In making its decision, the AIRC commented
on its limited power to ameliorate the effect of its decision on the
applicant.
183. Proposed subsection 42(3B) would require the AIRC to take a range of
factors into consideration when deciding whether or not to grant
leave to a representative, to prevent unfair results like that in
Oram. Where all the parties have consented to the representation
under proposed subsection 42(3), the factors to be considered are:
. whether being represented by counsel, solicitor or agent would
assist the party concerned to bring the best case possible;
. the capacity of the particular counsel, solicitor or agent to
represent the party concerned; and
. the capacity of the particular counsel, solicitor or agent to
assist the AIRC in performing the AIRC's functions under the Bill.
184. Proposed subsection 42(3C) would establish additional factors for
the AIRC to consider when deciding whether or not to grant leave for
an application made under subsection 42(3A) where all parties to the
proceeding have not agreed to have the particular representative
represent the relevant party. The additional factors are:
. the complexity of the factual and legal issues relating to the
proceeding; and
. whether there are any special circumstances that make it desirable
that the party concerned be represented by counsel, solicitor or
agent.
185. These 'special circumstances' might include the inability of the
party to represent themselves, due to a lack of understanding of, or
familiarity with the AIRC and its processes, especially where the
other party to the proceeding is represented by counsel with a high
level of experience or knowledge.
186. These provisions are not intended to limit a party's ability to be
represented before the AIRC generally. Rather the proposed
subsections would ensure that, for example:
. the AIRC has some control over who comes before it;
. that parties to a proceeding are represented only by persons who
can assist them, and the AIRC; and/or
. the AIRC plays a role in achieving a 'level playing field' for
parties to a proceeding.
187. Proposed subsection 42(3D) would ensure that a decision made in
relation to an application for leave under proposed subsections
42(3) or (3A) would not be appealable to a Full Bench of the AIRC.
Item 16 - At the end of paragraphs 42(7)(a) and (b)
Item 17 - At the end of subsection 42(7)
188. Item 17 would amend subsection 42(7), which deals with who may
represent a party before the AIRC, to include a bargaining agent (as
defined in proposed Part VB, dealing with agreement making).
189. Item 16 is a technical amendment.
Item 18 - Subsection 43(1)
Item 19 - Subsection 43(2)
190. Item 19 repeals subsection 43(2) as there would no longer be a
certification process for agreements.
191. Item 18 makes a technical amendment consequential to the repeal of
subsection 43(2) in Item 19.
Item 20 - After Division 3 of Part II
192. This item would insert a new Division 3A into Part II of the WR Act.
193. Proposed Division 3A would set out certain powers and procedures of
the AIRC and matters the AIRC must take into account in respect of
proceedings before the AIRC. These provisions would apply to the
AIRC's functions under the WR Act generally, unless specifically
excluded. Other Parts of the WR Act will contain additional powers
and functions of the AIRC relevant to those particular Parts.
194. Proposed Division 3A would replace the powers and procedures set out
in pre-reform Part VI of the WR Act. The provisions in proposed
Division 3A are based on powers and procedures set out in pre-reform
Part VI.
New Division 3A - General matters relating to the powers and
procedures of the Commission
Subdivision A - General matters Commission to take into account
195. Proposed Subdivision A would set out general matters that the AIRC
must to take into account in the performance of its functions under
the WR Act. Certain general matters do not apply to the AIRC's
performance of its functions under specified parts of the WR Act.
This is where the general matter is not relevant to the performance
of such a function under a particular Part, or a matter is otherwise
expressly provided for in a particular Part of the Bill.
New section 44A - Commission to take into account the public
interest
196. Proposed section 44A would require the AIRC to take into account the
public interest when performing its functions under the WR Act or
Schedule 1B to the Act.
197. When considering the public interest, the AIRC would be required to
have regard to:
. when dealing with a matter under the WR Act, the objects of the
Act (proposed paragraph 44A(1)(a));
. when dealing with a matter under Schedule 1B, the Parliament's
intention in enacting the Schedule (proposed paragraph 44A(2)(a));
and
. the state of the national economy and the likely effect that an
order the AIRC is considering or proposing to make will have on
the national economy, particularly the likely effects on the level
of employment and inflation (proposed paragraphs 44A(1)(b) and
44A(2)(b)).
198. Proposed subsection 44A(3) would provide that this subsection does
not apply to the performance of a function under Part VC (Industrial
Action) or Part VI (Awards) of the Bill, as those Parts provide
their own factors that the AIRC must take into account when making
orders or awards under those Parts.
New section 44B - Commission to take into account discrimination
issues
199. Proposed section 44B would require the AIRC to take into account the
need to:
. apply the principle of equal pay for work of equal value without
discrimination based on sex (proposed paragraph 44B(a)); and
. prevent and eliminate discrimination on certain specified grounds
(proposed paragraph, 44B(b)).
New section 44C - Commission to take account of Racial
Discrimination Act, Sex Discrimination Act, Disability
Discrimination Act and Age Discrimination Act
200. Proposed section 44C would require the AIRC to have regard, in
performing its functions, to the principles relating to
discrimination in relation to employment in specified anti-
discrimination legislation.
New section 44D - Commission to take account of Family
Responsibilities Convention
201. Proposed section 44D would require the AIRC to take into account, in
performing its functions, the principles embodied in the Family
Responsibilities Convention particularly, but without being limited
to, those relating to:
. preventing discrimination against workers who have family
responsibilities (proposed paragraph 44D(1)(a)); and
. helping workers to reconcile their employment and family
responsibilities (proposed paragraph 44D(1)(b)).
202. Proposed section 44D would not apply to the performance of the
AIRC's functions under Part VC (Industrial Action).
New section 44E - Safety, health and welfare of employees
203. Proposed subsection 44E(1) would require the AIRC to take into
account the provisions of any State or Territory law relating to the
safety, health and welfare of employees in relation to their
employment.
Proposed subsection 44E(2) would provide that proposed section 44E would
not apply to the performance of a function under proposed Division 2 of
Part VIA, which deals with equal remuneration for work of equal value.
New section 44F - Commission to act quickly
204. Proposed section 44F would require that the AIRC must perform its
functions as quickly as practicable.
New section 44G - Commission to avoid technicalities and facilitate
fair conduct of proceedings
205. Proposed section 44G would provide that the AIRC must carry out its
functions in a way which avoids unnecessary technicalities and that
promotes the fair and practical conduct of any proceedings under the
WR Act or Schedule 1B.
Subdivision B - Particular powers and procedures of the Commission
206. Proposed subdivision B would provide for particular powers and
procedures of the AIRC. The powers and procedures contained in this
subdivision are based upon the existing powers and procedures of the
WR Act but have been modified, in part to make changes consequential
to the changed constitutional underpinnings of the WR Act.
New section 44H Procedure of Commission
207. Proposed subsection 44H(1) would set out the manner in which the
AIRC must act in a proceeding under the WR Act or Schedule 1B. It
would provide that:
. the procedure of the AIRC is within its discretion, subject to any
contrary provisions of the WR Act, Schedule 1B and the Rules of
the AIRC (proposed paragraph 44H(1)(a));
. the AIRC is not bound by the rules of evidence or bound to act in
a formal manner (proposed paragraph 44H(1)(b)); and
. the AIRC must act according to equity, good conscience and the
substantial merits of the case, without regard to technicalities
and legal forms (proposed paragraph 44H(1)(c)).
208. Proposed subsection 44H(2) would provide that the AIRC may determine
the periods that would be reasonably necessary for the fair and
adequate presentation of the cases of parties to proceedings and
allow the AIRC to require cases to be presented in those periods.
209. Proposed subsection 44H(3) would provide that the AIRC may determine
what evidence or argument it may require to be presented in writing
and what evidence or argument it will hear orally.
New section 44I - Particular powers of Commission
210. Proposed section 44I draws upon the powers of the AIRC set out in
pre-reform section 111 of the WR Act. Various modifications have
been made to reflect the proposed changed role of the AIRC, such as
the AIRC no longer having a role in certifying agreements. In
addition, modifications have been made where the existing powers
relate to, or rely upon, the conciliation and arbitration power.
211. Proposed subsection 44I(1) would provide particular powers in
respect of proceedings before the AIRC, including the power to:
. dismiss a matter or part of a matter if it is trivial, or if
further proceedings are not necessary or desirable in the public
interest (proposed paragraph 44I(1)(e));
. summon any person who the AIRC considers would assist in relation
to the proceeding (proposed paragraph 44I(1)(n));
. compel the production of documents and other things relating to
the proceeding (proposed paragraph 44I(1)(o));
. make interim decisions (proposed paragraph 44I(1)(p)); and
. make a final decision in respect of a matter to which the
proceeding relates (proposed paragraph 44I(1)(q)).
212. Proposed subsection 44I(2) would provide that the AIRC may, in
writing, authorise a person to take evidence on its behalf. The
person so authorised has all the powers of the AIRC to secure:
. the attendance of witnesses (proposed paragraph 44I(2)(a));
. the production of documents and things (proposed paragraph
44I(2)(b)); and
. the taking of evidence on oath or affirmation (proposed paragraph
44I(2)(c)).
213. The AIRC may impose limitations on how the person takes evidence.
214. Proposed subsections 44I(3) - (5) would specify that particular
provisions in proposed subsections 44I(1) and 44I(2) do not apply to
the performance of certain functions under Parts VC and VIA of the
Bill, either because similar powers are provided expressly in those
Parts or because those powers are inappropriate to the performance
of the functions of the AIRC under those Parts.
215. Proposed subsections 44I(6) and 44I(7) would provide that where the
WR Act or Schedule 1B specifies a time or a period in respect of any
matter or thing, the AIRC may not extend that time or period unless
it is expressly permitted to do so by the WR Act or Schedule 1B.
216. Proposed subsection 44I(8) would provide that the reference to
varying or revoking an order in subsection 44I(1)(d) does not extend
to awards or award-related orders. This is because Part VI which
deals with awards contains particular provisions dealing with the
variation or revocation of awards or award-related orders.
New section 44J - Reference to proceedings to Full Bench
217. Proposed section 44J would provide the manner in which proceedings
may be referred to a Full Bench.
218. Proposed subsection 44J(1) would provide that where proceedings are
before a single member of the AIRC, or where the AIRC is not
constituted by a Full Bench, a party to the proceeding or the
Minister may apply for the proceeding to be dealt with by a Full
Bench on the basis that the case is of such importance that it is in
the public interest that a Full Bench deal with it. Any such
application must be referred to the President of the AIRC (proposed
paragraph 44J(2)(a)).
219. If the President forms the opinion that the matter is of such
importance that it should be dealt with by a Full Bench, the
President must grant the application (proposed subsection 44J(3))
and a Full Bench must hear and determine the referred proceeding
(proposed subsection 44J(4)), subject to proposed subsection 44J(5).
220. In dealing with the proceeding, the Full Bench may do either or both
of the following:
. have regard to any evidence and arguments raised in the original
proceeding (proposed paragraph 44J(5)(a));
. refer a part of the proceeding to a single member, which might
include the member from whom the proceeding was originally
referred, for hearing and determination (proposed paragraph
44J(5)(b)).
221. The President may authorise a member of the AIRC to take evidence
for the purposes of the proceeding, prior to a Full Bench being
established to deal with the matter, and the Full Bench must have
regard to that evidence (proposed subsection 44J(6)).
222. The President or the Full Bench may direct a member of the AIRC to
provide a report in relation to a specified matter. This report
must be provided to either the President or Full Bench (proposed
subsections 44J(7) and 44J(8)).
New section 44K - President may deal with certain proceedings
223. Proposed subsection 44K(1) would provide that the President of the
AIRC may decide to deal with a proceeding before the AIRC, even if
another member of the AIRC has already begun dealing with the
proceeding.
224. If the President decides to deal with the proceeding, he or she must
hear and determine the proceeding or refer it to a Full Bench
(proposed subsection 44K(2)).
225. Proposed subsections 44K(3)-(5) and (7)-(8) relevantly mirror those
in proposed subsections 44J(4)-(9).
New section 44L - Review on application by Minister
226. Proposed subsection 44L(1) would provide that the Minister may apply
to the President of the AIRC for a Full Bench review of an award,
order, or a decision relating to the making of an award or order,
made by a member of the AIRC under the WR Act or Schedule 1B. The
Minister may make such an application if it appears to the Minister
that the award, order or decision is contrary to the public
interest.
227. When the Minister makes an application for a review, the President
must establish a Full Bench to hear and determine the application
(proposed subsection 44L(2)).
228. The Full Bench must carry out a review if it considers that the
matter is of such importance that in the public interest the award,
order or decision should be reviewed (proposed subsection 44L(3)).
The AIRC must ensure that each person or organisation bound by the
award, or who otherwise has an interest in the review, is made aware
of the review and the Minister has a right to intervene (proposed
subsection 44L(6)).
229. The powers of the AIRC when dealing with appeals under subsections
45(4)-(8) and subsections 45A(4)-(8) relevantly apply in relation to
a review under this section.
230. Nothing in proposed section 44L would affect the right of appeal or
any power of a Full Bench under sections 45 or 45A. Any appeals
under those sections may be dealt with at the same time as a review
under proposed section 44L (proposed subsections 44L(8) - (9)).
231. Proposed subsection 44L(7) would provide that each provision of the
WR Act relating to the performance of the AIRC's functions in
relation to awards, also applies to the AIRC's performance of
functions when undertaking a review.
New section 44M - Compulsory conferences
232. Proposed section 44M would provide that, for the performance of a
function, or the exercise of a power under the WR Act or Schedule
1B, a member of the AIRC may direct a person to attend a conference
presided over by a member of the AIRC or another person nominated by
the President. The direction may be made on the initiative of the
member or on application made by a party to, or an intervener in,
the proceeding (proposed subsection 44M(1)).
233. The member of the AIRC may direct anyone to attend a conference if
the member considers that his or her presence would assist in the
performance of a function under the WR Act or Schedule 1B (proposed
subsection 44M(2)).
234. The conference must be held in private, unless the person presiding
over the conference directs otherwise (proposed subsection 44M(3)).
235. Proposed subsection 44M(4) would provide that proposed section 44M
would not apply to the operation of the performance of a function
under Part VC (Industrial Action).
New section 44N - Power to override certain laws affecting public
sector employment
236. Proposed subsection 44N(1) would provide that, where the AIRC is
performing a function that involves public sector employment, the
AIRC may make an award or order that is not, or in its opinion may
not be, consistent with a relevant law of the Commonwealth or of an
internal Territory. Relevant law is defined in proposed subsection
44N(2) to mean specified laws or a prescribed Act or enactment, or
prescribed provisions of an Act or enactment.
237. Proposed subsection 44N(3) would provide that proposed section 44N
does not apply to the performance of a function under Part VIA.
New section 44O - State authorities may be restrained from dealing
with matter that is before the Commission
238. Proposed section 44O would allow the AIRC to make an order
restraining a State industrial authority from dealing with a matter
that is the subject of a proceeding before the AIRC under the WR Act
or Schedule 1B. A State industrial authority would be required to
cease dealing or refrain from dealing with the matter (proposed
subsection 44O(2)). An award, order, decision or determination of a
State industrial authority made in contravention of an order of the
Full Bench under this proposed section would be void to the extent
of the contravention (proposed section 44O(3)). This proposed
section is based on section 128 of the WR Act.
New section 44P - Joint sessions of Commission
239. Proposed section 44P would provide that the President may direct the
AIRC to form a joint session for the purpose of taking evidence or
hearing an argument, in circumstances where the President considers
that a question is common to two or more proceedings before the
AIRC.
New section 44Q - Revocation and suspension of awards and orders
240. Proposed section 44Q would deal with the revocation and suspension
of awards and orders.
241. An organisation, an interested person or the Minister could apply to
the President for action by a Full Bench under proposed section
44Q(1). The President would be required to refer the application to
a Full Bench for hearing and determination (proposed subsection
44Q(2)).
242. In addition, a member of the AIRC or a Registrar could refer a
matter to the President for action under proposed subsection
44Q(1)). The President could establish a Full Bench to hear and
determine the matter, but would not be required to do so (proposed
subsection 44Q(3)).
243. Under proposed subsection 44Q(4), the Full Bench could make an order
revoking, or suspending for a period of time, an award or order or
any terms of an award or order, if it appeared to the Full Bench
that:
. an organisation had contravened the WR Act, Schedule 1B or an
award or order of the AIRC; or
. a substantial number of members of an organisation refuse to
accept employment either at all or in accordance with certain
terms of an existing award or order; or
. the award or order should be suspended or revoked in whole or in
part for any other reason.
244. The Full Bench would have certain specified powers to make other
orders as it thinks appropriate in relation to the operation of the
revocation or suspension of any other award or order in accordance
with proposed subsection 44Q(5). Under proposed subsection 44Q(6),
the revocation or suspension of all or any terms of an award or
order, may be expressed to apply only in relation to:
. a particular person or organisation bound by the award or order;
. a branch of an organisation;
. a class of members of an organisation; or
. a particular locality.
General Powers of the Commission
245. The following proposed amendments relate to appeals to the Full
Bench and references to a court.
Item 21 - Paragraph 45(1)(a)
Item 22 - Paragraph 45(1)(b)
Item 23 - Paragraph 45(1)(d)
Item 24 - Paragraph 45(1)(da)
Item 25 - Paragraphs 45(1)(e) and (eaa)
Item 26 - Paragraph 45(1)(eba)
Item 27 - Paragraphs 45(1)(ea) and (eb)
Item 28 - Paragraph 45(1)(ed)
Item 29 - Paragraphs 45(3)(ab) and (ac)
Item 30 - Paragraphs 45(3)(ad), (b) and (ba)
Item 31 - Subparagraphs 45(3)(baa)(i) and (ii)
Item 32 - Paragraph 45(3)(bab)
Item 33 - Paragraph 45(3)(bb)
Item 34 - Subsection 45(3) (note)
Item 35 - Subsection 45(3A)
Item 36 - Subsection 45(3B)
Item 37 - Paragraph 45(7)(d)
Item 38 - Subsection 45(9)
Item 39 - Paragraph 45A(1)(b)
Item 40 - Paragraph 45A(1)(d)
Item 41 - Paragraph 45A(7)(d)
Item 42 - Subsections 48(1A) and (1B)
246. Items 21, 22, 32 and 39 would make amendments that are consequential
to the changes to the constitutional underpinnings of the
provisions.
247. Items 23, 26, 33, 37, 40, 41 and 42 would amend paragraphs 45(1)(d),
45A(1)(d) and 45(1)(eba) to update cross references to other
provisions of the WR Act to take into account other amendments
proposed by the Bill.
248. Item 25 would repeal pre-reform paragraphs 45(1)(ea) and (eb) which
purport to confer jurisdiction on the Full Bench of the AIRC to hear
appeals against opinions, orders or decisions of the AIRC made under
sections 127A and 127B. These paragraphs are no longer required
because the jurisdiction of the Full Bench of the AIRC to hear
unfair contracts matters under pre-reform sections 127A and 127B was
removed by the Industrial Relations Reform Act 1993 and vested in
the Federal Court of Australia.
249. Item 27 would repeal paragraphs 45(1)(ea) and (eb). These
paragraphs refer to the AIRC hearing matters about independent
contractors. Since 1993 independent contractor matters have been
heard by the Federal Court.
250. Item 28 would make a consequential amendment to pre-reform paragraph
45(1)(ed) to omit 'certified agreement' and substitute 'workplace
agreement' to reflect a change in terminology. This paragraph would
provide that an appeal lies to the Full Bench of the AIRC from a
decision of the AIRC to vary, or not to vary, an award or workplace
agreement referred to the AIRC by the Human Rights and Equal
Opportunity Commission (HREOC).
251. Item 31 would repeal subparagraphs 45(3)(baa)(i), which refers to 'a
person bound by the certified agreement', and (ii), which refers to
'an employee whose employment is subject to the certified
agreement', and replace it with a reference that now refers to 'an
employer, employee or organisation bound by the award'.
252. Items 24, 30, 34, 35 and 36 make amendments to the provisions
relating to Victoria.
253. Item 24 would repeal paragraph 45(1)(da) - which provides an appeal
right in relation to aspects of common rule. The changes proposed
to Part VI of the WR Act include removing specific provision for
making common rule orders. This paragraph is therefore no longer
required.
254. Item 30 would repeal paragraph 45(3)(ad) which specifies who can
bring an appeal under paragraph 45(1)(da). This amendment is
consequential upon item 24, which would repeal paragraph 45(1)(da).
255. Item 34 would repeal the legislative note to subsection 45(3). The
legislative note refers to subsection 170MBA(2) as applied and
modified by section 494 of the WR Act. Significant changes are
proposed to the agreement making provisions of the WR Act, including
in relation to the manner in which such agreements come into
operation. As the AIRC will no longer have a role in relation to
workplace agreements, it is not necessary to provide for appeals
against AIRC decisions.
256. Item 35 would repeal subsection 45(3A), which provides a Minister of
Victoria with a right to intervene in certain AIRC proceedings.
This provision would be replaced, in part, by proposed
subsection 504(2), which would require the AIRC to grant leave to
intervene in an appeal against a decision of the AIRC under
subsection 107G(1) in certain circumstances. The repeal of
paragraph 45(3A)(b) is also consequential upon item 240, which would
repeal Part XV, including section 501.
257. Item 36 would repeal subsection 45(3B) which provides a Minister of
Victoria with a right to intervene in certain AIRC proceedings
relating to common rule orders. The changes proposed to Part VI of
the WR Act include removing specific provision for making of common
rule orders. This paragraph is therefore no longer required.
258. Item 38 would repeal subsection 45(9), which relates to the hearing
or determination of an industrial dispute to the hearing or
determination of an appeal. The existence or otherwise of an
industrial dispute will no longer be relevant to the AIRC's
jurisdiction or powers.
Item 43 - Sections 83BB and 83BC
259. This item would repeal and replace sections 83BB and 83BC.
New section 83BB - Functions of the Employment Advocate
260. This section would set out the functions of the person appointed by
the Governor-General under section 83BI as the Employment Advocate.
A list of those functions would appear in
subsection 83BB(1). The major functions in that list include:
. promoting the making of workplace agreements;
. the provision of assistance and advice to employees and employers
(especially small business) in relation to workplace agreements
and the Standard;
. providing education and information to employees and employers in
relation to workplace agreements;
. promoting better work and management practices though workplace
agreements; and
. accepting lodgment of workplace agreements and notices about the
transmission of instruments.
261. The list in this subsection would not be an exhaustive list of the
Employment Advocate's functions. Paragraph 83BB(1)(m) would allow
the Employment Advocate to perform any other function conferred upon
him or her by the WR Act, another Act, the regulations or Schedule
1B.
262. Subsections 83BB(2) and (3) would provide that the Employment
Advocate must, in performing his or her functions, have regard to
certain considerations.
263. Subsection 83BB(4) would provide that when the Employment Advocate
is giving the Minister information and copies of documents (as part
of his or her functions pursuant to
paragraph 83BB(1)(i)), the regulations may require those documents
to be given with such deletions as are necessary to prevent the
identification of the individuals to whom those documents refer.
This would allow the Employment Advocate to give non-identifying
information about agreements to the Minister.
New section 83BC - Minister's directions to Employment Advocate
264. This proposed section would allow the Minister to give directions to
the Employment Advocate specifying how the Employment Advocate must
perform his or her functions. These directions would be made by
legislative instrument in accordance with the Legislative
Instruments Act 2003. Under this proposed section, the Employment
Advocate would be required to comply with any direction made by the
Minister. However, the Minister would not be permitted to give
directions about any particular workplace agreement.
Item 44 - Subsection 83BE(2)
265. This item would amend subsection 83BE(2) to restrict the Employment
Advocate's delegation of his or her functions relating to the
authorisation of multiple-business agreements (under paragraph
83BB(1)(h)) to his or her staff only. Under proposed section 96F,
the Employment Advocate may, upon the application of an employer,
authorise the making of multiple-business agreements provided
certain conditions listed in that section are satisfied.
Item 45 - Subsection 83BE(3)
266. This item would repeal subsection 83BE(3) which presently allows the
Employment Advocate to delegate certain of his or her functions to
'any person'. This capacity has never been utilised and the
Employment Advocate would still be able to delegate his or her
functions under subsection 83BB(1) to any person employed or
appointed by the Commonwealth or a State or Territory.
Item 46 - Division 2 of Part VIA
267. This item would repeal Division 2 of Part VIA relating to the
appointment, powers and functions of authorised officers. Under the
Bill, enforcement and compliance activities related to AWAs
(currently performed by authorised officers) would be performed by
workplace inspectors under Part V.
Item 47 - Section 83BS
268. This item would repeal section 83BS and substitute a new section
83BS
New section 83BS - Identity of parties to AWAs not to be disclosed
269. Proposed section 83BS would simplify the existing offence provision
about disclosure of information identifying a person as having made
an AWA.
270. A person would commit an offence if:
. he or she discloses information that the person acquired in the
course of performing duties as workplace agreement official or who
acquired it from a workplace agreement official;
. that person had reasonable grounds to believe that information
would identify a person as an AWA party; and
. that disclosure is neither made in the course of the person's
duties as a workplace official nor required or permitted under
legislation nor with the consent of the AWA party concerned.
271. The proposed maximum penalty for this offence would be 6 months
imprisonment.
272. Subsection 83BS(2) would define workplace agreement official to mean
the Employment Advocate, a delegate of the Employment Advocate or a
member of the Employment Advocate's staff.
Illustrative Example
Bob (a workplace agreement official) and Sam are having a drink after work.
Bob recently discovered, in the course of performing his usual duties,
that their mutual friend, Lisa, is engaged on an AWA. Bob accidentally
mentions this to Sam. Under proposed section 83BS, Bob has committed an
offence because the disclosure of the information was not in the course of
his duties and was not authorised. It could also be an offence for Sam to
disclose the information about Lisa she has acquired from Bob to any other
person.
Item 48 - Section 83BT
273. This item would amend section 83BT which allows the Employment
Advocate to publish or make available copies of, or extracts from,
AWAs or ancillary documents. This proposed amendment would replace
the reference in that section to 'AWAs or ancillary documents' with
'workplace agreements', thereby broadening the application of this
section to include individual agreements and collective agreements.
This is consistent with the Employment Advocate's new broader role
with respect to agreement making generally.
Item 49 - Part V (heading)
274. This item would repeal the current heading to Part V and insert a
new heading which reflects the change in title of inspectors to
workplace inspectors.
Item 50 - Subsection 84(1)
275. This item would amend the reference to inspectors in this subsection
bringing it in line with the change in title to workplace
inspectors.
Item 51 - Subsection 84(2)
276. This item would repeal and replace subsection 84(2) which
establishes who the Minister may appoint to be an inspector under
the WR Act.
277. Proposed subsection 84(2) would allow the Minister to appoint, by
instrument, two classes of person as workplace inspector. The first
is a person who has been appointed or is employed by the
Commonwealth; the second is any other person. The term 'instrument'
is not intended to refer to a legislative instrument for the
purposes of the Legislative Instruments Act 2003, but rather to a
written document.
Item 52 - Subsection 84(3)
278. This item would repeal pre-reform subsection 84(3) which allows the
making of arrangements with State or Territory governments for
officers of the relevant State or Territory Public Service to
undertake inspector functions. Such an arrangement is not required
given that the Minister is able to appoint any person under proposed
paragraph 84(2)(b) which would include an officer of a State or
Territory public service.
279. Proposed subsection 84(3) would provide that a person appointed as a
workplace inspector under paragraph 84(2)(a) (ie a Commonwealth
officer or employee) holds that appointment for the length of time
specified in the regulations. Subsection 84(3A) would provide that
a person appointed as a workplace inspector under paragraph 84(2)(b)
(ie any other person) would hold that appointment for a period
specified in the instrument of appointment. However that period
could not be longer than the period specified in the regulations.
Item 53 - Subsection 84(4)
Item 54 - Subsection 84(4A)
280. These items would amend subsections 84(4) and 84(4A) which set out
the powers of inspectors appointed under subsections 84(2)(a) and
(b). These amendments reflect the fact that workplace inspectors
will be required to enforce the provisions of a range of industrial
instruments provided for in the Bill.
Item 55 - Subsection 84(5)
281. Subsection 84(5) presently provides that the Minister may issue
directions to inspectors by notice published in the Gazette. This
item would amend subsection 84(5) to refer to such directions as
legislative instruments for the purposes of the Legislative
Instruments Act 2003.
Item 56 - Subsection 84(6)
Item 57 - Subsection 85(2)
282. These items would amend references to inspectors in these
subsections bringing them in line with the change in title to
workplace inspectors. They would also make technical amendments,
replacing 'shall' with 'must'. This is consistent with current
drafting practice.
Item 58 - At the end of section 85
283. This item would add a new subsection to section 85 which relates to
the issuing of identity cards to workplace inspectors. This
proposed subsection would introduce a new offence provision relating
to a workplace inspector who fails to return their identity card
upon ceasing their appointment. Under this provision, a person who
ceases to be a workplace inspector must return their identity card
to the Secretary of the Department within 14 days of the end of
their appointment. This would be a strict liability offence within
the meaning of the Criminal Code.
284. The proposed maximum penalty for this offence would be 1 penalty
unit.
285. It is important that identity cards be returned as soon as
practicable after a workplace inspector ceases their appointment in
order to prevent the improper use of such cards.
286. This is an administrative obligation provision, with a small penalty
attached where strict liability is commonly applied under
Commonwealth law.
Item 59 - Subsection 86(1)
287. This item would repeal and replace pre-reform subsection 86(1) which
deals with when an inspector can exercise his or her powers of entry
and inspection. The proposed subsection will reflect the range of
industrial instruments provided for in the Bill.
288. Proposed subsection 86(1) would establish that a workplace inspector
may exercise his or her powers for the purposes of determining
whether the following are being, or have been, observed:
. workplace agreements;
. awards;
. the Standard;
. minimum entitlements and orders under Part VIA; and
. the requirements of the WR Act (other than section 541) and the
regulations; or
. for the purposes of a provision of the regulations that confers
powers or functions on a workplace inspector.
289. A legislative note would be inserted after this subsection to
clarify that workplace inspectors have powers in relation to
workplace determinations (made under Division 9 of Part VC) and
undertakings (made under section 103M) because these instruments are
enforceable as though they are collective agreements.
Item 60 - Subparagraph 86(1A)(a)(i)
290. This item would amend the purposes for which a workplace inspector
may, without force, enter premises. Proposed subparagraph
86(1A)(a)(i) would permit a workplace inspector to enter a premises
where he or she has reasonable cause to believe that work is being
performed pursuant to an industrial instrument or entitlement under
subparagraphs 86(1)(a)(i) - (iv). The amendment is necessary to
reflect the range of industrial instruments provided for in the
Bill.
Item 61 - Subparagraph 86(1A)(b)(iii)
291. This item would amend pre-reform subparagraph 86(1A)(b)(iii) to
provide that a workplace inspector can interview any person, rather
than just any employee as provided in the current subparagraph, when
on the premises or in a place referred to in paragraph 86(1A)(a).
Item 62 - At the end of paragraph 86(1A)(b)
292. This item would add a new subparagraph at the end of paragraph
86(1A)(b) to allow a workplace inspector to require a person to tell
them who has custody of a particular document. This proposed
subparagraph would allow workplace inspectors to more quickly and
accurately identify documents which are relevant to their
investigations.
Item 63 - Paragraph 86(1A)(c)
293. This item is a technical amendment which removes redundant words in
the pre-reform paragraph. These words are no longer required
because proposed subsection 86(1) makes clear that workplace
inspectors may only exercise their powers for the purposes set out
in that provision.
Item 64 - At the end of subsection 86(1A)
294. This item would insert a note after subsection 86(1A) to make clear
that a contravention of either the requirement to produce a document
to an inspector made under subparagraph 86(1A)(b)(iv) or paragraph
86(1A)(c) may be an offence under section 305 (non-compliance with
requirement made by an inspector).
Item 65 - Subsection 86(4B)
295. Subsection 86(4B) presently provides that a person is not excused
from producing a document under paragraph 86(1A)(c) on the ground
that the production of the document may tend to incriminate the
person. This item would add the production of document pursuant to
subparagraph 86(1A)(b)(iv) to this proposed subsection so that
documents required to be produced to a workplace inspector under the
two provisions are treated in the same way.
Item 66 - Subsection 86(4C)
296. Subsection 86(4C) presently provides for limited use immunity for a
document produced to an inspector under paragraph 86(1A)(c) so that
the document and information obtained as a consequence of the
production of the document are not admissible as evidence in
criminal proceedings, except in proceedings for an offence against
section 305 (non compliance with a requirement of an inspector).
This proposed amendment is consequential to the amendment at item 64
so that it provides protection against criminal prosecution where a
person is compelled to produce a document despite the fact that it
may incriminate them.
Item 67 - Subsections 86(6) and (7)
297. This item would repeal both subsection 86(6) and (7). Provisions
relating specifically to Victoria are located in Parts XV and XVI.
The item would insert new subsections 86(6) and (7).
New subsections 86(6) and (7) - Extraterritorial extension
298. Proposed subsection 86(6) would extend the application of subsection
86(1A) (powers of inspectors to enter premises and make inquiries)
to premises in Australia's exclusive economic zone owned or occupied
by an Australian employer (as defined in subsection 4(1)). The
subsection would have effect subject to Australia's international
law obligations in relation to foreign-flagged ships and foreign-
registered aircraft so that consideration would need to be given to
those obligations in any case where it was intended to seek to board
a foreign-flagged ship or foreign-registered aircraft.
299. Proposed subsection 86(7) would extend the application of subsection
86(1A) (powers of inspectors to enter premises and make inquiries)
to premises in, on or over a prescribed part of Australia's
continental shelf beyond the exclusive economic zone. The extension
would operate only if the premises were connected with the
exploration of the continental shelf or the exploitation of its
resources and the requirements prescribed in the regulations were
met. In making regulations, account would be taken of Australia's
international law obligations in relation to foreign-flagged ships
and foreign-registered aircraft and its obligations in relation to
matters in, on or over the continental shelf (including under
agreements with other countries in relation to particular areas of
the continental shelf). The legislative note to subsection 86(7)
would make clear that the regulations could prescribe different
requirements for different parts of the continental shelf, including
for reasons connected with Australia's international obligations.
Item 68 - After section 86
300. This item would insert a new section.
New section 86A - Disclosure of information by inspectors
301. This proposed section would set out the circumstances in which a
workplace inspector could disclose information to another person.
302. Under this proposed section, the disclosure of information by a
workplace inspector would be authorised where that workplace
inspector considered, on reasonable grounds that the disclosure is:
. necessary or appropriate in the course of exercising his or her
functions or duties and an inspector;
. likely to assist an officer in the administration of the Migration
Act 1958; or
. likely to assist a officer of a State who has powers or functions
in relation to the administration of a workplace relations or
other employment related system.
303. This proposed section would also allow the making of regulations to
prescribe Commonwealth officers to whom a workplace inspector could
disclose prescribed kinds of information.
304. Proposed section 86A would provide an authorisation for disclosure
of information pursuant to Information Privacy Principle 11(1)(d) of
the Privacy Act 1988.
Item 69 - Section 87
305. This item would repeal pre-reform section 87 which allows the AIRC
to request that the Secretary of the Department arrange for an
inspector to investigate a matter affecting the safety of employees.
The repeal of this section is consistent with the redefined role of
the AIRC as a dispute settling body at the request of the parties
concerned.
Item 70 - Section 88
306. This item would repeal pre-reform section 88 which requires the
Secretary of the Department to prepare and provide to the Minister a
report on the operation of Part V. The original purpose of this
section was to implement the reporting provisions in article 20 of
ILO Convention (No. 81) Concerning Labour Inspection in Industry
and Commerce which require the central inspection agency to produce
an annual report.
307. In Australia, unlike some other countries, the central inspection
agency is the Department. Under section 63 of the Public Service
act 1999, the Secretary of the Department is required to produce an
annual report detailing the Department's activities for tabling in
Parliament. Therefore the reporting obligations under article 20 of
ILO Convention No. 81 are already addressed by the requirements of
the Public Service Act 1999. Accordingly, the repeal of section 88
would not affect Australia's compliance with its international legal
obligations.
Item 71 - Parts VA and VI
308. This item would repeal Parts VA and VI and substitute the following
Parts:
. Part VA ~ The Australian Fair Pay and Conditions Standard;
. Part VB ~ Workplace agreements;
. Part VC ~ Industrial action;
. Part VI ~ Awards; and
. Part VIAA ~ Transmission of business rules
New Part VA - The Australian Fair Pay and Conditions Standard
309. Proposed Part VA would provide for the Australian Fair Pay and
Conditions Standard (the Standard). The Standard will comprise the
following key minimum entitlements for the employees to whom it
applies:
. basic rates of pay and casual loadings (proposed Division 2);
. maximum ordinary hours of work (proposed Division 3);
. annual leave (proposed Division 4);
. personal leave, including sick, carer's and compassionate leave
(proposed Division 5); and
. parental leave, including maternity, paternity and adoption leave
(proposed Division 6).
310. The Standard would be subject to the general constitutional limits
of the WR Act, and the jurisdictional limits set out in proposed
sections 89C and 89D.
311. Specific arrangements apply in respect of some employees in Victoria
who are within constitutional coverage solely due to the Victorian
referral legislation (proposed Part XV).
312. The Standard would also not apply to:
. employees in the transitional conciliation and arbitration award
system (Schedule 13);
. employees who are covered by pre-reform certified agreements and
AWAs (Schedule 14);
. employees who come into the system and who are covered by
agreements made under State systems (Schedule 15).
313. The various Divisions of Part VA also set out the types of employees
to whom particular provisions of the Standard apply.
314. The Standard would perform a number of functions.
315. First, it would provide guaranteed minimum entitlements to wages and
conditions for award and agreement-free employees.
316. Second, it would underpin workplace bargaining. New agreements made
under the WR Act must always provide entitlements which are equal to
or more favourable than the Standard. The Standard would apply
throughout the life of these agreements, and would prevail over
inconsistent agreement terms to the extent that it is more
favourable, in a particular respect (proposed section 89A).
317. Third, it would provide the basis for the 'more generous' comparison
with preserved award terms (proposed section 117C).
Division 1 - Preliminary
New section 89 - Purpose of Part
318. Proposed section 89 would provide that the purpose of Part VA is to
set out certain key minimum entitlements of employment, which
together constitute the Standard. The key minimum entitlements that
comprise the Standard relate to:
. basic rates of pay and casual loadings (proposed Division 2);
. maximum ordinary hours of work (proposed Division 3);
. annual leave (proposed Division 4);
. personal leave (proposed Division 5); and
. parental leave and related entitlements (proposed Division 6).
New section 89A - Operation of the Australian Fair Pay and
Conditions Standard
319. Proposed section 89A would outline the way in which the Standard
operates.
320. Subsection 89A(1) would provide that the Standard provides key
minimum entitlements of employment for the employees to whom it
applies (as noted above, the Standard does not apply to all
employees).
321. A legislative note would point readers to the fact that the various
Divisions of Part VA set out the employees to whom particular
provisions of the Standard apply - for example, certain provisions
relating to wages and casual loadings would only apply to casual
employees. A further legislative note would provide that the
Standard is not relevant for some employees - for example those
employees who are covered by pre-reform certified agreements and
AWAs.
322. Subsection 89A(2) would provide that the Standard prevails over a
workplace agreement or a contract of employment to the extent that
it provides a more favourable outcome for the employee.
323. This provision serves two purposes.
. it would provide guaranteed minimum entitlements to wages and
conditions for award - and agreement-free employees; and
. it would enable the Standard to underpin workplace bargaining.
324. New agreements made under the WR Act would be required to provide
entitlements which are equal to or more favourable than the
Standard. The Standard would apply throughout the life of these
agreements, and would prevail over inconsistent agreement terms to
the extent that it is 'more favourable, in a particular respect'.
Illustrative Examples
Natalie is a waitress. Under the terms of the Bonny Teashoppe Collective
Agreement which regulates Natalie's employment, she works 38 ordinary hours
per week, and is entitled to114 hours (the equivalent of 15 days) annual
leave each year. Natalie's entitlement under the Standard would be 152
hours (the equivalent of 20 days) annual leave each year. As her
entitlement under the Standard provides a more favourable outcome than
under the workplace agreement, Natalie will be entitled to 152 hours (or 20
days) annual leave.
James is a hairdresser in an upmarket salon in Sydney. Under his contract
of employment, he is entitled to wages of $476 each week for 38 ordinary
hours. Under the Standard, he would be entitled to the FMW of $12.75 per
hour, which equates to $484.50 for a 38 hour week (as James is not covered
by an award). As his entitlement under the Standard provides a more
favourable outcome than under his contract, James will be entitled to be
paid $484.50 each week.
Lucy is a gym instructor. Her AWA states that she is entitled to maternity
leave of 52 weeks, the first 6 weeks of which would be paid leave. The
Standard provides for 52 weeks unpaid leave, reduced by any related
authorised leave (such as paid maternity leave) she takes, and any parental
leave taken by her spouse. As Lucy's AWA is more favourable in providing
paid leave, her AWA prevails in this regard.
325. Proposed subsection 89A(3) would provide that regulations may
prescribe for the purposes of subsection 89A(2):
. what a 'particular respect' is, or is not; and
. the circumstances in which the Standard provides or does not
provide a more favourable outcome in a particular respect.
326. A legislative note would provide that, for example, the regulations
could prescribe the way in which particular amounts of annual leave
are accrued as a particular respect under paragraph 89A(3)(a).
327. A legislative note would set out an example of a circumstance in
which the Standard does not provide a more favourable outcome.
New section 89B - Australia Fair Pay and Conditions Standard cannot
be excluded
328. Proposed section 89B would provide that a term of a workplace
agreement or contract has no effect to the extent to which it
purports to exclude the Standard or any part of it.
Illustrative Example
Mandy is a shop assistant. Her contract of employment states that she is
entitled to five days personal leave and that the Standard does not apply
to her employment. To the extent that a term of Mandy's contract purports
to exclude the Standard, it has no effect. As the Standard provides for 10
days personal leave, and that entitlement is more favourable than under
Mandy's contract of employment, she would be entitled to 10 days personal
leave.
New section 89C - This Part does not apply in relation to prescribed
employees in Australia
329. Proposed subsection 89C(1) would authorise the making of regulations
to prescribe employees in Australia (by class or otherwise - see
Note 1 to the subsection) to whom the provisions of the Standard do
not apply. If an employee is prescribed, the Standard would not
apply to the employee's employer in respect of that employee.
Legislative note 1 to subsection 89C(1) would explain that, for the
purposes of proposed section 89C, Australia includes the Territory
of Christmas Island, the Territory of Cocos (Keeling) Islands and
the coastal sea.
330. The purpose of the regulation making power in subsection 89C(1)
would be to dis-apply the Standard on the basis of insufficiency of
connection between the employee's employment and Australia.
Proposed subsection 89C(2) would require that the Minister be
satisfied that there was not a sufficient connection between the
employee's employment and Australia. Although it would be open to
the Commonwealth to apply the Standard to any employee in Australia,
it may be impracticable or inappropriate to apply the Standard to
some employees in Australia (for example, flight crew of a foreign
airline who transit in and out of Australia, or an employee of a
foreign employer on a short visit to, or tour of, Australia), and
the regulation making power could be used to dis-apply the Standard
to those employees.
New section 89D - Extraterritorial operation
331. Proposed subsection 89D(1) would extend the application of the
Standard (and related provisions of the WR Act) to certain employees
outside Australia and to their employers. The legislative note to
subsection 89D(1) would note that, for the purposes of section 89D,
Australia includes the Territory of Christmas Island, the Territory
of Cocos (Keeling) Islands and the coastal sea.
332. In Australia's exclusive economic zone, the Standard would apply to
employees of Australian employers (as defined in subsection 4(1)),
unless regulations were made to dis-apply the Standard to such an
employee (proposed paragraph 89D(2)(a)). Regulations could also
extend the operation of provisions of the amended WR Act to other
employees in the exclusive economic zone (proposed paragraph
89D(2)(b)). In making regulations, account would be taken of
Australia's international law obligations in relation to foreign-
flagged ships and foreign-registered aircraft.
333. In relation to employees in, on or over Australia's continental
shelf beyond the exclusive economic zone, the Standard would apply
only if regulations prescribed the part of the continental shelf
where the employee was located and the employee met the requirements
prescribed by the regulations (proposed subsection 89D(3)). In
making regulations, account would be taken of Australia's
international law obligations in relation to foreign-flagged ships
and foreign-registered aircraft and its obligations in relation to
matters in, on or over the continental shelf (including under
agreements with other countries in relation to particular areas of
the continental shelf). The legislative note to subsection 89D(3)
would make clear that the regulations could prescribe different
requirements for different parts of the continental shelf, including
for reasons connected with Australia's international obligations.
334. Outside Australia and the exclusive economic zone and continental
shelf, the Standard would apply to Australian-based employees of
Australian employers (as those expressions would be defined in
subsection 4(1)). In addition, proposed section 95E would have the
effect of allowing workplace agreements to be made by Australian
employers with non-Australian-based employees, and by non-Australian
employers with Australian-based employees, wherever the work was to
be performed. In those cases, the Standard would apply in respect
of that employment. In all cases, regulations could be made to
prescribe an employee outside Australia and the exclusive economic
zone and continental shelf as an employee to whom the Standard does
not apply (proposed subsections 89D(4) and (5)).
335. Subsection 89D(6) would provide a specific definition of this Act
for the purposes of section 89D. This is because the definition of
this Act in proposed subsection 4(1) (which would otherwise apply)
does not include the Registration and Accountability of
Organisations Schedule and regulations made under it. The specific
definition would ensure that the extraterritorial extension under
subsection 89D(1) would apply to that Schedule and those regulations
so far as they relate to Part VA.
New section 89E - Model dispute resolution process
336. Proposed section 89E would provide that the model dispute resolution
process set out in Part VIIA applies to disputes about the
entitlements provided by Divisions 3 - 6 of the Standard.
Division 2 - Wages
Subdivision A - Preliminary
Section 90 - AFPC's wage-setting parameters etc.
337. Proposed section 90 would require the AFPC to act in accordance with
its general wage-setting parameters under proposed section 7J when
exercising its powers under this Division. The Division also sets
out additional considerations bearing on the exercise of the AFPC's
powers.
Section 90A - AFPC to have regard to recommendations of Award Review
Taskforce
338. Proposed section 90A provides that the AFPC shall have regard to
any relevant recommendations made by the Award Review Taskforce
(ART).
Section 90B - Definitions
339. Proposed section 90B would set out various terms used in this
Division. Only key definitions are explained here.
340. APCS (or Australian Pay and Classification Scale) would mean a
preserved APCS or a new APCS. Proposed section 90X sets out what
must or may be in an APCS.
341. APCS piece rate employee would mean an employee who is paid a basic
piece rate of pay under an APCS that determines one or more basic
piece rates of pay.
342. Basic periodic rate of pay would be defined to exclude incentive-
based payments and bonuses, loadings, monetary allowances, penalty
rates or any other similar separately identifiable entitlements.
This reflects the division between what matters can be contained in
an APCS and what can remain in awards as allowable matters.
343. Basic piece rate of pay would mean a piece rate of pay, other than a
piece rate of pay that is underpinned by a guaranteed basic periodic
rate of pay. A piece rate of pay other than a basic piece rate of
pay would be characterised as an incentive-based payment or bonus,
which would be allowable award matters.
Illustrative Example
Keith is employed as a fruit picker by Thunder Orchards Pty Ltd which is
bound by the Horticultural Industry (AWU) Award 2000. Under the award,
Keith is entitled to be paid $28 for each bin of fruit he fills. If Keith
fills two bins per day, he is entitled to $56. If he fills ten bins, his
entitlement is $280.
Under the award, Keith is not guaranteed a minimum periodic rate of pay (eg
weekly rate).
Following the reform commencement, Keith would be classified as an APCS
piece rate employee. His guaranteed basic piece rate of pay under the APCS
derived from the Horticultural Industry (AWU) Award 2000 would be $28 per
bin of fruit.
344. Coverage provisions would mean provisions that determine whether a
particular employee is covered by a pre-reform wage instrument as in
force on the reform comparison day (the day immediately after the
Bill commences) or an APCS.
345. Proposed section 90ZD sets out those provisions from a pre-reform
wage instrument that are taken to be incorporated into a preserved
APCS. At least initially, a preserved APCS would have the same
coverage provisions as the pre-reform wage instrument from which it
was derived.
346. The coverage provisions for a pre-reform wage instrument are to
include legislated 'transmission of business' rules affecting
coverage (if any).
347. Employee with a disability would mean an employee who is or would be
qualified for a disability support pensions under section 94 or 95
of the Social Security Act 1991, but for paragraph 94(1)(e) or
95(1)(c) of that Act (which deal with the residential status of the
employee).
348. Piece rate of pay would mean a rate of pay that is expressed as a
rate for a discrete or ascertainable output or task. This rate may
incorporate a piece rate loading and/or casual loading.
349. Pre-reform federal wage instrument would include any of the
following, as in force immediately before reform commencement:
. an award (as defined in subsection 4(1) of the WR Act as in force
immediately before the reform commencement), but excluding an
order under section 120A of the WR Act or an award under
section 170MX of the WR Act, as then in force;
. proposed sections 552 and 555 of the WR Act as in force
immediately before the reform commencement. These sections would
establish minimum wages and conditions for school-based
apprentices and trainees, who would not otherwise be covered by an
appropriate instrument; or
. any Commonwealth law or an instrument made under such a law
identified in regulations made for the purposes of the definition.
350. Pre-reform non-federal wage instrument would mean a pre-reform State
wage instrument or a pre-reform Territory wage instrument.
351. Pre-reform State wage instrument would mean any of the following, as
in force immediately before reform commencement:
. a State award (as defined in subsection 4(1) as in force
immediately before the reform commencement);
. a State law, or provision of a State law, that entitled employees
or a class of employees, to a particular rate of pay; or
. a State law or provision of a State law, or an instrument made
under such a law or provision that is specified, or is of a kind
specified, in regulations made for the purposes of the definition.
352. Pre-reform Territory wage instrument would mean any of the
following, as in force immediately before reform commencement:
. a Territory law, or provision of a Territory law, that entitled
employees, or a particular class of employees to a particular rate
of pay; or
. a Territory law or provision of a Territory law, or an instrument
made under such a law or provision that is specified, or is of a
kind specified, in regulations made for the purposes of the
definition.
353. Pre-reform wage instrument would mean a pre-reform federal wage
instrument or a pre-reform non-federal wage instrument. Proposed
section 90ZD would establish the process by which a preserved APCS
is derived from a pre-reform wage instrument.
354. Pro-rata disability pay method would mean a method for determining a
rate of pay for employees with a disability by reference to their
relative capacity, for example, a method that implements the
supported wage system.
355. Reform comparison day would mean the day before the day this Part
commences.
356. State or Territory training authority would mean a body authorised
by a law or award of a State or Territory for the purpose of
overseeing arrangements for the training of employees.
357. Training arrangement would mean a combination of work and training
that is subject to a training agreement or a training contract
between the employee and employer which is registered with the
relevant State or Territory training authority or under a law of a
State or Territory. This means that a training arrangement can only
operate if the agreement or contract is registered in the
appropriate way.
Section 90C - Meaning of casual loading provisions
358. Proposed section 90C would define casual loading provisions as
provisions that determine a loading payable to a casual employee or
a casual employee of a particular classification under a pre-reform
wage instrument or an APCS.
359. Subsection 90C(2) would set out a non-exhaustive list of ways in
which a casual loading may be determined which include a direct
specification of a monetary amount or percentage or a method for
calculating the loading payable.
360. Subsection 90C(3) would provide, subject to the regulations, that
where a method for calculating a loading provided for a
determination by a person or body, that determination would be taken
to have been specified by the loading provisions.
361. This provision needs to be read in conjunction with:
. subsection 90X(3) which is intended to prevent an APCS from
containing 'self executing' casual loading provisions that would
otherwise provide automatic loading increases, without anyone
having to take any further action; and
. paragraph 90X(4)(c) which is intended to prevent the AFPC from
empowering the AIRC to determine a rate of pay or loading in a new
APCS, or adjust a preserved or new APCS to do so.
Section 90D - Meaning of classification
362. Classification provisions are necessary in order to determine what
rate of pay a particular employee is entitled to under a pre-reform
wage instrument or an APCS.
363. Proposed section 90D would provide that a classification of
employees may be described by reference to a non-exhaustive list of
indicia such as the nature of the work performed and the skills or
qualifications of employees. For example, a classification could
set out a skills-based career path or provide specific pay rates for
junior employees (eg scale of rates).
Section 90E - Meaning of rate provisions
364. Proposed section 90E would define rate provisions as provisions in a
pre-reform wage instrument or an APCS that determine a basic
periodic rate of pay or basic piece rates of pay for an employee of
a particular classification. Subsection 90E(2) sets out a non-
exhaustive list of ways in which a basic rate of pay may be
determined which include a direct specification of a monetary
amount, and by reference to another instrument or a method for
calculating the monetary amount. For example, a rate provision may
set out a method for calculating the basic rate of pay for a junior
employee as a percentage of the basic rate of pay for an adult
employee (21 years or older).
365. Subsection 90E(3) would provide, subject to the regulations, that
where a method for calculating a rate provided for a determination
by a person or body, that determination would be taken to have been
specified by the rate provisions.
366. This provision needs to be read in conjunction with:
. subsection 90X(3) which is intended to prevent an APCS from
containing 'self executing' rate provisions that would otherwise
provide automatic rate increases, without anyone having to take
any further action; and
. paragraph 90X(4)(c) which is intended to prevent the AFPC from
empowering the AIRC to determine a rate of pay or a casual loading
in a new APCS, or adjust a preserved or new APCS to do so.
Subdivision B - Guarantee of basic rates of pay
Section 90F - The guarantee
Section 90G - Provisions affecting what hours count as hours worked
367. Proposed section 90F would establish a statutory guarantee of basic
rates of pay. An individual employee's guaranteed basic periodic
rate of pay would depend on whether his or her employment was
covered by an APCS or an FMW. The guaranteed basic periodic rate of
pay would be:
. for an employee whose employment is covered by an APCS (other than
an APCS piece rate employee) - not less than the basic periodic
rate of pay payable to the employee under the APCS
(subsection 90F(1));
. for an APCS piece rate employee - not less than the basic piece
rates of pay payable to the employee under the APCS
(subsection 90F(2)). An employee could not be paid a basic piece
rate of pay unless their employment was covered by an APCS and the
rate provisions of the APCS determined one or more basic piece
rates of pay that applied to the employment of the employee;
. for an employee who is not covered by an APCS (other than a junior
employee, an employee with a disability, or an employee to whom a
training agreement applies) - not less than the standard FMW
(subsection 90F(3)); or
. for an employee who is not covered by an APCS and for whom there
is a special FMW - not less than the special FMW
(subsection 90F(4)).
368. These provisions, together with subsection 90G(1), would require an
employee to be paid at least his or her guaranteed basic periodic
rate of pay for each hour required to be worked (or pro-rated for
parts of hours required to be worked).
369. Subsection 90G(2) would guarantee that, other than for a casual
employee, an hour (or part thereof) that would have been worked by
an employee had it not been a public holiday, would count as an hour
(or part thereof) worked by the employee for the purposes of the
guarantee under subsections 90F(1), (3) or (4). This provision
would not guarantee any additional allowance or loading for any
hours actually worked on a public holiday. Any such allowance or
loading may be determined by the applicable award or workplace
agreement.
370. Subsection 90G(3) would define a public holiday to expressly exclude
a union picnic day or any other day or kind of day excluded by the
regulations.
371. Subsection 90G(4) would clarify that an APCS may provide that hours
attending off-the-job training by employees to whom training
agreements apply may count as hours worked for the purpose of
calculating the total monetary amount payable.
372. Subsection 90G(5) is an avoidance of doubt provision which would
specify that any hours worked by an employee do not count as hours
worked for the purpose of calculating the total monetary amount
payable if the employer is prohibited from paying strike pay under
section 114.
Illustrative Example
Danielle is a piece worker who is employed by Bell Fashions Pty Ltd which
is bound by the Clothing Trades Award 1999. Under the award, Danielle
received a piece rate of pay per garment produced of $12 per pair of
trousers produced. It usually takes Danielle between 30 and 45 minutes to
produce one pair of trousers. However, Danielle's award also stipulated
that she must not be paid less than $13.20 per hour for each hour worked,
which is the minimum hourly classification rate for her skill level in the
award.
After reform commencement, Danielle would not be an APCS piece worker
because her piece rate of pay would be underpinned by a guaranteed basic
periodic rate of pay. Danielle's piece rate of pay would be characterised
as an incentive-based payment and remain in her award. The basic periodic
rate of pay guaranteed for Danielle under the APCS derived from the
Clothing Trades Award 1999 would be $13.20 per hour. Danielle would
continue to receive $12 per pair of trousers produced, but could not be
paid less than her guaranteed basic periodic rate of pay under the APCS for
each hour worked. For example, if Danielle worked for 38 hours per week
and produced 50 pairs of trousers, she would be paid $600 (50 pairs
multiplied by $12 per pair). However, if she worked for 38 hours per week
and only produced 20 pairs of trousers, she would be paid $501.60 (38 hours
multiplied by $13.20 per hour).
Subdivision C - Guarantee of casual loadings
Section 90H - The guarantee
373. Proposed section 90H would establish the guarantee of casual
loadings for casual employees. It makes it clear that a casual
loading is only guaranteed if the employee has a guaranteed basic
periodic rate of pay under proposed section 90F. The intention
behind proposed section 90H is to ensure that employees who are
covered by an APCS are guaranteed the casual loading under that
instrument. It also ensures that casual employees covered by a
workplace agreement or whose guaranteed rate of pay is the FMW are
guaranteed the default casual loading.
374. Subsection 90H(1) provides that the guarantee of casual loadings
does not apply to a casual employee covered by an APCS if that APCS
does not contain an applicable casual loading provision, and the
casual employee is was not covered by a workplace agreement.
375. Subsection 90H(2) would require a casual employee (other than a
casual employee excluded under subsection 90H(1)) to be paid a
casual loading that was at least equal to the amount determined by
multiplying the employee's guaranteed casual loading percentage by
his or her actual basic periodic rate of pay. For example, if the
actual basic periodic rate of pay for an employee is $15.00 per hour
and the APCS contains a casual loading provision that provides for a
25 per cent loading, a casual employee whose employment is covered
by the APCS would be entitled to $18.75 per hour for each hour
worked.
376. An individual casual employee's guaranteed casual loading percentage
would depend on whether the employee's basic periodic rate of pay is
determined by an APCS, a workplace agreement or the FMW. The
guaranteed casual loading percentage would be:
. for a casual employee whose basic periodic rate of pay is
determined by an APCS - not less than the casual loading
percentage payable to the employee under the APCS
(paragraph 90H(3)(a));
. for a casual employee whose basic periodic rate of pay is
determined by a workplace agreement - the default casual loading
percentage (paragraph 90H(3)(b)); or
. for a casual employee whose basic periodic rate of pay is the FMW
- the default casual loading percentage (paragraph 90H(3)(c)).
Section 90I - Default casual loading percentage
Section 90J - Adjustment of default casual loading percentage
Section 90K - Only one default casual loading percentage
377. Proposed section 90I would set the default casual loading percentage
at 20 per cent.
378. Proposed section 90J would allow the AFPC to adjust the default
casual loading percentage, subject to various considerations that
limit or affect the AFPC's wage-setting powers. For example, the
AFPC would be required to ensure that the guaranteed casual loading
percentage for a particular employee is not less than the guaranteed
casual loading percentage that the employee would have received
immediately after reform commencement.
379. To avoid doubt, proposed section 90K would provide that in
exercising its wage-setting powers, the AFPC must ensure that there
is only one default casual loading percentage at any given time.
Illustrative Example
Mark is employed as a casual cleaner by Jacqui's Sparkling Cleaners in
Melbourne under the Building Services (Victoria) Award 2003. Under the
award, Mark is entitled to a casual loading of 25 per cent on top of his
basic periodic rate of pay.
Following reform commencement, Mark's casual loading percentage of 25 per
cent would be part of the APCS derived from the Building Services
(Victoria) Award 2003.
While Mark remained employed under the award, he would be guaranteed a
casual loading percentage of 25 per cent under the APCS.
If Mark negotiated a workplace agreement with his employer, he would be
guaranteed the default casual loading percentage as part of the Standard.
If the workplace agreement was subsequently terminated, Mark would be
guaranteed the casual loading percentage of 25 per cent from his APCS.
Subdivision D - Guarantee against reductions below pre-reform
commencement rates
380. Subdivision D would guarantee that the minimum rates of pay or
casual loading for an employee cannot be less than the minimum rates
of pay or casual loading that would have been payable to the
employee had he or she been in their current circumstances of
employment immediately after reform commencement. This guarantee
would be maintained by imposing limitations on the exercise of the
AFPC's wage-setting powers to adjust the standard FMW, to adjust an
APCS, to determine a new APCS or to revoke an APCS. This guarantee
relies on the following key concepts:
. commencement guaranteed basic periodic rate - which would mean the
guaranteed basic periodic rate of pay for the employee if he or
she had, at that time, been in his or her current circumstances of
employment immediately after the reform commencement
(paragraph 90L(1)(c));
. resulting guaranteed basic periodic rate - which would mean the
guaranteed basic periodic rate of pay for the employee immediately
after the AFPC's exercise of wage-setting powers takes effect
(paragraph 90L(1)(b));
. commencement guaranteed casual loading percentage - which would
mean the guaranteed casual loading percentage for the employee if
he or she had, at that time, been in his or her current
circumstances of employment immediately after reform commencement
(paragraph 90N(3)(b));
. resulting guaranteed casual loading percentage - which would mean
the guaranteed casual loading percentage for the employee
immediately after the AFPC's exercise of wage-setting powers takes
effect (paragraph 90N(3)(a)); and
. current circumstances of employment - in relation to an employee,
includes any current circumstances of or relating to the
employee's employment (proposed section 90B). This involves
looking at a range of factual issues such as whether the employee
is covered by an APCS, who the employee's employer is, whether the
employee was employed by that employer at reform commencement,
whether the business commenced after the reform commencement and
whether there has been a transmission of business.
Section 90L - The guarantee where only basic periodic rates of pay
are involved
381. Proposed section 90L would provide a minium wage guarantee to
employees who have a guaranteed basic periodic rate of pay. It
would guarantee that the employee cannot be paid less than the basic
periodic rate of pay that would have been payable to an employee in
the same circumstances as that employee immediately after reform
commencement. This guarantee constrains the exercise of the AFPC's
wage-setting powers to adjust the standard FMW, to adjust an APCS,
to determine a new APCS or to revoke an APCS.
382. Subsection 90L(3) would require the AFPC to take into account the
effect of any other exercise of its powers taking effect at the same
time.
383. Subsection 90L(4) would exclude the section's operation in relation
to the AFPC's power to make an APCS pursuant to proposed
sections 90ZP or 90ZQ (special APCSs in relation to employees with a
disability or employees to whom training arrangements apply).
Illustrative Example
Jacob is employed as a full-time boilermaker in a small factory in Western
Sydney owned by Barker Boilermakers. The business was started up by Barker
Boilermakers after the reform commencement.
Barker Boilermakers is currently covered by a preserved APCS that was
derived from a federal pre-reform wage instrument, the Metal, Engineering
and Associated Industries Award 1998. Barker Boilermakers is covered by
that APCS because it is a member of an employer association that is covered
by the APCS.
To determine whether there is a commencement guaranteed basic periodic rate
of pay for Jacob, it is necessary to work out whether there would have been
a guaranteed basic periodic rate of pay for Jacob immediately after the
reform commencement, had he been, at that time, in his current
circumstances of employment. Accordingly, it is necessary to consider what
Jacob's situation would have been had the business been in existence at
that time.
If Jacob had been in his current circumstances of employment immediately
after the reform commencement, his employment would have been covered by
his current APCS. Jacob's commencement guaranteed rate would be worked out
by looking at his classification and rate of pay in the preserved APCS as
it was immediately after the reform commencement.
Illustrative Example
Samantha is employed as a full-time clerical worker for Waterhouse Fabrics,
a manufacturer based in Sydney, NSW. Samantha joined Waterhouse Fabrics
before the reform commencement.
Before the reform commencement, Samantha's employment was covered by the
NSW Clerical and Administrative Employees (State) Award. On reform
commencement, a preserved APCS was derived from that award, and from that
time covered Samantha's employment. The preserved APCS was revoked and
replaced by a new APCS made by the AFPC, which consolidated and simplified
a number of APCSs. The coverage rules for the new APCS were not described
by reference to State or Territory boundaries.
Samantha's commencement guaranteed basic periodic rate of pay is her
guaranteed basic periodic rate of pay as it was under the preserved APCS
immediately after the reform commencement.
When making the new APCS, the AFPC would have been required to ensure that
Samantha's basic periodic rate of pay did not fall below her commencement
guaranteed basic periodic rate of pay, or the FMW, whichever was higher.
Section 90M - The guarantee where basic piece rates of pay are
involved
384. Proposed section 90M would provide a minium wage guarantee to APCS
piece rate employees. It would guarantee that an APCS piece rate
employee cannot be paid less than the basic pay per week that an
APCS employee of average capacity in the same circumstances as that
employee would have been paid immediately after reform commencement.
Accordingly, the AFPC must exercise its wage-setting powers in a
way that it considers will not result in an employee of average
capacity affected by the decision being entitled to less pay per
week than would have been payable to that employee immediately after
reform commencement.
385. This provision deals with situations where the AFPC makes or adjusts
an APCS basic piece rate of pay for an employee (whether or not that
employee was an APCS piece rate employee prior to the AFPC's
decision taking effect) or adjusts an APCS so that an employee who
was an APCS piece rate employee immediately before the decision is
paid a basic periodic rate of pay immediately after the AFPC's
decision takes effect.
386. Where an employee would be entitled to a basic piece rate after the
AFPC's decision takes effect and that employee would have had a
guaranteed piece rate of pay immediately after reform commencement,
the AFPC must exercise its powers in a way that it considers will
not result in that employee receiving a lower basic piece rate than
would have been payable to that employee had he or she been in their
current circumstances of employment immediately after reform.
387. However, if the employee was either:
. entitled to a periodic rate of pay before the AFPC exercised its
wage-setting powers, but would be entitled to a piece rate of pay
after the AFPC exercised its wage-setting powers; or
. entitled to a piece rate of pay before the AFPC exercised its wage-
setting powers, but would be entitled to a periodic rate of pay
after the AFPC exercised its wage-setting powers;
the AFPC must use the concept of the 'employee of average capacity'.
388. The inclusion of this concept would enable basic piece rates of pay
to be converted into a basic periodic rate of pay or vice versa for
the purposes of making comparisons under this Subdivision. For
example, if the AFPC adjusts an APCS so that an employee that was an
APCS piece rate employee at reform commencement becomes entitled to
a guaranteed basic periodic rate of pay after the AFPC decision
takes effect, the AFPC must set that basic periodic rate of pay at a
level that it considers would not be less than an APCS piece rate
employee of average capacity in the same circumstances as the
employee would have received as basic pay immediately after reform
commencement.
389. Subsection 90M(3) would require the AFPC to take into account the
effect of any other exercise of its powers taking effect at the same
time.
390. Subsection 90M(4) would exclude the section's operation in relation
to the AFPC's power to make an APCS pursuant to proposed
section 90ZP or 90ZQ (special APCSs in relation to employees with a
disability or employees to whom training arrangements apply).
Section 90N - The guarantee for casual loadings that apply to basic
periodic rates of pay
391. Proposed section 90N would provide a guarantee to a casual employee
that if the AFPC proposes to exercise any of its powers listed in
paragraph 90N(1)(a) such as adjusting the default casual loading
percentage or an APCS, it must ensure that the casual loading
percentage that applies to the basic periodic rate is not less than
the casual loading percentage that would have been payable to that
employee had he or she been in their current circumstances of
employment immediately after reform commencement.
392. The guarantee would require there to be both a resulting guaranteed
casual loading percentage and a commencement guaranteed casual
loading percentage for the employee affected by the decision.
Accordingly, the guarantee could not apply to an employee who became
an APCS piece rate employee after the AFPC's decision took effect or
who was an APCS piece rate employee at reform commencement.
393. If the resulting guaranteed casual loading percentage was the
default casual loading percentage, subsection 90N(4) would deem that
the commencement guaranteed casual loading percentage would be the
initial legislated default casual loading percentage of 20 per cent.
394. Subsection 90N(5) would require the AFPC to take into account the
effect of any other exercise of its powers taking effect at the same
time.
Subdivision E - The guarantee against reductions below Federal
Minimum Wages (FMWs)
Section 90O - The guarantee
395. Proposed section 90O would guarantee that an employee (other than an
APCS piece rate employee) covered by an APCS cannot be paid less
than an applicable FMW (either the standard FMW as determined under
proposed sections 90Q and 90R or a special FMW determined under
proposed section 90S).
396. Subsection 90O(1) would require the AFPC to ensure that the basic
periodic rate of pay that would be payable to an employee under an
APCS immediately after the exercise of power by the AFPC is not
below an FMW that covers that employee.
397. The legislative note would make it clear that the guarantee does not
apply to basic periodic rate of pay initially included in a
preserved APCS that is derived from a pre-reform wage instrument.
Proposed section 90O would only apply to any subsequent adjustment
of those basic periodic rates of pay, or to any new APCS that
replaced the preserved APCS.
398. Subsection 90O(3) would provide that the guarantee that an employee
cannot be paid less than an applicable special FMW does not apply
unless:
. the AFPC determined that the special FMW in question would operate
as a minimum standard for one or more APCSs (proposed
section 90T); and
. the exercise of wage-setting powers by the AFPC affects one of the
APCSs covered by that special FMW.
399. Subsection 90O(4) would require the AFPC to take into account the
effect of any other exercise of power by the AFPC taking effect at
the same time.
Subdivision F - Federal Minimum Wages (FMWs)
400. Proposed Subdivision F would establish a Federal Minimum Wage (FMW)
and empower the AFPC to determine special FMWs.
Section 90P - When is there an FMW for an employee
401. Proposed section 90P would set out when there is an FMW for a
particular employee.
402. Subsection 90P(1) would establish that the standard FMW applies to
every employee covered by the federal workplace relations system
other than:
. a junior employee (paragraph 90P(1)(a));
. an employee with a disability (as defined in proposed section 90B)
(paragraph 90P(1)(b));
. an employee to whom a training agreement applies (including
'school-based apprenticeships') (paragraph 90P(1)(c)); or
. an APCS piece rate employee (paragraph 90P(1)(d)).
403. Subsections 90P(2) - (4) would set out when there is a special FMW
for a junior employee, an employee with a disability, or an employee
to whom a training agreement applies. For example, there would be a
special FMW for a junior employee if the AFPC set a special FMW
under proposed section 90S for junior employees and the special FMW
either applied to all junior employees or to a class of junior
employees that included the particular junior employee.
404. Where there is no applicable FMW, the employee would be guaranteed
the basic periodic rate of pay as provided under Subdivision B.
Section 90Q - Standard FMW
Section 90R - Adjustment of standard FMW
405. Proposed section 90Q would fix the initial standard FMW at $12.75
per hour, subject to the power of the AFPC to adjust the standard
FMW.
406. Proposed section 90R would empower the AFPC to adjust the standard
FMW, subject to various considerations or limitations on the
exercise of its wage-setting powers. For example,
paragraphs 90R(2)(b) - (c) would guarantee that the standard FMW
could not be adjusted below the initial legislated rate of $12.75
per hour.
Section 90S - Determination of special FMWs
Section 90T - AFPC to state whether special FMW is a minimum
standard for APCSs
Section 90U - How a special FMW is to be expressed
Section 90V - Adjustment of a special FMW
407. Proposed section 90S would empower the AFPC to determine a special
FMW for any of the following groups:
. all junior employees, or a class of junior employees
(paragraph 90S(a));
. all employees with a disability, or a class of employees with a
disability (paragraph 90S(b)); or
. all employees to whom training agreements apply, or a class of
employees to whom training agreements apply (paragraph 90S(c)).
408. Proposed section 90T would empower the AFPC to determine whether a
special FMW should operate as a minimum standard. The AFPC may
determine that a special FMW should operate as a minimum standard
for all APCSs, for a class of APCSs or for a single APCS. For
example, the AFPC could determine a special FMW for all junior
employees that operates as a minimum standard. This special FMW
could set out a scale of rates according to the age of the junior.
409. Subsections 90T(2) - ( 4) would prescribe how the instrument
determining the special FMW should be expressed so as to identify
which APCS the special FMW applies to.
410. Proposed section 90U would require a special FMW to be expressed in
a way that produces a monetary amount per hour. It would make clear
that this includes (but is not limited to) direct specification of a
single dollar amount per hour (eg $13.75 per hour), several monetary
amounts per hours (eg a scale of rates) or by specifying a method or
methods for calculating a dollar amount per hour (eg as a percentage
of another rate).
411. Proposed section 90V would empower the AFPC to adjust a special FMW,
subject to the provisions listed in subsection 90V(2). To avoid
doubt, subsection 90V(3) would make it clear that the AFPC may
adjust a statement determining a special FMW, including which APCSs
the special FMW applies to.
Subdivision G - Australian Pay and Classification Scales (APCSs):
general provisions
412. Proposed Subdivision G would establish the legal framework for
APCSs.
Section 90W - What is an APCS?
413. Proposed section 90W would define an APCS as a set of provisions
that relate to pay and loadings for particular employees such as
rate provisions (as defined in proposed section 90E),
classifications (as defined in proposed section 90D), casual loading
provisions (as defined in proposed section 90C) and coverage
provisions (as defined in proposed section 90B).
414. Subsection 90W(2) would clarify that an APCS includes both a
preserved APCS (an APCS that is derived from a pre-reform wage
instrument under proposed section 90ZD) or a new APCS that is
determined by the AFPC under proposed section 90ZJ.
Section 90X - What must or may be in an APCS
415. Proposed section 90X would prescribe content rules for APCSs.
Subsection 90X(1) would provide that an APCS must contain:
. rate provisions that set out basic periodic and/or piece rates of
pay (paragraph 90X(1)(a));
. classifications - where the rate provisions provide different
basic periodic and/or piece rates of pay depending on the
particular classification (paragraph 90X(1)(b)); and
. coverage provisions so as to determine which employees are covered
by the APCS (paragraph 90X(1)(c)).
416. Subsection 90X(2) would provide that an APCS may also contain:
. casual loading provisions for casual employees (other than piece
rate employees - whose casual loading, if any, may be factored
into their basic piece rates of pay) (paragraph 90X(2)(a));
. classifications - where the loading provisions provide different
casual loadings depending on the particular classification
(paragraph 90X(2)(b));
. provisions relating to employees to whom training arrangements
apply that stipulate whether hours attending off-the-job training
(including hours attending an educational institution) count as
hours worked (paragraph 90X(2)(c)). This affects an employee's
guaranteed basic periodic rate of pay under proposed section 90F;
and
. other incidental provisions (paragraph 90X(2)(d)) such as
provisions that may prescribe when an employee actually receives
wages. For example, many wage instruments provide that wages are
paid fortnightly in arrears.
417. Subsections 90X(3) - (6) would set out a range of provisions that
cannot be included in an APCS. For example, subsection 90X(3) would
prevent the AFPC from including a provision in an APCS that would
otherwise automatically enable a rate or casual loading to be
increased. The legislative note would set out some common examples
of the types of 'self-executing' provisions that would be excluded
from rate and loading provisions in APCSs. The legislative note
would make it clear that the subsection does not prevent the AFPC
from determining that an APCS, or an adjustment to an APCS, takes
effect from a specified date.
418. Subsection 90X(4) would prevent the AFPC from including a provision
in an APCS that would determine whether an employer who acquired a
business (whether by transfer or in some other way) was covered by
the APCS (paragraph 90X(4)(a)). Part VIAA sets out transmission of
business rules. Subsection 90X(4) would also prohibit provisions
that allow a person or body to determine whether a particular
employee was covered by an APCS (paragraph 90X(4)(b)) or which allow
the AIRC to determine a rate of pay or casual loading
(paragraph 90X(4)(c)).
419. The legislative note would make it clear that subsection 90X(4)
would not prevent a preserved APCS from containing provisions
otherwise prohibited by subsection 90X(4) that were contained in the
pre-reform wage instrument from which the APCS was derived. The
effect of such provisions, however, would be limited by proposed
section 90Z (which sets out when the employment of a particular
employee is covered by a particular APCS) and proposed section 90ZE
(which allows for notional adjustments to be made to preserved APCSs
immediately after reform commencement).
420. Subsection 90X(5) would prevent the AFPC from including a provision
in an APCS that purports to limit the duration of an APCS. This
means that, subject to the power of the AFPC to revoke an APCS, once
made an APCS will operate indefinitely.
421. Subsection 90X(6) would, subject to the regulations, prevent the
AFPC from including in an APCS any provisions other than those
required or allowed under this Subdivision.
Section 90Y - How pay rates and loadings are to be expressed in an
APCS
422. Proposed section 90Y would set out the rules for how rate provisions
and casual loadings are expressed in an APCS. It would require
basic periodic rates of pay to be expressed as monetary amounts per
hour, basic piece rates of pay to be expressed as a monetary amount
and casual loading provisions to be expressed as a percentage of the
basic periodic rate of pay.
423. Proposed section 90E, which defines rate provisions, makes it clear
that a rate provision may specify or refer to a rate of pay, or
specify or refer to a method for calculating a rate. Similarly,
proposed section 90C, which defines casual loading provisions, makes
it clear that a loading provision may specify or refer to a loading,
or specify or refer to a method for calculating a loading.
424. Note that proposed section 90ZG provides for notional adjustments to
preserved APCSs to ensure that basic periodic rates of pay are
expressed as hourly rates of pay and casual loading provisions are
expressed as percentages of the basic periodic rates of pay.
425. Subsection 90Y(4) would require the AFPC to comply with these rules
when exercising its powers to make a new APCS or adjust an APCS.
Section 90Z - When is employment covered by an APCS?
426. Proposed subsection 90Z(1) would provide that the coverage
provisions in an APCS determine when a particular employee is
covered by that APCS.
427. To avoid doubt, subsection 90Z(2) would provide that provisions
determining whether an employer who acquired a business (whether by
transfer or in some other way) was covered by the preserved APCS
only have effect in relation to acquisitions of businesses before
the reform commencement. Part VIAA sets out transmission of
business rules after reform commencement which affect whether an
employee is covered by a particular APCS.
428. Similarly, to avoid doubt, subsection 90Z(3) would provide that
provisions which allow a person or body to determine whether an
employee is covered by a preserved APCS only have effect in relation
to decisions made before the reform commencement. After reform
commencement only the AFPC can adjust coverage provisions of an
APCS.
Section 90ZA - What if 2 or more APCSs would otherwise cover an
employee?
429. Proposed section 90ZA would provide for priority rules to determine
when one APCS prevails over another APCS.
Section 90ZB - AFPC to remove coverage rules described by reference
to State or Territory boundaries
430. Proposed section 90ZB would require the AFPC to ensure that three
years after reform commencement the coverage provisions in an APCS
must not be determined by reference to State or Territory
boundaries. The AFPC would fulfil this obligation by exercising its
powers to adjust, revoke or make new APCSs.
431. To avoid doubt, subsection 90ZB(2) would provide that in fulfilling
its obligation under this section, the AFPC must comply with
obligations imposed by this Division (eg ensuring that the
guaranteed basic periodic rate of pay for an employee does not fall
below the pre-reform basic periodic rate of pay or an applicable
FMW).
Section 90ZC - Deeming APCS rates to at least equal FMW rates after
first exercise of AFPC's powers takes effect
432. Proposed section 90ZC would provide that an employee (other than an
APCS piece rate employee) cannot be paid less than an applicable
FMW, irrespective of the rate provisions in an APCS that cover that
employee. This guarantee comes into operation after an exercise of
the AFPC's wage-setting powers for the first time takes effect.
433. Proposed section 90ZC would provide that where an employee is
covered by an APCS and an FMW, the employee is guaranteed to be paid
whichever basic periodic rate of pay is higher. For example, if the
employee is guaranteed $12.50 under an APCS and would be covered by
the standard FMW (see proposed section 90P), after the AFPC's
exercise of wage setting powers takes effect for the first time,
that employee would be guaranteed the standard FMW as it would be
higher (ie $12.75 per hour). This guarantee only applies if there
is an FMW that applies to the particular employee. For example, if
the AFPC determines that a special FMW will operate as a minimum
standard for all junior employees and the rate of pay under that
special FMW is higher than the junior rate of pay under an
applicable APCS, a junior employee covered by that APCS would be
entitled to be paid the rate of pay set out in the special FMW.
Illustrative Example
Darrin is employed by DDS Pedigree Stud Farm as a Stablehand Grade I under
the Federal Horse Training Industry Award 1998. Darrin's weekly rate of
pay under the award is $503.70.
In the award, ordinary hours of work are 40 hours per week. On reform
commencement and following notional adjustments under proposed
section 90ZG, Darrin's guaranteed basic periodic rate of pay will be his
pre-reform weekly rate divided by the ordinary hours of work in his award.
Under this formula, Darrin's hourly rate would be $12.59.
If the APCS that covers Darrin's employment was adjusted by the AFPC so
that guaranteed basic periodic rate of pay under the APCS was higher than
the FMW, Darrin would be guaranteed the basic periodic rate of pay under
the APCS.
Assuming that at its first wage-setting decision, the AFPC does not adjust
the APCS that covers Darrin's employment, immediately after that first wage
decision takes effect, Darrin will be guaranteed the FMW as it will be
higher than the basic periodic rate of pay under the APCS.
Subdivision H - Australian Pay and Classification Scales: preserved
APCSs
Section 90ZD - Deriving preserved APCSs from pre-reform wage
instruments
434. Proposed section 90ZD sets out the mechanism by which a pre-reform
wage instrument, (as defined in proposed section 90B) is converted
into a preserved APCS on the reform commencement. The preserved
APCS would include rate provisions (as defined in proposed
section 90E), classifications (as defined in proposed section 90D),
casual loading provisions (as defined in proposed section 90C) and
coverage provisions (as defined in proposed section 90B) derived
from the pre-reform wage instrument.
435. Subsection 90ZD(3) would provide that, subject to regulations and
after notional adjustments have been made to a preserved APCS under
proposed sections 90ZE - 90ZH, any provision that does not comply
with requirements for what an APCS must or may contain (proposed
section 90X) or how rates of pay and casual loadings are to be
expressed in an APCS (proposed section 90Y) is deemed not to be
included in the APCS.
436. Subsection 90ZD(4) would, subject to the regulations, provide for
the order of notional adjustments in proposed sections 90ZE - 90ZH
are to be made.
437. Proposed section 90ZI would specify when regulations made for the
purpose of subsection 90ZD(3) - (4) could be expressed to take
effect.
Section 90ZE - Notional adjustment: rates and loadings determined as
for reform comparison day
438. Proposed section 90ZE would provide for notional adjustments to
ensure that, subject to subsections 90ZE(2) - (4), all preserved
APCSs provide for direct specification of a rate of pay or casual
loading as at the reform comparison day. For example, if an APCS
specified a method for determining a junior rate of pay for each
employee aged 16 to 20 by reference to a percentage of the adult
rate of pay, subsection 90ZE(1) would notionally adjust the APCS to
produce a specific rate of pay for each junior classification.
Accordingly, if the adult wage rate was $14 and junior rates of pay
were determined as follows: 50% of the adult rate of for a 16 year
old junior employee, 60 % for a 17 year old, 70% for an 18 year old,
80% for a 19 year old and 90% for a 20 year old, the notional
adjustment would remove the link between adult rates of pay and
junior rates of pay. Instead, the APCS would specify a rates of pay
as follows: $7 per hour for a 16 year old, $8.40 per hour for a 17
year old, $9.80 per hour for an 18 year old, $11.20 per hour for a
19 year old and $12.60 per hour for a 20 year old. This would allow
the AFPC to adjust adult and junior rates of pay under the preserved
APCS independently of each other.
439. Subsections 90ZE(2) - (4) provide that subsection 90ZE(1) does not
apply in relation to:
. a preserved APCS derived from sections 552 and 555 of the WR Act
as in force immediately before the reform commencement (which
provides a method for determining basic rates of pay for school-
based trainees and school-based apprentices);
. the rate provisions in an APCS that determine a rate of pay for an
employee with a disability by reference to his or her assessed
capacity (pro-rata disability pay method); and
. rate provisions that determine a basic piece rate of pay by (or by
referring to) a method.
440. Subsection 90ZE(5) would allow for regulations to prescribe other
situations where notional adjustments under subsection 90ZE(1) would
not apply, or would only apply with specified modifications.
441. Subsection 90ZE(6) would provide for notional adjustments to a
preserved APCS immediately after the reform commencement to ensure
that casual loading provisions in that APCS provide for a direct
specification of the loading as at the reform comparison day.
Section 90ZF - Notional adjustment: deducing basic periodic rate of
pay and casual loading from composite rate
442. Proposed section 90ZF would operate where a preserved APCS specifies
a basic periodic rate of pay for a casual employee that is higher
than a basic periodic rate of pay for a non-casual employee and does
not specifically determine a casual loading for the casual employee
(ie the basic periodic rate of pay for a casual employee has an in-
built casual loading). In these circumstances, proposed section
90ZF would notionally adjust the APCS immediately after the reform
commencement so that the composite rate was broken down into its
component parts so that rate provisions for a casual employee
covered by the APCS are expressed as a basic rate of pay without
that built-in casual loading and a separate casual loading.
443. The division of the composite rate in this way would ensure that the
guarantees in Subdivisions B and C operated in a consistent way for
casual employees for whom there would be a basic periodic rate of
pay.
Section 90ZG - Notional adjustment: how basic periodic rates and
loadings are expressed
444. Proposed section 90ZG would provide for notional adjustments to a
preserved APCS to ensure that immediately after the reform
commencement all basic periodic rates would be expressed as a rate
of pay per hour and all casual loadings would be expressed as a
percentage of the basic periodic rate.
Section 90ZH - Regulations dealing with notional adjustments
445. Proposed section 90ZH would provide for regulations to prescribe
other adjustments that could be taken to have been made to a
preserved APCS.
446. Subsection 90ZH(2) would also enable the regulations to determine
the methods for working out the adjustments in proposed
sections 90ZE - 90ZG, or to otherwise clarify any aspect of those
sections. Those sections would have effect accordingly.
447. Proposed section 90ZI would specify when regulations made for the
purpose of the subsection could be expressed to take effect.
Section 90ZI - Certain regulations relating to preserved APCSs may
take effect before registration
448. Proposed section 90ZI would provide for regulations made for the
purpose of any of the provisions listed in subsection 90ZI(1) to
take effect before their registration under the Legislative
Instruments Act 2003.
449. Subsection 90ZI(3) would describe the interaction between
regulations which would, under the section, take effect before their
registration under the Legislative Instruments Act 2003, and the
operation of the listed proposed sections.
450. While this provision allows for regulations to operate prior to
their registration, it does not permit retrospective operation.
However, these regulations could affect what an employee's
commencement guaranteed basic periodic rate or commencement
guaranteed casual loading percentage is taken to be in any
prospective comparative assessment by the AFPC.
Subdivision I - Australian Pay and Classification Scales: new APCSs
Section 90ZJ - AFPC may determine new APCSs
451. Proposed section 90ZJ would empower the AFPC to determine an APCS
(designated a new APCS), subject to the various considerations set
out in subsection 90ZJ(2) that limit or affect the AFPC's power to
determine an APCS.
Subdivision J - Australian Pay and Classification Scales: duration,
adjustment and revocation of APCSs (preserved or new)
Section 90ZK - Duration of APCSs
452. Proposed section 90ZK would provide that an APCS continues
indefinitely, unless it is revoked or adjusted by the AFPC or its
operation is affected by proposed section 90ZA which sets out when
one APCS prevails over another APCS.
Section 90ZL - Adjustment of APCSs
453. Proposed subsection 90ZL(1) would provide that the AFPC may adjust
an APCS, subject to the various considerations set out in
subsection 90ZL(2) that limit or affect the AFPC's power to adjust
an APCS.
Section 90ZM - Revocation of APCSs
454. Proposed subsection 90ZM(1) would provide that the AFPC may revoke
an APCS, subject to the various considerations set out in
subsection 90ZM(2) that limit or affect the AFPC's power to revoke
an APCS.
Subdivision K - Adjustments to incorporate 2005 Safety Net Review
etc.
Section 90ZN - Adjustments to incorporate 2005 Safety New Review
455. Proposed section 90ZN would require the AFPC to adjust certain
preserved APCSs to increase the rate provisions consistently with
the AIRC's 2005 Safety Net Review decision [Print PR002005].
456. Subsection 90ZN(1) would provide that a preserved APCS can only be
adjusted to accommodate the AIRC's 2005 Safety Net Review decision
if before the reform commencement the wage instrument from which the
preserved APCS was derived:
. was not adjusted by the AIRC in accordance with the 2005 Safety
Net Review and was adjusted by the AIRC's 2004 Safety Net Review;
or
. did not come into operation until after the AIRC's 2004 Safety Net
Review.
457. This section ensures that an award that would have received the wage
increase under the AIRC's 2005 Safety Net Review decision, but for
the establishment of the AFPC, will receive that increase at the
AFPC's first wage adjustment.
Illustrative Example
Branko is employed as a Category 2 Master and Engineer under the federal
Tugboat Industry Award 1999. The Tugboat Industry Award 1999 received the
2004 safety net adjustment of $19 to all award rates on 27 April 2005. In
the 2005 Safety Net Review of Wages, the AIRC granted a $17 increase to all
award rates of pay. Under the AIRC's wage fixing principles, an award
cannot receive the 2005 safety net adjustment until at least 12 months
after it received the 2004 safety net adjustment. The earliest this could
happen would be 27 April 2006.
If the AFPC assumed responsibility for setting and adjusting minimum wages
for award classifications prior to this date the AIRC would no longer be
able to adjust the Tugboat Industry Award 1999. Branko would receive his
$17 increase when the AFPC made its first wage adjustment, which would be
expected to occur in Spring 2006.
458. Subsection 90ZN(3) would provide that the AFPC must exercise its
powers under Subdivision K when it first exercises its powers under
Division 2.
459. Subsection 90ZN(4) would provide that where the rate provisions of a
preserved APCS have been adjusted to accommodate the 2005 Safety Net
Review decision, the guarantee against reductions below a pre-reform
basic periodic rate of pay under proposed section 90L applies to the
adjusted rate provisions.
Section 90ZO - Regulations may require adjustments to incorporate
other decisions
460. Proposed subsection 90ZO(1) would provide that regulations may be
made to require the AFPC to adjust rate provisions in a class of
particular APCSs, to increase those rate provisions to take account
of decisions made before commencement of the reforms but not given
effect in the particular APCSs.
461. Subsection 90ZO(2) would provide that regulations made under
subsection 90ZO(1) may modify the application of proposed
section 90L in relation to an APCS adjusted under
subsection 90ZO(1).
Subdivision L - Special provisions relating to APCSs for employees
with disabilities and employees to whom training arrangements apply
462. Subdivision L would remove major barriers to the employment of
persons with a disability or apprentices or trainees. Where an APCS
inhibits the employment of a particular category of apprentice or
trainee or a person with a disability because it does not make
specific provision for them, proposed sections 90ZP and 90ZQ would
require the AFPC to ensure that appropriate minimum wages are
available.
463. This would help ensure that all APCSs that the AFPC considers should
have specific rates of pay for a class of employees with
disabilities and/or a class of employees to whom training
arrangements apply (eg part-time trainees or apprentices) do in fact
contain such a specified rate of pay for that class.
Section 90ZP - Employees with disabilities
464. Proposed section 90ZP would empower the AFPC to make a 'gap filling'
APCS to cover the employment of employees with a disability.
465. Subsection 90ZP(1) would require that where the AFPC considers that
there should be an APCS that determines basic rates of pay for all,
or a class of, employees with a disability, it must determine an
APCS specifically for those employees.
466. Subsection 90ZP(2) would require that where the AFPC determines an
APCS under subsection 90ZP(1), it must expressly state that the APCS
was determined for the purpose of proposed section 90ZP.
467. Subsection 90ZP(3) would set out when an APCS made under
subsection 90ZP(1) applies. It would provide that a special APCS
operates in relation to a particular employee with a disability only
where:
. another APCS does not cover that employee; or
. another APSC covers the employee but it does not determine a basic
periodic rate of pay that specifically applies to a class of
employees with a disability covered by the special APCS to which
the employee belongs.
468. In other words, where another APCS covers an employee with a
disability and that APCS specifically determines basic rates of pay
for the class of employees with a disability covered by the special
APCS, that APCS will prevail over the special APCS.
469. Subsection 90ZP(4) would provide that proposed section 90ZP,
including subsection 90ZP(3), does not limit the powers of the AFPC
to determine, revoke or adjust APCSs.
Illustrative Example
Anna has an intellectual disability and is qualified for a disability
support pension as set out in section 94 or 95 of the Social Security Act
1991. King Meats operates a meat processing plant and would like to offer
Anna full-time employment as a clerk, but is concerned about the employment
costs associated with employing her. The APCS that would apply to Anna's
employment was derived from an award that did not include the standard
supported wage system or equivalent provisions to provide for a capacity-
based pay method. In the absence of such provisions, King Meats would be
required to pay Anna the applicable full-time rate of pay. Anna would
stand a better chance of receiving a job offer from King Meats if her basic
periodic rate of pay was a pro-rata wage rate based on her assessed
productive capacity.
Under proposed section 90ZP the AFPC has determined a special APCS that
specifies that the standard supported wage system applies to the employment
of employees with a disability. This special APCS would provide that Anna
be paid the pro-rata wage rate based on her assessed productive capacity.
This would provide Anna with a better chance of gaining full-time
employment as an assistant administrative clerk at the meat processing
plant.
Section 90ZQ - Employees to whom training arrangements apply
470. Proposed section 90ZQ would empower the AFPC to make a 'gap filling'
APCS to cover the employment of employees to whom training
arrangements apply.
471. Subsection 90ZQ(1) would require that, where the AFPC considers that
there should be an APCS that determines basic rates of pay for all,
or a class of employees to whom training arrangements apply (for
example part-time trainees or apprentices), it must determine an
APCS specifically for those employees.
472. Subsection 90ZQ(2) would provide that where the AFPC determines an
APCS under subsection 90ZQ(1), it must expressly state that the APCS
was determined for the purpose of proposed section 90ZQ.
473. For example, the AFPC could determine one or more APCSs that set out
specific minimum wages for apprentices and trainees employed under
full-time, part-time and school-based arrangements, undertaking
apprenticeships and traineeships at different qualification levels,
in different occupations and in different industries, involving
different combinations of work and training, and with different
progression arrangements. It would also ensure that the AFPC
establishes appropriate minimum wages where State and Territory
training systems develop new types of apprenticeships, traineeships
or other training arrangements.
474. Subsection 90ZQ(3) would set out when an APCS made under
subsection 90ZQ(1) applies. It would provide that a special APCS
operates in relation to a particular employee to whom a training
arrangement applies only where:
. another APCS does not cover that employee; or
. another APCS covers the employee but it does not determine a basic
periodic rate of pay that specifically applies to a class of
employees to whom a training arrangement applies covered by the
special APCS to which the employee belongs.
475. In other words, where another APCS covers an employee to whom a
training arrangement applies and that APCS specifically determines
basic rates of pay for the class of employees to whom a training
arrangement applies covered by the special APCS (for example part-
time trainees or apprentices), that APCS will prevail over the
special APCS.
476. Subsection 90ZQ(4) would require the AFPC to consider whether it
should determine APCSs for the purpose of this section as part of
its first exercise of powers under this Division. To avoid doubt,
subsection 90ZQ(4) would provide that this requirement would not
prevent the AFPC from re-considering the issue at any other time.
477. Subsection 90ZQ(5) would provide that proposed section 90ZQ,
including subsection 90ZQ(3), does not limit the powers of the AFPC
to determine, revoke or adjust APCSs.
Illustrative Example
Lloyd is offered a carpentry and joinery apprenticeship by KE Jones
Carpentry Pty Ltd. At this stage KE Jones Carpentry is only in a position
to employ him four days a week, including one day a week in off-the-job
training at TAFE. The APCS that would apply to Lloyd does not include wage
rates for part-time apprentices.
In the absence of such provisions, KE Jones Carpentry would have to employ
Lloyd on a full-time basis which it cannot afford to do. Under proposed
section 90ZQ the AFPC has determined a special APCS that provides minimum
wage rates for all part-time carpentry and joinery apprentices.
By virtue of proposed section 90ZQ(3), the special APCS will allow KE Jones
Carpentry to engage Lloyd thereby enabling him to commence his
apprenticeship on a part-time basis.
Subdivision M - Miscellaneous
Section 90ZR - Anti-discrimination considerations
478. Proposed section 90ZR would set out anti-discrimination
considerations that the AFPC must have regard to or apply in
exercising its wage-setting powers under Division 2. This section
is intended to ensure that there are appropriate anti-discrimination
safeguards to protect vulnerable employees.
479. Subsection 90ZR(2) would provide that, for the purpose of the
Commonwealth anti-discrimination legislation specified in
subsection 90ZR(1), the AFPC does not discriminate against an
employee or employees by determining or adjusting rate provisions in
an APCS or a special FMW determined under proposed section 90S to
provide for a junior rate of pay, a trainee or apprentice rate of
pay or to provide for a pro-rata disability pay method (as defined
in proposed section 90B).
Division 3 - Maximum ordinary hours of work
Subdivision A - Preliminary
New section 91 - Employees to whom Division applies
480. Proposed section 91 would provide that this Division applies to all
employees (as defined in proposed subsection 4AA(1)).
New section 91A - Definitions
481. Proposed section 91A would define concepts that are used in this
Division.
482. The definition of authorised leave includes periods of paid or
unpaid leave or absence that are authorised by the employer, and
leave to which an employee is otherwise entitled under either a term
or condition of employment or legislation.
New section 91B - Agreement between employees and employers
483. Proposed section 91B would allow for an employee and his or her
employer to agree in writing to an applicable averaging period.
484. Proposed section 91B would ensure that one of the ways in which an
employer and employee may be taken to have agreed about such a
matter is by way of an individual or collective workplace agreement
(subsection 91B(1)).
485. Subsection 91B(2) would provide that an employer and employee are
taken to agree about a particular matter if and as specified in an
award that binds them.
486. Subsection 91B(3) would clarify that employees and employers may
agree about matters by other means.
Subdivision B - Guarantee of maximum ordinary hours of work
New section 91C - The guarantee
487. Proposed section 91C would set out the guarantee of maximum hours of
work.
488. Subsection 91C(1) would set the maximum ordinary hours that an
employee may be required to work. Paragraphs 91C(1)(a)-(b) would
provide that an employer must not require an employee to work more
than 38 hours per week over the employee's applicable averaging
period. Subject to subsection 91C(5), the employer may require the
employee to work reasonable additional hours.
489. Subsections 91C(2) and (3) would define the applicable averaging
period.
490. For an employee employed by the same employer for a continuous
period of less than 12 months, subsection 91C(2) would provide that
the applicable averaging period will be the entire employment
period, or a shorter 'rolling' period agreed between the employer
and employee that finishes at the end of any particular employment
period.
491. For an employee employed by the same employer for a continuous
period of at least 12 months, subsection 91C(3) would provide that
the averaging period will be a 'rolling' period of any 12 months of
the employment period, or a shorter period agreed between the
employer and employee that finishes at the end of any particular
employment period.
492. Subsection 91C(4) would ensure that authorised leave taken by an
employee is not to affect the calculation of the average number of
hours that an employee has worked per week over the applicable
averaging period.
493. Subsection 91C(5) would set out a non-exhaustive list of factors
that must be taken into account in determining what are reasonable
additional hours for the purposes of proposed paragraph 91C(1)(b).
These factors are consistent with the AIRC Full Bench decision in
the 'Working Hours Test Case' [Print 0792002].
Illustrative Example for calculating hours worked over an averaging period
(1)
Ivanka is employed by ABC Pty Ltd (ABC). Ivanka and ABC have agreed, in
writing, that Ivanka's applicable averaging period is 4 weeks.
On 2 January 2006 Ivanka has been employed by ABC for a continuous period
of 11 months. To calculate whether Ivanka has been required to work more
than an average of 38 hours per week over her most recent averaging period,
Ivanka or ABC must:
. work out the applicable averaging period (in this case the 4 week
period starting on 5 December 2005 and ending on 1 January 2006);
. add up how many hours Ivanka was required to work during that period,
including any hours of authorised leave taken by Ivanka during that period
(in this case, Ivanka was required to work 38 hours the first week, 46
hours the second week, 30 hours the third week and took 38 hours of
authorised leave the fourth week, giving a total of 152 hours); and
. divide the number of hours worked by the number of weeks in Ivanka's
averaging period (giving 38 hours).
In this example, Ivanka was not required to work more than an average of 38
hours per week over her most recent applicable averaging period.
Illustrative Example for calculating hours worked over an averaging period
(21)
On 1 March 2006 Ivanka has been employed by ABC for a continuous period of
13 months, under the same agreement (which provides that her averaging
period is 4 weeks). To calculate whether Ivanka has been required to work
more than an average of 38 hours per week over her most recent averaging
period, Ivanka or ABC must:
. work out the applicable averaging period (in this case, the 4 week
period starting on 1 February 2006 and ending on 28 February 2006);
. add up how many hours Ivanka was required to work during that period,
including any hours of authorised leave taken during that period (in this
case, Ivanka was required to work 42 hours the first week, 41 hours the
second week, 38 hours the third week and 43 hours the fourth week, giving a
total of 164 hours); and
. divide the number of hours (164) by the number of weeks in her
averaging period (4), giving 41 hours.
In this example, Ivanka was required to work more than an average of 38
hours per week over her most recent averaging period. If those additional
hours were not reasonable additional hours, determined by taking into
account all relevant factors, ABC will have breached Ivanka's guarantee of
maximum ordinary hours of work.
New Division 4 - Annual leave
New Subdivision A - Preliminary
New section 92 - Employees to whom Division applies
494. Proposed section 92 would provide that this Division applies to all
employees (as defined in proposed subsection 4AA(1)).
New section 92A - Definitions
495. Proposed section 92A would define a number of concepts that are used
regularly in this Division. The main definitions are explained
below.
496. The definition of authorised leave includes periods of paid or
unpaid leave or absence that is authorised by the employer, and
leave to which an employee is otherwise entitled under either a
contract of employment or legislation.
497. This definition is relevant to the definition of continuous service
(explained below). Paid authorised leave is included in the
calculation of nominal hours worked which forms the basis for the
annual leave entitlement guaranteed by this Division.
498. The definition of continuous service is relevant to the calculation
of an employee's annual leave entitlement - which accrues in respect
of the nominal hours worked over each four week period of continuous
service with the same employer.
499. The definition of nominal hours worked means the sum of the number
of hours that the employee was required to work, and did work
(excluding any reasonable additional hours that the employee was
required to work, and did work) and the number of hours of paid
authorised leave taken by the employee during a particular period.
Periods of unpaid leave and authorised absences are not captured by
the definition. Nominal hours worked is relevant to how leave is
accrued over a period of continuous service.
500. The definition of shift worker specifies a particular category of
shift workers who are entitled to extra annual leave under
subsection 92D(3). A shift worker is defined as an employee who:
. is employed in a business in which shifts are continuously
rostered 24 hours a day for seven days a week;
. is regularly rostered to work those shifts; and
. regularly works on a Sunday or public holiday.
501. Continuous shift work is where a business uses continuous shifts of
workers to operate 24 hours a day, seven days a week, without
interruption except during breakdowns or meal breaks or due to
unavoidable stoppages outside the employer's control. Continuous
shift work is usually made up of two to three shifts per day. An
eligible shift work employee will be one who is required to work one
of those shifts each day (except for rostered days off). This
results in regular work on Sundays and public holidays - this is the
key reason for the additional annual leave entitlement in the
Standard.
502. Regulations may add to the categories of employees who are
considered to be shift workers.
New section 92B - Agreement between employees and employers
503. Some aspects of this Division allow for agreement between an
employee and his or her employer.
504. Proposed section 92B would ensure that one way in which an employer
and employee may be taken to have agreed about such a matter is by
way of an individual or collective workplace agreement
(subsection 92B(1)).
505. Subsection 92B(2) would clarify that employees and employers may
agree by other means about how annual leave is to be taken.
New section 92C - Regulations may prescribe different definitions
for piece rate employees
506. Proposed section 92C would allow the making of regulations to ensure
the annual leave guarantee for piece rate employees. It is intended
that regulations will only be made to the extent needed to give
effect to the annual leave guarantee. It is anticipated that this
will only occur where it is apparent that the pre-reform definitions
or rules contained in this Division are frustrated by the fact that
piece rate employees are not remunerated by reference to hours
worked. The regulation making power is not intended to be a device
to diminish the annual leave guarantee that would be provided by
this Division.
New Subdivision B - Guarantee of annual leave
New section 92D - The guarantee
507. Proposed section 92D would guarantee that employees to whom this
Division applies (proposed section 92) are entitled to accrue a
minimum amount of paid annual leave.
508. Subsection 92D(2) would guarantee all employees an entitlement to
accrue an amount of paid annual leave for each completed four weeks
of continuous service with an employer. The employee is entitled to
accrue 1/13 of the number of nominal hours worked by the employee
for the employer during that four week period.
509. This is equivalent to four weeks annual leave for employees whose
hours do not change over the course of a 12 month period - for
example, an employee whose nominal hours worked for a 12 month
period were 38 hours per week would be entitled to 152 hours of
annual leave (which is four weeks of 38 hours each). However, the
formula also ensures that employees whose hours vary accrue
appropriate amounts of annual leave.
510. Subsection 92D(3) would provide additional leave for shift work
employees (as defined in proposed section 92A). The additional
leave recognises the special circumstances of continuous shift
workers and seven-day shift workers. These types of shift workers
are regularly called upon to work on Sundays and public holidays.
The additional annual leave entitlement in part compensates for the
social and domestic inconvenience that continuous or seven-day shift
work can cause. The additional annual leave for shift workers is
accrued on a pro-rata basis in respect of periods during which an
employee is working as a shift worker.
Illustrative Example
Denis is employed by Daytown Power Station (DPS) as a production officer
under the Electricity Industry Award 2000. DPS is a 24 hours a day, seven
days a week business operation. Production officers at DPS work on a
roster cycle of 18 weeks that comprises nine weeks of continuous shift work
(12 hour shifts over seven days), and nine weeks of 9am-5pm, Monday-Friday
work. Over a year this roster cycle is repeated - meaning that over a 12
month period Denis works six months on continuous shift work and six months
on a Monday-Friday day shift. Denis is therefore entitled to half a week
of the additional annual leave entitlement - the additional entitlement he
receives is proportionate to the time he spends working on a continuous
shift during the year.
New section 92E - Entitlement to cash out annual leave
511. Subsection 92E(1) would allow an employee to request to cash out a
period of annual leave each year.
512. Subsection 92E(1) makes the entitlement to cash out annual leave
conditional on:
. a workplace agreement binding the employee and the employer
including a specific provision that entitles the employee to cash
out an amount of annual leave;
. the employee making a written request to the employer to cash out
an amount of annual leave that has been credited to the employee -
it is not possible to cash out leave in advance of it being
credited;
. the workplace agreement binding the employee and the employer
requiring payment in lieu of the amount of annual leave at a rate
that is no less than the employee's basic periodic rate of pay at
the time that the cashing out occurs; and
. the employer authorizing the employee to cash out the amount of
annual leave.
513. It is anticipated that an employer would only refuse an employee's
request to cash out an amount of accrued annual leave on reasonable
grounds. Otherwise, the employer may be in breach of the workplace
agreement that creates an employee entitlement to cash out an amount
of annual leave.
514. Subsection 92E(2) would cap the amount of annual leave that may be
cashed out by an employee each year. An employee would not be
entitled to cash out an amount of annual leave that is greater than
1/26 of the nominal hours worked by the employee for the employer
during the previous 12 months. (This is equivalent to two weeks
annual leave for employees whose hours do not change over the course
of a 12 month period.) This will ensure that employees have access
to a reasonable period of annual leave for rest and recreation each
year.
515. Subsection 92E(3) would prohibit an employer from requiring an
employee to cash out an entitlement to annual leave, or exerting
undue influence or undue pressure on an employee in relation to a
decision about whether or not to cash out a period of annual leave.
516. Proposed section 101D would allow regulations to be made specifying
matters that may not be included in a workplace agreement
(prohibited content). Prohibited content in a workplace agreement
would be void. It is proposed that a term in a workplace agreement
that requires an employee to cash out a period of annual leave will
be prescribed as prohibited content.
Illustrative Example
Antonia is employed by Steve at Belissimo Bread Bakery Pty Ltd. The
collective agreement permits the cashing out of the equivalent of two weeks
of annual leave every 12 months. Antonia would like to cash out two weeks
of her leave so she can prepare for her upcoming trip to Italy which she
has been diligently saving for. Antonia knows she will have enough annual
leave credits for when she takes the trip, so she would like some extra
cash now to buy some new suitcases.
Antonia provides her request to Steve in writing as required by the
collective agreement. Steve agrees. Her next pay includes payment for the
additional two weeks on top of her ordinary salary.
New Subdivision C - Annual leave rules
New section 92F - Annual leave - accrual, crediting and accumulation
rules
517. Proposed section 92F would provide the rules for the accrual,
crediting and accumulation of annual leave. An employee may only
take paid annual leave once an entitlement to such leave has been
accrued and credited in accordance with this section.
518. Subsection 92F(1) would provide that paid annual leave accrues on a
pro-rata basis.
519. Subsection 92F(2) would provide for the crediting of annual leave
each month. If an employee's working hours were variable from month
to month, the amount of accrued leave credited each month would vary
accordingly.
520. Subsection 92F(3) would provide for the annual crediting of any
additional leave due to shift workers.
521. Subsection 92F(4) would provide that annual leave is cumulative.
New section 92G - Annual leave - payment rules
522. Proposed section 92G would provide an entitlement to payment when an
employee takes annual leave under this Division.
523. Subsection 92G(1) would provide that the employer must pay the
employee an amount that is at least the employee's basic periodic
rate of pay immediately before the period of leave starts. This
provision does not affect any entitlement that the employee may have
under an award or agreement to be paid an annual leave loading.
524. Subsection 92G(2) would provide that if the employee's employment
ends, the employee's untaken accrued leave balance must be paid out
at a rate that is at least the employee's basic periodic rate of pay
at the time that the employment ends.
New section 92H - Rules about taking annual leave
525. Proposed section 92H would provide a number of rules regarding the
taking of paid annual leave under this Division.
526. Subsection 92H(1) would provide generally that an employee may take
paid annual leave for a period provided that:
. the employer has authorised the leave; and
. the employee has an annual leave credit that is equal to or
greater than the amount proposed to be taken as annual leave. The
Standard would not provide for an employee to take paid annual
leave in advance of accruing that entitlement.
527. Subsection 92H(2) would make clear that, subject to the requirement
that sufficient leave credits be available, there are no other
limits on the amount of paid annual leave that an employer may
authorise an employee to take. In particular, there is no minimum
amount of annual leave that the employee must take on each occasion
that leave is authorised.
528. Subsection 92H(3) would allow an employer to refuse to authorise a
proposed period of annual leave if this is necessary because of the
operational requirements of the workplace or enterprise in respect
of which the employee is employed.
529. However, subsection 92H(4) would provide that an employer must not
unreasonably:
. refuse to authorise any period(s) of annual leave; or
. revoke a previous authorisation of annual leave during a
particular period.
530. An employer who is found to have contravened this section may be
penalised (see Division 2 of Part VIII - Penalties and other
remedies for contravention of applicable provisions).
531. Subsection 92H(5) would enable an employer to direct any of its
employees to take paid annual leave for a particular period when the
employer shuts down the business, or any part of the business, in
which the employee(s) concerned work(s). Annual shut-downs are a
common occurrence for Australian businesses - for example, many
businesses shut down between Christmas and New Year's Day, during
January, or over Easter, since these periods are often characterised
by slow trading.
532. An employer may only direct an employee to take annual leave where
that employee has an annual leave credit that is at least equal to
the proposed shut down period.
533. Subsection 92H(6) would enable an employer to direct an employee to
take a period of paid annual leave if the employee has an annual
leave credit greater than 1/13 of the number of nominal hours worked
over a two year period (an amount equivalent to 8 weeks for an
employee working 38 hours per week over that period). In this
situation, the employer may direct the employee to take up to ¼ of
his or her annual leave credit. The intention of this provision is
to ensure that:
. employees regularly take periods of leave for rest and recreation,
and
. employers are not required to pay out excessive untaken leave
accruals when an employee's employment ends.
Illustrative Example
Lucas has been employed by Chocolates Galore Pty Ltd for four and a half
years, working 38 nominal hours each week. In that time, he has accrued
684 hours (the equivalent of 90 days) of annual leave, of which he has
taken 228 hours (the equivalent of 30 days), leaving a balance of 456 hours
(or 60 days).
As Lucas enjoys his job he's only ever taken a week or two of his annual
leave each year to go surfing.
Lucas's current balance of annual leave is more than 304 hours (or 40
days), which is what he would normally accrue over a 24 month period.
In this case, his employer could direct him to take up to one quarter (or
76 hours) of his accrued annual leave balance.
New Subdivision D - Service: annual leave
New section 92I - Annual leave-service
534. Proposed section 92I would guarantee that a period of annual leave
does not break an employee's continuity of service, and that annual
leave counts as service for all purposes, subject to any exceptions
prescribed by the regulations.
New Division 5 - Personal leave
New Subdivision A - Preliminary
New section 93 - Employees to whom this Division applies
535. Proposed section 93 would identify the employees who are entitled to
personal leave (including carer's leave) under this Division.
536. Subject to subsection 93(3), subsection 93(1) would provide that
this Division applies to all employees, other than casual employees,
within the meaning of proposed subsection 4AA(1)).
537. Subsection 93(2) would provide that Subdivision C of this Division,
which provides a guarantee for unpaid carer's leave, and
sections 93O - 93P, which deal with notice and documentation
requirements apply to all employees including casual employees.
New section 93A - Definitions
538. Proposed section 93A would define a number of terms that are used
regularly in this Division. The main definitions are explained
below.
539. The definition of authorised leave includes periods of paid or
unpaid leave or absence that is authorised by the employer, and
leave to which an employee is otherwise entitled under either a
contract of employment or legislation.
. This definition is relevant to the definition of continuous
service (explained below). Paid authorised leave is included in
the calculation of nominal hours worked which forms the basis for
the personal leave entitlement guaranteed by this Division.
540. The definition of continuous service is relevant to the calculation
of an employee's personal leave entitlement - which accrues in
respect of the nominal hours worked over each four week period of
continuous service with the same employer.
541. The definition of nominal hours worked means the sum of the number
of hours that the employee worked (excluding periods of unauthorised
leave and any reasonable additional hours that the employee was
required to work, and did work) and the number of hours of paid
authorised leave taken by the employee during a particular period.
Nominal hours worked is relevant to how leave is accrued over a
period of continuous service.
542. The definitions of child, de facto spouse, and immediate family are
relevant to the circumstances in which carer's leave and
compassionate leave may be taken under this Division. These
definitions are broad and expansive, and are intended to cover
extended and blended families, including de facto marriages, step-
relationships, and adoptive relationships. Immediate family is
defined as the employee's spouse (including de facto spouse, former
spouse, or former de facto spouses), child, parent, grandparent,
grandchild or sibling. In addition, immediate family includes the
child, parent, grandparent, grandchild or sibling of the employee's
current or former spouse (including de facto spouses). A de facto
spouse is defined as a person of the opposite sex to the employee
who lives with the employee on a genuine domestic basis as the
employee's husband or wife, without being legally married.
New section 93B - Agreement between employees and employers
543. Proposed section 93B would provide for types of agreement between an
employee and his or her employer regarding the operation of some
aspects of this Division.
544. Subsection 93B(1) would provide that one way in which an employer
and employee may be taken to have agreed about such a matter (for
example, how periods of unpaid carer's leave (see proposed
section 93K) or compassionate leave (see proposed section 93R) may
be taken) is through a workplace agreement that binds the employee
(subsection 93B(1)).
545. Subsection 93B(2) would confirm that employees and employers may
agree by other means about how unpaid carer's leave or compassionate
leave is to be taken (for example, a written contract).
New section 93C - Regulations may prescribe different definitions
for piece rate employees
546. Proposed section 93C would enable regulations to be made to ensure
the personal leave guarantee for piece rate employees. It is
intended that regulations will only be made to the extent needed to
give effect to the personal leave guarantee. It is anticipated that
this would only occur where it is apparent that the pre-reform
definitions or rules contained in this Division are frustrated by
the fact that piece rate employees are not remunerated by reference
to hours worked. The regulation making power is not intended to
diminish the personal leave guarantee that would be provided by this
Division.
New section 93D - Meaning of personal/carer's leave
547. Proposed section 93D would define sick leave and carer's leave for
the purposes of personal leave under this Division.
548. Sick leave is paid leave taken by an employee because the employee
has a personal illness or injury.
549. Carer's leave is paid or unpaid leave taken by an employee to
provide care or support for a member of the employee's immediate
family or household. Carer's leave is available where a member of
the employee's immediate family or household is ill or injured, or
there is an unexpected emergency affecting a family or household
member. For example, an unexpected emergency could include the
employee being asked to meet with a school teacher to discuss the
employee's child's learning requirements or to take a household
member to a medical practitioner.
New Subdivision B-Guarantee of paid personal/carer's leave
New section 93E - The guarantee
550. Proposed section 93E would guarantee that employees to whom this
Division applies (see proposed section 93) are entitled to accrue a
minimum amount of paid sick leave and paid carer's leave.
551. Subsection 93E(1) would make the employee's entitlement to paid sick
leave and paid carer's leave conditional upon the notice and
documentation requirements contained in Subdivision D being
satisfied, and provided that none of the exceptions contained in
Subdivision B apply.
552. Subsection 93E(2) would set out that an employee is not entitled to
personal leave under this Division if he or she has failed to comply
with the notice and documentation requirements in Subdivision D. An
employee complies with these rules if the required notice or
document is presented either before or after the leave starts.
553. A legislative note would indicate that a required document may be a
medical certificate or a statutory declaration (depending on the
circumstances).
New section 93F - Paid personal/carer's leave - accrual, crediting
and accumulation rules
554. Proposed section 93F would set out the basis for the accrual,
crediting and accumulation of personal leave. Subsection 93F(1)
would provide that an employee is entitled to take paid sick leave
or paid carer's leave once the entitlement to such leave has accrued
and been credited in accordance with this section.
555. Subsection 93F(2) would guarantee all employees an entitlement to
accrue an amount of paid personal leave for each completed four
weeks of continuous service with an employer. The employee is
entitled to accrue 1/26 of the number of nominal hours worked by the
employee for the employer during that four week period.
556. This is equivalent to two weeks of personal leave for employees
whose hours do not change over the course of a 12 month period - for
example, an employee whose nominal hours worked for a 12 month
period were 38 hours per week would be entitled to 76 hours of
personal leave (which is two weeks of 38 hours each). However, the
formula also ensures that employees whose hours vary accrue
appropriate amounts of personal leave.
557. If the employee's working hours were variable from month to month,
the amount of accrued leave credited each month would vary
accordingly.
558. Subsection 93F(3) would confirm that paid personal leave accrues on
a pro-rata basis.
559. Subsection 93F4) would provide for the crediting of paid personal
leave each month. For example, the employer may credit leave on the
first day of each month, or on the first Monday of every month
(except for public holidays, when the leave will be credited the
next business day). If an employee's working hours were variable
from month to month, the amount of accrued leave credited each month
would vary accordingly.
560. Subsection 93F(5) would provide that paid sick leave and paid
carer's leave is cumulative.
Illustrative Example
Roland is a butcher. He is employed subject to The Other Cheek Pty Ltd
Agreement, which was made after the commencement of the Work Choices Act
2005. The workplace agreement provides for the accrual of 84 hours of paid
personal leave per year (credited monthly), based on Roland having nominal
hours worked of 38 hours per week. The agreement also provides that paid
personal leave shall accumulate for a period of no longer than four years
from the end of the year in which it accrues.
The personal leave guarantee contained in the Standard means that Roland
will be allowed to accumulate paid personal leave indefinitely and it would
no longer 'expire' after four years.
New section 93G - Paid personal/carer's leave - payment rules
561. Proposed section 93G would provide an entitlement for payment when
an employee takes sick leave or carer's leave under this
Subdivision. The employer must pay the employee an amount that is
equivalent to what the employee would reasonably have expected to
receive had the employee worked during the period of leave.
New section 93H - Paid sick leave - no entitlement if workers'
compensation received
562. Proposed section 93H would create an exception to taking paid sick
leave in relation to workers' compensation. An employee is not
entitled to take paid sick leave to cover an absence from work
because of personal illness or injury if the employee is receiving
workers' compensation payments under a Commonwealth, State or
Territory law.
New section 93I - Paid carer's leave - annual limit
563. Proposed section 93I would insert an annual cap on an employee's
entitlement to take paid carer's leave where the employee has
provided more than 12 months continuous service to the employer.
564. Subsection 93I(2) would provide that paid carer's leave may not be
taken at a particular time if, during the previous 12 months, the
employee has already taken paid carer's leave of more than 1/26 of
the nominal hours worked.
565. In effect, an employee would be entitled to use up to 10 days of
paid personal leave each year for the purposes of caring for members
of the employee's immediate family or household who are sick and
require care and support, or who require care due to an unexpected
emergency. The remainder of the employee's accrued personal leave
entitlement would be reserved to be taken as paid sick leave when
the need arises.
New Subdivision C-Guarantee of unpaid carer's leave
New section 93J - The guarantee
566. Proposed section 93J would guarantee that all employees (including
casual employees (see proposed section 93)) are entitled to two days
of unpaid carer's leave on each occasion that a member of the
employee's immediate family or household requires care and support
due to being ill, injured, or affected by an unexpected emergency
567. Subsection 93J(2) would make the employee's entitlement to unpaid
carer's leave conditional upon the notice and documentation
requirements contained in Subdivision D being satisfied and provided
that none of the exceptions contained in Subdivision C apply.
568. Subsection 93J(3) would set out that an employee is taken not to be
entitled to unpaid carer's leave if the employee has failed to
comply with the notice and documentation requirements in
Subdivision D.
New section 93K - Unpaid carer's leave - how taken
569. Proposed section 93K would allow an employee who is entitled to
unpaid carer's leave to take that leave in one continuous period (ie
two consecutive working days), or in distinctly separate periods as
agreed between the employer and the employee. For example, an
employer and an employee could agree that the employee will take
unpaid carer's leave as four consecutive half-days, so that the
employee could share caring duties with someone else.
Illustrative Example
New Horizons Pty Ltd employs Brendan as an architect. Brendan and his
wife, Rachel, have three children who have all caught the chicken pox. Two
months ago, Brendan had used all of his paid sick leave when he contracted
glandular fever. Caring for three sick children at once is 'a bit of a
handful', so Brendan and his manager have agreed that he can take unpaid
carer's leave over the next four days. The plan is for Brendan to spend
the next four mornings at home caring for the children, followed by 'some
respite' at work in the afternoons. Rachel has agreed a similar
arrangement at her workplace, so she can be the carer during the
afternoons. One parent will be at home to care for the children at all
times.
New section 93L - Unpaid carer's leave - paid personal leave
exhausted
570. Proposed section 93L would make the employee's entitlement to take
unpaid carer's leave under this Subdivision conditional upon the
employee not having any accumulated paid carer's leave or any other
authorised leave for caring purposes.
New Subdivision D-Notice and evidence requirements: personal/carer's
leave
New section 93M - Sick leave - notice
571. Proposed section 93M would require an employee to give notice to
their employer that he or she is or will be absent from work due to
a personal injury or illness. The notice must be given to their
employer as soon as reasonably practicable. However there is no
requirement that the notice must be in writing (eg it may be given
verbally over the phone). It is intended that the employee's notice
requirement will be waived if the employee is unable to comply due
to circumstances beyond the employee's control - for example, if the
employee is comatose, or is suffering severe mental or physical
impairment that would make compliance with the notice provision
impractical.
572. The note would confirm that the use of personal information given to
an employer under this section is subject to the Privacy Act 1988.
New section 93N - Sick leave - medical certificate
573. Proposed section 93N would allow (but does not require) an employer
to require an employee to provide a medical certificate as soon as
reasonably practicable for any period of paid sick leave that has
been, or is proposed to be, taken by the employee.
574. Subsections 93N(2) - (3) would not allow the employee to access
their paid sick leave entitlement if the employee has failed to take
reasonably practicable steps to comply with the employer's request
for a medical certificate.
575. Subsection 93N(4) would prescribe that the medical certificate must
include a statement about the employee's unfitness to work due to
personal illness or injury.
576. Subsection 93N(5) would exempt an employee from the requirement to
present a medical certificate if the employee is unable to comply
due to circumstances beyond the employee's control - for example, if
the employee is comatose, is suffering severe mental or physical
impairment, has been transferred to another city for medical
treatment, or has since died.
577. The note would confirm that the use of personal information given to
an employer under this section is subject to the Privacy Act 1988.
New section 93O - Carer's leave notice
578. Proposed section 93O would require an employee to give notice to
their employer that he or she is or will be absent from work for to
provide care or support to a member of the employee's immediate
family or household. The notice must be given to their employer as
soon as is reasonably practicable. However there is no requirement
that the notice must be in writing (eg it may be given verbally over
the phone). It is intended that the employee's notice requirement
will be waived if the employee is unable to comply due to
circumstances beyond the employee's control.
New section 93P - Carer's leave - documentary evidence
579. Proposed section 93P would allow (but does not require) an employer
to obtain documentary evidence from an employee to substantiate a
claim for paid carer's leave that has been, or is proposed to be,
taken by the employee. An employee would comply with an employer's
request for the required document as soon as reasonably practicable.
The required document may be in the form of a medical certificate
in relation to the member being cared for, or a statutory
declaration.
580. Subsections 93P(2) - (3) would not allow the employee to access
their paid carer's leave entitlement if the employee has failed to
take reasonably practicable steps to comply with the employer's
request for documentation.
581. Subsections 93P(4)-(5) would prescribe that the required document
must include a statement that the employee needs to take leave to
provide care or support to a member of their immediate family or
household who is ill, injured, or affected by an unexpected
emergency.
582. Subsection 93P(6) would exempt an employee from the requirement to
present the required document if the employee is unable to comply
due to circumstances beyond the employee's control.
583. The note would confirm that the use of personal information given to
an employer under this section is subject to the Privacy Act 1988.
New Subdivision E - Guarantee of compassionate leave
New section 93Q - The guarantee
584. Proposed section 93Q would provide a guarantee of paid compassionate
leave. An employee (other than a casual employee) would be entitled
to take two days paid leave to spend time with a critically ill,
injured, or dying person who is a member of the employee's immediate
family or household.
585. An employee may take up to two days compassionate leave upon the
death of a member of their immediate family or household.
586. An employee does not need to start taking a period of compassionate
leave immediately when the illness, injury or death occurs.
587. The employee must present evidence of the illness, injury, or death
that gives rise to the entitlement for compassionate leave where the
employer makes a reasonable request for proof.
588. The note would confirm that the use of personal information given to
an employer under this section is subject to the Privacy Act 1988.
New section 93R - Taking compassionate leave
589. Proposed section 93R would allow an employee who is entitled take
compassionate leave to take that leave in one continuous period (ie
two consecutive working days), or two single periods of one day
each, or in distinctly separate periods as agreed between the
employer and the employee.
590. The employee may use their two days paid compassionate leave
immediately after the death to personally grieve. Alternatively,
the employer and employee may agree that the employee take separate
periods of leave spread over a number of days.
Illustrative Example
Felicity is an employee of Rashan's HomeComfort Pty Ltd. Felicity's
grandmother has died suddenly. Felicity and her supervisor have agreed
that she may use her two days of paid compassionate leave over three days.
Felicity will take paid compassionate leave for a half day to make funeral
arrangements. To attend the funeral, Felicity will take one day's paid
compassionate leave. She will also take leave for half of the next working
day to grieve with her family.
New section 93S - Compassionate leave - payment rules
591. Proposed section 93S would provide an entitlement to payment when an
employee takes compassionate leave under this Subdivision. The
employer must pay the employee an amount that is equivalent to what
the employee would reasonably have expected to receive had the
employee worked during that period of leave.
Subdivision F-Personal leave: service
New section 93T Paid personal leave - service
592. Proposed section 93T would guarantee that a period of paid personal
leave under this Division does not break an employee's continuity of
service.
593. Subsection 93T(2) would guarantee that periods of paid leave taken
in accordance with this Division will count as service for all
purposes except as provided by the regulations.
New section 93U - Unpaid carer's leave - service
594. Proposed section 93U would guarantee that a period of unpaid carer's
leave taken in accordance with Subdivision C does not break an
employee's continuity of service.
595. Subsection 93U(2) would make clear that a period of unpaid carer's
leave does not otherwise count as service unless provided for in a
workplace agreement, award, or contract of employment, legislation,
or as prescribed by the regulations.
New Division 6 - Parental leave
596. This Division would set out entitlements for employees to parental
leave and related entitlements. The Division would cover:
. maternity leave, including special maternity leave (proposed
Subdivisions B-D));
. paternity leave (proposed Subdivisions E - G); and
. adoption leave (proposed Subdivisions H - J).
597. Proposed Subdivisions A and K would deal with general matters
applying to all types of parental leave.
New Subdivision A - Parental leave: preliminary
New section 94 - Employees to whom Division applies
598. Proposed section 94 would identify the employees entitled to
parental leave under this Division. The entitlement applies to all
employees (as defined in proposed subsection 4AA(1)), other than
casual employees who are not eligible casual employees (defined in
proposed section 94B).
. The parental leave entitlements provided by the Standard would
also be extended beyond the employment relationships to which the
rest of the Standard applies (by proposed new Division 5 of Part
VIA), so they apply to all equivalent employees regardless of
whether they are employees within the meaning of section 4AA.
This extension gives effect to international obligations.
New section 94A - Definitions
599. Proposed section 94A would define a number of concepts that are used
regularly in this Division.
600. The definition of adoption agency includes any entity that is able
to perform functions relating to adoption, including authorising
adoptions. The definition would extend to adoption agencies set up
under a law of a foreign country. This would allow employees to
access adoption leave under the Standard where the adoption is
authorised in Australia or a foreign country.
601. The definition of authorised leave includes any period of paid or
unpaid leave or absence authorised by the employer, and leave to
which an employee is otherwise entitled under either a contract of
employment or legislation.
602. The definition of continuous service is relevant to whether an
employee is entitled to access parental leave under this Division.
An employee must have at least 12 months continuous service at the
relevant time, or be an eligible casual employee - which
incorporates a 12 month service requirement - to be entitled to
parental leave (see proposed sections 94C, 94T and 94ZL).
Continuous service includes periods of authorised leave taken by an
employee, other than where the employment for the period as a casual
employee is not regular and systematic.
603. The definition of day of placement (which relates to adoption leave)
would extend to inter-country adoptions, where the parents generally
have to travel to the county from which the child is adopted to
collect the child. The definition would allow the employee to
access adoption leave in order to travel overseas to collect a
child. Proposed paragraph (b) of that definition would deal with
the situation where a child is placed with couple for a trial period
of foster care pending authorisation of adoption.
604. The definitions of de facto spouse and spouse would be relevant to
the circumstances in which parental leave may be taken under this
Division and how other related authorised leave taken by a spouse
affects the total parental leave entitlement (for example, see
proposed sections 94D and 94U).
605. The definition of expected date of birth (which is relevant to
comply with the notice and documentation requirements for maternity
and paternity leave) would clarify that the relevant date is the
date specified in the medical certificate required to be provided to
the employer, or if this requirement is not able to be complied with
for reasons beyond the employee's control, the date of birth that
could reasonably be expected if the pregnancy were to go full term.
This would cover the case where, for example, an employee was
seriously ill in hospital and unable to obtain a medical certificate
at the time when she was required to give notice to her employer of
the expected date of birth.
New section 94B - Meaning of eligible casual employee
606. Proposed section 94B would define an eligible casual employee for
the purposes of determining the circumstances in which a casual
employee would be entitled to parental leave. An employee would be
an eligible casual employee where they have been employed with a
particular employer on a regular and systematic basis over a
continuous period of at least 12 months, and the employee has a
reasonable expectation of continuing engagement with that employer.
607. Subsection 94B(2) would further provide that an employee is an
eligible casual employee for the purpose of this Division even if
his or her regular and systematic casual employment is terminated by
the employer before 12 months continuous employment, in
circumstances where the employee is again engaged by the employer
on a regular and systematic basis within three months. In these
circumstances the combined period of employment must be at least 12
months. As with eligible casuals generally, the employee must have
a reasonable expectation of continuing engagement with the same
employer.
New Subdivision B - Guarantee of maternity leave
New section 94C- The guarantee
608. Proposed section 94C would guarantee an employee's entitlement to
unpaid maternity leave under this Division.
609. Paragraph 94C(1)(a) would provide that an employee is entitled to
unpaid special maternity leave if she has a pregnancy related
illness or her pregnancy ends within 28 weeks before the expected
date of birth otherwise than by the birth of a living child. For
example, an employee would be entitled to special maternity leave if
she suffers a miscarriage within 28 weeks before the expected date
of birth.
610. Paragraph 94C(1)(b) would provide that an employee is entitled to a
single, unbroken period of unpaid ordinary maternity leave (under
subsection 94C(2)) in respect of the birth or expected birth of a
child.
611. Leave taken in a continuous, unbroken period does not preclude the
employee from adding other types of authorised leave, such as annual
leave or paid maternity leave, to the total leave period taken (up
to a maximum of 52 weeks), but the maternity leave period cannot be
broken up into separate periods of leave.
612. Subsection 94C(2) would make the employee's entitlement to maternity
leave conditional upon 12 months continuous service with the same
employer or engagement as an eligible casual employee (which
incorporates a 12 month service requirement, proposed section 94B
refers). The 12 month continuous service period can contain
elements of permanency, regular and systematic casual employment,
and authorised leave. At the time when the question of entitlement
to parental leave arises, no matter how the continuous service
period is made up, the employee must be either permanent or an
eligible casual. That is, any 'casual period' would have to precede
the employee attaining permanent or eligible casual status.
613. The entitlement to maternity leave is also subject to the
restrictions in proposed sections 94D and 94E and proposed
Subdivision D.
614. Subsection 94C(3) would set out the circumstances under which an
employee would not be entitled to maternity leave (these relate to
the failure to provide the required documentation to the employer).
615. An employee would be able to take special maternity leave, ordinary
maternity leave or both, depending on individual circumstances
(subsection 94C(4)).
New section 94D - Period of maternity leave
616. Proposed section 94D would set out a method for calculating the
period of unpaid maternity leave that is available to an employee
who has satisfied the eligibility criteria under proposed
section 94C.
617. Subsection 94D(3) would provide that the maximum total amount of
unpaid maternity leave, including both special and ordinary
maternity leave, is 52 weeks. However, any amount of related
authorised leave taken by the employee or her spouse would reduce
the total amount of maternity leave available.
618. The term related authorised leave is defined in subsection 94D(1).
It would include periods of authorised leave taken by the employee
because of:
. her pregnancy;
. the birth of the child;
. the end of her pregnancy otherwise than by the birth of a living
child;
. the death of the child.
619. Related authorised leave would not include periods of authorised
leave taken by the employee's spouse, such as annual leave, taken
while an employee is on maternity leave. Therefore, it is only
periods of paternity leave and any other authorised leave of the
same type as paternity leave (such as paid paternity leave) taken by
an employee's spouse which would reduce the amount of ordinary
maternity leave available (in addition to any authorised leave taken
by the employee set out in paragraph 94D(1)(a)).
620. The Standard will not, by itself, restrict the amount of related
authorised leave the employee and her spouse may take in respect of
the birth of a child. Rather, if the related authorised leave
amounts to 52 weeks, the employee's unpaid maternity leave
entitlement (under the Standard) would be reduced to zero.
621. The entitlement to maternity leave is expressed in absolute terms.
An employee or her spouse may be prevented from taking (or may
change their minds and not wish to take) formerly intended periods
of related authorised leave. Such formerly intended leave, if not
ultimately taken, would not reduce the employee's entitlement to
ordinary maternity leave.
New section 94E - Period of special maternity leave
622. Proposed section 94E would set out the conditions for accessing a
period of special maternity leave and how this entitlement would
interact with ordinary maternity leave. A period of special
maternity leave must not be longer than the period set out in a
medical certificate given to the employer (see proposed
section 94G). The period of leave must end before the employee
starts a continuous period of leave including ordinary maternity
leave.
New section 94F - Transfer to a safe job
623. Proposed section 94F would provide that, where an employee gives her
employer a medical certificate stating that she is fit to work, but
that illness or risks arising out of the pregnancy or hazards
connected with the work assigned to her make it inadvisable for her
to continue her present work, the employer must transfer her to a
safe job. The job must be at the same rate of pay and on the same
terms and conditions of employment as her pre-transfer position. If
it is not reasonably practicable to transfer the employee to a safe
job, the employee may take (or be required by her employer to take)
paid leave.
624. Subsection 94F(1) would provide that this entitlement is available
to an employee if she is eligible for maternity leave and has
complied with the relevant documentary requirements in proposed
Subdivision C. The employee must also provide the employer with a
medical certificate stating that she is fit to work but that, in the
opinion of her medical practitioner, it is inadvisable for her to
continue in her present position. The medical certificate may be
provided voluntarily by the employee or requested by the employer
within the six weeks before the estimated day of birth (see
subsection 94F(5), and proposed section 94L - Requirement to take
leave-within 6 weeks before birth).
625. Subsection 94F(2) would provide that where the employee's medical
certificate states that she is fit to work but the employer does not
think it to be reasonable practicable to transfer her to a safe job,
the employee may take paid leave. Paragraph 94F(4)(b) would end
this period of leave at the earliest of:
. the date stated in the medical certificate;
. the end of the day before birth; or
. if pregnancy ends other than by the birth of a living child - the
end of the day before the end of pregnancy.
626. In respect of any period of leave under this provision, subsection
94F(3) would require the employer to pay the employee at least the
amount she would have reasonably expected to be paid if she had
worked during that period. For example, the rate of pay could
constitute the employee's base periodic rate of pay plus the amount
of any additional amounts (such as shift penalties) if they are part
of the employee's regular pay.
Illustrative Example
Jenny has been working full-time with her employer Louise for three years.
She has applied for ordinary maternity leave and has complied with the
documentation requirements under proposed sections 94H and 94I.
Five weeks before the expected date of birth, Louise requests that Jenny
provide an additional medical certificate under proposed section 94L
stating whether Jenny is fit to continue work in her present position.
Jenny provides a medical certificate stating that she is fit to continue
working until the expected date of birth, but that it is inadvisable for
her to continue working in her present position because of hazards
connected with the position.
Under section 94F, Louise must transfer Jenny to a safe job with the same
terms and conditions of employment as her previous position, if this is
reasonably practicable. If it is not reasonably practicable for Louise to
transfer Jenny to a safe job, then Jenny can take (or Louise can require
Jenny to take) paid leave until the day before the expected date of birth.
The paid leave is in addition to any other leave that Jenny is entitled to
and does not reduce the period of maternity leave to which she is entitled.
If Jenny had failed to provide a medical certificate within 7 days of
Louise's request, then Louise could require Jenny to start her ordinary
maternity leave as soon as reasonably practicable under proposed section
94L. Such leave would be unpaid and would reduce the total period of
maternity leave available to Jenny.
New Subdivision C - Maternity leave: documentation
New section 94G - Special maternity leave-documentation
627. Proposed section 94G would set out the documentary requirements for
an application for special maternity leave.
628. Subsection 94G(1) would require an employee to provide a written
application to her employer. Where leave is sought for a pregnancy
related illness, the application must be accompanied by a medical
certificate stating the period that the employee is (or was) unfit
for work because of a pregnancy-related illness (subsection 94G(2)).
629. If the pregnancy ends otherwise than with the birth of a living
child, subsection 94G(3) would provide that the application must be
accompanied by a medical certificate and statutory declaration that
attests to particular facts.
630. In both cases, the application must be given to the employer before,
or as soon as reasonably practicable after, starting the special
maternity leave (subsection 94G(4)). However, the requirements of
this provision would not apply where there are circumstances beyond
the employee's control which would prevent her from providing the
medical certificate or statutory declaration (if required)
(subsection 94G(5)). Subsection 94G(5) is intended to ensure
against the possibility that an employee in this situation would be
considered to be on unauthorised leave.
631. The Note to this section would remind readers that the use of
personal information provided to an employer by an employee under
this section may be subject to the Privacy Act 1988.
New section 94H - Ordinary maternity leave-medical certificate
632. Subsections 94H(1) - (3) would require a medical certificate to be
given to the employer no later than ten weeks before the expected
date of birth. The medical certificate must state that the employee
is pregnant and the expected date of birth.
633. If there is a premature birth or other compelling reason which would
mean that it would not be reasonably practicable for the employee to
comply with the documentary requirements within that time frame,
subsections 94H(4) - (5) would allow the medical certificate to be
provided as soon as reasonably practicable (which may be before or
even after maternity leave has commenced).
634. However, under subsection 94H(6), the requirements of this provision
would not apply where circumstances beyond the employee's control
prevent compliance.
635. The Note to this section would remind readers that the use of
personal information provided to an employer by an employee under
this section may be subject to the Privacy Act 1988.
New section 94I - Ordinary maternity leave-application
636. Proposed section 94I would set out the documentary requirements for
an application for ordinary maternity leave.
637. Subsections 94I(1) - (2) would require the written application to be
given to the employer at least four weeks before the first day of
leave sought. If there is a premature birth or other compelling
reason which mean that it would not be reasonably practicable for
the employee to comply with the documentary requirements within that
time frame, subsections 94I(3) - (4) would allow the application to
be provided as soon as reasonably practicable (which may be before
or even after the maternity leave has commenced).
638. Subsection 94I(5) would set out the requirements of the statutory
declaration which would form part of the ordinary maternity leave
application.
639. Subsection 94I(6) would provide that the requirements of this
provision would not apply where circumstances beyond the employee's
control prevent compliance.
640. The Note to this section would remind readers that the use of
personal information provided to an employer by an employee under
this section may be subject to the Privacy Act 1988.
New Subdivision D - Maternity leave: from start to finish
New section 94J - Maternity leave-start of leave
641. Proposed section 94J would provide that an employee may commence a
period of leave including or constituted by ordinary maternity leave
at any time within six weeks before the expected date of birth - as
set out in the medical certificate required under section 94H. The
period of leave including or constituted by ordinary maternity leave
must be a continuous period of leave.
New section 94K - Requirement to take leave-for 6 weeks after birth
642. Proposed section 94K would require a compulsory period of leave to
be taken for the six weeks following the birth of the child.
New section 94L - Requirement to take leave-within 6 weeks before
birth
643. Proposed section 94L would provide the commencement of ordinary
maternity leave for an employee who is entitled to such leave
(proposed section 94C), and who has complied with the documentation
requirements under proposed sections 94H and 94I.
644. Where an employee continues to work during the period of six weeks
before the expected date of birth, proposed subsection 94L(2) would
allow the employer to request a medical certificate from the
employee stating that she is fit to continue working (either in her
current job or in a safe job under proposed section 94F).
645. The Note to subsection 94L(2) would refer readers to the fact that,
if the employee gives the employer a medical certificate under
proposed section 94L stating that he or she is fit to continue
working within the six weeks before birth but not in her current
job, the employee would be entitled to be transferred to a safe job
or to take paid leave (depending on the circumstances).
646. Subsection 94L(3) would enable the employer to direct the employee
to start a continuous period of leave including or constituted by
ordinary maternity leave if the requested certificate is not
provided within seven days, or if the medical certificate states she
is not fit to continue work.
New section 94M - End of pregnancy-effect on ordinary maternity
leave entitlement
647. Proposed section 94M would provide that if the pregnancy ends
otherwise than by the birth of a living child (for example, by still-
birth or miscarriage), the employee:
. would not be entitled to a period of ordinary maternity leave if
it had not yet commenced (subsection 94M(2)). In this situation,
an employee may be entitled to take special maternity leave; or
. would be entitled to continue taking leave if it had already
started (subsection 94M(3)).
648. The Note under subsection 94M(3) confirms that if the period of
leave has commenced, the employee may shorten the leave with the
agreement of the employee under proposed section 94P. However, to
take advantage of the return to work guarantee (see proposed
section 94R), the employee must give four weeks notice to her
employer of the day she intends to return to work (see proposed
paragraph 94R(1)(a)).
New section 94N - Death of child-effect on ordinary maternity leave
entitlement
649. Proposed section 94N would apply if the employee gives birth to a
living child who later dies and the employee has commenced a period
of ordinary maternity leave.
650. Subsection 94N(2) would allow the employee to continue the period of
leave in these circumstances. However, subsection 94N(3) would
enable the employer to cancel the remaining period of ordinary
maternity leave by providing written notice that the leave ends with
effect from a stated day (which, under subsection 94N(4), must be at
least four weeks from the day the notice is given, but may not be
within six weeks of the date of birth).
New section 94O - End of ordinary maternity leave if employee stops
being primary care-giver
651. Proposed section 94O would require the period of ordinary maternity
leave to end where the employee ceased being the primary care-giver
of the child.
652. Under subsections 94O(1) - (2), maternity leave would be cancelled
on the provision of at least four weeks notice by the employer if
the employee:
. is not the primary care-giver of the child for a substantial
period; and
. it is reasonable to expect that the employee will not resume being
the child's primary care-giver within a reasonable period.
653. Subsection 94O(3) would provide that the period of maternity leave
ends with effect from the date stated in the notice given to the
employee by the employer.
New section 94P - Variation of period of ordinary maternity leave
654. Proposed section 94P would allow an employee to extend or shorten a
period of ordinary maternity leave after it has commenced. This
provision would be subject to the limitations in proposed
Subdivision B and sections 94N and 94O (which would place a maximum
limit of 52 weeks on the total amount of ordinary maternity leave
available, and also impose other conditions on the leave in the
event of the death of the child or where the employee ceases to be
the primary care-giver respectively).
655. Subsection 94P(2) would enable the employer to grant a request for
an extension of the maternity leave period provided the appropriate
notice is given. Any further extension is by agreement between the
employer and employee (paragraph 94P(2)(b)). Subject to the
requirement to take leave for the six week period after birth (see
proposed section 94K), the leave may be shortened by an agreement in
writing between the employer and employee (subsection 94P(3)).
New section 94Q - Employee's right to terminate employment during
maternity leave
656. Subsection 94Q(1) would confirm the employee's right to terminate
her employment at any time during a period of maternity leave.
Subsection 94Q(2) would provide that the employee's right to
terminate is subject to any relevant notice or procedural
requirements in either a contract of employment or legislation.
657. Termination of employment at the initiative of the employer is not
covered by the Standard as it would be subject to other remedies
under the WR Act (see Part VIA) and, in appropriate cases, under
discrimination legislation.
New section 94R - Return to work guarantee-maternity leave
658. Proposed section 94R would set out the return to work guarantee.
The guarantee would apply in circumstances in which an employee
returns to work following a period of leave including, or made up
of, maternity leave. In these circumstances, the employee is
entitled to return to the position she held immediately before a
period of maternity leave.
659. Paragraph 94R(1)(a) would provide that the guarantee applies if the
employee gives the employer at least four weeks written notice of
the proposed date of her resuming work. Paragraph 94R(1)(b) would
provide that the return to work guarantee applies if the leave the
employee has taken includes or is constituted solely by a period of
special maternity leave. Paragraph 94R(1)(c) would also extend the
return to work guarantee to the situations where an employee gives
birth to a living child who later dies (see proposed section 94N)
and where the employee stops being the primary care-giver of the
child (see proposed section 94O).
660. Subsection 94R(2) would ensure that the guarantee also applies where
an employee has taken paid leave under proposed subsection 94R(2)
(instead of being transferred to a safe job).
661. Subsection 94R(3) would provide that an employee is entitled to
return:
. to the position she held immediately before starting a period of
leave including or constituted by maternity leave;
. to a position she was promoted to or voluntarily transferred to
during her leave; or
. if she was transferred to a safe job (see proposed section 94F) or
started part-time work because of the pregnancy (as distinct from
a situation of an employee who usually works part-time) - to the
position she held immediately before the transfer or part-time
work.
662. If the employee had been transferred to a safe job under
paragraph 94F(2)(a) because of the pregnancy, subsection 94R(4)
would entitle the employee to return to the position she held
immediately before being transferred to the safe job.
663. Subsection 94R(5) would provide that if the employee's former
position no longer exists, and the employee is qualified for, and
can perform the duties of, other positions in the employer's
employment, the employer must employ her in whichever of those
positions is nearest in status and remuneration to the former
position.
New section 94S - Replacement employees-maternity leave
664. Proposed section 94S would require the employer to tell any
replacement to an employee on maternity leave that:
. the engagement is temporary; and
. the employee on maternity leave has a right to return to her
position she held immediate before taking maternity leave under
proposed section 94R.
665. The employer would be required to provide this information to both a
primary replacement (subsection 94S(1)) and secondary replacement
(subsection 94S(2)). Subsection 94S(3) would provide that for the
purposes of this notification obligation, an employee includes a
casual employee.
666. The section would not prevent the employer engaging a permanent
employee and use that employee to fill the position temporarily.
So, for example, an employer could legitimately offer someone a
permanent engagement, on the basis that for the first six months the
new employee would fill in for the employee on maternity leave, and
then afterwards the employer would assign the new employee to work
elsewhere in the organisation.
New Subdivision E - Guarantee of paternity leave
New section 94T - The guarantee
667. Proposed section 94T would guarantee a male employee's entitlement
to unpaid paternity leave.
668. Paragraph 94T(1)(a) would provide that an employee is eligible for
short paternity leave, which consists of one unbroken week of unpaid
leave taken from the day his spouse commences childbirth.
669. Paragraph 94T(1)(b) would provide that an employee is entitled to a
single, unbroken period of long paternity leave, which is unpaid
leave taken in respect of the birth of a living child so the
employee can be the primary care-giver. Leave taken in a
continuous, unbroken period does not preclude the employee from
adding other types of authorised leave, such as annual leave or long
service leave to the total leave period taken, but the leave period
cannot be broken up into separate periods of leave. The combined
total of paternity and maternity taken must not exceed 52 weeks (see
subsection 94U(3)).
670. Subsection 94T(2) would make the employee's entitlement to paternity
leave conditional upon 12 months continuous service with the same
employer or engagement as an eligible casual employee (which
incorporates a 12 month service requirement - see proposed
section 94B). The 12 month continuous service period can contain
elements of permanency, regular and systematic casual employment,
and authorised leave. At the time when the question of entitlement
to parental leave arises, no matter how the continuous service
period is made up, the employee must be either permanent or an
eligible casual. That is, any 'casual period' would have to precede
the employee attaining permanent or eligible casual status.
671. The entitlement to paternity leave is also subject to the
restrictions in sections 94U and 94W and proposed Subdivision G.
672. Subsection 94T(3) would set out the circumstances under which an
employee would not be entitled to paternity leave (these relate to
failure to provide the required documentation to the employer).
673. Subsection 94T(4) would provide that an employee may take either
short paternity leave, long paternity leave or both. However,
because of the operation of other provisions of this Division, long
paternity leave may only be taken if the employee is the primary
care-giver of the child or his spouse is not taking a period of
leave including or constituted by maternity leave.
New section 94U - Period of paternity leave
674. Proposed section 94U would set out a method for calculating the
period of unpaid paternity leave that is available to an employee
who has satisfied the eligibility criteria under proposed
section 94T.
675. Subsection 94U(2) would provide that the maximum total amount of
unpaid paternity leave, including both short and long paternity
leave, is 52 weeks. However, any amount of related authorised leave
taken by the employee or his spouse would reduce the total amount of
paternity leave available.
676. The term related authorised leave is defined in subsection 94U(1).
It would include periods of authorised leave taken by the employee
because of:
. the birth of the child;
. the death of the child.
677. Related authorised leave would not include periods of authorised
leave taken by the employee's spouse, such as annual leave, taken
while an employee is on paternity leave. Therefore, it is only
periods of maternity leave and any other authorised leave of the
same type as maternity leave (such as paid maternity leave) taken by
an employee's spouse which would reduce the amount of long paternity
leave available (in addition to any authorised leave taken by the
employee set out in paragraph 94U(1)(a)).
678. The Standard will not, by itself, restrict the amount of other
related authorised leave the employee and his spouse may take in
respect of the birth of a child. Rather, if the related authorised
leave amounts to 52 weeks, the employee's unpaid long paternity
leave entitlement (under the Standard) would be reduced to zero.
679. The entitlement to paternity leave is expressed in absolute terms.
An employee or his spouse may be prevented from taking (or may
change their minds and not wish to take) formerly intended periods
of related authorised leave. Such formerly intended leave, if not
ultimately taken, would not reduce the employee's entitlement to
paternity leave.
New section 94V - Short paternity leave-concurrent leave taken by
spouse
680. Proposed section 94V would provide that short paternity leave and
any period of authorised leave taken by his spouse in relation to
the birth may be taken at the same time. Simultaneous leave of
greater than one week for birth could be provided by agreement
between the parties.
New section 94W - Long paternity leave-not to be concurrent with
leave taken by spouse
681. Proposed section 94W would provide that long paternity leave and any
period of maternity leave or leave of the same type as maternity
leave (such as paid maternity leave) taken by his spouse in relation
to the birth may not be taken at the same time.
New Subdivision F - Paternity leave: documentation
New section 94X - Paternity leave-medical certificate
682. Subsections 94X(1) - (3) would require a medical certificate to be
given to the employer. Generally the certificate must be given to
the employer at least 10 weeks before the date of expected or actual
birth provided in the certificate. However, if there is a premature
birth or other compelling reason which means that it would not be
reasonably practicable for the employee to comply with the
requirement within that time frame, subsection 94X(4) would allow
the medical certificate to be provided as soon as reasonably
practicable (which may be before or even after the paternity leave
has commenced).
683. Under subsection 94X(5), the requirements of this provision would
not apply where circumstances beyond the employee's control prevent
compliance.
684. The Note to this section would remind readers that the use of
personal information provided to an employer by an employee under
this section may be subject to the Privacy Act 1988.
New section 94Y - Short paternity leave-application
685. Proposed section 94Y would require an employee to submit a written
application for short paternity leave to his employer.
686. Subsection 94Y(1) would require that the application state the first
and last days of the period in which leave is sought. The maximum
amount of short paternity leave to which an employee is entitled is
one week starting from the time of birth (see proposed
paragraph 94T(1)(a)).
687. Subsection 94Y(2) would require the application to be given to the
employer as soon as reasonably practicable on or after the first day
of leave.
688. Under subsection 94Y(3), the requirements of this provision would
not apply where circumstances beyond the employee's control prevent
compliance.
689. The Note to this section would remind readers that the use of
personal information provided to an employer by an employee under
this section may be subject to the Privacy Act 1988.
New section 94Z - Long paternity leave-documentation
690. Proposed section 94Z would set out the documentary requirements for
an application for long paternity leave.
691. Subsections 94Z(1) - (2) would require the written application to be
given to the employer at least ten weeks before the first day of
leave sought. If there is a premature birth or other compelling
reason which mean that it would not be reasonably practicable for
the employee to comply with the documentary requirements within that
time frame, subsection 94Z(3) would allow the application to be
provided as soon as reasonably practicable (which may be before or
even after the paternity leave has commenced).
692. Subsection 94Z(4) would set out the requirements of the statutory
declaration which would form part of the long paternity leave
application.
693. Subsection 94Z(5) would provide that the requirements of this
provision would not apply where circumstances beyond the employee's
control prevent compliance.
694. The Note to this section would remind readers that the use of
personal information provided to an employer by an employee under
this section may be subject to the Privacy Act 1988.
New Subdivision G - Paternity leave: from start to finish
New section 94ZA - Short paternity leave-when taken
695. Proposed section 94ZA would allow an employee to take short
paternity leave at any time within the week starting on the day his
spouse beings to give birth.
New section 94ZB - Long paternity leave-when taken
696. Proposed section 94ZB would provide that an employee may take long
paternity leave at any time before the child's first birthday.
New section 94ZC - End of pregnancy-effect on paternity leave
697. Proposed section 94ZC would preclude an employee from being entitled
to a period of paternity leave if the pregnancy for which the leave
was being taken ends otherwise than by the birth of a living child.
However, subsection 94ZC(3) would provide that any short paternity
leave already taken is unaffected.
New section 94ZD - Death of child - effect on paternity leave
698. Proposed section 94ZD would apply when an employee's spouse has
given birth but the child later dies.
699. Subsection 94ZD(2) would provide that the employee would no longer
be entitled to paternity leave if the leave had not yet started at
the time of the child's death.
700. Subsection 94ZD(3) would allow the employee to continue taking a
period of leave that has already commenced in the event of the death
of the child.
. The Note to this subsection would confirm that although the period
of paternity leave which has started is unaffected, the employee
may (where the period of leave is longer than 4 weeks) give the
employer at least four weeks notice of his return to work if he
wishes to do so under section 94ZH.
701. Subsection 94ZD(4) would enable the employer to cancel the remaining
period of paternity leave by providing at least four weeks written
notice. The employee's entitlement to leave ends on the day
specified in such a notice (subsection 94ZD(5)).
New section 94ZE - End of long paternity leave if employee stops
being primary care-giver
702. Proposed section 94ZE would require the period of long paternity
leave to end where the employee ceased being the primary care-giver
of the child.
703. Under subsections 94ZE(1) - (2), long paternity leave would be
cancelled on the provision of at least 4 four weeks notice by the
employer if the employee:
. is not the primary carer giver for a substantial period while the
employee is on long paternity leave; and
. it is reasonable to expect that the employee will not resume being
the primary care-giver within a reasonable period.
704. Subsection 94ZE(3) would provide that the period of paternity leave
ends with effect from the date stated in the notice by the employer.
New section 94ZF -Variation of period of long paternity leave
705. Proposed section 94ZF would allow an employee to extend or shorten a
period of long paternity leave after it has commenced. This
provision would be subject to the limitations in proposed
Subdivision E and sections 94ZB, 94ZD and 94ZE (which would place a
maximum limit of 52 weeks on the total amount of long paternity
leave available, and also impose other conditions on the leave in
the event of the death of the child or where the employee ceases to
be the primary care-giver respectively).
706. Subsection 94ZF(2) would enable the employer to grant a request for
an extension of long paternity leave provided the appropriate notice
is given. Any further extension is by agreement between the
employer and employee (paragraph 94ZF(2)(b)).
707. Under subsection 94ZF(3), the leave may be shortened by an agreement
in writing between the employer and employee.
New section 94ZG - Employee's right to terminate employment during
paternity leave
708. Subsection 94ZG(1) would confirm the employee's right to terminate
his employment at any time during a period of paternity leave.
Subsection 94ZG(2) would provide that the employee's right to
terminate is subject to any relevant notice or procedural
requirements in either a contract of employment or legislation.
709. Termination of employment at the initiative of the employer is not
covered by the Standard as it would be subject to other remedies
under the WR Act (see Part VIA) and, in appropriate cases, under
discrimination legislation.
New section 94ZH - Return to work guarantee-paternity leave
710. Proposed section 94ZH would set out the return to work guarantee.
The guarantee would apply in circumstances in which an employee
returns to work following a period of leave including or made up of
paternity leave. In these circumstances, the employee is entitled
to return to the position he held immediately before a period of
paternity leave.
711. Paragraph 94ZH(1)(a) would provide that the return to work guarantee
applies if the paternity-related leave period (that is, leave taken
in relation to the birth, including or constituted by paternity
leave) is less than four weeks. Paragraph 94ZH(1)(b) would provide
that the guarantee applies if employee gives the employer four weeks
written notice of the proposed date of his resumption of work where
the paternity-related leave period is greater than four weeks.
Paragraph 94ZH(1)(c) would also extend the guarantee to the
situation where the employee's spouse gives birth to a living child
who later dies (see proposed section 94ZD) and where the employee
ceases to be the primary care-giver of the child (see proposed
section 94ZE).
712. Subsection 94ZH(2) would provide that an employee is entitled to
return:
. to the position he held immediately before starting a period of
leave including or constituted by paternity leave;
. to a position he was promoted to or voluntarily transferred to
during his leave; or
. if he started part-time work because of his spouse's pregnancy (as
distinct from the situation of an employee who usually works part-
time) - to the position he held immediately before he commenced
part-time work.
713. However, subsection 94ZH(3) would provide that if the employee's
former position no longer exists, and the employee is qualified for,
and can perform the duties of, other positions in the employer's
employment, the employer must employ him in whichever of those
positions is nearest in status and remuneration to the former
position.
New section 94ZI- Replacement employees-long paternity leave
714. Proposed section 94ZI would require the employer to tell any
replacement to an employee on long paternity leave that:
. the engagement is temporary; and
. the employee on long paternity leave has a right to return to the
position he held immediate before taking long paternity leave
under proposed section 94ZH.
715. The employer would be required to provide this information to both a
primary replacement (94ZI(1)) and secondary replacement (94ZI(2)).
Subsection 94ZI(3) would provide that for the purposes of this
notification obligation, an employee includes a casual employee.
716. The section would also not prevent the employer engaging a permanent
employee and using that employee to fill the position temporarily.
An employer could legitimately offer someone a permanent engagement,
on the basis that for the first six months the new employee would
fill in for the employee on long paternity leave, and then
afterwards the employer would assign the new employee to work
elsewhere in the organisation.
New Subdivision H - Guarantee of adoption leave
New section 94ZJ Meaning of eligible child
717. Proposed section 94ZJ would define an eligible child for the
purposes of the adoption leave entitlements in this Division.
718. For an employee to be eligible for adoption leave, the child that
the employee intends to adopt:
. must be less than five years old (paragraph 94ZJ(a));
. must not have not previously lived with the employee at any stage
for a continuous period of over six months (paragraph 94ZJ(b));
and
. must not be a child or step child of the employee or the
employee's spouse (paragraph 94ZJ(c)).
New section 94ZK guarantee-pre-adoption leave
719. Proposed section 94ZK would provide an entitlement to two days of
unpaid leave to attend any interview or examination required for the
purpose of obtaining approval to adopt a child.
720. Subsection 94ZK(1) would provide that the entitlement is available
to an employee seeking approval to adopt an eligible child. There
is no qualifying continuous service test for entitlement to this
leave.
721. Subsection 94ZK(2) would provide that the maximum amount of pre-
adoption leave available is two days of unpaid leave.
722. Subsection 94ZK(3) would require an employee to take other
authorised leave for the same period instead of the pre-adoption
leave where the employee could use other leave, and the employer
directs the employee to use that other leave.
723. Subsection 94ZK(4) would allow the leave to be taken in a single,
unbroken period of up to two days or any separate periods as agreed
between the employer and employee (up to a maximum of two days).
This agreement can occur through an AWA or collective workplace
agreement made under the WR Act (subsection 94ZK(5)), or by other
means subsection 94ZK(6)).
New section 94ZL - The guarantee-adoption leave
724. Proposed section 94ZL would provide that the entitlement to adoption
leave is to:
. a single, unbroken period of up to three weeks unpaid leave taken
within the three weeks from the day of placement - ie short
adoption leave; or
. a single, unbroken period of unpaid leave taken after the day of
placement so the employee can be the primary care-giver of the
child - ie long adoption leave.
725. Leave taken in a continuous, unbroken period does not preclude the
employee from adding other types of authorised leave, such as annual
leave or long service leave, to the total leave period taken, but
the leave period cannot be broken up into separate periods of leave;
the maximum amount of leave must not exceed 52 weeks
(subsection 94ZM(3)).
726. Paragraph 94ZL(2)(a) would require an employee to satisfy the
documentation requirements set out in proposed Subdivision I.
Paragraph 94ZL(2)(b) would make the employee's entitlement to
adoption leave conditional upon 12 months continuous service with
the same employer or engagement as an eligible casual employee
(which incorporates a 12 month continuous service requirement - see
proposed section 94B). The 12 month continuous service period can
contain elements of permanency, regular and systematic casual
employment, and authorised leave. At the time when the question of
entitlement to parental leave arises, no matter how the continuous
service period is made up, the employee must be either permanent or
an eligible casual. That is, any 'casual period' would have to
precede the employee's attaining permanent or eligible casual
status.
727. The entitlement to adoption leave is also subject to the
restrictions in proposed sections 94ZM and 94ZO and proposed
Subdivision J.
New section 94ZM - Period of adoption leave
728. Proposed section 94ZM would set out a method for calculating the
period of unpaid adoption leave that is available to an employee who
has satisfied the eligibility criteria under section 94ZL.
729. Subsection 94ZM(3) would provide that the maximum total amount of
unpaid adoption leave, including both short and long adoption leave,
is 52 weeks. Subsection 94ZM(2) would enable an employee to take
other forms of authorised leave in conjunction with, or in addition
to, adoption leave. However, any amount of related authorised leave
would reduce the total amount of adoption leave available.
730. The term related authorised leave is defined in subsection 94ZM(1).
It would include periods of authorised leave taken by the employee
because of the placement of the child with the employee. It would
also include periods of adoption leave, or leave of the same type as
adoption leave (such as paid adoption leave) taken by the spouse
because of the placement of the child with the employee.
731. The Standard will not, by itself, restrict the amount of other
related authorised leave the employee is entitled to take in respect
of the placement of a child. Rather, if the related authorised
leave amounts to 52 weeks, the employee's unpaid long adoption leave
entitlement (under the Standard) would be reduced to zero.
732. The entitlement to adoption leave is expressed in absolute terms.
An employee or his or her spouse may be prevented from taking (or
may change their minds and not wish to take) formerly intended
periods of related authorised leave. Such formerly intended leave,
if not ultimately taken, would not reduce the employee's entitlement
to adoption leave.
New section 94ZN - Short adoption leave-concurrent leave taken by
spouse
733. Proposed section 94ZN would provide that short adoption leave and
any period of authorised leave taken by his or her spouse in
relation to the placement of a child may be taken at the same time.
Simultaneous leave greater than three weeks for adoption could be
provided for by agreement.
New section 94ZO - Long adoption leave-not to be concurrent with
leave taken by spouse
734. Proposed section 94ZO would provide that long adoption leave and any
period of authorised leave taken by his or her spouse in relation to
the placement of a child may not be taken at the same time.
New Subdivision I - Adoption leave: documentation
New section 94ZP Adoption leave-notice
735. Proposed section 94ZP would set out the notice requirements that
need to be satisfied where an employee intends to take a period of
adoption leave.
736. Subsection 94ZP(1) would oblige an employee to satisfy the notice
requirements set out in the section as a prerequisite to a period of
short or long adoption leave.
737. Subsection 94ZP(2) would require an employee to provide written
notice to the employer of his or her intention to apply for adoption
leave as soon as reasonably practicable after the employee has
received notice of approval of the placement (a placement approval
notice).
738. Subsection 94ZP(3) would require an employee to give written notice
to the employer of the actual day when the placement is to commence
as soon as reasonably practicable after the employee is made aware
of the expected day (a placement notice).
739. Subsection 94ZP(4) would require the employee to give notice of the
periods of leave of both short and long adoption leave sought or any
other authorised leave the employee intends to take because of the
placement of the child. This notice must be in writing and
provided:
. within eight weeks of receiving a placement approval notice if a
placement notice has been received by the employee within eight
weeks of receiving the placement approval notice; or
. as soon as practicable after receiving the placement notice if
that notice is received more than eight weeks after the placement
approval notice is received.
740. Subsection 94ZP(5) would apply where the employee decides to adopt a
child who is a relative of the employee and authorisation of the
placement of the child with the employee is pending. Paragraphs
94ZP(5)(a)-(b) would provide that the notice of the decision to take
the child into custody must be made as soon as practicable after the
decision has been made. The notice requirements under subsections
94ZP(2) - (4) must also be satisfied.
741. Subsection 94ZP(6) would provide that where the employee is a new
employee and he or she has already commenced the process for
adoption approval, the employee must provide the relevant notices
required by this section to his or her new employer as soon as
reasonably practicable. The Note to this subsection would confirm,
however, that an employee is only entitled to take either short or
long adoption leave if the employee will have completed 12 months
continuous service with the new employer before the first day of
leave sought, or the employee is eligible casual employee under
proposed section 94ZL.
742. Subsection 94ZP(7) would provide that if the employee is unable to
comply with the notice requirements due to:
. the day when the placement is expected to start; or
. any other compelling reason,
notice must be given to the employer of those events as soon as reasonably
practicable before the first day of adoption leave.
743. Subsection 94ZP(8) would define relative (of an employee). For the
purpose of this section, relative would mean a grandchild, nephew,
niece or sibling of the employee or the employee's spouse.
744. The Note to this section would remind readers that the use of
personal information provided to an employer by an employee under
this section may be subject to the Privacy Act 1988.
Illustrative Example
Kevin is a courier employed by Kosta's Taxi Truck Pty Ltd. He has a niece
called Belinda who is under five years of age.
Due to a fatal motor vehicle accident involving her parents, Belinda has
been orphaned. Her grandparents are too frail to care for her. Her Aunt
and Uncle, Kaye and Kevin, wish to become Belinda's primary care-givers and
so decide to adopt her.
In this instance, Kevin would have to notify his employer of their decision
to adopt Belinda as soon as reasonably practicable after they make their
decision. He must also satisfy the notice criteria set out in subsections
94ZP(2) - (4) while the placement of Belinda undergoes the relevant
approval process prior to authorisation.
New section 94ZQ - Short adoption leave-application
745. Proposed section 94ZQ would require an employee to submit a written
application for short adoption leave to the employer.
746. Subsection 94ZQ(1) would require that the application state the
first and last days of the period in which leave is sought. The
maximum amount of short adoption leave is three weeks starting from
the day of placement of the child (see paragraph 94ZL(1)(a)).
747. Subsection 94ZQ(2) would provide that an application for short
adoption leave must be given to the employer no later than 14 days
before the proposed day of placement of the child.
748. However, subsection 94ZQ(3) would provide an exception to the
general rule in subsection 94ZQ(2), which applies where the employee
is unable to comply due to:
. the day when the placement is expected to start; or
. any other compelling reason.
749. In such cases, the employee would be required to provide the
application as soon reasonably practicable before the first day of
short adoption leave.
750. The Note to this section would remind readers that the use of
personal information provided to an employer by an employee under
this section may be subject to the Privacy Act 1988.
New section 94ZR Long adoption leave-application
751. Proposed section 94ZR would set out the documentary requirements for
an application for long adoption leave.
752. Subsections 94ZR(1) - (2) would require the written application to
be given to the employer at least ten weeks before the first day of
leave sought.
753. Subsection 94ZR(3) would provide an exception to the documentary
requirements, where the employee is unable to comply due to:
. the day when the placement is expected to start; or
. any other compelling reason.
754. In such cases, the employee would be required to provide the
application as soon reasonably practicable before the first day of
long adoption leave.
755. The Note to this section would remind readers that the use of
personal information provided to an employer by an employee under
this section may be subject to the Privacy Act 1988.
New section 94ZS Adoption leave-additional documents
756. Proposed section 94ZS would require the employee to submit
additional documents with an application for adoption leave.
757. Subsection 94ZS(2) would require the documents to be given to the
employer before the period of adoption leave starts or, where an
employee is proposing to take both short and long adoption leave,
before short adoption leave has commenced.
758. Subsection 94ZS(3) would provide that an employer must provide his
or her employer with a statement from an adoption agency stating the
expected placement date and a statutory declaration. Subsection
94ZS(4) would set out the requirements of the statutory declaration.
759. The Note to this section would remind readers that the use of
personal information provided to an employer by an employee under
this section may be subject to the Privacy Act 1988.
New Subdivision J - Adoption leave: from start to finish
New section 94ZT Short adoption leave-when taken
760. Proposed section 94ZT would allow an employee to take short adoption
leave at any time within the three week period starting on the day
the child is placed with the employee.
New section 94ZU Long adoption leave-when taken
761. Proposed section 94ZU would provide that an employee may take long
adoption leave at any time within 12 months from the date the child
is placed with the employee. So, for example, the employee's spouse
may take adoption leave for six months starting from the day of
placement, after which he ceases to be the primary carer-giver. The
employee may then take a period of long adoption leave herself from
that time, provided that the combined total of leave taken does not
exceed 52 weeks.
New section 94ZV Placement does not proceed-effect on adoption leave
762. Proposed section 94ZV would set out the effect on adoption leave
where the placement of the child with the employee does not proceed
or is cancelled or discontinued (including where the child dies
during the period of adoption leave).
763. Subsection 94ZV(2) would provide that the employer would no longer
be entitled to a period of adoption leave (including any authorised
leave taken in conjunction with the adoption leave) if the leave had
not yet started.
764. Subsection 94ZV(3) would allow the employee to continue taking the
period of leave in the event of cancellation or discontinuation of
the placement after the placement has started.
. However, as pointed out in the Note to this subsection, the
employee may shorten the period with the employer's approval -
proposed section 94ZX. If the employee wishes to take advantage
of the return to work guarantee and the period of leave is longer
than four weeks, the employee must give the employer at least four
weeks notice of his or her return to work under proposed
section 94ZZ.
765. Subsection 94ZV(4) would enable the employer to cancel the remaining
period of long adoption leave by providing at least four weeks
notice of the cancellation to the employee. If a notice is given,
the entitlement to leave ends on the day specified in the notice
(subsection 94ZV(5)).
New section 94ZW End of long adoption leave if employee stops being
primary care-giver
766. Proposed section 94ZW would enable an employer to require an
employee to return to work where they have ceased to be the primary
care-giver of the child.
767. Under subsections 94ZW(1) - (2), long adoption leave would be
cancelled on the provision of at least 4 four weeks notice by the
employer if the employee:
. is not the primary carer giver for a substantial period; and
. it is reasonable to expect that the employee will not resume being
the primary care-giver within a reasonable period.
768. Subsection 94ZW(3) would provide that the period of long adoption
leave ends with effect from the date stated in the notice by the
employer.
New section 94ZX- Variation of period of long adoption leave
769. Proposed section 94ZX would allow an employee to extend or shorten a
period of long adoption leave after it has commenced.
770. The section would be subject to proposed Subdivision H and the
limitations in proposed sections 94ZU, 94ZV and 94ZW (these
provisions place a maximum limit of 52 weeks on the total amount of
unpaid adoption leave available, and impose other conditions on the
leave in the event that the placement does not proceed or where the
employee ceases to be the primary care-giver).
771. Subsection 94ZX(2) would require the employer to grant a request for
an extension of the adoption leave provided the appropriate notice
is given. Any further extension is by agreement between the
employer and employee (paragraph 94ZX(2)(b)).
772. Under subsection 94ZX(3), the leave may be shortened by an agreement
in writing between the employer and employee. The Note would
confirm that where the period of adoption leave is longer than four
weeks, the employee must also give his or her employer four weeks
notice of his or her intended return to work to take advantage of
the return to work guarantee under section 94ZZ.
New section 94ZY Employee's right to terminate employment during
adoption leave
773. Subsection 94ZY(1) would confirm the employee's right to terminate
his employment at any time during a period of adoption leave.
Subsection 94ZY(2) would provide that the employee's right to
terminate is subject to any relevant notice or procedural
requirements in either a contract of employment or legislation.
774. Termination of employment at the initiative of the employer is not
covered by the Standard as it would be subject to other remedies
under the WR Act (see Part VIA) and, in appropriate cases, under
discrimination legislation.
New section 94ZZ Return to work guarantee-adoption leave
775. Proposed section 94ZZ would set out the return to work guarantee.
The guarantee would apply in circumstances in which an employee
returns to work following a period of leave including or made up of
adoption leave. In these circumstances, the employee is entitled to
return to the position held immediately before a period of adoption
leave.
776. Proposed paragraph 94ZZ(1)(a) would provide that the return to work
guarantee applies if the adoption-related leave period (that is,
leave taken in relation to the placement of a child, including or
constituted by adoption leave) is less than four weeks. Proposed
paragraph 94ZZ(1)(b) would provide that the guarantee applies for
leave that is longer than four weeks if employee gives the employer
four weeks written notice of the proposed date of his or return to
work. Paragraph 94ZZ(1)(c) would also extend the guarantee to the
situation where the placement of the child does not proceed (see
proposed section 94ZV) and where the employee ceases to be the
primary care-giver of the child (see proposed section 94ZW).
777. Subsection 94ZZ(2) would provide that the employee is entitled to
return:
. to the position held immediately before starting a period of leave
including or constituted by adoption leave; or
. to a position the employee was promoted to or voluntarily
transferred to during the leave.
778. However, subsection 94ZZ(3) would provide that if the position (the
former position) no longer exists, and the employee is qualified
for, and can perform the duties of, other positions in the
employer's employment, the employer must employ him or her in
whichever of those positions is nearest in status and remuneration
to the former position.
New section 94ZZA- Replacement employees - long adoption leave
779. Proposed section 94ZZA would require the employer to tell any
replacement to an employee on adoption leave that:
. the engagement is temporary; and
. the employee on adoption leave has a right to return to the
position he or she held immediate before taking adoption leave
under section 94ZZ.
780. The employer would be required to provide this information to both a
primary replacement (subsection 94ZZA(1)) and secondary replacement
(subsection 94ZZA(2)).
781. Subsection 94ZZA(3) would provide that for the purposes of the
notification obligation, an employee includes a casual employee.
782. The section would also allow the employer engaging a permanent
employee to replace an employee on adoption leave to fill the
employee's position temporarily. So, for example, an employer could
legitimately offer someone a permanent engagement on the basis that
for the first six months the new employee would fill in for the
employee on adoption leave, and then afterwards the employer would
assign the new employee to work elsewhere in the organisation.
New Subdivision K - Parental leave: Service
New section 94ZZB - Parental leave and service
783. Proposed section 94ZZB would set out the effect of any form of
parental leave on continuity of service. The definition of
continuous service is not intended to affect, or be affected by,
this provision.
784. Subsection 94ZZB(1) would provide that continuity of service is not
broken by a period of parental leave.
785. Subsection 94ZZB(2) would provide that parental leave does not count
as service except as set out in paragraphs 94ZZB(2)(a) - (c).
786. For example, if an employee's entitlement to annual leave is
provided for under the Standard, the employee will accrue no annual
leave for the period during which they are on parental leave.
However, the employee would not lose accumulated leave credits, as
the employee's continuity of service is not broken by the parental
leave.
787. Subsection 94ZZB(3) would define parental leave for the purposes of
service under this section as meaning:
. maternity leave;
. paid leave under subparagraph 94F(2)(b)(i) or (ii) (where the
employee is fit to work in a different position but no suitable
safe job is available);
. paternity leave;
. pre-adoption leave;
. adoption leave.
Illustrative Example
Benjamin works 38 hours per week as a full-time employee for Dragon Dining
Rooms Pty Ltd. He has been working there for three and a half years. He
is taking six-months of adoption leave to be the primary care-giver for the
child he and his spouse Saveria have adopted. As parental leave does not
count as service, Benjamin will not accrue any annual leave during that
period of adoption leave. However, he will not lose his accrued annual
leave entitlements, or any other entitlements, as his continuity of service
with his employer during that period of adoption leave has not been broken.
New Part VB - Workplace agreements
New Division 1 - Preliminary
New section 95 - Definition
788. Proposed section 95 would define Court to mean the Federal Court of
Australia or the Federal Magistrates Court. This definition would
allow parties to bring legal actions relating to Part VB in either
court.
789. Proposed section 95 would also include 'sign post' definitions
referring the reader to particular provisions in the Bill, such as
proposed section 95B which would provide a definition of new
business.
New section 95A - Single business and single employer
790. Proposed section 95A would define single business and part of a
single business for the purposes of Part VB. It is intended that
collective agreements would cover a single business or part of a
single business unless the exceptions in subsection 95A(2) apply or
the agreement is a multiple-business agreement made under proposed
section 96E.
791. Subsection 95A(1) would define single business as a business,
project or undertaking that is carried on by an employer, or
activities carried on by the Commonwealth, a State or Territory, or
a Commonwealth, State or Territory authority.
792. Subsection 95A(2) would allow two or more employers to be treated as
one employer in certain circumstances. Paragraph 95A(2)(a) would
provide that where two or more employers carry on a business,
project or undertaking as a joint venture or common enterprise, they
would be deemed to be one employer for the purposes of the
definition of single business in subsection 95A(1).
793. Subparagraph 95A(2)(b)(i) would provide that where two or more
related corporations under the Corporations Act 2001 carry on a
single business, those corporations may be treated as one employer
and the single businesses may be treated as one single business.
794. By deeming multiple businesses and employers to be single businesses
and single employers in certain circumstances, subsection 95A(2)
would have the effect of allowing these employers to make one
collective agreement covering certain joint business activities.
This would eliminate the need for these businesses to make separate
collective agreements or a multiple-business agreement, but would
only apply in the limited circumstances set out in paragraphs
95A(2)(a) and (b). These would be exceptions to the requirement
that a collective agreement must apply to a single business or part
of a single business.
795. Subsection 95A(3) defines a part of a single business to include a
geographically distinct part or a distinct operational or
organisational unit within the single business. The definition is
inclusive and does not limit the scope for collective agreements to
apply to a part of a single business that may be constituted in any
relevant way (eg all of the boilermakers employed in the business).
New section 95B - New business
796. Proposed section 95B would define new business for the purposes of
sections 96C and 96D, which would provide for the making of
greenfields agreements (a type of collective agreement that would
not involve employee approval as it would be made prior to the
employment of any employees).
797. Proposed section 95B would provide that an agreement relates to a
new business if the agreement relates to:
. a new business, project or undertaking that the employer is
proposing to establish (subparagraph 95B(1)(a)(i)); or
. new activities proposed to be carried on by a government authority
(subparagraph 95B(1)(a)(ii)); and
. the business, project or undertaking or the activities are a
single business or part of a single business (paragraph
95B(1)(b)).
798. Proposed section 95B is intended to clarify any uncertainty arising
from the jurisprudence about the definition of new business.
Greenfields agreements are only available where the employer is
establishing or proposing to establish a new business (see pre-
reform paragraph 170LL(1)(a), proposed paragraph 96C(1)(a) and
proposed paragraph 96D(a)). On several occasions the AIRC has
decided that this requirement means that an employer cannot make a
greenfields agreement to cover activities on a new project, which
are of the same nature as its existing business activities. In
these decisions the AIRC found that the new activities would not
constitute a new business, but instead involved the same business
being undertaken on a new site (see Re Patrick Cargo Pty Limited
Certified Agreement 2002 (PR920391); Re PALS Playford B
Refurbishment and Maintenance Contract Agreement 2001-2004,
(PR924609); Re Pelican Point Complete Scaffold Contracting Pty Ltd
Power Station Enterprise Bargaining Agreement 2003-2004, (PR931021);
Re Whyalla Steelworks, (Downer RML Pty Ltd - Communications,
Electrical, Electronic, Energy, Information, Postal, Plumbing and
Allied Services Union of Australia (Electrical Division)) Blast
Furnace Reline 2004 Outage Agreement (PR943195)).
799. However, in Brunel Technical Services Offshore Pty Ltd Bayu-Darwin
Pipeline Agreement 2004 (PR950406) (Brunel) the Full Bench of the
AIRC took a different view. The Full Bench found that a new project
was a new business, based on the requirement for a new business in
pre-reform paragraph 170LL(1)(a), which the Full Bench said was
referable to the definition of new business in pre-reform section
170LB.
800. For these reasons, the Full Bench found an employer could make a
greenfields agreement to cover activities on a new project.
801. The Full Bench in Brunel did not overrule the earlier AIRC
decisions, instead distinguishing them and noting that each case
turned on its facts. Proposed section 95B would clarify that the
definition of new business would include a new business, new project
or new undertaking and is not limited to the circumstances where
those activities are of a different nature to those previously
carried on by the employer.
New section 95C - AWAs with Commonwealth employees
802. Proposed section 95C would provide special arrangements for AWAs
relating to Commonwealth employees.
803. Subsection 95C(1) would provide that an agency head (as defined by
the Public Service Act 1999) may act on behalf of the Commonwealth
in relation to an AWA with persons in their agency who are engaged
under the Public Service Act 1999.
804. Subsection 95C(2) would provide that a Secretary of a Department (as
defined by the Parliamentary Service Act 1999) may act on behalf of
the Commonwealth in relation to an AWAs with persons in their agency
who are engaged under the Parliamentary Service Act 1999.
New section 95D - Extended operation of Part in relation to proposed
workplace agreements
805. Proposed section 95D would provide a translation rule that would
extend the operation of Part VB -Workplace agreements in certain
circumstances, where the context permits.
806. Paragraph 95D(a) would provide that, so far as context permits, a
reference to a workplace agreement includes a proposed workplace
agreement. For example, where proposed section 97C refers to a
workplace agreement, that reference includes a proposed workplace
agreement.
807. Paragraph 95D(b) would provide that, so far as the context permits,
a reference to an employer, includes a proposed employer in relation
to a proposed workplace agreement. For example, where proposed
section 98C refers to an employer having a workplace agreement
approved, that includes a proposed employer having a proposed
workplace agreement approved.
808. Paragraph 95D(c) would provide that, so far as the context permits,
a reference to an employee, includes a proposed employee in relation
to a proposed workplace agreement. For example, where proposed
section 104 refers to duress being applied to an employee in
relation to an AWA, that reference includes duress being applied to
a proposed employee in relation to a proposed AWA.
New section 95E - Extraterritorial extension
809. Proposed section 95E would provide for the extraterritorial
extension of Part VB.
810. Proposed subsection 95E(1) would extend the application of the Part
(and related provisions of the WR Act) to persons, acts, omissions,
matters and things outside Australia that are connected with a
workplace agreement relating to an Australian-based employee or an
Australian employer (as those expressions would be defined in
subsection 4(1)). The note under subsection 95E(1) makes clear
that, for the purposes of section 95E, Australia includes the
Territory of Christmas Island and the Territory of Cocos (Keeling)
Islands and the coastal sea.
811. Subsection 95E(1) would have the effect of allowing workplace
agreements to be made by Australian employers with non-Australian-
based employees, and by non-Australian employers with Australian-
based employees, wherever the work was to be performed. It would
also extend Part VB and related provisions of the WR Act in other
ways, for example by extending the application of proposed section
104A (making false and misleading statement in relation to workplace
agreements) to statements made outside Australia.
812. Subsection 95E(2) would provide a specific definition of this Act
for the purposes of proposed section 95E. This is because the
definition of this Act in subsection 4(1) (which would otherwise
apply) does not include the Registration and Accountability of
Organisations Schedule and regulations made under it. The specific
definition would ensure that the extraterritorial extension under
subsection 95E(1) would apply to that Schedule and those regulations
so far as they relate to Part VB.
New Division 2 - Types of workplace agreements
New section 96 - Australian workplace agreements (AWAs)
813. Proposed section 96 would provide for the making of individual
agreements between an employer and employee. These agreements would
be known as Australian workplace agreements or AWAs.
814. Subsection 96(1) would provide that an employer may make an AWA in
writing with a person whose employment will be subject to the
agreement.
815. Subsection 96(2) would provide that an AWA may be made before the
commencement of the employment. This would enable an employer to
enter into an AWA with a future employee to ensure that an AWA is in
place from the start of the employment relationship.
New section 96A - Employee collective agreements
816. Proposed section 96A would provide for the making of collective
agreements directly between an employer and its employees without
union involvement. These agreements would be known as employee
collective agreements.
817. Proposed section 96A would provide that an employer may make an
agreement in writing with persons who are employed in a single
business or part of a single business of the employer at the time of
making the agreement.
New section 96B - Union collective agreements
818. Proposed section 96B would provide for the making of collective
agreements between an employer and one or more organisations of
employees. These agreements would be known as union collective
agreements.
819. Proposed section 96B would provide that an employer may make an
agreement in writing where, at the time the agreement is made, each
organisation of employees:
. has at least one member employed in the single business or part of
the single business whose employment will be subject to the
agreement (paragraph 96B(a)); and
. is entitled to represent the industrial interests of the member in
relation to work that will be subject to the agreement (paragraph
96B(b)).
820. These requirements are intended to ensure that an organisation of
employees only enters into a union collective agreement where it has
an interest in the workplace arising from having at least one member
employed at the workplace who it is entitled to represent.
New section 96C - Union greenfields agreements
821. Proposed section 96C would provide for the making of collective
agreements between an employer and one or more organisations of
employees in relation to a new business as defined by proposed
section 95B. These agreements would be known as union greenfields
agreements.
822. Subsection 96C(1) would provide that an employer may make an
agreement in writing with one or more organisations of employees if:
. when the agreement is made, it relates to a new business that the
employer proposes to establish or is establishing (paragraph
96C(1)(a));
. the agreement is to be made before the employment of any of the
persons who will be necessary for the normal operation of the
business and whose employment will be subject to the agreement
(paragraph 96C(1)(b)); and
. the one or more organisations meet the requirements of subsection
96C(2) (paragraph 96C(1)(c)).
823. Subsection 96C(2) would provide that, in order to make a union
greenfields agreement, each organisation of employees must be
entitled to represent the industrial interests of one or more of the
persons whose employment is likely to be subject to the agreement,
in relation to the work that will be subject to the agreement.
824. It would not be necessary to seek the approval of employees prior to
the employer lodging a union greenfields agreement and it coming
into operation.
New section 96D - Employer greenfields agreements
825. Proposed section 96D would provide for employers to make collective
agreements in relation to a new business as defined by proposed
section 95B. These agreements would be known as employer
greenfields agreements.
826. Proposed section 96D would provide that an employer may make an
agreement in writing if:
. the agreement relates to a new business that the employer proposes
to establish or is establishing (paragraph 96D(a)); and
. the agreement is to be made before the employment of any of the
persons who will be necessary for the normal operation of the
business and whose employment will be subject to the agreement
(paragraph 96D(b)).
827. It would not be necessary to seek the approval of employees prior to
the employer lodging an employer greenfields agreement and it coming
into operation.
New section 96E - Multiple-business agreements
828. Proposed section 96E would provide for multiple employers to make a
single agreement that applies to all of their businesses. These
agreements would be known as multiple-business agreements. Prior to
making or varying such an agreement, an employer would have to seek
authorisation from the Employment Advocate under proposed section
96F.
829. Subsection 96E(1) would provide that a multiple-business agreement
is a collective agreement that relates to any of, or a combination
of, different single businesses or parts of different single
businesses, carried on by one or more employers.
830. The note under subsection 96E(1) would refer to proposed sections
99A and 102I which would make it a civil remedy provision to lodge a
multiple-business agreement without authorisation.
831. Subsection 96E(2) would provide that, so far as the context permits,
Part VB has effect in relation to a multiple-business agreement of a
particular type as if the agreement were a collective agreement of
that type. This means that if, for example, a multiple-business
agreement is made as an employee collective agreement, the
requirements for employee collective agreements found in Part VB,
apart from Division 2, apply to the agreement.
832. Subsection 96E(3) would provide that, so far as the context permits,
Part VB has effect in relation to a multiple-business agreement as
if a reference to the employer were a reference to any one of the
employers who are party to the multiple-business agreement. This
means that, for example, one of the employers can lodge the multiple-
business agreement on behalf of all of the employers.
New section 96F - Authorisation of multiple-business agreements
833. Proposed section 96F would allow the Employment Advocate to
authorise an employer to make or vary a multiple-business agreement.
834. Subsection 96F(1) would provide that an employer acting on behalf of
the other employers seeking to negotiate a multiple-business
agreement may apply to the Employment Advocate for an authorisation
to make the agreement. It is intended that this would occur prior
to the commencement of negotiations for the agreement. See proposed
section 99A which would make it a civil remedy provision to lodge a
multiple-business agreement without authorisation.
835. Subsection 96F(2) would provide that the regulations may set out a
procedure for applying to the Employment Advocate for the
authorisation. Where such a procedure is established, the
Employment Advocate would not have to consider an application for
authorisation that is not made in accordance with the procedure.
836. Subsection 96F(3) would provide the Employment Advocate must not
grant an authorisation unless he or she is satisfied that it is in
the public interest to do so, having regard to:
. whether the matters dealt with in the agreement could be more
appropriately dealt with by a different collective agreement
(paragraph 96F(3)(a)); and
. any other matters specified in the regulations (paragraph
96F(3)(a)).
837. If the Employment Advocate grants an authorisation, the parties
could make or vary a multiple-business agreement in accordance with
the relevant provisions of Part VB.
New section 96G - When a workplace agreement is made
838. Proposed section 96G would provide the time at which a workplace
agreement is made.
839. Paragraph 96G(a) would provide that an AWA is made when it is
approved in accordance with proposed section 98C.
840. Paragraph 96G(b) would provide that an employee collective agreement
is made when it is approved in accordance with proposed section 98C.
841. Paragraph 96G(c) would provide that a union collective agreement is
made when the employer and the organisation or organisations agree
to the terms of the agreement.
842. Paragraph 96G(d) would provide that a union greenfields agreement is
made when the employer and the organisation or organisations agree
to the terms of the agreement.
843. Paragraph 96G(e) would provide that an employer greenfields
agreement is made when the employer lodges the agreement.
844. The concept of when an agreement is made is included in Part VB
because of the effect that making an agreement has on parties'
rights. Once a collective agreement is made any bargaining period
on foot between the parties ends, with the effect that any
industrial action taken after that time would not be protected
action (see paragraph 107E(a)). Also, there is a prohibition on an
employer withdrawing from a union collective agreement or union
greenfields agreement after it has been made (see proposed section
98B).
New Division 3 - Bargaining agents
New section 97 - Bargaining agents - qualifications
845. Proposed section 97 would provide for the qualifications of
bargaining agents who may assist employees in making an AWA or
employee collective agreement. Bargaining agents would be able to
assist employees in relation to the making, variation or termination
of an AWA (see proposed section 97A). Employees would also be able
to appoint bargaining agents to meet and confer with their employer
about the making or variation of an employee collective agreement or
the variation of an employee greenfields agreement (see proposed
section 97B).
846. Subsection 97(1) would provide that a person can only be a
bargaining agent if the person meets the qualifications in this
section at the time of their appointment.
847. Subsection 97(2) would provide that the person must meet the
requirements (if any) specified in the regulations.
848. Subsection 97(3) would provide that where an organisation of
employees is to be a bargaining agent:
. at least one person whose employment is or will be subject to the
agreement must be a member of the organisation (paragraph
97(3)(a)); and
. the organisation must be entitled to represent the person's
industrial interests in relation to work that is or will be
subject to the agreement (paragraph 97(3)(a)).
849. The requirements in 97(3) are intended to ensure that an
organisation of employees only acts as a bargaining agent where it
has an interest in the workplace arising from having at least one
member at the workplace that it is entitled to represent.
New section 97A - Bargaining agents - AWAs
850. Proposed section 97A would set out requirements for an employer or
employee to appoint a bargaining agent in relation to the making,
variation or termination of an AWA and for the other party in the
negotiations to recognise that bargaining agent.
851. Subsection 97A(1) would provide that either the employer or the
employee may appoint a person to be his or her bargaining agent to
negotiate the making, variation or termination of an AWA. The
appointment must be in writing.
852. The note under subsection 97A(1) would refer to subsection 104(3)
which would provide that there is a civil remedy for coercion in
relation to appointments made under proposed section 97A.
853. Subsection 97A(2) requires the recognition of the appointment of a
duly appointed bargaining agent by the other party for the purposes
of subsection (1).
854. Subsection 97A(3) would provide that a person is not in breach of
subsection (2) if he or she was not given a copy of the bargaining
agent's instrument of appointment before refusing to recognise the
bargaining agent. The words 'does not apply' in subsection 97A(3)
would mean that the burden of proving that a contravention of
subsection 97A(2) did not occur, because of subsection 97A(3), would
be reversed (ie it would be upon the defendant).
855. Subsection 97A(4) would provide that subsection 97A(2) is a civil
remedy provision.
856. The note under subsection 97A(4) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 30 penalty units for a failure to recognise another party's
bargaining agent when negotiating an AWA (see proposed section
105D).
New section 97B - Bargaining agent - employee negotiated agreements
857. Proposed section 97B would set out requirements for employees to
appoint a bargaining agent to represent them by meeting and
conferring with the employer in relation to an employee collective
agreement.
858. Subsection 97B(1) would provide that a person whose employment will
be subject to an employee collective agreement may request a
bargaining agent to represent them in meeting and conferring with
the employer about the agreement.
859. The note under subsection 97B(1) would refer to subsection 104(4)
which would provide a civil remedy for coercion in relation to
appointments made under proposed section 97B.
860. Subsection 97B(2) would provide that a person whose employment is or
will be subject to an employer greenfields agreement may request a
bargaining agent to represent them in meeting and conferring with
the employer about the variation of the agreement.
861. The note under subsection 97B(2) would refer to subsection 104(4)
which would provide that there is a civil remedy for coercion in
relation to appointments made under proposed section 97B.
862. Subsection 97B(3) would provide that an employee may request that
the employer meet and confer with the employee's bargaining agent
about the agreement. If an employee makes such a request the
employer would be required to give the bargaining agent a reasonable
opportunity to meet and confer with the employer about the agreement
in the period beginning seven days before the agreement is approved
and ending when the agreement is approved. Subsection 97B(4) would
provide that subsection 97B(2) is a civil remedy provision.
863. The note under subsection 97A(4) would refer to Division 11of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 30 penalty units for a failure to meet an confer with a
bargaining agent about an employee negotiated agreement in the
period beginning seven days before the agreement is approved and
ending when the agreement is approved.
864. Subsection 97B(5) would provide that the employer's obligation to
meet and confer with a bargaining agent ceases if the employee
withdraws the request for the employer to do so.
865. Subsection 97B(6) would provide the Employment Advocate power to
issue a certificate that:
. on application by a bargaining agent - an employee has made a
request for the bargaining agent to represent the employee in
meeting and conferring with the employer (paragraph 97B(6)(a)); or
. on application by the employer - that the employer does not need
to meet and confer with the bargaining agent because the employee
has withdrawn the request.
866. It is not intended that gaining a certificate under subsection
97B(6) would be a pre-requisite to a bargaining agent being able to
represent an employee.
867. It is intended that one certificate may be issued in relation to
several employees appointing the same bargaining agent.
868. Subsection 97B(7) would provide that the certificate must not
identify any of the employees. This is intended to ensure that an
employee or group of employees may anonymously ask for the employer
to meet and confer with their bargaining agent.
869. In this context subsection 97B(8) would provide that the certificate
is prima facie evidence for all purposes that the employee or
employees made the request.
870. While it is intended that an organisation of employees would be able
to be a bargaining agent for an employee in relation to an employee
collective agreement, an employee's choice of bargaining agents
would not be limited.
871. A number of employers have interpreted a similar requirement to
subsection 97B(2) in pre-reform subsection 170LK(5) to mean that the
employee must tell the employer directly of their request (see, for
example, CFMEU v S.J. Weir Pty Ltd (PR947609)). However, an
employee may inform their bargaining agent that they wish them to
meet and confer with the employer about the agreement. The
bargaining agent may then inform the employer of the employee's
request (see subsections 97B(4), (5) and (6) for details of
evidencing such a request).
New Division 4 - Pre-lodgment procedure
New section 97C - Eligible employee
872. Proposed section 97C would provide a definition of eligible employee
for the purposes of Division 4 of Part VB. The concept of an
eligible employee is a drafting tool to provide a short hand term
for the employees that have rights in relation to making a workplace
agreement, and reduces the need for repetition.
873. Proposed section 97C would define an eligible employee to be:
. in the case of an AWA - the person whose employment will be
subject to the AWA (paragraph 97C(a)); or
. in the case of a collective agreement - a person employed by the
employer whose employment will be subject to the agreement
(paragraph 97C(b)).
New section 98 - Providing employees with ready access and
information statement
874. Proposed section 98 would provide a period of time in which
employees may consider a workplace agreement and obtain advice about
that agreement prior to approving it. Subsection 98(1) would
require the employer to take reasonable steps to ensure that all
eligible employees have ready access to the agreement in writing for
at least seven days prior to the agreement being approved.
875. Subsection 98(2) would require the employer to take reasonable steps
to ensure that all eligible employees are given an information
statement at least seven days prior to the agreement being approved.
876. Subsection 98(3) would provide that, if a person becomes an eligible
employee during the seven day period before the agreement is
approved, the employer must take reasonable steps to ensure that the
person is given an information statement (paragraph 98(3)(a)) and
ready access to the agreement (paragraph 98(3)(b)) from no later
than the time the person becomes an eligible employee.
877. Subsection 98(4) would provide that the information statement
mentioned in subsection 98(2) and paragraph 98(3)(a) must contain
information about:
. when and how the employer will seek approval of the agreement
(paragraph 98(4)(a));
. the effect of the provisions relating to bargaining agents
(paragraphs 98(4)(b) and (c)); and
. anything else that the Employment Advocate requires by notice
published in the Gazette (paragraph 98(4)(d)).
878. It is intended that the Employment Advocate would produce a standard
form information statement for the employer to provide to employees,
which would be published in the Gazette and available from the
Employment Advocate. Employers would then fill in any necessary
details, for example, when and how the employer would seek approval
of the agreement.
879. Subsection 98(5) would provide that, if the eligible employees have
waived the remainder of the seven day period, the employer no longer
has to provide ready access to the agreement under subsections 98(1)
and (3).
880. Subsection 98(6) would provide that if a workplace agreement
incorporates terms from another industrial instrument by reference,
the eligible employees only have ready access to the workplace
agreement if they have ready access to the other industrial
instrument in writing. The requirements for incorporating
industrial instruments by reference can be found in proposed section
101C.
881. Subsection 98(7) would provide that if the content of the workplace
agreement is changed during the seven day period prior to approval,
the change results in a separate workplace agreement.
882. The note under subsection 98(7) would provide if an agreement is
amended during the seven day period, the employer must restart the
period and repeat the steps in subsections 98(1), 98(2) and 98(3).
883. Subsection 98(8) would provide that an employer contravenes
subsection 98(8) if it lodges a workplace agreement without
providing ready access to the agreement in accordance with
subsection 98(1) and paragraph 98(3)(b).
884. Subsection 98(9) would provide that an employer contravenes the
provision if it lodges a workplace agreement without providing
eligible employees with an information statement in accordance with
subsection 98(2) and paragraph 98(3)(a).
885. Subsection 98(10) would provide that subsections 98(8) and (9) are
civil remedy provisions.
886. The note under subsection 98(10) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 30 penalty units for a failure to take reasonable steps to
provide ready access to an agreement or an information statement in
relation to an agreement.
887. Subsection 98(11) would provide that an employer would not
contravene subsections 98(8) or (9) more than once in relation to a
particular workplace agreement. This means that, for example, where
an employer has ten employees and fails to give the employees ready
access to the workplace agreement, that is only one contravention of
subsection 98(8), rather than ten.
New section 98A - Employees may waive ready access
888. Proposed section 98A would provide for employees to waive the
remainder of the ready access period. It is intended that this
would allow an employer and its employees to approve a workplace
agreement more quickly, where the employees decide that they have
had sufficient time to consider the agreement and are happy to bring
forward the approval. This would address the problem that the pre-
reform agreement making process required parties to wait 14 days to
approve an agreement, even where the employees had made up their
minds and were happy to approve the agreement instantly.
889. Subsection 98A(1) would provide that the persons mentioned in
subsection 98A(2) may make a waiver in relation to a workplace
agreement.
890. Subsection 98A(2) would provide that the persons are all the
eligible employees at the time the waiver is made.
891. Subsection 98A(3) would require the waiver to be in writing and
dated.
892. Subsection 98A(4) would provide that the waiver is made when all of
the eligible employees sign the waiver.
893. Subsection 98A(5) would provide that the waiver takes effect when it
is made.
New section 98B - Prohibition on withdrawal from union collective
agreement
894. Proposed section 98B would prohibit withdrawal from a union
collective agreement.
895. Subsection 98B(1) would require an employer to take reasonable steps
to seek approval of a union collective agreement within a reasonable
period after the agreement is made.
896. Subsection 98B(2) would provide that subsection 98B(1) is a civil
remedy provision.
897. The note under subsection 98B(2) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 30 penalty units for withdrawing from a union collective
agreement.
898. This measure would ensure that when an employer and one or more
organisations of employees have come to an agreement, that agreement
would be put to the employees for approval.
899. The employer would be given a reasonable period in which to put the
agreement to the employees. This acknowledges that what is a
reasonable period will vary depending on the circumstances of the
employer. For example, a reasonable period might be longer for a
large business with 10 000 employees and offices located around
Australia, but may be shorter for a business with 15 employees that
are all located in one office.
900. Proposed section 98B only applies to union collective agreements as
there would be no need to apply the provision to other types of
workplace agreement. There are no corresponding prohibitions on an
organisation of employees withdrawing from a union collective
agreement as, if that occurred, the employer would still be able to
lodge the agreement with the Employment Advocate and bring it into
operation (see proposed subsection 100(1)).
New section 98C - Approval of a workplace agreement
901. Proposed section 98C would provide for the manner in which certain
agreements are to be approved by employees before they are lodged.
Proposed section 98C would not apply to greenfields agreements,
which do not have to be approved.
902. Subsection 98C(1) would provide that an AWA is approved if:
. the AWA is signed and dated by the employee and the employer
(paragraph 98C(1)(a)); and
. those signatures are witnessed (paragraph 98C(1)(b)).
903. Paragraph 98C(1)(c) would provide additional requirements for the
approval of an AWA, where the employee is under the age of 18.
These are:
. that the AWA is signed and dated by an appropriate adult (such as
the employee's parent or guardian, but not the employer) who is
aged at least 18 (subparagraphs 98C(1)(c)(i) and (ii)); and
. that the person's signature is witnessed (subparagraph
98C(1)(c)(iii)).
904. This additional requirement of having an AWA signed by an
appropriate adult is intended to provide further protection to
employees who may be vulnerable because of their age. The term
'appropriate adult' is intended to be broad enough to allow a person
who is under 18 but does not have a parent or guardian available to
seek the signature from another adult who has an interest in the
young person's well being (eg another member of the person's
family).
905. Subsection 98C(2) would provide for how an employee collective
agreement or union collective agreement is to be approved.
906. Paragraph 98C(2)(a) would require the employer to give all of the
persons employed by the employer at the time of approving the
agreement whose employment will be subject to the agreement a
reasonable opportunity to decide whether they want to approve the
agreement.
907. Paragraph 98C(2)(b) would additionally require that:
. if the decision is made by vote - a majority of those persons who
cast a valid vote decide that they want to approve the agreement;
or
. otherwise - a majority of those persons decide that they want to
approve the agreement.
908. This means that once the employer has provided employees with a
reasonable opportunity to decide whether they want to approve an
employee collective agreement or a union collective agreement,
determining whether an agreement has been approved would involve
counting the votes of the employees and not an assessment of the
genuineness of employees' consent.
New section 98D - Employer must not lodge unapproved agreement
909. Proposed section 98D would provide remedies against an employer that
lodges a workplace agreement which has not been approved in
accordance with 98C.
910. Subsection 98D(1) would provide that an employer contravenes
subsection 98D(1) if:
. it lodges a workplace agreement (paragraph 98D(1)(a)); and
. the agreement has not been approved in accordance with proposed
section 98C (paragraph 98D(1)(b)).
911. Subsection 98D(2) would provide that subsection 98D(1) is a civil
remedy provision.
912. The note under subsection 98D(2) would refer to Division 11 of Part
VB. Under these provisions the Court may:
. order a pecuniary penalty of up to 60 penalty units for a
contravention of subsection 98D(1) (see proposed section 105D);
. declare that all or part of the agreement is void (see proposed
section 105F);
. vary the terms of the agreement, including its nominal expiry date
(see proposed section 105G);
. order compensation (see proposed section 105J); and/or
. grant injunctions (see proposed section 105K);
for lodging a workplace agreement (other than a greenfields agreement) that
has not been approved.
New Division 5 - Lodgment
New section 99 - Employer must lodge certain workplace agreements
with the Employment Advocate
913. Proposed section 99 would require employers to lodge certain
workplace agreements with the Employment Advocate.
914. Subsection 99(1) would require an employer to lodge an AWA, employee
collective agreement or a union collective agreement within 14 days
of the agreement being approved under proposed section 98C.
915. Subsection 99(2) would require an employer to lodge a union
greenfields agreement within 14 days of the agreement being made
under proposed section 96G.
916. Subsection 99(3) would provide that subsections 99(1) and (2) are
civil remedy provisions.
917. The note under subsection 99(2) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 30 penalty units for a failure to lodge a workplace
agreement:
. for an AWA, employee collective agreement or union collective
agreement - within fourteen days of it being approved; or
. for a union greenfields agreement - within fourteen days of it
being made.
918. It is intended that the time frame and penalties in proposed section
99 would encourage employers to speedily lodge workplace agreements
once they are made or approved (depending on the agreement).
919. Only employers would be able to lodge agreements with the Employment
Advocate. This would be consistent with an agreement making system
where integrity of the system is ensured through a penalty regime.
It would be difficult to effectively attribute responsibility for a
breach of the lodgment requirements if more than one party to the
agreement were responsible for lodgment. However, the Court would
have discretion not to order a penalty against an employer who was
pressured into lodging an agreement inappropriately. Where such
pressure occurred, an employer would be able to seek an injunction
under proposed section 105K to restrain prohibited conduct.
920. Proposed section 99 would not make reference to an employer lodging
an employer greenfields agreement. There is no obligation for an
employer to lodge an employer greenfields agreement, as these
agreements are not approved by employees and not made until they are
lodged. However, an employer greenfields agreement would not come
into operation until the employer lodged it with the Employment
Advocate.
New section 99A - Lodging multiple-business agreement without
authorisation
921. Proposed section 99A would prohibit an employer from lodging a
multiple-business agreement that has not been authorised by the
Employment Advocate under proposed section 96F.
922. Subsection 99A(1) would provide that an employer contravenes
subsection 99A(1) if:
. the employer lodges a multiple-business agreement; and
. the agreement has not been authorised under 96F.
923. Subsection 99A(2) would provide that subsection 99A(1) is a civil
remedy provision.
924. The note under subsection 99A(2) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 60 penalty units for lodging a multiple-business agreement
without authorisation.
925. Only one of the multiple employers would lodge an agreement. It
would be the employer who would be liable for a failure to obtain an
authorisation. However, the Court would have discretion not to
order a penalty against an employer who was pressured into lodging
an agreement inappropriately. Where such pressure occurred, an
employer would be able to seek an injunction under proposed section
105K to restrain prohibited conduct.
926. Where a multiple-business agreement is lodged without authorisation,
the agreement would not be able to come into operation by operation
of law (subsection 100(3)).
New section 99B - Lodging of workplace agreement documents with the
Employment Advocate
927. Proposed section 99B would provide the method by which an employer
would lodge a workplace agreement, thus bringing it into operation
(see subsection 100(1)).
928. Subsection 99B(1) would provide that the employer lodges a workplace
agreement if:
. the employer lodges a declaration under subsection (2) (paragraph
99B(1)(a)); and
. a copy of the workplace agreement is annexed to the declaration
(paragraph 99B(1)(b)).
929. Subsection 99B(2) would provide that an employer lodges a
declaration if the employer gives the declaration to the Employment
Advocate and the declaration meets the requirements of subsection
99B(3).
930. The note under subsection 99B(2) makes clear that providing false or
misleading information or documents under subsection 99B(2) would be
a criminal offence under sections 137.1 and 137.2 of the Criminal
Code.
931. Subsection 99B(3) allows the Employment Advocate to set out
requirements for the form of the declaration, by notice published in
the Gazette. It is intended that the Employment Advocate would
exercise his or her power under subsection 99B(3) to create a
standard form declaration. The employer would then fill in any
necessary details, for example, the name of the agreement, and lodge
that standard form declaration along with a copy of the workplace
agreement with the Employment Advocate (subsections 99B(1) and (2)).
It is also intended that the standard form declaration would
require an employer to declare that the agreement was made and/or
approved in accordance with the requirements of Divisions 3 and 4 of
Part VB.
932. An employer would only need to lodge a copy of the workplace
agreement as it is intended that the regulations would require an
employer to retain a signed original of the workplace agreement for
a specified period. It is intended that a workplace agreement could
be lodged electronically, by fax, by hand or by post. However, it
is likely that the vast majority of lodgments would be electronic.
Requiring the employer to only lodge a copy of the workplace
agreement would facilitate the implementation of electronic lodgment
for workplace agreements.
933. Subsection 99B(4) would provide that a declaration is only taken to
be given to the Employment Advocate if the Employment Advocate
actually receives it. This means that if an employer lodges a
workplace agreement by post, the agreement would only be taken to be
lodged when the Employment Advocate receives the declaration.
934. The note under subsection 99B(4) would make clear that section 29 of
the Acts Interpretation Act 1901 or section 160 of the Evidence Act
1995 do not apply to workplace agreements. These provisions might
otherwise create a presumption that the 'postal-acceptance rule'
applies to workplace agreements.
935. Subsection 99B(5) would provide that the Employment Advocate is not
required to consider or determine whether any of the requirements of
Part VB have been met in relation to the making or content of a
declaration or workplace agreement. This is intended to make it
clear that lodgment of a declaration and an agreement could occur
without any scrutiny by the Employment Advocate.
New section 99C - Employment Advocate must issue receipt for
lodgment of declaration for workplace agreement
936. Proposed section 99C would provide for the Employment Advocate to
issue a receipt for the lodgment of a workplace agreement.
937. Subsection 99C(1) would require the Employment Advocate to issue a
receipt if a declaration is lodged under subsection 99B(2).
938. Subsection 99C(2) would require the Employment Advocate to give a
copy of the receipt to:
. the employer (paragraph 99C(2)(a));
. if the agreement is an AWA - the employee (paragraph 99C(2)(b));
and
. if the agreement is a union collective agreement or a union
greenfields agreement - the organisation or organisations bound by
the agreement (paragraph 99C(2)(c)).
939. This mechanism is necessary in the context of a system where
agreements come into operation on lodgment (see subsection 100(1)),
as parties need to know the time when the agreement applies to them.
940. It is intended that where a workplace agreement is lodged
electronically, the information provided in the electronic
declaration would be sufficient for the Employment Advocate's
systems to instantly issue an electronic receipt without needing to
scrutinise the agreement. Where an agreement is lodged by other
means, the information provided in the declaration would be
sufficient for the Employment Advocate to issue a receipt after
examining the declaration to the extent necessary to determine where
to send the receipt. After receiving a receipt, the employer would
be required to pass on the receipt to the relevant employees (see
proposed section 99D).
New section 99D - Employer must notify employees after lodging
workplace agreement
941. Proposed section 99D would require the employer to take reasonable
steps to pass on copies of the lodgment receipt from the Employment
Advocate to employees whose employment is subject to the agreement.
942. Subsection 99D(1) would require an employer in relation to a
collective agreement to take reasonable steps to ensure that the
lodgment receipt is given to persons whose employment is, at the
time the employer receives the receipt, subject to the agreement,
within 21 days of the employer receiving the receipt from the
Employment Advocate. The reference to 'persons' is intended to
ensure that an employer would not contravene subsection 99D(1) more
than once in relation to a particular workplace agreement. This
means that, for example, where an employer has ten employees and
fails to give the employees a copy of the lodgment receipt, that is
only one contravention of subsection 99D(3), rather than ten.
943. Subsection 99D(1) does not apply to AWAs as the Employment Advocate
would provide a lodgment receipt directly to the employee.
944. Subsection 99D(2) would provide that subsection 99D(1) is a civil
remedy provision.
945. The note under subsection 99D(2) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 30 penalty units against an employer for failing to pass on
a lodgment receipt to employees.
946. Subsection 99D(3) would provide that proposed section 99D does not
apply in relation to a greenfields agreement.
New Division 6 - Operation of workplace agreements and persons bound
New section 100 - When a workplace agreement is in operation
947. Proposed section 100 would set out when a workplace agreement comes
into operation and ceases to be in operation.
948. Subsection 100(1) would provide that a workplace agreement comes
into operation on the day the agreement is lodged.
949. Subsection 100(2) would provide that a workplace agreement comes
into operation even if the requirements relating to Divisions 3 and
4 of Part VB have not been complied with. This would be a necessary
consequence of a lodgment only system that does not involve
workplace agreements being scrutinised prior to coming into
operation.
950. It is intended that once lodged, a workplace agreement will remain
in operation even if Divisions 3 and 4 have not been complied with,
unless the Court decides otherwise. For example, an employer might
lodge a collective agreement without giving employees ready access
to the agreement under proposed section 98 or seeking their approval
for that agreement under proposed section 98C. In those
circumstances, the agreement would come into operation. However,
the employer could have committed a criminal offence by making a
false declaration when lodging the agreement (see note under
subsection 99B(2)) and be liable for remedies including pecuniary
penalties and compensating employees that have suffered loss or
damage as a result of the employer's actions.
951. Subsection 100(3) would provide that a multiple-business agreement
comes into operation only if it has been authorised under proposed
section 96F, even though the agreement could be lodged under
proposed section 99 without prior authorisation. As with other
types of agreement, the agreement would remain in operation unless
the Court decides otherwise.
952. Subsection 100(4) would provide that a workplace agreement ceases to
be in operation if:
. it is terminated in accordance with Division 9 of Part VB
(paragraph 100(4)(a));
. in the case of an AWA - it has been replaced by another AWA
(paragraph 100(4)(b)); or
. the Court declares it to be void under paragraph 105F(1)(a)
(paragraph 100(4)(b)).
953. It is intended that an AWA would be replaced under paragraph
100(4)(b) at any time the employer and employee enter into another
AWA. It would not be necessary for an AWA to have passed its
nominal expiry date before the employer could make a new AWA with
the employee and lodge it.
954. Subsection 100(5) would provide that a collective agreement ceases
to be in operation in relation to an employee if it has passed its
nominal expiry date and has been replaced by another collective
agreement in relation to that employee. It is intended that once a
collective agreement is no longer in operation in relation to any
employees, it would cease to operate in its entirety. The concept
of an agreement ceasing to be in operation in relation to an
employee would be included in Part VB in order to allow an employer
to make agreements that operate simultaneously, while ensuring that
no more than one agreement would have effect in relation to an
employee at any one time (see subsection 100A(1)).
Illustrative Example
Nathan works in the manufacturing area of a shoe factory under a collective
agreement which only covers the manufacturing area. Nathan's collective
agreement has a nominal expiry date of 31 December 2007. On 1 January 2006
Nathan's employer lodges a collective agreement which covers the whole shoe
factory. In that situation, subsection 100(5) and subsection 100A(3)
operate so that Nathan will continue to work under the manufacturing area's
collective agreement until 31 December 2007 and, after 31 December 2007,
Nathan will work under the collective agreement covering the whole shoe
factory.
955. The note under subsection 100(5) would refer the reader to proposed
Part VIAA which sets out transmission of business rules and the
circumstances where an agreement binding on an employer because of
transmission of business will cease to operate.
956. Subsection 100(6) would provide additional circumstances in which a
multiple-business agreement could cease to be in operation. A
multiple-business agreement would cease to operate in relation to a
single business if, for example, after the multiple-business
agreement comes into operation, a collective agreement covering only
one of the businesses covered by the multiple-business agreement is
lodged. It is intended that this provision would allow a single
business or part of a single business which is subject to a multiple-
business agreement to, at any time, leave the multiple-business
agreement and make a collective agreement that only covers their
single business or part of a single business.
957. The note under subsection 100(6) would give an example of the
operation of the provision
958. Subsection 100(7) provides that if a workplace agreement has ceased
operating under subsection 100(4) it could never operate again.
This is intended to prevent the agreement that has ceased operating
under subsection 100(4) from being 'revived' by coming back into
operation.
959. Subsection 100(8) provides that if a workplace agreement has ceased
operating in relation to an employee because of subsection 100(5) it
can never operate again in relation to an employee. Subsection
100(8) is intended to prevent collective agreements from being
'revived'.
960. However, this would be different to the situation where an employee
moves around a business or in and out of a business. For example,
an employee might work for an organisation under a collective
agreement for a period. The employee might then leave the
organisation but return to the organisation during the life of the
same collective agreement. In those circumstances, when the
employee returned to the organisation their terms and conditions
would, once again, be determined by the collective agreement. This
is because the collective agreement would not have ceased operating
in relation to that employee as a result of replacement. Rather, it
ceased operation in relation to that employee as a result of the
employee moving businesses.
961. Subsection 100(9) would provide that once a multiple-business
agreement has ceased operation in relation to a single business or
part of a single business it can never again operate in relation to
that single business or part of a single business.
962. Subsection 100(10) would provide, in effect, that if at any time
when the agreement is in operation the employer ceases to fall
within the constitutional coverage of the Bill, the agreement would
cease operating.
New section 100A - Relationship between overlapping workplace
agreements
963. Proposed section 100A would set out what is to occur where more than
one workplace agreement purports to have effect in relation to a
single employee at the same time.
964. Subsection 100A(1) would provide that only one workplace agreement
can have effect at a particular time in relation to a particular
employee. It is intended that this would encourage parties to make
comprehensive workplace agreements rather than leaving some matters
out of an agreement for later negotiations. However, where parties
do not include a matter, they would be able to vary their agreement
under the simplified process in Division 8 of Part VB.
965. Subsection 100A(2) would provide that a collective agreement has no
effect in relation to an employee while an AWA operates in relation
to the employee. The intention of this provision is to ensure that,
regardless of whether a collective agreement is in operation in a
workplace, the employer and an employee may make an AWA at any time
and that AWA will provide the employee's terms and conditions
instead of the collective agreement. It would not be necessary for
the collective agreement to have passed its nominal expiry date for
the AWA to come into operation.
966. Subsection 100A(3) would provide that if:
. a collective agreement (the first agreement) binding an employee
is in operation; and
. another collective agreement (the later agreement) binding the
employee is lodged before the nominal expiry date of the first
agreement
the later agreement has no effect in relation to the employee until the
nominal expiry date of the first agreement.
967. The note under subsection 100A(3) explains that after the nominal
expiry date of the first agreement, it ceases operating and the
later agreement takes effect in relation to the employee.
Illustrative Example
On 1 January 2006 a collective agreement is lodged covering the
administration staff in a single business (the first agreement) with a
nominal expiry date of 31 December 2009. On 1 January 2007, another
collective agreement is lodged covering the whole single business (the
second agreement) with a nominal expiry date of 31 December 2011. The
second agreement would come into operation on 1 January 2006, but only have
effect in relation to employees that are not administration staff.
However, after 31 December 2009 (the nominal expiry date of the first
agreement), the first agreement would cease to be in operation (as it would
be replaced by the second agreement) and the second agreement would have
effect in relation to all of the employees in the single business.
New section 100B - Effect of awards while workplace agreement is in
operation
968. Proposed section 100B would provide that an award has no effect in
relation to an employee while a workplace agreement operates in
relation to the employee. The intention of this provision is to
ensure that a workplace agreement comprehensively provides an
employee's terms and conditions of employment, instead of the
employee's terms and conditions deriving from both a workplace
agreement and an award simultaneously.
969. It is intended that this provision would only affect an employee in
relation to one job at a time. For example, if an employee had two
jobs, the fact that the employee is subject to a workplace agreement
in one job would not affect an award that applies in relation to the
employee's other job.
New section 100C - Workplace agreement displaces certain
Commonwealth laws
970. Proposed section 100C would provide for workplace agreements to
displace certain Commonwealth laws.
971. Subsection 100C(1) would provide that a workplace agreement may, to
the extent of any inconsistency, displace prescribed conditions of
employment contained in Commonwealth laws that are prescribed in the
regulations.
972. Subsection 100C(2) would set out definitions of Commonwealth law and
prescribed conditions for the purposes of this section.
973. This means that, for example, the regulations may provide that
workplace agreements made with Commonwealth public sector employees,
override conditions of employment specified in the Public Service
Act 1999, that are prescribed.
New section 100D - Persons bound by workplace agreements
974. Proposed section 100D would set out who is bound by a workplace
agreement that is in operation.
975. Proposed section 100D would provide that a workplace agreement that
is in operation binds:
. the employer in relation to the agreement (paragraph 100D(a));
. all persons whose employment is, at any time when the agreement is
in operation, subject to the agreement (paragraph 100D(b)); and
. if the agreement is a union collective agreement or union
greenfields agreement - the organisation or organisations of
employees with which the employer made the agreement (paragraph
100D(c)).
976. A workplace agreement would not be able to bind anyone unless it is
in operation. However, persons may still have obligations in
relation to a workplace agreement before it comes into operation,
for example, an employer's obligation to lodge a workplace agreement
within 14 days of it being approved (see proposed subsection 99(1)).
977. Paragraph 100D(b) includes the phrase 'at any time the agreement is
in operation' as that phrase is intended to clarify that the
employment of an employee who joins a business during the life of a
collective agreement would be subject to that agreement, even though
the employee was not involved in making or approving the agreement.
978. The note under paragraph 100D(b) would clarify that a person may
also be bound by a workplace agreement by operation of Part VIAA -
Transmission of business.
New Division 7 - Content of workplace agreements
New Subdivision A - Required content
979. The note under the heading to proposed Subdivision A would refer to
proposed Part VA - Fair Pay and Conditions Standard, which sets out
the operation of the FPCS.
New section 101 - Nominal expiry date
980. Proposed section 101 would set out when a workplace agreement is
taken to have passed the nominal expiry date.
981. Paragraph 101(1)(a) would provide that the nominal expiry date of a
greenfields agreement is a date specified in the agreement that is
no later than the first anniversary of the lodgment date of the
agreement. If an agreement does not specify a nominal expiry date
or specifies a nominal expiry date that is later than the first
anniversary of the agreement being lodged, the nominal expiry date
would be deemed to be the first anniversary of the lodgment date of
the agreement.
982. Paragraph 101(1)(b) would provide that the nominal expiry date for
other workplace agreements is a date specified in the agreement that
is no later than the fifth anniversary of the lodgment date of the
agreement. If an agreement does not specify a nominal expiry date
or specifies a nominal expiry date that is later than the fifth
anniversary of the agreement being lodged, the nominal expiry date
would be deemed to be the fifth anniversary of the lodgment date of
the agreement.
983. Under paragraph 101(2)(a) if parties vary the nominal expiry date of
a greenfields agreement and the agreement as varied does not specify
a nominal expiry date or specifies a nominal expiry date that is
later than the first anniversary of the lodgment date of the
agreement, the nominal expiry date would be deemed to be the first
anniversary of the lodgment date of the agreement.
984. Paragraph 101(2)(b) would provide for parties to vary the nominal
expiry date of other workplace agreements. If an agreement as
varied does not specify a nominal expiry date or specifies a nominal
expiry date that is later than the fifth anniversary of the lodgment
date of the agreement, the nominal expiry date would be deemed to be
the fifth anniversary of the lodgment date of the agreement.
985. These measures would allow greenfields agreements to have a nominal
life of one year while all other workplace agreements could have a
nominal life of up to five years. After the nominal expiry date of
a workplace agreement:
. parties could take protected action in support of a new agreement
(proposed section 110);
. a collective agreement could be replaced by another collective
agreement (proposed section 100);
. another collective agreement could come into operation in relation
to an employee (proposed section 100A).
986. It is not intended that proposed section 101 would prevent the Court
using its powers under proposed section 105G to vary a workplace
agreement.
New section 101A - Workplace agreement to include dispute settlement
procedures
987. Proposed section 101A would provide for workplace agreements to
include dispute settlement procedures.
988. Subsection 101A(1) would require a workplace agreement to include
procedures for settling disputes about matters arising under the
agreement between:
. the employer (paragraph 101A(1)(a)); and
. the employees whose employment will be subject to the agreement
(paragraph 101A(1)(b)).
989. Subsection 101A(2) would provide that if a workplace agreement does
not include dispute settlement procedures it will be deemed to
include the model dispute settlement procedures in Division 2 of
Part VIIA of the Bill. This means that parties to workplace
agreements would have the option of developing their own dispute
settlement procedures or relying on the dispute settlement procedure
provided in the Bill. Where an agreement is silent in relation to
dispute settlement procedures, the dispute settlement procedure in
the Bill would be 'read into' the agreement by operation of law.
New section 101B - Protected award conditions
990. Proposed section 101B would provide a mechanism to deem certain
award conditions to be included in a workplace agreement.
991. Subsection 101B(1) would provide that this section applies if:
. a person's employment is subject to a workplace agreement
(paragraph 101B(1)(a)); and
. but for the agreement, the protected award conditions would have
effect in relation to the person's employment (paragraph
101B(1)(b)).
992. Subsection 101B(2) would provide that the protected award
conditions:
. are taken to be included in the workplace agreement (paragraph
101B(2)(a));
. have effect in relation to the person's employment (paragraph
101B(2)(b)); and
. have that effect subject to any terms of the workplace agreement
that expressly exclude or modify all or part of them (paragraph
101B(2)(c)).
993. Subsection 101B(3) would define terms relating to protected award
conditions for the purposes of section 101B.
994. Subsection 101B(3) would define outworker to mean an employee who
performs work at private residential premises or premises that are
not the employer's business or commercial premises.
995. Subsection 101B(3) would define outworker conditions to mean
conditions for outworkers, other than pay, but only to the extent
necessary to ensure that their overall conditions of employment are
fair and reasonable in comparison with the conditions of employment
specified in a relevant awards or awards for employees who perform
the same kind of work at an employer's business or commercial
premises.
996. Subsection 101B(3) would define protected allowable award matters to
mean:
. rest breaks (paragraph 101B(3)(a));
. incentive-based payments and bonuses (paragraph 101B(3)(b));
. annual leave loadings (paragraph 101B(3)(c));
. public holidays declared by or under State or Territory law and
related entitlements for working on those days (paragraph
101B(3)(d));
. certain allowances relating to employees' out of pocket expenses,
skills not taken into account in pay rates and disabilities
associated with the performance of work in particular conditions
or locations (paragraph 101B(3)(e));
. loadings for overtime or shift work (paragraph 101B(3)(f));
. penalty rates (paragraph 101B(3)(g)); and
. any other matter prescribed in the regulations.
997. Subsection 101B(3) would define protected award conditions to mean
the terms of an award, as in force from time to time to the extent
that those terms:
. deal with protected allowable award matters (paragraph
101B(3)(a)); and
. do not deal with matters which are not allowable award matters
(see proposed section 116B) or matters specified in the
regulations (paragraph 101B(3)(b)).
998. The note under subsection 101B(3) would refer to certain allowable
award matters which are referred to in proposed section 116.
999. It is intended that proposed section 101B would have the effect of
protected award conditions being 'read into' a workplace agreement
unless the agreement expressly modifies or excludes them.
Illustrative Example
Matt is employed by Frances Furnishings Pty Ltd as a curtain cutter.
Frances Furnishings Pty Ltd operates in NSW. It is a respondent to the
federal Home Furnishings and Interior Decorators Award (the award). The
award provides for, among other things, entitlements to public holidays in
accordance with NSW legislation and penalty rates for work undertaken on
public holidays. On 1 July 2006, Frances Furnishings makes a collective
agreement with its employees. When the agreement comes into operation,
Matt and other employees to whom the award would apply will receive
entitlements to public holidays and penalty rates in accordance with the
award unless the agreement expressly removes those entitlements or changes
them and the majority of employees approve the agreement.
Five years later, Frances Furnishings Pty Ltd makes a second collective
agreement with its employees. It turns out that the first collective
agreement expressly excluded the award. Even so, public holidays and
penalty rates in accordance with the award would be included in the
agreement unless the second agreement expressly removes or changes those
entitlements and the majority of employees approve the agreement.
New section 101C - Calling up content of other documents
1000. Proposed section 101C would set out the circumstances in which a
workplace agreement could 'call up' the terms of an award or
workplace agreement.
1001. Subsections 101C(1) and (2) would provide that a workplace agreement
may incorporate by reference terms from an award or workplace
agreement if all the requirements in subsection 101C(3) are
satisfied.
1002. The note under subsection 101C(2) would refer the reader to clause 9
of Schedule 14, which would set out the means by which a pre-reform
certified agreement may be 'called up' into a workplace agreement.
1003. Subsection 101C(3) would allow an award to be 'called up' where the
award is binding on the employer just before the agreement is made,
the award regulates any term or condition of employment of persons
engaged in a particular kind of work and that work will be subject
to the agreement when the agreement comes into operation.
1004. If the industrial instrument is a workplace agreement, it would have
to regulate the employment of at least one person whose employment
will be subject to the agreement just before the agreement is made
(paragraph 101C(3)(b)).
1005. Subsection 101C(4) would provide that where an award or agreement is
incorporated by reference, it must be clear in the agreement about
whether the industrial instrument is to apply as it was at the time
it was incorporated or as varied from time to time. This measure is
intended to facilitate the enforcement of agreements by making clear
to the parties what terms and conditions apply to employees.
1006. Subsection 101C(5) would provide that a term of a workplace
agreement is void to the extent that it incorporates by reference
terms from an industrial instrument mentioned in subsection 101C(2)
if the requirements of subsection 101C(3) are not satisfied. This
means that such terms would not be enforceable.
1007. Subsection 101C(6) would provide that a term of a workplace
agreement is void to the extent that it incorporates by reference
terms from:
. an award or agreement regulating terms and conditions that is in
force under a law of a State (other than a common law contract of
employment) (paragraph 101C(6)(a));
. an agreement, arrangement, deed or memorandum of understanding
that regulates terms or conditions of employment and was created
by a process of collective negotiation eg a so called
'unregistered agreement' such as the Victorian Building Industry
Agreement (paragraph 101C(6)(a)); or
. an industrial instrument specified in the regulations.
1008. Subsection 101C(7) would provide that a term of a workplace
agreement is void to the extent that it applies or adopts terms from
an instrument mentioned in subsection 101C(2) or (6), without
incorporating those terms by reference in accordance with proposed
section 101C. It is intended that workplace agreements will be able
to incorporate terms by reference and not 'call up' terms by other
means.
1009. It is intended that proposed section 101C would encourage parties to
make comprehensive agreements. Specifically, it is intended that
parties would only be able to 'call up' industrial instruments by
incorporating them into the agreement by reference as opposed to,
for example, providing that the agreement is to be 'read in
conjunction' with another industrial instrument. It is intended
that parties would only be able to incorporate terms by reference
from a federal award or workplace agreement that applied to the
employer and employees immediately before the agreement is made. It
is not intended that parties be able to 'call up' awards or
agreements that were in operation at a much earlier date, eg a 2006
agreement attempting to 'call up' an award made in 1988. It is
intended that all other forms of 'calling up' industrial instruments
would be void. However, proposed section 101C is not intended to
limit the ability of parties to 'call up' workplace policies such as
an annual leave policy.
New Subdivision B - Prohibited content
New section 101D - Prohibited content
1010. Proposed section 101D would provide that the regulations may specify
matters that are prohibited content for the purposes of the WR Act.
1011. It is intended that the regulations would provide a non-exhaustive
list of matters which are prohibited from being included in a
workplace agreement. The list would include matters such as:
. matters that do not pertain to the employment relationship; and
. terms which are objectionable because they allow or require a
breach of the proposed freedom of association provisions.
New section 101E - Employer must not lodge agreement containing
prohibited content
1012. Proposed section 101E would provide that an employer contravenes a
civil penalty provisions if they lodge a workplace agreement
containing prohibited content.
1013. Subsection 101E(1) would provide that an employer contravenes
subsection 101E(1) if:
. it lodges a workplace agreement or a variation to a workplace
agreement (paragraph 101E(1)(a));
. the agreement or agreement as varied contains prohibited content
(paragraph 101E(1)(b)); and
. the employer was reckless as to whether the agreement or agreement
as varied contains prohibited content (paragraph 101E(1)(c)).
1014. Subsection 101E(2) would provide that subsection 101E(1) would not
apply if:
. before the agreement or variation was lodged, the Employment
Advocate advised the employer that the agreement (or variation)
did not include prohibited content (paragraph 101E(2)(a)); and
. the advice was in the form specified by the regulations (paragraph
101E(2)(b)).
1015. Subsection 101E(3) would provide that subsection 101E(1) is a civil
remedy provision under Division 11 of Part VB. This means that the
Court may order a pecuniary penalty of up to 60 penalty units for a
contravention of subsection 101E(1) (see proposed section 105D).
1016. This section is intended to act as a deterrent against employers
including prohibited content in workplace agreements. However, to
assist employers to determine what is or is not prohibited content,
the Employment Advocate will be able to provide advice as to the
character of a particular term or terms. If the Employment Advocate
advises that a term is not prohibited content, this would form a
defence to an action for a contravention of the civil remedy
provision.
New section 101F - Prohibited content in workplace agreement is void
1017. Proposed section 101F would provide that a term of a workplace
agreement is void to the extent that it contains prohibited content.
1018. The notes under 101F would refer to:
. proposed section 101K (which deals with the Employment Advocate's
power to remove prohibited content); and
. proposed section 101E, 101M and 101N (which are civil remedy
provisions relating to prohibited content.
1019. This means that if a workplace agreement contains prohibited
content, the agreement would continue to operate although, by
operation of law, a term containing prohibited content would be
unenforceable.
New section 101G - Initiating consideration of removal of prohibited
content
1020. Proposed section 101G would provide the first steps in the process
of the Employment Advocate removing prohibited content from a
workplace agreement.
1021. Subsection 101G(1) would provide that the Employment Advocate may
exercise his or her power to remove prohibited content from a
workplace agreement either on his or her own initiative (paragraph
101G(1)(a)) or on application by any person (paragraph 101G(1)(b)).
1022. Subsection 101G(2) would provide that the requirements in proposed
sections 101H, 101I and 101K are an exhaustive statement of the
requirements of the natural justice hearing rule in relation to the
Employment Advocate's decision in relation to deciding whether an
agreement contains prohibited content.
1023. It is intended that, similar to section 422B of the Migration Act
1958, subsection 101G(2) would exclude any rights to procedural
fairness that parties might otherwise have, except any prohibition
against bias by the Employment Advocate in making a decision under
proposed sections 101H, 101I and 101K.
New section 101H - Employment Advocate must give notice that he or
she is considering variation
1024. Proposed section 101H would provide notice requirements in relation
to the removal of prohibited content.
1025. Subsection 101H(1) would require the Employment Advocate to give to
the persons mention in subsection 101H(2) a notice meeting the
requirements of subsection 101I(1) stating that he or she is
considering varying an agreement to remove prohibited content.
1026. Subsection 101H(2) would list the persons as:
. the employer in relation to the workplace agreement (paragraph
101H(2)(a));
. if the agreement is an AWA - the employee (paragraph 101H(2)(b));
and
. if the agreement is a union collective agreement or a union
greenfields agreement - the organisation or organisations bound by
the agreement (paragraph 101H(2)(c)).
1027. This would be the initial step in allowing parties to the agreement
to participate in the process of considering whether the content is
prohibited.
New section 101I - Matters to be contained in notice
1028. Proposed section 101I would provide for the content of the notice
that the Employment Advocate must provide.
1029. Subsection 101I(1) would require that the notice:
. is dated (paragraph 101I(1)(a));
. states that the Employment Advocate is considering making the
variation (paragraph 101I(1)(b));
. state the reasons why the Employment Advocate is considering
making the variation (paragraph 101I(1)(c));
. set out the terms of the variation (paragraph 101I(1)(d));
. invite the persons mentioned in subsection 101I(2) to make a
written submission about whether the Employment Advocate should
make the variation (paragraph 101I(1)(e)); and
. states that any submission must be made within the objection
period (ie 28 days after the date of the notice (paragraph
101I(1)(f))).
1030. Subsection 101I(2) would list the persons as:
. the employer in relation to the workplace agreement (paragraph
101I(2)(a));
. if the agreement is an AWA - the employee (paragraph 101I(2)(b));
and
. if the agreement is a union collective agreement or a union
greenfields agreement - the organisation or organisations bound by
the agreement (paragraph 101I(2)(c)).
New section 101J - Employer must ensure employees have ready access
to notice
1031. Proposed section 101J would require the employer to pass on the
notice relating to a possible variation to remove prohibited content
to employees.
1032. Subsection 101J(1) would require an employer in relation to a
collective agreement to take reasonable steps to ensure that the
notice is given to persons whose employment is subject to the
agreement, at a time during the objection period.
1033. Subsection 101J(2) would provide that subsection 101J(1) is a civil
remedy provision.
1034. The note under subsection 101J(2) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 30 penalty units against an employer for failing to take
reasonable steps to give employees ready access to a notice.
1035. The reference to 'persons' in subsection 101J(1) is intended to
ensure that an employer would not contravene subsection 101J(2) more
than once in relation to a particular workplace agreement. This
means that, for example, where an employer has ten employees and
fails to give the employees ready access to the notice, that is only
one contravention of subsection 101J(2), rather than ten.
1036. Subsection 101J(1) would not apply to AWAs as the Employment
Advocate would provide the notice directly to the employee.
New section 101K - Employment Advocate must remove prohibited
content from agreement
1037. Proposed section 101K would require the Employment Advocate to
remove content from a workplace agreement where he or she finds that
content to be prohibited content.
1038. Subsection 101K(1) would provide that if the Employment Advocate is
satisfied that a term of the workplace agreement contains prohibited
content, the Employment Advocate must vary the agreement to remove
the content.
1039. Subsection 101K(2) would require the Employment Advocate to consider
any submission from any of the persons mentioned in subsection
101I(2) in determining whether to vary the agreement.
1040. Subsection 101K(3) would prohibit the Employment Advocate from
removing the prohibited content until the end of the objection
period.
1041. Subsection 101K(4) would require that, if the Employment Advocate
decides to vary an agreement to remove prohibited content, he or she
must:
. give notice to the persons mentioned in 101H(2) (paragraph
101K(4)(a)); and
. if the agreement is a collective agreement - publish a notice in
the Gazette stating that the variation has been made and setting
out the particulars of the variation (paragraph 101K(4)(b)).
1042. Although it is discretionary for the Employment Advocate to act on
its own motion to investigate whether a workplace agreement contains
prohibited content, once the Employment Advocate has formed the view
that an agreement does so, he or she must remove that content.
New section 101L - Employer must give employees notice of removal of
prohibited content
1043. Proposed section 101L would require the employer to pass on the
notice of removal of prohibited content from the Employment Advocate
to employees.
1044. Subsection 101L(1) would require an employer in relation to a
collective agreement to take reasonable steps to ensure that, within
21 days of receiving the notice from the Employment Advocate, the
notice is given to persons whose employment is subject to the
agreement at the time the employer receives the receipt.
1045. Subsection 101L(2) would provide that subsection 101L(1) is a civil
remedy provision
1046. The note under subsection 101L(2) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 30 penalty units for failing to take reasonable steps to
give employees a notice relating to removal of prohibited content.
1047. The reference to 'persons' is intended to ensure that an employer
would not contravene subsections 101L(2) more than once in relation
to a particular workplace agreement. This means that, for example,
where an employer has ten employees and fails to give the employees
ready access to the notice, that is only one contravention of
subsection 101L(2), rather than ten.
1048. Subsection 101L(2) does not apply to AWAs as the Employment Advocate
would provide a notice directly to the employee under paragraph
101K(4)(a) and subsection 101H(2).
New section 101M - Seeking to include prohibited content in an
agreement
1049. Subsection 101M(1) would provide that a person contravenes
subsection 101M(1) if:
. in the course of negotiations, the person seeks to include a term
in a workplace agreement or variation to a workplace agreement
(paragraph 101M(1)(a));
. that term includes prohibited content (paragraph 101M(1)(b)); and
. the person is reckless as to whether the term includes prohibited
content (paragraph 101M(1)(c)).
1050. Subsection 101M(2) would provide that subsection 101M(1) is a civil
remedy provision
1051. The note under subsection 101M(2) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 60 penalty units for seeking to include prohibited content
in a workplace agreement or variation to a workplace agreement.
New Section 101N - Misrepresentations about prohibited content
1052. Proposed section 101N would provide penalties for misrepresentations
in relation to prohibited content.
1053. Subsection 101N(1) would provide that a person contravenes
subsection 101N(1) if:
. the person makes a representation in relation to a workplace
agreement or variation that a particular term does not contain
prohibited content (paragraph 101N(1)(a)); and
. the person is reckless as to whether the term includes prohibited
content (paragraph 101N(1)(b)).
1054. Subsection 101N(2) would provide that subsection 101N(1) is a civil
remedy provision.
1055. The note under subsection 101N(2) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 60 penalty units for making misrepresentations about
prohibited content.
New Division 8 - Varying a workplace agreement
New Subdivision A - General
New section 102 - Varying a workplace agreement
1056. Proposed section 102 would provide for who may vary a workplace
agreement.
1057. Subsection 102(1) would provide that the following persons may make
a variation, in writing, to a workplace agreement that is in
operation:
. in the case of an AWA - the employer and employee (paragraph
102(1)(a));
. in the case of an employee collective agreement or employer
greenfields agreement - the employer and the persons employed at
the time whose employment will be subject to the agreement as
varied (paragraph 102(1)(b)); and
. in the case of a union collective agreement or a union greenfields
agreement - the employer and the one or more organisations of
employees that are bound by the agreement (paragraph 102(1)(c)).
1058. The example would provide that an agreement may be varied to provide
additional pay.
1059. Subsection 102(2) would provide that a workplace agreement cannot be
varied except in accordance with:
. Division 8 of Part VB (paragraph 102(2)(a));
. proposed section 101K (which deals with prohibited content)
(paragraph 102(2)(b));
. proposed subsection 352A (which deals with discriminatory
agreements) (paragraph 102(2)(c)); or
. an order of the Court under proposed section 105G
(paragraph 102(2)(d)).
1060. The note under subsection 102(2) would provide that the subsection
would not apply to an agreement where the obligations under the
agreement can change because of the agreement itself. For example,
where an agreement refers to terms and conditions being governed by
a workplace policy as varied from time to time, subsection 102(2)
would not stop the policy from being varied nor would it require
that the agreement be varied in accordance with Division 8 of Part
VB each time the policy is varied.
New section 102A - When a variation to a workplace agreement is made
1061. Proposed section 102A would provide the time at which a variation to
workplace agreement is made.
1062. Paragraph 102A(a) would provide that a variation to an AWA is made
when it is approved in accordance with proposed section 102F.
1063. Paragraph 102A(b) would provide that a variation to an employee
collective agreement is made when it is approved in accordance with
proposed section 102F.
1064. Paragraph 102A(c) would provide that a variation to a union
collective agreement is made when the employer and the organisation
or organisations agree to the terms of the variation.
1065. Paragraph 102A(d) would provide that a variation to a union
greenfields agreement is made when the employer and the organisation
or organisations agree to the terms of the variation.
1066. Paragraph 102A(e) would provide that a variation to an employer
greenfields agreement is made when it is approved in accordance with
proposed section 102F.
New Subdivision B - Pre lodgment procedure for variations
New section 102B - Eligible employee in relation to variation of
workplace agreement
1067. Proposed section 102B would provide a definition of eligible
employee for the purposes of this Subdivision. The concept of an
eligible employee is a drafting tool to provide a short hand term
for the employees that have rights in relation to making a variation
to a workplace agreement, and reduces the need for repetition.
1068. Proposed section 102B would define an eligible employee to be:
. in the case of an AWA - the employee (paragraph 102B(a)); or
. in the case of a collective agreement - a person employed by the
employer whose employment is subject to the agreement or will be
(paragraph 102B(b)).
1069. It is intended that agreements may be varied to change which
employees the agreement covers. For example, an agreement applying
to a part of a single business may be varied to cover the whole
business and vice versa. However, it is intended that paragraph
102B(b) would operate so that such a variation could only occur with
the approval of both:
. the persons whose employment is currently subject to the
agreement; and
. the persons currently employed by the employer whose employment
will be subject to the agreement as varied.
New section 102C - Providing employees with ready access and
information statement
1070. Proposed section 102C would provide a period of time in which
employees may consider a variation to a workplace agreement and
obtain advice about that variation prior to approving it.
1071. Subsection 102C(1) would require the employer to take reasonable
steps to ensure that all eligible employees have ready access to the
variation in writing for at least seven days prior to the variation
being approved.
1072. Subsection 102C(2) would require the employer to take reasonable
steps to ensure that all eligible employees are given an information
statement at least seven days prior to the variation being approved.
1073. Subsection 102C(3) would provide that if a person becomes an
eligible employee during the seven day period before the variation
is approved, the employer must take reasonable steps to ensure that
the person is given an information statement (paragraph 102C(3)(a))
and ready access to the variation (paragraph 102C(3)(b)) from no
later than the time the person becomes an eligible employee.
1074. Subsection 102C(4) would provide that the information statement
mentioned in subsection 102C(2) and paragraph 102C(3)(a) must
contain information about:
. when and how the employer will seek approval of the variation
(paragraph 102C(4)(a));
. the effect of the provisions relating to bargaining agents
(paragraphs 102C(4)(b) and (c)); and
. anything else that the Employment Advocate requires by notice
published in the Gazette (paragraph 102C(4)(d)).
1075. It is intended that the Employment Advocate would produce a standard
form information statement for the employer to provide to employees,
which would be published in the Gazette and available from the
Employment Advocate. The employer would then fill in any necessary
details, for example, when and how the employer would seek approval
for the variation.
1076. Subsection 102C(5) would provide that if the eligible employees have
waived the remainder of the seven day period, the employer no longer
has to provide ready access to the variation.
1077. Subsection 102C(6) would provide that if a because of the variation
a workplace agreement as varied would incorporate by reference terms
from an industrial instrument mentioned in subsection 101C(2), the
eligible employees only have ready access to the variation if they
have ready access to the other industrial instrument in writing.
The requirements for incorporating industrial instruments by
reference can be found in proposed section 101C.
1078. Subsection 102C(7) would provide that if the content of the
variation is changed during the seven day period prior to approval,
the change results in a separate variation.
1079. The note under subsection 102C(7) makes clear that if the content of
a variation is amended during the seven day period, the employer
must restart the period and repeat the steps in subsections 102C(1),
102C(2) and 102C(3).
1080. Subsection 102C(8) would provide that an employer contravenes
subsection 102C(8) if it lodges a variation to a workplace agreement
without having provided ready access to the variation in accordance
with subsection 102C(1) and paragraph 102C(3)(b).
1081. Subsection 102C(9) would provide that an employer contravenes
subsection 102C(9) if it lodges a variation to a workplace agreement
without providing eligible employees with an information statement
in accordance with subsection 102C(2) and paragraph 102C(3)(a).
1082. Subsection 102C(10) would provide that subsections 102C(8) and (9)
are civil remedy provisions.
1083. The note under subsection 102C(10) would refer to Division 11 of
Part VB. Under these provisions the Court may order a pecuniary
penalty of up to 30 penalty units for a failure to take reasonable
steps to provide ready access to a variation to an agreement or an
information statement in relation to a variation.
1084. Subsection 102C(11) would provide that an employer would not
contravene subsections 102C(8) or (9) more than once in relation to
a particular variation. This means that, for example, where an
employer has ten employees and fails to give the employees ready
access to the variation, that is only one contravention of
subsection 102C(8), rather than ten.
New section 102D - Employees may waive ready access
1085. Proposed section 102D would provide for employees to waive the
remainder of the ready access period. It is intended that this
would allow an employer and its employees to approve a variation to
a workplace agreement more quickly, where the employees decide that
they have had sufficient time to consider the variation and are
happy to bring forward the approval. This would address the problem
that the pre-reform agreement making process required parties to
wait 14 days to approve a variation, even where the employees had
made up their minds and were happy to approve the variation
instantly.
1086. Subsection 102D(1) would provide that the persons mentioned in
subsection 102D(2) may make a waiver in relation to a variation to a
workplace agreement.
1087. Subsection 102D(2) would provide that the persons are all the
eligible employees at the time the waiver is made.
1088. Subsection 102D(3) would require the waiver to be in writing and
dated.
1089. Subsection 102D(4) would provide that the waiver is made when all of
the eligible employees sign the waiver.
1090. Subsection 102D(5) would provide that the waiver takes effect when
it is made.
New section 102E - Prohibition on withdrawal from variation to union
collective agreement
1091. Proposed section 102E would prohibit an employer from withdrawing
from a variation to a union collective agreement.
1092. Subsection 102E(1) would require an employer to take reasonable
steps to seek approval of a variation to a union collective
agreement or union greenfields agreement within a reasonable period
after the variation is made.
1093. Subsection 102E(2) would provide that subsection 102E(1) is a civil
remedy provision.
1094. The note under subsection 102E(2) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 30 penalty units for withdrawing from a variation to a
union collective agreement or union greenfields agreement.
1095. This measure would ensure that when an employer and one or more
organisations of employees have come to an agreement about a
variation, that variation would put to the employees for approval.
1096. The employer would be given a reasonable period in which to put the
variation to the employees. This acknowledges that what is a
reasonable period will vary depending on the circumstances of the
employer. For example, a reasonable period might be longer for a
large business with 10 000 employees and offices located around
Australia, but may be shorter for a business with 15 employees that
are all located in one office.
1097. Proposed section 102E only applies to union collective agreements as
there would be no need to apply the provision to other types of
workplace agreement. There are no corresponding prohibitions on an
organisation of employees withdrawing from a variation to a union
collective agreement or union greenfields agreement as, if that
occurred, the employer would still be able to lodge the variation
with the Employment Advocate and bring it into operation (see
proposed section 102M).
New section 102F - Approval of a variation to a workplace agreement
1098. Proposed section 102F would set out the manner in which variations
to workplace agreements are to be approved by employees before they
are lodged.
1099. Subsection 102F(1) would provide that a variation to an AWA is
approved if:
. the variation is signed and dated by the employee and the employer
(paragraph 102F(1)(a)); and
. those signatures are witnessed (paragraph 102F(1)(b)).
1100. Paragraph 102F(1)(c) would provide additional requirements for the
approval of a variation to an AWA, where the employee is under the
age of 18. These are:
. that the variation is signed and dated by an appropriate adult
(such as the employee's parent or guardian, but not the employer)
who is aged at least 18 (subparagraphs 102F(1)(c)(i) and (ii));
and
. that the person's signature is witnessed (subparagraph
102F(1)(c)(iii)).
1101. This additional requirement of having a variation to an AWA signed
by an appropriate adult is intended to provide further protection to
employees who may be vulnerable because of their age. The term
'appropriate adult' is intended to be broad enough to allow a person
who is under 18 but does not have a parent or guardian available to
seek the signature from another adult who has an interest in the
young person's well being, for example, another member of the
person's family.
1102. Subsection 102F(2) would provide for how a variation to a collective
agreement is to be approved. Paragraph 102F(2)(a) would require the
employer to give all of the persons employed at the time of
approving the variation whose employment is or will be subject to
the agreement a reasonable opportunity to decide whether they want
to approve the variation.
1103. Paragraph 102F(2)(b) would additionally require that:
. if the decision is made by vote - a majority of those persons who
cast a valid vote decide that they want to approve the variation;
or
. otherwise - a majority of those persons decide that they want to
approve the variation.
1104. This means that once the employer has provided employees with a
reasonable opportunity to decide whether they want to approve a
variation to a collective agreement, determining whether a variation
to an agreement has been approved would involve counting the votes
of the employees and not an assessment of the genuineness of
employees' consent.
New section 102G - Employer must not lodge unapproved variation
1105. Proposed section 102G would provide remedies against an employer
that lodges a variation to a workplace agreement which has not been
approved in accordance with proposed section 102F.
1106. Subsection 102G(1) would provide that an employer contravenes the
subsection if:
. it lodges a variation to a workplace agreement (paragraph
102G(1)(a)); and
. the variation has not been approved in accordance with proposed
section 102F (paragraph 102G(1)(b)).
1107. Subsection 102G(2) would provide that subsection 102G(1) is a civil
remedy provision.
1108. The note under subsection 102G(2) would refer to Division 11 of Part
VB. Under these provisions the Court may:
. order a pecuniary penalty of up to 60 penalty units for a
contravention of subsection 98D(1) (see proposed section 105D);
. declare that all or part of the agreement is void (see proposed
section 105F);
. vary the terms of the agreement, including its nominal expiry date
(see proposed section 105G);
. order compensation (see proposed section 105J); and/or
. grant injunctions (see proposed section 105K)
for lodging a variation to a workplace agreement that has not been
approved.
New Subdivision C - Lodgment of variations
New section 102H - Employer must lodge variations with the
Employment Advocate
1109. Proposed section 102H would require employers to lodge variations to
workplace agreements with the Employment Advocate.
1110. Subsection 102H(1) would require an employer to lodge a variation
within 14 days of the variation being approved under proposed
section 102F.
1111. Subsection 102H(2) would provide that subsection 102H(1) is a civil
remedy provision.
1112. The note under subsection 102H(2) would refer to Division 11 of Part
VB.
1113. This means that the Court may order a pecuniary penalty of up to 30
penalty units for a failure to lodge a variation to a workplace
agreement within fourteen days of it being approved
1114. It is intended that the time frame and penalties in proposed section
102H would encourage employers to lodge variations to workplace
agreements once they are approved, in a timely manner.
1115. Only employers would be able to lodge variations to agreements with
the Employment Advocate. This would be consistent with an agreement
making system where integrity of the system is ensured through a
penalty regime. It would be difficult to effectively attribute
responsibility for a breach of the lodgment requirements if more
than one party to the agreement were responsible for lodgment.
However, the Court would have discretion not to order a penalty
against an employer who was pressured into lodging an agreement
inappropriately. Where such pressure occurred, an employer would be
able to seek an injunction under proposed section 105KV for
prohibited conduct.
New section 102I - Lodging variation to multiple-business agreement
without authorisation
1116. Proposed section 102I would prohibit an employer from lodging a
variation to multiple-business agreement that has not been
authorised by the Employment Advocate under proposed section 96F.
1117. Subsection 102I(1) would provide that an employer contravenes
subsection 102I(1) if:
. the employer lodges a variation to a multiple-business agreement;
and
. the variation has not been authorised under 96F.
1118. Subsection 102I(2) would provide that subsection 102I(1) is a civil
remedy provision.
1119. The note under subsection 102I(2) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 60 penalty units against an employer for lodging a
variation to a multiple-business agreement without authorisation.
1120. Only one of the multiple employers bound by the agreement would be
required to lodge a variation to the agreement. It would be that
employer who would be liable for a failure to obtain an
authorisation. However, the Court would have discretion not to
order a penalty against an employer who was pressured into lodging a
variation to an agreement inappropriately. Where such pressure
occurred, an employer would be able to seek an injunction under
proposed section 105K to restrain prohibited conduct.
1121. Where a variation to a multiple-business agreement is lodged without
authorisation, subsection 102M(3) would operate and the variation
would not be able to come into operation.
New section 102J - Lodging of variation documents with the
Employment Advocate
1122. Proposed section 102J would provide the method by which an employer
would lodge a variation to a workplace agreement, thus bringing it
into operation (see subsection 102M(1)).
1123. Subsection 102J(1) would provide that the employer lodges a
variation to a workplace agreement if:
. the employer lodges a declaration under subsection 102J(2)
(paragraph 102J(1)(a)); and
. a copy of the variation is annexed to the declaration (paragraph
102J(1)(b)).
1124. Subsection 102J(2) would provide that an employer lodges a
declaration if the employer gives the declaration to the Employment
Advocate and the declaration meets the requirements of subsection
102J(3).
1125. The note under subsection 102J(2) makes clear that providing false
or misleading information or documents under subsection 102J(2)
would be a criminal offence under sections 137.1 and 137.2 of the
Criminal Code.
1126. Subsection 102J(3) allows the Employment Advocate to set out
requirements for the form of the declaration, by notice published in
the Gazette. It is intended that the Employment Advocate would
exercise its power under subsection 102J(3) to create a standard
form declaration. An employer would then fill in any necessary
details, for example, the name of the agreement, and lodge that
standard form declaration along with a copy of the variation with
the Employment Advocate (subsections 102J(1) and (2)). It is also
intended that the standard form declaration would require an
employer to declare that the agreement was made and/or approved in
accordance with the requirements of Divisions 3 and 4 of Part VB.
1127. An employer would only need to lodge a copy of the variation as it
is intended that the regulations would require the employer to
retain a signed original of the variation for a specified period.
It is intended that a variation could be lodged electronically, by
fax, by hand or by post. However, it is likely that the vast
majority of lodgments would be electronic. Requiring the employer
to only lodge a copy of the variation would facilitate the
implementation of electronic lodgment for variations.
1128. Subsection 102J(4) would provide that a declaration is only taken to
be given to the Employment Advocate if the Employment Advocate
actually receives it. This means that if an employer lodges a
variation by post, the variation would only be taken to be lodged
when the Employment Advocate receives the declaration.
1129. The note under subsection 102J(4) would make clear that section 29
of the Acts Interpretation Act 1901 or section 160 of the Evidence
Act 1995 do not apply to variations. These provisions might
otherwise create a presumption that the 'postal-acceptance rule'
applies to variations.
1130. Subsection 102J(5) would provide that the Employment Advocate is not
required to consider or determine whether any of the requirements of
Part VB - Workplace agreements have been met in relation to the
making or content of a declaration or variation. This is intended
to make it clear that lodgment of a declaration and a variation
would occur without any scrutiny by the Employment Advocate.
New section 102K - Employment Advocate must issue receipt for
lodgment of declaration for variation
1131. Proposed section 102K would provide for the Employment Advocate to
issue a receipt for the lodgment of a variation to a workplace
agreement.
1132. Subsection 102K(1) would require the Employment Advocate to issue a
receipt if a declaration is lodged under subsection 102J(2).
1133. Subsection 102K(2) would require the Employment Advocate to give a
copy of the receipt to:
. the employer (paragraph 102K(2)(a));
. if the agreement is an AWA - the employee (paragraph 102K(2)(b));
and
. if the agreement is a union collective agreement or a union
greenfields agreement - the organisation or organisations bound by
the agreement (paragraph 102K(2)(c)).
1134. This mechanism is necessary in the context of a system where
variations come into operation on lodgment (see subsection 102M(1)),
as the parties need to know when they start being subject to the
variation.
1135. It is intended that where a variation is lodged electronically, the
information provided in the electronic declaration would be
sufficient for the Employment Advocate's systems to instantly issue
an electronic receipt without needing to scrutinise the agreement.
Where a variation is lodged by other means, the information provided
in the declaration would be sufficient for the Employment Advocate
to issue a receipt after examining the declaration to the extent
necessary to determine where to send the receipt. After receiving a
receipt, the employer would be required to pass on the receipt to
the employees (see proposed section 102L).
New section 102L - Employer must notify employees after lodging
variation
1136. Proposed section 102L would require the employer to take reasonable
steps to pass on copies of the lodgment receipt from the Employment
Advocate to employees.
1137. Subsection 102L(1) would require an employer in relation to a
collective agreement to take reasonable steps to ensure that the
lodgment receipt is given to persons whose employment is, at the
time the employer receives the receipt, subject to the agreement,
within 21 days of the employer receiving the receipt from the
Employment Advocate. The reference to 'persons' is intended to
ensure that an employer would not contravene subsection 102L(1) more
than once in relation to a particular variation. This means that,
for example, where an employer has ten employees and fails to give
all employees a copy of the lodgment receipt, that is only one
contravention of subsection 102L(1), rather than ten.
1138. Subsection 102L(1) does not apply to AWAs as the Employment Advocate
would provide a lodgment receipt directly to the employee.
1139. Subsection 102L(2) would provide that subsection 102L(1) is a civil
remedy provision.
1140. The note under subsection 102L(2) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 30 penalty units against an employer for failing to pass on
a lodgment receipt to employees.
New Subdivision E - When a variation comes into operation
New section 102M - When a variation comes into operation
1141. Proposed section 102M would provide for when a variation to a
workplace agreement comes into operation.
1142. Subsection 102M(1) would provide that a variation to a workplace
agreement comes into operation when the variation is lodged with the
Employment Advocate in accordance with section 102J.
1143. Subsection 102M(2) would provide that the variation comes into
operation even if the requirements in Division 3 of Part VB and
Subdivision B of Division 8 of Part VB have not been met.
New Division 9 - Terminating a workplace agreement
New Subdivision A - General
New section 103 - Types of termination
1144. Proposed section 103 would set out the ways in which a workplace
agreement may be terminated.
1145. Subsection 103(1) would provide that a workplace agreement may be
terminated:
. by approval (paragraph 103(1)(a)); or
. unilaterally (paragraph 103(1)(b)).
1146. Subsection 103(2) would provide that a workplace agreement is
terminated when:
. a termination is lodged with the Employment Advocate in accordance
with proposed section 103H (paragraph 103(2)(a));
. a declaration to terminate the agreement in accordance with
subsection 103K(2) is lodged with the Employment Advocate in
accordance with proposed section 103N (paragraph 103(2)(b)); or
. a declaration to terminate the agreement in accordance with
subsection 103L(2) is lodged with the Employment Advocate in
accordance with proposed section 103N (paragraph 103(2)(c)).
New Subdivision B - Termination by approval (pre-lodgment procedure)
New section 103A - Terminating a workplace agreement by approval
1147. Proposed section 103A would provide that the following persons may
agree to terminate a workplace agreement:
. in the case of an AWA - the employer and employee (paragraph
103A(a));
. in the case of an employee collective agreement or employer
greenfields agreement - the employer and employees whose
employment is be subject to the agreement (paragraph 103A(b));
. in the case of a union collective agreement or a union greenfields
agreement - the employer and the one or more organisations of
employees that are bound by the agreement (paragraph 103A(c)).
New section 103B - Eligible employee in relation to termination of
workplace agreement
1148. Proposed section 103B would provide a definition of eligible
employee for the purposes of this Subdivision. The concept of an
eligible employee is a drafting tool to provide a short hand term
for the employees that have rights in relation to terminating a
workplace agreement, and reduces the need for repetition.
1149. Proposed section 103B would define an eligible employee to be:
. in the case of an AWA - the employee (paragraph 103B(a)); or
. in the case of a collective agreement - a person employed at the
time of the termination whose employment is subject to the
agreement (paragraph 103B(b)).
New section 103C - Providing employees with information statement
1150. Proposed section 103C would provide a period of time in which
employees may consider a proposal to terminate a workplace agreement
and obtain advice about that termination prior to approving it.
1151. Subsection 103C(1) would require the employer to take reasonable
steps to ensure that all eligible employees are given an information
statement at least seven days prior to the agreement being
terminated.
1152. Subsection 103C(2) would provide that, if a person becomes an
eligible employee during the seven day period before the agreement
is terminated, the employer must take reasonable steps to ensure
that the person is given an information statement from no later than
the time the person becomes an eligible employee.
1153. Subsection 103C(3) would provide that the information statement
mentioned in subsections 103C(1) and (2) must contain information
about:
. when and how the employer will seek approval of the termination
(paragraph 103C(3)(a));
. if the agreement is an AWA - the effect of the provisions relating
to bargaining agents (paragraph 103C(3)(b)); and
. anything else that the Employment Advocate requires by notice
published in the Gazette (paragraph 103C(3)(c)).
1154. It is intended that the Employment Advocate would produce a standard
form information statement for the employer to provide to employees,
which would be published in the Gazette and available from the
Employment Advocate. An employer would then fill in any necessary
details, for example, when and how the employer would seek approval
of the termination.
1155. Subsection 103C(4) would provide that an employer contravenes
subsection 103C(4) if it lodges a declaration to terminate a
workplace agreement without providing eligible employees with an
information statement in accordance with subsections 103C(1) and
(2).
1156. Subsection 103C(5) would provide that subsection 103C(4) is a civil
remedy provision.
1157. The note under subsection 103C(5) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 30 penalty units against an employer for a failure to take
reasonable steps to provide an information statement in relation to
terminating an agreement.
Subsection 103C(6) would provide that an employer would not contravene
subsection 103C(4) more than once in relation to a particular termination.
This means that, for example, where an employer has ten employees and fails
to give the employees an information statement, that is only one
contravention of subsection 103C(4), rather than ten.
New section 103D - Prohibition on withdrawal from variation to union
collective agreement
1158. Proposed section 103D would prohibit withdrawal from a termination
to a union collective agreement or union greenfields agreement.
1159. Subsection 103D(1) would require an employer that has agreed to
terminate a union collective agreement or union greenfields
agreement to take reasonable steps to seek approval for the
termination of the union collective agreement or union greenfields
agreement within a reasonable period after agreeing to terminate the
agreement.
1160. Subsection 103D(2) would provide that subsection 103D(1) is a civil
remedy provision.
1161. The note under subsection 103D(2) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 30 penalty units against an employer for withdrawing from a
termination of a union collective agreement or union greenfields
agreement.
1162. This measure would ensure that when an employer and one or more
organisations of employees have come to an agreement about a
termination, that termination would put to the employees for
approval.
1163. The employer would be given a reasonable period in which to put the
termination to the employees. This acknowledges that what is a
reasonable period will vary depending on the circumstances of the
employer. For example, a reasonable period might be longer for a
large business with 10 000 employees and offices located around
Australia, but may be shorter for a business with 15 employees that
are all located in one office.
1164. Proposed section 103D only applies to union collective agreements
and union greenfields agreements as there would be no need to apply
the provision to other types of workplace agreement. There are no
corresponding prohibitions on an organisation of employees
withdrawing from a variation to a union collective agreement or
union greenfields agreement as, if that occurred, the employer would
still be able to lodge the termination with the Employment Advocate
and bring it into operation (see proposed section 103Q).
New section 103E - Approval of a termination
1165. Proposed section 103E would provide for the manner in which
terminations are to be approved by employees before they are lodged.
1166. Subsection 103E(1) would provide that a termination of an AWA is
approved if:
. the employer and employee make a written termination agreement to
terminate the AWA (paragraph (103E(1)(a));
. the termination agreement is signed and dated by the employee and
the employer (paragraph 103E(1)(b)); and
. those signatures are witnessed (paragraph 103E(1)(c)).
1167. Paragraph 103E(1)(d) would provide additional requirements for the
approval of a termination agreement, where the employee is under the
age of 18. These are:
. that the termination agreement is signed and dated by an
appropriate adult (such as the employee's parent or guardian, but
not the employer) who is aged at least 18 (subparagraphs
103E(1)(d)(i) and (ii)); and
. that the person's signature is witnessed (subparagraph
103E(1)(d)(iii)).
1168. This additional requirement of having a termination agreement signed
by an appropriate adult is intended to provide further protection to
employees who may be vulnerable because of their age. The term
'appropriate adult' is intended to be broad enough to allow a person
who is under 18 but does not have a parent or guardian available to
seek the signature from another adult who has an interest in the
young person's well being, for example, another member of the
person's family.
1169. Subsection 103E(2) would set out how a termination of a collective
agreement is to be approved.
1170. Paragraph 103E(2)(a) would require the employer to give all of the
persons whose employment is be subject to the agreement a reasonable
opportunity to decide whether they want to approve the termination.
1171. Paragraph 103E(2)(b) would additionally require that:
. if the decision is made by vote - a majority of those persons who
cast a valid vote decide that they want to approve the
termination; or
. otherwise - a majority of those persons decide that they want to
approve the termination.
1172. This means that once the employer has provided employees with a
reasonable opportunity to decide whether they want to approve a
termination of a collective agreement, determining whether an
agreement has been approved would involve counting the votes of the
employees and not an assessment of the genuineness of employees'
consent.
New section 103F - Employer must not lodge unapproved termination
1173. Proposed section 103F would provide remedies against an employer
that lodges a termination of a workplace agreement which has not
been approved in accordance with proposed 103E.
1174. Subsection 103F(1) would provide that an employer contravenes the
subsection if:
. it lodges a termination of a workplace agreement (paragraph
103F(1)(a)); and
. the variation has not been approved in accordance with proposed
section 103E (paragraph 103F(1)(b)).
1175. Subsection 103F(2) would provide that subsection 103F(1) is a civil
remedy provision.
1176. The note under subsection 103F(2) would refer to Division 11 of Part
VB. Under these provisions the Court may:
. order a pecuniary penalty of up to 60 penalty units for a
contravention of subsection 98D(1) (see proposed section 105D);
. order that the agreement continues to operate despite the
termination (see proposed section 105H);
. order compensation (see proposed section 105J); and/or
. grant injunctions (see proposed section 105K)
for lodging a termination of a workplace agreement that has not been
approved.
New Subdivision C - Termination by approval (lodgment)
New section 103G - Employer must lodge termination with the
Employment Advocate
1177. Proposed section 103G would require employers to lodge terminations
of workplace agreements with the Employment Advocate.
1178. Subsection 103G(1) would require an employer to lodge a termination
within 14 days of the termination being approved under proposed
section 103E.
1179. Subsection 103G(2) would provide that subsection 103G(1) is a civil
remedy provision.
1180. The note under subsection 103G(2) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 30 penalty units against an employee for a failure to lodge
a termination of a workplace agreement within fourteen days of it
being approved
1181. It is intended that the time frame and penalties in proposed section
103G would encourage employers to lodge terminations of workplace
agreements once they are approved, in a timely manner.
1182. Only employers would be able to lodge terminations of agreements
with the Employment Advocate. This would be consistent with an
agreement making system where integrity of the system is ensured
through a penalty regime. It would be difficult to effectively
attribute responsibility for a breach of the lodgment requirements
if more than one party to the agreement were responsible for
lodgment. However, the Court would have discretion not to order a
penalty against an employer who was pressured into lodging an
agreement inappropriately. Where such pressure occurred, an
employer would be able to seek an injunction under proposed section
105K for prohibited conduct.
New section 103H - Lodging termination documents with the Employment
Advocate
1183. Proposed section 103H would provide the method by which an employer
would lodge a termination of a workplace agreement, thus terminating
the agreement (see paragraph 100(4)(a)).
1184. Subsection 103H(1) would provide that the employer lodges a
termination of a workplace agreement if:
. the employer lodges a declaration under subsection (2) (paragraph
103H(1)(a)); and
. if the agreement is an AWA - a copy of the termination agreement
is annexed to the declaration (paragraph 103H(1)(b)).
1185. Subsection 103H(2) would provide that an employer lodges a
declaration if the employer gives the declaration to the Employment
Advocate and the declaration meets the requirements of subsection
103H(3).
1186. The note under subsection 103H(2) explains that providing false or
misleading information or documents under subsection 103H(2) would
be a criminal offence under sections 137.1 and 137.2 of the Criminal
Code.
1187. Subsection 103H(3) allows the Employment Advocate to set out
requirements for the form of the declaration, by notice published in
the Gazette. It is intended that the Employment Advocate would
exercise its power under subsection 103H(3) to create a standard
form declaration. An employer would then fill in any necessary
details, for example, the name of the agreement, and lodge that
standard form declaration with the Employment Advocate (subsections
103H(1) and (2)). It is also intended that the standard form
declaration would require an employer to declare that the agreement
was terminated in accordance with the requirements of Division 3 of
Part VB and Subdivision B of Division 9 of Part VB.
1188. Subsection 103H(4) would provide that a declaration is only taken to
be given to the Employment Advocate if the Employment Advocate
actually receives it. This means that if an employer lodges a
termination of a workplace agreement by post, the agreement would
only be taken to be lodged when the Employment Advocate receives the
declaration.
1189. The note under subsection 103H(4) makes clear that this means that
section 29 of the Acts Interpretation Act 1901 or section 160 of the
Evidence Act 1995 do not apply to terminations of workplace
agreements. These provisions might otherwise create a presumption
that the 'postal-acceptance rule' applies to terminations of
workplace agreements.
1190. Subsection 103H(5) would provide that the Employment Advocate is not
required to consider or determine whether any of the requirements of
Part VB have been met in relation to the making or content of a
declaration or termination of a workplace agreement. This is
intended to make it clear that lodgment of a declaration and a
termination would occur without any scrutiny by the Employment
Advocate.
New section 103I - Employment Advocate must issue receipt for
lodgment of declaration for termination
1191. Proposed section 103I would provide for the Employment Advocate to
issue a receipt for the lodgment of a termination of a workplace
agreement.
1192. Subsection 103I(1) would require the Employment Advocate to issue a
receipt if a declaration is lodged under subsection 103H(2).
1193. Subsection 103I(2) would require the Employment Advocate to give a
copy of the receipt to:
. the employer (paragraph 103I(2)(a));
. if the agreement is an AWA - the employee (paragraph 103I(2)(b));
and
. if the agreement is a union collective agreement or a union
greenfields agreement - the organisation or organisations bound by
the agreement (paragraph 103I(2)(c)).
1194. This mechanism is necessary in the context of a system where
termination takes effect on lodgment (see subsection 103(2)), as
parties need to know when the termination takes effect.
1195. It is intended that where a termination is lodged electronically,
the information provided in the electronic declaration would be
sufficient for the Employment Advocate's systems to instantly issue
an electronic receipt. Where a termination is lodged by other
means, the information provided in the declaration would be
sufficient for the Employment Advocate to issue a receipt after
examining the declaration to the extent necessary to determine where
to send the receipt. After receiving a receipt, the employer would
be required to pass on the receipt to the employees (see proposed
section 103J).
New section 103J - Employer must notify employees after lodging
termination
1196. Proposed section 103J would require the employer to take reasonable
steps to pass on copies of the lodgment receipt from the Employment
Advocate to employees.
1197. Subsection 103J(1) would require an employer in relation to a
collective agreement to take reasonable steps to ensure that the
lodgment receipt is given to persons whose employment was, just
before the agreement was terminated, subject to the agreement,
within 21 days of the employer receiving the receipt from the
Employment Advocate. The reference to 'persons' is intended to
ensure that an employer would not contravene subsection 103J(2) more
than once in relation to a particular termination. This means that,
for example, where an employer has ten employees and fails to give
all employees a copy of the lodgment receipt, that is only one
contravention of subsection 103J(3), rather than ten.
1198. Subsection 103J(1) does not apply to AWAs as the Employment Advocate
would provide a lodgment receipt directly to the employee.
1199. Subsection 103J(2) would provide that subsection 103J(1) is a civil
remedy provision.
1200. The note under subsection 103J(2) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 30 penalty units for failing to pass on a lodgment receipt
to employees.
New Subdivision D - Unilateral termination after nominal expiry date
New section 103K - Unilateral termination in a manner provided for
in workplace agreement
1201. Proposed section 103K would provide for a workplace agreement to be
terminated after its nominal expiry date in the manner provided for
in the agreement. When an agreement is terminated under proposed
section 103K, employees' terms and conditions of employment would be
derived from the FPCS (see proposed section 103R).
1202. Subsection 103K(1) would provide when the section applies (ie where
a workplace agreement provides for a manner of terminating the
agreement after its nominal expiry date).
1203. Subsection 103K(2) would provide that any of the following persons
could unilaterally terminate the agreement by lodging a declaration
under proposed section 103N:
. the employer (paragraph 103K(2)(a));
. a majority of employees whose employment is subject to the
agreement when the notice mentioned in subsection 103K(3) is given
(paragraph 103K(2)(b));
. in the case of an AWA - a bargaining agent at the request of the
employer or employee (paragraph 103K(2)(c)); or
. an organisation of employees that is bound by the agreement
(paragraph 103K(2)(d)).
1204. Subsection 103K(3) would only allow a workplace agreement to be
unilaterally terminated under proposed section 103K where:
. the agreement has passed its nominal expiry date (paragraph
103K(3)(a)); and
. all the requirements in the agreement for terminating the
agreement are met (paragraph 103K(3)(b)).
1205. The note under subsection 103K(3) notes that providing false or
misleading information or documents under proposed section 103K
would be a criminal offence under sections 137.1 and 137.2 of the
Criminal Code.
1206. Subsection 103K(4) would require the person terminating the
agreement to, at least 14 days before lodging the declaration, take
reasonable steps to ensure that the following persons are given
written notice of the termination:
. the employer (paragraph 103K(5)(a));
. each employee whose employment is subject to the agreement when
the notice is given (paragraph 103K(5)(b)); and
. an organisation of employees that is bound by the agreement
(paragraph 103K(5)(c)).
1207. Subsection 103K(5) would provide that the notice mentioned in
subsection 103K(4) must:
. state that the workplace agreement is to be terminated in the
manner provided for by the agreement (paragraph 103K(5)(a));
. be in the form (if any) that the Employment Advocate requires by
notice published in the Gazette (paragraph 103K(5)(b)); and
. contain any information that the Employment Advocate requires by
notice published in the Gazette (paragraph 103K(5)(c)).
1208. It is intended that the Employment Advocate would produce a standard
form notice. A person terminating the agreement would then fill in
any necessary details, for example, the clause of the agreement
being relied upon to terminate it, and provide that standard form
notice to the persons mentioned in subsection 103K(4).
1209. Subsection 103K(6) would provide that a person contravenes the
subsection if:
. the persons lodges a declaration to terminate a workplace
agreement (paragraph 103K(6)(a)); and
. the person did not comply with subsections 103K(4) and (5)
(paragraph 103K(6)(b)).
1210. Subsection 103K(7) would provide that subsection 103K(6) is a civil
remedy provision.
1211. The note under subsection 103K(7) would refer to Division 11 of Part
VB. Under these provisions the Court may:
. order a pecuniary penalty of up to 60 penalty units for a
contravention of subsection 98D(1) (see proposed section 105D);
. order that the workplace agreement continues to operate despite
the termination (see proposed section 105H);
. order compensation (see proposed section 105J); and
. order injunctions (see proposed section 105K).
1212. Subsection 103K(8) would provide that proposed section 103K does not
apply to multiple-business agreements. It is intended that multiple-
business agreements could only be terminated by approval.
New section 103L - Unilateral termination with 90 days written
notice
1213. Proposed section 103L would provide for a workplace agreement to be
terminated after its nominal expiry date on 90 days written notice.
When an agreement is terminated under proposed section 103L,
employees' terms and conditions of employment would be derived from
the FPCS (see proposed section 103R).
1214. Subsection 103L(1) would provide that a workplace agreement may be
terminated on after its nominal expiry date on 90 days written
notice regardless of whether the agreement provides for a manner in
which it may be terminated.
1215. Subsection 103L(2) would list the persons who may unilaterally
terminate a workplace agreement on 90 days notice as:
. the employer (paragraph 103L(2)(a));
. a majority of employees whose employment is subject to the
agreement when the notice mentioned in subsection 103L(3) is given
(paragraph 103L(2)(b));
. in the case of an AWA - a bargaining agent at the request of the
employer or employee (paragraph 103L(2)(c)); or
. an organisation of employees that is bound by the agreement
(paragraph 103L(2)(d)).
1216. Subsection 103L(3) would only allow a workplace agreement to be
unilaterally terminated under proposed section 103L if the agreement
has passed its nominal expiry date
1217. The note under proposed subsection 103L(3) makes clear that
providing false or misleading information or documents under the
section would be a criminal offence under sections 137.1 and 137.2
of the Criminal Code.
1218. Subsection 103L(4) would require the person or persons terminating
the agreement to, at least 90 days before lodging the declaration,
take reasonable steps to ensure that:
. persons bound by the agreement are given written notice of the
termination (paragraph 103L(4)(a)); and
. if the person giving the notice is the employer - a written copy
of the undertakings (if any) made by the employer under proposed
section 103M.
1219. Subsection 103L(5) would provide that the notice mentioned in
subsection 103L(4) must:
. state that the workplace agreement is to be terminated (paragraph
103L(5)(a));
. specify the day on which the person or persons propose to lodge
the notice (paragraph 103L(5)(b));
. be in the form (if any) that the Employment Advocate requires by
notice published in the Gazette (paragraph 103K(5)(c)); and
. contain any information that the Employment Advocate requires by
notice published in the Gazette (paragraph 103L(5)(d)).
1220. It is intended that the Employment Advocate would produce a standard
form notice. A person terminating the agreement would then fill in
any necessary details, for example, the name of the agreement, and
provide that standard form notice to the persons mentioned in
subsection 103L(4).
1221. Subsection 103L(6) would provide that an employer contravenes the
subsection if:
. it lodges a declaration to terminate a workplace agreement
(paragraph 103L(6)(a)); and
. the person did not comply with subsections 103L(4) and (5)
(paragraph 103L(6)(b)).
1222. Subsection 103L(7) would provide that subsection 103L(6) is a civil
remedy provision.
1223. The note under subsection 103L(7) would refer to Division 11 of Part
VB. Under these provisions the Court may:
. order a pecuniary penalty of up to 60 penalty units for a
contravention of subsection 98D(1) (see proposed section 105D);
. order that the agreement continue to operate despite the
termination (see proposed section 105H); and
. order compensation (see proposed section 105J).
1224. Subsection 103L(8) would provide that the section does not apply to
multiple-business agreements. It is intended that multiple-business
agreements could only be terminated by approval.
New section 103M - Undertakings about post-termination conditions
1225. Proposed section 103M would provide for an employer that terminates
an agreement under proposed section 103L to make undertakings about
the employees' terms and conditions after the agreement is
terminated.
1226. Subsection 103M(1) would provide that an employer intending to
terminate a workplace agreement under subsection 103L(2) may make
undertakings as to the terms and conditions of employees who were
covered by the workplace agreement just before it was terminated.
1227. Subsection 103M(2) would provide for the undertakings to come into
operation on the day the agreement is terminated.
1228. Subsection 103M(3) would provide for the undertakings to cease to
operate in relation to an employee when the employee's employment
becomes subject to a later workplace agreement. For example, if,
after the agreement is terminated, the employer makes an AWA with an
employee who is covered by the undertakings, the undertakings cease
to apply to that employee.
1229. Subsection 103M(4) would provide for undertakings to operate as if
they were a workplace agreement for the purposes of their
enforcement, inspectors' powers and any other provision of the Bill
specified in the regulations.
1230. Subsection 103M(5) would provide that an employer contravenes
subsection 103M(5) if:
. it lodges a declaration to terminate a workplace agreement
(paragraph 103M(5)(a));
. it has made undertakings in relation to that termination
(paragraph 103M(5)(b)); and
. it did not annex a copy of the undertakings to the declaration
(paragraph 103M(5)(b)).
1231. Subsection 103M(6) would provide that subsection 103M(5) is a civil
remedy provision.
1232. The note under subsection 103M(6) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 60 penalty units for a contravention of subsection 103M(5)
(see proposed section 105D).
New section 103N - Lodging unilateral termination documents with the
Employment Advocate
1233. Proposed section 103N would provide the method by which an employer
would lodge a termination of a workplace agreement, thus terminating
the agreement (see paragraph 100(4)(a)).
1234. Subsection 103N(1) would provide that a person lodges a declaration
to terminate a workplace agreement if:
. the employer gives it to the Employment Advocate (paragraph
103N(1)(a)); and
. it meets the form requirements mentioned in subsection 103N(3)
(paragraph 103N(1)(b)).
1235. The note under subsection 103N(1) makes clear that providing false
or misleading information or documents under subsection 103N(1)
would be a criminal offence under sections 137.1 and 137.2 of the
Criminal Code.
1236. Subsection 103N(2) would provide that if the person lodging the
declaration is the employer, the employer lodges undertakings if:
. he or she lodges a declaration under subsection 103N(1); and
. a copy of the undertakings is annexed to the declaration.
1237. Subsection 103N(3) allows the Employment Advocate to set out
requirements for the form of the declaration, by notice published in
the Gazette. It is intended that the Employment Advocate would
exercise its power under subsection 103N(3) to create a standard
form declaration. An employer would then fill in any necessary
details, for example, the name of the agreement, and lodge that
standard form declaration with the Employment Advocate (subsections
103N(1) and (2)). It is also intended that the standard form
declaration would require an employer to declare that the agreement
was terminated in accordance with the requirements of Division 3 of
Part VB and Subdivision D of Division 9 of Part VB.
1238. Subsection 103N(4) would provide that a declaration is only taken to
be given to the Employment Advocate if the Employment Advocate
actually receives it. This means that if an employer lodges a
termination of a workplace agreement by post, the agreement would
only be taken to be lodged when the Employment Advocate receives the
declaration.
1239. The note under subsection 103N(4) makes clear that this means that
section 29 of the Acts Interpretation Act 1901 or section 160 of the
Evidence Act 1995 do not apply to terminations of workplace
agreements. These provisions might otherwise create a presumption
that the 'postal-acceptance rule' applies to terminations of
workplace agreements.
1240. Subsection 103N(5) would provide that the Employment Advocate is not
required to consider or determine whether any of the requirements of
Part VB have been met in relation to the making or content of a
declaration or termination of a workplace agreement. This is
intended to make it clear that lodgment of a declaration and a
termination would occur without any scrutiny by the Employment
Advocate.
New section 103O - Employment Advocate must issue receipt for
lodgment of declaration for notice of termination
1241. Proposed section 103O would provide for the Employment Advocate to
issue a receipt for the lodgment of a declaration for a notice of
termination of a workplace agreement.
1242. Subsection 103O(1) would require the Employment Advocate to issue a
receipt if a declaration is lodged under subsection 103N(1).
1243. Subsection 103O(2) would require the Employment Advocate to give a
copy of the receipt to:
. the person that lodges the declaration (paragraph 103O(2)(a));
. the employer (paragraph 103O(2)(b));
. if the agreement is an AWA - the employee (paragraph 103O(2)(c));
and
. if the agreement is a union collective agreement or a union
greenfields agreement - the organisation or organisations bound by
the agreement (paragraph 103O(2)(d)).
1244. This mechanism is necessary in the context of a system where
termination takes effect on lodgment (see proposed section 103Q).
1245. It is intended that where a declaration is lodged electronically,
the information provided in the electronic declaration would be
sufficient for the Employment Advocate's systems to instantly issue
an electronic receipt without needing to scrutinise the agreement.
Where a declaration is lodged by other means, the information
provided in the declaration would be sufficient for the Employment
Advocate to issue a receipt after examining the declaration to the
extent necessary to determine where to send the receipt. After
receiving a receipt, the employer would be required to pass on the
receipt to the employees (see proposed section 103P).
New section 103P - Employer must notify employees after lodging
termination
1246. Proposed section 103P would require the employer to take reasonable
steps to pass on copies of the lodgment receipt from the Employment
Advocate to employees.
1247. Subsection 103P(1) would require an employer in relation to a
collective agreement to take reasonable steps to ensure that the
lodgment receipt is given to persons whose employment was, just
before the agreement was terminated, subject to the agreement,
within 21 days of the employer receiving the receipt from the
Employment Advocate. The reference to 'persons' is intended to
ensure that an employer would not contravene subsection 103P(2) more
than once in relation to a particular termination. This means that,
for example, where an employer has ten employees and fails to give
all employees a copy of the lodgment receipt, that is only one
contravention of subsection 103P(2), rather than ten.
1248. Subsection 103P(1) does not apply to AWAs as the Employment Advocate
would provide a lodgment receipt directly to the employee.
1249. Subsection 103P(2) would provide that subsection 103P(1) is a civil
remedy provision.
1250. The note under subsection 103P(2) would refer to Division 11 of Part
VB. Under these provisions the Court may order a pecuniary penalty
of up to 30 penalty units against an employer for failing to pass on
a lodgment receipt to employees.
New Subdivision E - Effect of termination
New section 103Q - When a termination takes effect
1251. Proposed section 103Q would provide that a termination of a
workplace agreement takes effect even if the following requirements
are not met:
. requirements relating to bargaining agents (paragraph 103Q(a));
. if the termination is by approval - the requirements of
Subdivision B of Division 9 of Part VB - Termination by approval
(paragraph 103Q(b)); or
. if the termination is unilateral - the requirements for notice of
termination under subsections 103K(4) and (5) and subsections
103L(4) and (5).
1252. It is intended that once lodged, a termination of a workplace
agreement will take effect, despite non-compliance, unless the Court
orders otherwise. It is intended that the increased number of
penalties, broader range of remedies and improved Court powers under
Part VB will ensure the integrity of the requirements relating to
terminating workplace agreements. This would be a necessary
consequence of a lodgment only system that does not involve
terminations of workplace agreements being scrutinised prior to
taking effect.
New section 103R - Consequence of termination of agreement-
application of other industrial instruments
1253. Proposed section 103R would provide for employees' terms and
conditions to be protected under the FPCS after an agreement is
terminated.
1254. Subsection 103R(1) would provide that an industrial instrument
mentioned in subsection 103R(3) ie an award or workplace agreement
has no effect in relation to an employee if a workplace agreement
that operated in relation to that employee was terminated. This
means that an employee would not 'fall back' onto another industrial
instrument, but would be entitled to the FPCS and any voluntary
undertakings.
1255. The notes under subsection 103R(1) refer readers to provisions
relating to the operation of the FPCS and voluntary undertakings.
1256. Subsection 103R(2) would provide that, once an agreement is
terminated, an industrial instrument would have no effect in
relation to the employee until another workplace agreement (the
later agreement) comes into operation in relation to the employee.
The industrial instrument would have effect again from that time.
Where the industrial instrument is an award this would enable it to
provide protected award conditions for the purposes of the later
agreement (see proposed section 101B for an explanation of protected
award conditions).
1257. Subsection 103R(3) identifies the industrial instruments referred to
in subsection 103R(1) as an award or workplace agreement.
New Division 10 - Prohibited conduct
New section 104 - Coercion and duress
1258. Proposed section 104 would provide remedies against certain
prohibited conduct in relation to workplace agreements and
bargaining agents for certain workplace agreements.
1259. Subsection 104(1) would relate to collective agreements. Subsection
104(1) would prohibit a person from:
. engaging in, organising, or threatening to engage in or organise
any industrial action (paragraph 104(1)(a));
. taking or threatening to take other action (paragraph 104(1)(b));
or
. refraining or threatening to refrain from taking any action
(paragraph 104(1)(c))
with intent to coerce another person to agree or not agree to make,
approve, lodge, vary or terminate a collective agreement.
1260. Subsection 104(2) would provide that the prohibitions in subsection
104(1) would not apply to protected action. This would mean that if
industrial action is found to be protected action it would not
amount to coercive conduct.
1261. Subsection 104(3) would prohibit persons from coercing or attempting
to coerce an employer of employee in relation to the appointment or
termination of a bargaining agent.
1262. Subsection 104(4) would prohibit persons from coercing or attempting
to coerce an employee in relation to a request or withdrawal of a
request for the employer to meet and confer with the employee's
bargaining agent.
1263. Subsection 104(5) would prohibit persons from applying duress to an
employer or employee in connection with an AWA.
1264. Subsection 104(6) would clarify that an employer does not apply
duress to an employee for the purposes of subsection 104(5) merely
because the employer requires the employee to make an AWA with the
employer as a condition of employment. This means that an employer
may make an AWA a condition of the person becoming an employee.
1265. Subsection 104(7) would provide that subsections 104(1), (3), (4)
and (5) are civil remedy provisions.
1266. The note under subsection 104(7) would refer to Division 11 of Part
VB. Under these provisions the Court may:
. order a pecuniary penalty of up to 60 penalty units for a
contravention of subsections 104(1), (3), (4) or (5) (see proposed
section 105D);
. declare that all or part of the agreement is void (see proposed
section 105F);
. vary the terms of the agreement, including its nominal expiry date
(see proposed section 105G);
. order that a workplace agreement continues to operate despite its
termination (see proposed section 105H);
. order compensation (see proposed section 105J); and
. grant injunctions (see proposed section 105K)
New section 104A - False or misleading statements
1267. Proposed section 104A would provide remedies against persons who
make false or misleading statements relating to workplace
agreements.
1268. Subsection 104A(1) would provide that a person contravenes the
section if:
. the person makes a false or misleading statement to another person
(paragraph 104A(1)(a));
. the person is reckless as to whether the statement is false or
misleading (paragraph 104A(1)(b)); and
. the making of the statement causes the other person to or not to
make, approve, lodge, vary or terminate a workplace agreement
(paragraph 104A(1)(c)).
1269. Subsection 104A(2) would provide that subsection 104A(1) is a civil
remedy provision.
1270. The note under subsection 104A(2) would refer to Division 11 of Part
VB. Under these provisions the Court may:
. order a pecuniary penalty of up to 60 penalty units for a
contravention of subsection 104A(1) (see proposed section 105D);
. declare that all or part of the agreement is void (see proposed
section 105F);
. vary the terms of the agreement, including its nominal expiry date
(see proposed section 105G);
. order that a workplace agreement continues to operate despite its
termination (see proposed section 105H);
. order compensation (see proposed section 105J); and
. grant injunctions (see proposed section 105K).
New section 104B - Employers not to discriminate between unionist
and non unionist
1271. Proposed section 104B would prohibit an employer from discriminating
between unionists and non-unionists in negotiations for a collective
agreement.
1272. Subsection 104B(1) would prohibit an employer in negotiating a
collective agreement or a variation to a collective agreement, from
discriminating between union members and non-members, or between
members of different unions because of that membership.
1273. Subsection 104B(2) would provide that subsection 104B(1) is a civil
remedy provision.
1274. The note under subsection 104A(2) would refer to Division 11 of Part
VB. Under these provisions the Court may:
. order a pecuniary penalty of up to 60 penalty units (see proposed
section 105D); and
. grant injunctions (see proposed subsection 105K(1)).
New Division 11 - Contravention of civil penalty provisions
New Subdivision A - General
New section 105 - General powers of Court not affected by this
Division
1275. Proposed section 105 would clarify that Division 11 of Part VB does
not affect the Court's powers under Part XIV - Jurisdiction of the
Federal Court of Australia and Federal Magistrates Court.
New section 105A - Workplace inspector may take over proceeding
1276. Proposed section 105A would provide for workplace inspectors to be
able to take over proceedings and continue or discontinue them.
1277. Subsection 105A(1) would provide that a workplace inspector may take
over a proceeding that was instituted or being carried on by another
person under Division 11 of Part VB.
1278. Subsection 105A(2) would provide that a workplace inspector who has
taken over a proceeding may carry it on further or discontinue it.
1279. For example, it is intended that a workplace inspector might take
over a proceeding where the Government has an interest in continuing
or discontinuing the case.
New section 105B - Standing for civil remedies
1280. Proposed section 105B would provide for who may bring an action
under Part VB in relation to a workplace agreement.
1281. Subsection 105B(1) would provide that any of the following persons
may apply to the Court four an order in relation to a workplace
agreement:
. an employee who is or will be bound by a workplace agreement
(paragraph 105B(1)(a));
. the employer, where it was not the person who contravened the
civil remedy provision and the provision is mentioned in
subsection 105B(2) (paragraph 105B(1)(b));
. an organisation of employees that is or will be bound by a
workplace agreement (paragraph 105B(1)(c));
. an organisation of employees that represents an employee who is or
will be bound by a workplace agreement (paragraph 105B(1)(d));
. if the agreement is an AWA - a bargaining agent (paragraph
105B(1)(e));
. a workplace inspector (paragraph 105B(1)(f)); or
. a person specified in the regulations (paragraph 105B(1)(g)).
1282. Subsection 105B(2) would specify the civil remedy provisions that an
employer may bring an action for under Part VB.
1283. Subsection 105B(3) would provide that an organisation of employees
can only bring an action on behalf of an employee where:
. the employee has requested the organisation to do so (paragraph
105B(3)(a));
. a member of the organisation is employed by the employee's
employer (paragraph 105B(3)(b)), this member need not by the
employee himself or herself; and
. the organisation is entitled, under its eligibility rules, to
represent the industrial interests of the employee (paragraph
105B(3)(c)).
1284. These requirements are intended to ensure that an organisation of
employees only brings an action on behalf of an employee where it
has an interest in the workplace arising from having at least one
member employed at the workplace whom it is entitled to represent.
New Subdivision B - Pecuniary penalty for contravention of civil
remedy provisions
New section 105C - Application of Subdivision
1285. Proposed section 105C would provide this Subdivision applies to a
contravention by a person of a civil remedy provision under part VB.
New section 105D - Court may order pecuniary penalty
1286. Proposed section 105D would set the maximum pecuniary penalties for
contravening a civil remedy provision for individuals and bodies
corporate.
1287. Subsection 105D(1) would provide that the Court may order a person
that contravenes a civil remedy provision to pay a pecuniary penalty
of up to:
. for individuals - the maximum number of penalty units specified in
subsection 105D(2) (paragraph 105D(1)(a)); and
. for bodies corporate - five times the maximum number of penalty
units specified in subsection 105D(2) (paragraph 105D(1)(b)).
1288. Subsection 105D(2) would list the maximum number of penalty units
for contravening specific civil remedy provisions.
New Subdivision C - Other remedies for contravention of certain
civil remedy provisions
New section 105E - Application of Subdivision
1289. Proposed section 105E would provide that this Subdivision applies to
certain civil remedy provisions that attract remedies in addition to
the pecuniary penalties in proposed section 105D.
1290. Proposed section 105E would provide that this Subdivision C of
Division 11 of Part VB applies where:
. an employer lodges an unapproved workplace agreement (see proposed
section 98D);
. an employer lodges an unapproved variation to a workplace
agreement (see proposed section 102G);
. an employer lodges an unapproved termination of a workplace
agreement (see proposed section 103F);
. a person lodges a declaration to terminate a workplace agreement
in accordance with the agreement's terms without giving notice of
the termination (see subsection 103K(6));
. a person lodges a declaration to terminate a workplace agreement
by giving 90 days notice without giving sufficient notice of the
termination (see subsection 103L(6));
. a person coerces another person in relation to a collective
agreement (see subsection 104(1));
. a person applies duress to another person in connection with an
AWA (see subsection 104(5));
. a person's false or misleading statements cause another person to
or not to make, approve, lodge, vary or terminate a workplace
agreement (see proposed section 104A).
New section 105F - Court may declare workplace agreement or part of
workplace agreement void
1291. Proposed section 105F would provide for the Court to void all or
part of a workplace agreement as a remedy for a contravention of one
of the civil remedy provisions listed in proposed section 105E.
New section 105G - Court may vary terms of workplace agreement
1292. Proposed section 105G would provide the Court with the discretion to
vary the terms of a workplace agreement to remedy a contravention of
one of the civil remedy provisions listed in proposed section 105E.
New section 105H - Court may order that workplace agreement
continues to operate despite termination
1293. Proposed section 105H would provide that where the contravention of
one of the civil remedy provisions listed in proposed section 105E
has resulted in the termination of a workplace agreement, the Court
may order that the workplace agreement continues to operate despite
being terminated as the result of a contravention.
New section 105I - Date of effect and preconditions for orders under
sections 105F, 105G and 105H
1294. Proposed section 105I would provide for the date of effect and
preconditions for certain Court orders.
1295. Subsection 105I(1) would provide that a court order under section
105F, 105G or 105H would take effect from no earlier than the date
of the order. For example, a variation could not be backdates.
Instead the Court might order compensation in relation to the period
between the occurrence of the breach and the date of the variation
order.
1296. Subsection 105I(2) would provide that the Court may only make an
order under section 105F, 105G or 105H if the Court considers that
the order is appropriate to:
. remedy all or part of any loss or damage resulting from the
contravention of the civil remedy provision mentioned in proposed
section 105E (paragraph 105I(2)(a)); or
. prevent or reduce all of part of that loss or damage (paragraph
105I(2)(b)).
New section 105J - Court may order compensation
1297. Proposed section 105J would provide for the Court to order a person
who contravened a civil remedy provision mentioned in proposed
section 105E to pay compensation, in the amount that the Court
considers appropriate for any loss or damage resulting from the
contravention suffered by an employee whose employment is subject to
the agreement.
New section 105K - Court may order injunction
1298. Proposed section 105K would provide for the Court to grant
injunctions.
1299. Subsection 105K(1) would provide for the Court to grant an
injunction requiring the person contravening a civil remedy
provision to cease doing so, or preventing a person contravening a
civil remedy provision.
1300. Subsection 105K(2) would also allow the Court to grant an injunction
in relation to a breach of proposed section 104B, which prohibits
discrimination between unionists and non-unionists.
1301. The Court could also grant interim injunctions to restrain a
threatened contravention or stop a contravention that is occurring
(see proposed section 354A).
Part VC - Industrial Action
Division 1 - Preliminary
New section 106 - Definitions
1302. Proposed section 106 would set out certain defined terms that are
used in Part VC.
1303. Subsection 106(2) would apply expressions from Part VB, which
relates to agreement making, to Part VC.
New section 106A - Meaning of industrial action
1304. Proposed section 106A would provide a definition of industrial
action which would apply to the Act. The definition has been
amended from that set out in pre-reform subsection 4(1) to reflect
the changed constitutional basis on which the Act is to be based.
As the Act (apart from Schedule 13) will no longer regulate
industrial action on the basis of the conciliation and arbitration
power set out in section 51(xxxv) of the Constitution, references to
industrial action in connection with industrial disputes would be
removed. Instead, industrial action would be defined by reference
to certain types of action taken by an employer or an employee (as
defined in proposed subsections 4AA(1) and 4AB(1)).
1305. Paragraphs 106A(1)(a) - (c) would set out the types of conduct by an
employee that constitute industrial action, including a failure to
attend for work. A legislative note referring to a decision of a
Full Bench of the AIRC clarifies that action must be industrial in
character to be industrial action for the purposes of the Act.
1306. Paragraph 106A(1)(d) would provide that the only type of conduct by
an employer that constitutes industrial action is a lockout.
1307. Paragraphs 106A(1)(e) - (g) would set out various types of conduct
that do not constitute industrial action, including where action by
an employee that would otherwise be industrial action is based on a
reasonable concern by the employee about an imminent risk to health
and safety (subparagraph 106A(1)(g)(i)) and the employee did not
unreasonably fail to comply with a direction of his or her employer
to perform other available work (subparagraph 106A(1)(g)(ii)).
1308. Subsection 106A(4) would provide that an employee seeking to rely on
the health and safety exception in paragraph 106A(1)(g)(i) bears the
burden of proving that he or she had a reasonable concern.
New section 106B - Meaning of pattern bargaining
1309. Proposed section 106B would provide a definition of pattern
bargaining which would apply in Part VC. Pattern bargaining would
occur when a person who is a negotiating party for two or more
collective agreements seeks common wages or conditions in two or
more of those agreements, by engaging in a course of conduct that
extends beyond a single business. A course of conduct that does not
extend beyond a single business cannot be caught by the definition.
1310. Subsection 106B(2) would provide an exception where a negotiating
party is seeking terms or conditions of employment determined by the
Full Bench of the AIRC in a decision establishing national
standards.
1311. Subsection 106B(3) would provide an exception where a negotiating
party is genuinely trying to reach an agreement for a single
business, or part of a single business.
1312. Subsection 106B(4) would provide a list of factors relevant to
whether the negotiating party is genuinely trying to reach
agreement.
1313. Subsection 106B(5) would provide that where a negotiating party
seeks to rely on the exception at subsection 106B(3), the
negotiating party bears the burden of proving that the party was
genuinely trying to reach agreement.
Division 2 - Bargaining Periods
New section 107 - Initiation of bargaining period
1314. Proposed section 107 would provide for a bargaining period to be
initiated in relation to the negotiation of employee collective
agreements (proposed section 96A) or union collective agreements
(proposed section 96B) that are not:
. multiple-business agreements (proposed section 96E); or
. agreements with 2 or more corporations that are treated as one
employer (because of proposed paragraph 95A(2)(b)).
1315. During a bargaining period, negotiating parties may, subject to
certain conditions, take industrial action without attracting civil
legal liability (protected industrial action - see proposed section
108).
1316. A bargaining period may be started by an initiating party: that is,
any of the persons who may make an agreement under Division 2 of
Part VB. These are an employer, an organisation of employees or an
employee acting not only on his or her own behalf but also on behalf
of other employees.
1317. This Division also refers to a negotiating party. The term is
defined in subsection 107(4). The initiating party is a negotiating
party for the purposes of the Division as is any person with whom
the initiating party wants to make an agreement.
1318. Subsection 107(3) would provide that a bargaining period is
initiated by the initiating party giving written notice to each of
the other negotiating parties and the AIRC.
New section 107A - Employee may appoint agent to initiate bargaining
period
1319. Proposed section 107A would provide that an employee who wishes to
initiate a bargaining period under section 107 may appoint an agent
to initiate the bargaining period on his or her behalf. This will
give the employee the option of remaining anonymous to his or her
employer.
1320. The new section would also specify that where an agent has been
appointed to initiate a bargaining period under section 107, the
written notice required to be given to the AIRC under subsection
107(3) must include the name of the employee who appointed the
agent.
1321. Subsection 107A(3) would provide that the regulations may make
provision in relation to the qualifications and appointment of any
agents appointed under this section.
New section 107B - Identity of person who has appointed agent not to
be disclosed
1322. Proposed subsection 107B(1) would further protect the identity of an
employee who appoints an agent under section 107A by prohibiting the
AIRC from disclosing information that would identify persons who
have appointed an agent. However, the AIRC will be able to disclose
information that would identify persons who have appointed an agent
if the disclosure is required or authorised by law or in writing by
the person whose identity would otherwise be protected.
1323. Subsection 107B(3) would make it an offence for any person to
disclose protected information that would identify a person who has
appointed a bargaining agent under section 107A.
1324. In order for a prosecution of this offence to be successful all
elements of the offences must be proved. The person must have
reasonable grounds to believe that the information will identify
another person as someone who has appointed a bargaining agent under
section 107A (paragraph 107B(3)(c)). In relation to the other
elements of the offence, the default fault elements contained in the
Criminal Code will apply to the offence. Therefore, for the offence
to be proved, a person must intentionally disclose information
(paragraph 107B(3)(a)), while being reckless as to whether the
circumstances set out in paragraphs 107B(3)(b), (d), (e) and (f)
exist (the concepts of 'intention' and 'recklessness' are defined in
Division 5 of Part 2.2 of the Criminal Code). The proposed maximum
penalty for this offence is 6 months imprisonment.
1325. Subsection 107B(4) would provide definitions of the terms protected
information and Registry official for the purposes of section 107B.
New section 107C - Particulars to accompany notice
1326. Proposed section 107C would provide that a notice of a bargaining
period must be accompanied by relevant particulars which are
specified in the section. These include details of where, to whom
and for how long the proposed collective agreement would apply and
its suggested content.
New section 107D - When bargaining period begins
1327. Proposed section 107D would provide that a bargaining period begins
at the end of 7 days after the day on which the initiating notice
was given, or where there is more than one negotiating party, and
each was notified on different days, the end of 7 days after the
last notification.
New section 107E - When bargaining period ends
1328. Proposed section 107E would provide that a bargaining period ends
when the parties have entered into a collective agreement under
proposed sections 96A or 96B, or the initiating party tells one or
more of the negotiating parties that it no longer wishes to
negotiate a collective agreement, or where the bargaining period is
terminated by the AIRC (sections 107G and 107H) or by declaration of
the Minister (section 112).
New section 107F - Power of Commission to restrict initiation of new
bargaining periods
1329. Proposed section 107F would allow the AIRC to restrict the
initiation of a new bargaining period where a negotiating party has
ended a bargaining period. The AIRC would be able to make a
declaration that a specified former negotiating party or a specified
employee is not allowed to initiate a new bargaining period or may
only initiate one on certain conditions in relation to specified
matters that were dealt with by the proposed collective agreement.
1330. Subsection 107F(3) would provide that the AIRC may not make such an
order unless:
. it has given the former negotiating parties an opportunity to be
heard;
. the AIRC considers that it is in the public interest to make the
order; and
. if, assuming the bargaining period had not ended, the AIRC could
have made an order under proposed section 107G(1) terminating or
suspending the bargaining period because a circumstance set out in
subsection 107G(2), (3), (7) or (8) exists or existed.
1331. This would ensure that where a negotiating party is engaging in
behaviour which would justify the suspension or termination of a
bargaining period, that negotiating party cannot frustrate the
effect of a suspension or termination of the bargaining period by
ending the bargaining period itself, initiating a new bargaining
period and continuing to engage in the same behaviour.
New section 107G - Suspension and termination of bargaining periods-
general powers of Commission
1332. Proposed subsection 107G(1) would provide that the AIRC must suspend
or terminate a bargaining period if it is satisfied that particular
circumstances exist or existed. The AIRC would be required to give
the negotiating parties an opportunity to be heard before making an
order.
1333. Subsection 107G(2) would require the AIRC to suspend or terminate
the bargaining period if a negotiating party that has organised or
taken, or is organising or taking, industrial action to support or
advance claims in respect of the proposed collective agreement:
. did not genuinely try to reach an agreement before taking the
industrial action;
. is not genuinely trying to reach an agreement; or
. has failed to comply with any orders or directions of the AIRC
made during the bargaining period about the making of the
agreement or to a matter that has arisen in negotiations for the
agreement or about industrial action that relates to the agreement
or negotiations.
1334. The types of orders or directions that would fall within subsection
107G(2) include orders or directions made in relation to secret
ballots for protected industrial action and orders made during the
bargaining period to stop or prevent industrial action that is not
protected action.
1335. Subsection 107G(3) would require the AIRC to suspend or terminate
the bargaining period if industrial action to support or advance
claims in respect of the proposed collective agreement is being
taken, or is threatened, impending or probable and that action:
. is adversely affecting, or would adversely affect, the employer
(in relation to the bargaining period) or that employer's
employees; and
. is threatening or would threaten to endanger the life, the
personal safety or health or the welfare, of the population or a
part of it, or to cause significant damage to the Australian
economy or an important part of it.
1336. Subsections 107G(4) and (5) would require the AIRC, as far as
practicable, to hear and determine an application made because
industrial action is endangering or threatens to endanger life etc.
within five days or, if the AIRC cannot do so within five days, to
make an interim order suspending the bargaining period until the
application is determined.
1337. Subsection 107G(6) would require the AIRC, if it terminates the
bargaining period because industrial action is endangering or
threatens to endanger life etc., to send each of the negotiating
parties a notice that:
. sets out the effect of the provisions of the Bill about workplace
determinations; and
. informs them that they may agree to submit the matters at issue
during bargaining to an alternative dispute resolution process
conducted by the AIRC or another provider.
1338. Subsection 107G(7) would require the AIRC to suspend or terminate
the bargaining period if industrial action is being taken by an
organisation of employees that is a negotiating party, or by a
member of the organisation that is an employee of the employer or by
an officer or employee of such an organisation to support or advance
claims in respect of employees who are not members, nor entitled to
be members, of the organisation.
1339. Subsection 107G(8) would require the AIRC to suspend or terminate
the bargaining period where industrial action is being taken by an
organisation of employees that relates either to a demarcation
dispute or contravenes an order of the AIRC relating to a
demarcation dispute.
1340. Subsection 107G(9) would provide that the AIRC can, of its own
motion, make an order suspending or terminating the bargaining
period where industrial action is endangering or threatens to
endanger life etc. Otherwise, the AIRC can only suspend or
terminate the bargaining period where a negotiating party makes an
application.
1341. Subsections 107G(12) and (13) would provide that if the AIRC makes
an order suspending or terminating the bargaining period, it may
also prevent a negotiating party or employee of the employer from
initiating a new bargaining period or impose conditions on the
initiation of a new bargaining period.
1342. Subsection 107G(14) would permit the AIRC, in exceptional
circumstances, to extend the required period of notice of protected
action from 3 days to up to 7 days, following the end of a period of
suspension.
New section 107H - Suspension and termination of bargaining periods-
pattern bargaining
1343. Proposed section 107H(1) would provide that the AIRC must suspend or
terminate the bargaining period if a negotiating party is engaged in
pattern bargaining in relation to a proposed collective agreement.
Another negotiating party, or a person specified in the regulations,
may apply for such an order.
1344. Subsection 107H(3) would provide that whether the bargaining period
is suspended or terminated and, if it is suspended, for how long,
would be determined by the AIRC as it considers appropriate.
1345. Subsections 107H(6) and (7) would provide that if the AIRC makes an
order suspending or terminating the bargaining period, it may also
prevent a negotiating party or employee of the employer from
initiating a new bargaining period or impose conditions on the
initiation of a new bargaining period.
1346. Subsection 107H(8) would permit the AIRC, in exceptional
circumstances, to extend the required period of notice of protected
action from 3 days to up to 7 days, following the end of a period of
suspension.
New section 107I - Suspension of bargaining periods - cooling off
1347. Proposed subsection 107I(1) would require the AIRC to suspend a
bargaining period, on application by a negotiating party, if
protected industrial action is being taken and the AIRC considers
that suspension is appropriate. Paragraph 107I(1)(c) sets out a
number of factors to which the AIRC must have regard in considering
the appropriateness of a suspension, including whether a cooling off
period would be beneficial to the parties, the duration of any
industrial action and the public interest. The period of suspension
would be what the AIRC considered appropriate.
1348. Subsection 107I(3) would provide that the AIRC must extend the
suspension if a negotiating party makes an application for an
extension of the suspension and the AIRC considers that the
extension is appropriate. The AIRC would be required to have regard
to the same matters that were relevant to the initial suspension of
the bargaining period, as well as whether the negotiating parties
had genuinely tried to reach agreement during the cooling off
period. Only one extension may be given.
1349. Subsection 107I(6) would require the AIRC, if it suspends, or
extends the suspension of, the bargaining period, to send each of
the negotiating parties a notice that informs them that they may
agree to submit the matters at issue during bargaining to an
alternative dispute resolution process conducted by the AIRC or
another provider.
1350. Subsection 107I(7) would permit the AIRC, in exceptional
circumstances, to extend the required period of notice of protected
action from 3 days to up to 7 days, following the end of a period of
suspension.
New section 107J - Suspension of bargaining period- significant harm
to third party
1351. Proposed section 107J would require the AIRC to suspend the
bargaining period if protected industrial action is being taken and
the AIRC considers that:
. the action is adversely affecting the employer (in relation to the
bargaining period), or that employer's employees;
. the action is threatening to cause significant harm to a third
party; and
. it is appropriate to suspend the bargaining period.
1352. An application for suspension of the bargaining period could be made
by or on behalf of any directly person affected by the action (other
than a negotiating party) or the Minister.
1353. Subsection 107J(2) would require the AIRC, when considering whether
the action is threatening to cause significant harm to a third
party, to have regard to a number of matters including:
. the extent to which the third party is particularly vulnerable to
the effects of the action; and
. the extent to which the action threatens to damage the ongoing
viability of the third party's business, disrupt the supply of
goods or services to the third party's business, reduce the third
party's capacity to fulfill a contractual obligation or otherwise
cause economic loss to the third party.
1354. The period of suspension would be what the AIRC considered
appropriate. However, subsection 107J(3) would limit the total
period of suspension, including any extension, to three months.
1355. Subsection 107J(4) would provide that the AIRC must extend the
suspension if the AIRC considers that an extension is appropriate.
The AIRC would be required to have regard to the same matters that
were relevant to the initial suspension. Only one extension could
be given.
1356. Subsection 107J(7) would require the AIRC, if it suspends, or
extends the suspension of, the bargaining period, to send each of
the negotiating parties a notice that informs them that they may
agree to submit the matters at issue during bargaining to an
alternative dispute resolution process conducted by the AIRC or a
private provider.
1357. Subsection 107J(8) would permit the AIRC, in exceptional
circumstances, to extend the required period of notice of protected
action from 3 days to up to 7 days, following the end of a period of
suspension.
New section 107K - Industrial action without further protected
action ballot after end of suspension of bargaining period
1358. Proposed section 107K deals with the situation where a bargaining
period has been suspended by the AIRC and, prior to the suspension,
industrial action had been authorised by a protected action ballot
and that industrial action had either:
. not been taken prior to the suspension;
. had not ended prior to the suspension; or
. was authorised beyond the suspension.
1359. Under subsection 107K(2) industrial action would be able to
recommence, after the suspension ends, without the need for another
secret ballot. The period for which the bargaining period was
suspended would be ignored when working out when the industrial
action may be organised or engaged in.
1360. Subsections 107K(3) and (4) would provide that the industrial action
would not be protected action unless three working days written
notice of the intended action (or such longer period as was
specified in the order suspending the bargaining period) and the day
on which it will begin is given to the employer.
Illustrative Example
Diane owns a printing company, Merryprints Pty Ltd. Her employees
initiated a bargaining period seeking an employee collective agreement. A
secret ballot authorised the employees to engage in protected industrial
action - being the imposition of work bans every weekend for a period of 12
weeks starting from a specified date. After five weeks, the bargaining
period was suspended for four weeks for cooling off.
Under proposed section 107K, once the period of suspension ends, the
employees could give the required written notice that the work bans
authorised by the ballot would be imposed for a further seven weeks, being
the balance of the authorised industrial action. No further protected
action ballot would be required.
Division 3 - Protected Action
Subdivision A - What is protected action?
New section 108 - Protected Action
1361. Proposed section 108 would provide that industrial action is
protected if:
. it is protected under subsections 108(2) or (3);
. no exclusion in Subdivision B of this Division applies; and
. the action is not excluded because of subsection 107K(3) which
outlines the notice requirements for parties wishing to recommence
action following the end of a period of suspension.
1362. Subsections 108(2) and (3) would provide that to be regarded as
protected, industrial action must take place during a bargaining
period and must either be for the purpose of:
. supporting or advancing claims made in respect of the proposed
collective agreement; or
. responding to industrial action by another negotiating party.
1363. Notes 1 and 2 to subsection 108(3) would clarify the subsection's
effect. Note 1 would make it clear that the subsection does not
affect an employer's right to refuse to pay an employee where the
employee has not performed work as directed. Note 2 would explain
that the subsection does not affect an employer's right to stand
down employees in accordance with a stand-down authorisation under
an award.
1364. Subsections 108(4) and (5) would deal with the effects of industrial
action taken by an employer. The affected employees' contracts of
employment would not be terminated, but their employer would not
have to pay them for the period of industrial action. In addition,
industrial action would only be permissible if the employees'
continuity of service is not disturbed in prescribed respects.
Subdivision B - Exclusions From protected action
New section 108A - Exclusion - claims in support of inclusion of
prohibited content
1365. Proposed section 108A would provide that industrial action is not
protected action if it is to support or advance claims to include
prohibited content, which is defined at proposed section 101D, in
the proposed collective agreement.
New section 108B - Exclusion - industrial action while bargaining
period is suspended
1366. Proposed section 108B would provide that industrial action in
relation to a proposed collective agreement is not protected action
if it is engaged in while a bargaining period is suspended.
New section 108C - Exclusion - industrial action must not involve
persons who are not protected for that industrial action
1367. Proposed section 108C would clarify that protected industrial action
can only be taken by parties to whom a proposed collective agreement
would apply (ie an organisation of employees, employer, or employee
that is a negotiating party in respect of the agreement, or a member
of an organisation of employees negotiating party whose employment
will be subject to the proposed collective agreement or an officer
or employee of an organisation of employees negotiating party acting
in that capacity).
1368. Industrial action will lose its protected status if it is organised
or engaged in in concert with any person or organisation of
employees that is not protected in respect of the specific
industrial action being taken (ie action solely in pursuit of a
specific agreement by those who it is proposed will be subject to
that agreement).
New section 108D - Exclusion - industrial action must not be in
support of pattern bargaining claims
1369. Proposed section 108D would remove the protected status from
industrial action that is organised or engaged in to support or
advance claims by a negotiating party that is engaged in pattern
bargaining in relation to the proposed collective agreement.
New section 108E Exclusion - industrial action must not be taken
until after nominal expiry date of workplace agreements or workplace
determinations
1370. Proposed section 108E would provide that industrial action engaged
in in contravention of sections 110 (prohibition on industrial
action before nominal expiry date of collective agreements or
workplace determinations) or 110A (prohibition on industrial action
before nominal expiry date of AWAs) is not protected action.
New section 108F Exclusion - notice of action to be given
1371. Proposed section 108F would require notice to be given of proposed
industrial action, for that action to be protected.
1372. Subsection 108F(2) would provide for the following notice
requirements in respect of employee or employee organisation
actions:
. if the action is taken in response to, and is taken after the
start of, industrial action against the employees by the employer
- written notice of the intention to take the action; or
. in any other case - the required written notice.
1373. Required written notice would be defined in subsection 108F(3) as 3
working days or any greater number of days specified in a protected
action ballot order made under section 109M.
1374. Subsection 108F(4) would set out the notice requirements in respect
of employer actions where an employee organisation is a negotiating
party. Action by the employer will not be protected unless:
. if the industrial action is taken in response to, and is taken
after the start of industrial action by an organisation that is a
negotiating party - written notice of the intended industrial
action is given; or
. in any other case - at least 3 working days written notice is
given.
1375. Paragraph 108F(4)(b) would set out more specific notice requirements
in respect of employer action as it relates to a particular
employee. Action by the employer would not be protected unless
written notice of the industrial action is given:
. if the industrial action is taken in response to, and is taken
after the start of industrial action by an organisation that is a
negotiating party - before the industrial action begins; or
. in any other case - at least 3 working days before the industrial
action begins.
1376. Subsection 108F(5) would set out the notice requirements in respect
of employer actions where an employee whose employment will be
subject to the proposed collective agreement is a negotiating party.
Action by the employer would not be protected in so far as it
relates to a particular employee unless notice is given:
. if the industrial action is in response to, and takes place after
the start of industrial action by any of the employees who are
negotiating parties - before the industrial action begins; or
. in any other case - at least 3 working days before the industrial
action begins.
1377. The notice requirement in paragraph 108F(4)(b) and subsection
108F(5) would normally be in writing and given to the person
concerned, although other reasonable steps to notify the particular
employee may suffice (for example, notices in newspapers or
bulletins on noticeboards in the business may be appropriate steps).
1378. The notice would be required to state the nature of the intended
action and the day on which it is proposed to begin.
1379. Where action must be authorised by a protected action ballot notice
could not be given before the declaration of the results of the
ballot.
1380. If the notification relates to industrial action by an employer
(whether it is the employer, organisation of employees or an
employee giving the notification) it could not be given before the
start of the bargaining period.
New section 108G - Employee may appoint agent to give notice under
section 108F
1381. Proposed section 108G would provide that an employee who is a
negotiating party who has appointed an agent under section 107A to
initiate a bargaining period under section 107, and who wishes to
give an employer notice of intention to take industrial action under
section 108F, may use that agent to give notice on his or her
behalf. This would give the employee the option of remaining
anonymous to their employer.
New section 108H - Exclusion - requirement that employee
organisation or employee comply with Commission orders and
directions
1382. Proposed subsection 108H(1) would provide that industrial action by
a member of an organisation of employees would not be protected
action (under section 108) unless, prior to the commencement of the
action, the organisation complied with all orders or directions made
by the AIRC in relation to (or that relate to industrial action
relating to) the proposed collective agreement or to matters that
arose during negotiations for the proposed collective agreement.
Similarly, subsection 108H(2) would provide that where an employee
takes industrial action, that industrial action would not be
protected action, unless the employee complied with all relevant
orders and directions of the AIRC prior to taking the action.
New section 108I - Exclusion - requirement that employer genuinely
try to reach agreement etc.
1383. Proposed section 108I would provide that an employer must make
genuine attempts to reach agreement as a pre-requisite to taking
protected industrial action against employees. In addition, the
employer must have complied with any orders or directions of the
AIRC made during the bargaining period in relation to (or that
relate to industrial action relating to) the proposed collective
agreement or to matters that arose during negotiations for the
proposed collective agreement.
New section 108J Exclusion - employee and employee organisation
action to be authorised by secret ballot or be in response to
employer action
1384. Proposed section 108J would provide that industrial action taken by
an organisation of employees, its members, an officer or employee of
an organisation or by employees who are negotiating parties, would
not be protected action unless the action is taken in response to
industrial action by the employer, or the action has been authorised
by a protected action ballot.
New section 108K - Exclusion - employee organisation action must be
duly authorised
1385. Proposed section 108K would replicate pre-reform section 170MR. It
would provide that the engaging in of industrial action by members
of an organisation of employees that is a negotiating party is only
protected action if it is properly authorised. The section would
set out what is required for authorisation (and provides that a
technical breach in good faith does not vitiate authorisation).
Written notice of such authorisation must be given to a Registrar.
Any legal challenge to the validity of such authorisation must be
brought within 6 months of notice of the authorisation having been
given to a Registrar.
Subdivision C - Significance of action being protected action
New section 108L - Immunity provisions
1386. Proposed section 108L would set out what immunity applies to
protected action.
1387. It would be equivalent to pre-reform section 170MT. Where a person
is engaged in protected industrial action, immunity would exist from
civil liability any law (whether written or unwritten) in force in a
State or Territory. This would apply to Commonwealth and State
statutes, as well as the common law. It would not apply to action
involving harm to persons or property, unlawful dealing with
property, defamation or any breach of the criminal law.
New section 108M - Employer not to dismiss employee etc. for
engaging in protected action
1388. Proposed 108M would substantially replicate pre-reform section 170MU
which prohibits the dismissal of an employee (or otherwise injure an
employee in his or her employment) where the employee proposes to
engage in, is engaging in or has engaged in protected action.
1389. Proposed section 108M would be a civil remedy provision. The
possible remedies for breach of proposed 108M would include:
. a pecuniary penalty - the maximum of which is 60 penalty units for
a natural person or 3000 penalty units for a body corporate;
. an injunction or any other orders the Court considers necessary to
stop the breach or remedy its effects;
. if the employee was dismissed, an order for reinstatement; and/or
. compensation to an affected employee.
1390. Paragraph 108M(2)(b)(i) would provide that the prohibition against
dismissing or otherwise discriminating against the employee does not
apply to a refusal by the employer to pay an employee because the
refusal is in accordance with section 114 (prohibition on the making
or acceptance of payments in relation to certain periods of
industrial action).
1391. Subsection 108M(7) would set out who can apply to the Court in
respect of a breach of the section.
1392. As with pre-reform section 170MU, in proceedings for a contravention
of subsection 108M(1), the onus would be on an employer to show that
the dismissal or discrimination did not occur because the employee
proposed to engage, was engaging or had engaged in the protected
action.
Division 4 - Secret ballots of proposed protected action
New Subdivision A - General
New section 109 - Object of Division and overview of Division
1393. This section would establish that the object of the new Division is
to provide employees with access to a process of fair and democratic
secret ballots to determine whether protected industrial action
should be taken. The provisions are designed to be facilitative (ie
to provide the means for accessing protected action) not prohibitive
(ie to outline the circumstances in which such action is not
available).
1394. Subsection 109(3) would make clear that a protected action ballot
would not be required in the case of action taken in response to
industrial action by the employer.
New section 109A - Definitions
1395. Proposed section 109A would define the terms used in new Division 4.
New Subdivision B - Application for order for protected action
ballot to be held
New section 109B - Who may apply for a ballot order etc.
1396. Under proposed subsection 109B(1), an application for a protected
action ballot order could only be made once a bargaining period for
a proposed collective agreement has commenced. However, if there
was an existing agreement applying to relevant employees (the
definition of relevant employee would be set out in section 109A)
then the application could not be made before the nominal expiry
date of the agreement. If there were more than one agreement, the
last occurring of the nominal expiry dates of those agreements would
be the earliest date the application could be made for a protected
action ballot order. This reflects the fact that protected action
could not be taken before the nominal expiry date of an agreement.
1397. The persons who could make an application for a protected action
ballot order depend on who initiated the bargaining period under
section 107.
1398. Proposed subsection 109B(3) would provide that if an organisation of
employees initiated the bargaining period, then that union could
apply to the AIRC for a ballot order. If an employee or employees
initiated the bargaining period, then any employee who is a
negotiating party for the proposed agreement, or such employees
acting jointly, could apply to the AIRC for a ballot order.
1399. Subsection 109B(4) would provide that an employee or employees
acting jointly could not make an application to the AIRC for a
ballot order unless that application had the support of a prescribed
number of employees who would be subject to the proposed agreement.
This would ensure that a sufficient level of employee support exists
to justify the holding of a ballot, where employees are seeking such
a ballot.
1400. An analogous requirement is proposed in relation to ballot
applications by an organisation of employees. Under proposed
subsection 109D(2) an organisation of employees would be required to
provide evidence that the application has been authorised by or
through the union's committee of management as part of its
application for a ballot order.
1401. The term prescribed number would be defined in proposed section
109A. The prescribed number would vary depending on the size of the
workplace. If fewer than 80 employees would be subject to the
proposed agreement, then at least four of the employees would be
required to support the ballot application. If between 80 and 5000
employees would be subject to the proposed agreement, at least five
per cent of the employees would be required to support the ballot
application. If more than 5000 employees would be subject to the
proposed agreement, then at least 250 of the employees would be
required to support the ballot application.
1402. Proposed subsection 109B(5) would provide that where an employee or
group of employees acting jointly have initiated a bargaining period
for an agreement and industrial action is proposed, those persons
may appoint an agent to represent them in making the ballot
application and for all purposes connected with the ballot
application. This is intended to enable employees making an
application for a protected action ballot to remain anonymous.
New section 109C - Contents of application
1403. Proposed section 109C would establish the mandatory requirements for
a ballot application under section 109B. Applications would be
required to include the following information:
. the question or questions to put to the relevant employees in the
ballot, including the nature of the proposed industrial action;
. details of the types of employees who are to be balloted; and
. any details required by rules of the AIRC made for the purpose of
this section.
1404. The applicant may, in the application, nominate a person to conduct
the ballot (although the question of who is to conduct the ballot is
ultimately determined by the AIRC - paragraph 109N(1)(e) and section
109ZE).
1405. The President of the AIRC, under the general rule-making powers may
make rules about matters to be included in an application and the
form in which the application would be made.
New section 109D - Material to accompany application
1406. Proposed section 109D would require the applicant to provide certain
material to the AIRC with the ballot application, including:
. a copy of the notice initiating the bargaining period and the
particulars accompanying that notice;
. a declaration by the applicant that the industrial action to which
the application relates is not for the purpose of advancing or
supporting claims to include prohibited content in the proposed
collective agreement;
. if the applicant is an organisation of employees, a written notice
showing that the application has been duly authorised by the
committee of management of the organisation or someone authorised
by such a committee; and
. if the applicant is represented by an agent, a document containing
the name of the employee applicant or applicants.
1407. It would be an offence to intentionally make a statement in the
declaration required by section 109D that was false or misleading.
The default fault elements of the Criminal Code Act 1995 of
intention (with respect to the making of the statement) and
recklessness (with respect to it being false or misleading) would
apply. The proposed maximum penalty for a contravention of this
offence would be 30 penalty units.
New section 109E - Notice of application
1408. Proposed section 109E would require the applicant to give a copy of
the application to the relevant employer and any person nominated in
the application to conduct the ballot within 24 hours of the
application being lodged with the AIRC. However, the applicant
would not be required to give these parties copies of the material
accompanying the application that must be given to the AIRC under
proposed section 109D, such as the document containing the names of
applicant employees where the applicants are represented by an
agent.
New section 109F - Joint applications
1409. Proposed section 109F would provide that where an employee seeking
an agreement has initiated a bargaining period for the proposed
agreement, two or more employees who would be subject to the
proposed agreement could make a ballot application jointly.
1410. If a joint application were made, another employee could, with the
consent of the other applicants, add their name to the application,
and an applicant could withdraw their name from the application.
1411. Proposed subsection 109F(4) would allow the President of the AIRC to
establish rules, under the general rule-making powers, regarding how
the provisions of the Act relating to ballot orders apply to joint
applicants.
New Subdivision C - Determination of application and order for ballot to be
held
New section 109G - Commission may notify parties etc. of procedure
1412. Proposed section 109G would allow the AIRC, after an application for
a ballot order is lodged, to notify all parties, or a person who may
become an authorised ballot agent of the procedure, for dealing with
the application, if the AIRC considers that this would expedite the
proceedings.
New section 109H - Commission to act quickly in relation to
application etc.
1413. Proposed subsection 109H(1) would require the AIRC to act as quickly
as practicable to determine an application for a ballot order and,
as far as is reasonably possible, to act within two working days of
the application being made.
1414. A note would be inserted after proposed subsection 109H(1) to make
it clear that, in exercising its powers under Division 4, the
general procedural obligations on the AIRC (such as the requirement
to act according to equity, good conscience and the substantial
merits of the case) are applicable.
1415. Subsection 109H(2) would provide that, in spite of the timeframe
foreshadowed by this section, the AIRC must not determine an
application for a ballot order unless it is satisfied that the
notice requirements in proposed section 109E have been complied with
and that all parties and relevant employees have had a reasonable
opportunity to make submissions in relation to the application. The
timeframe for dealing with applications would be a factor in
determining what was reasonable in the circumstances.
New section 109I - Parties and relevant employees may make
submissions and apply for directions
1416. Under proposed section 109I, a party or a relevant employee (these
terms are defined in section 109A) would be entitled to make
submissions to, or to apply for directions from, the AIRC about the
application, or about any aspect of the conduct of the protected
action ballot.
1417. A person nominated in an application to conduct a ballot could make
submissions, and apply for directions, relating to the application.
1418. An authorised ballot agent could make submissions, and apply for
directions, relating to any aspect of a protected action ballot.
1419. The AIRC could refuse to consider a submission if it is satisfied
that the submission is vexatious, frivolous, misconceived or lacking
in substance.
New section 109J - Commission may make orders or give directions
1420. Proposed section 109J would empower the AIRC to make orders or issue
directions in relation to a ballot order or the conduct of a
protected action ballot. However, the AIRC should make orders or
issue directions to ensure that ballots are conducted expeditiously.
1421. In considering whether to make such orders or issue such directions,
the AIRC would be required to have regard to the desirability of the
ballot results being available to the parties within 10 days of a
ballot order being made.
New section 109K - Commission procedure regarding multiple
applications
1422. Proposed section 109K would be aimed at avoiding any disruption that
may be caused to an employer's operations by the conduct of more
than one protected action ballot proposed to be held within a short
space of time (especially, for example, if the ballots are intended
to be attendance ballots).
1423. The AIRC would be empowered to hear and determine at the same time
multiple applications that concern the same employer or the same
place of work where different employers are involved (such as a
construction site). The AIRC can order such ballots to be held at
the same time. However, the AIRC may only do so if it considers
that this would not unreasonably delay the determination of any of
the applications.
New section 109L - Application not to be granted unless certain
conditions are met
1424. Proposed section 109L would set out the conditions to be met prior
to the AIRC granting an application for a protected action ballot
order. It would also set out the basis upon which the AIRC may
refuse an application.
1425. Subsection 109L(1) would require the AIRC to grant an application
for a ballot order if is satisfied that that the applicant:
. has, during the bargaining period, genuinely tried to reach
agreement with the employer;
. is genuinely continuing to attempt to reach agreement with the
employer; and
. is not engaged in pattern bargaining.
1426. A note would be inserted after this subsection to refer to the fact
that, in order for an application to be considered by the AIRC, it
must meet the requirements set out in proposed Subdivision B of
Division 4.
1427. A second note would be inserted referring to section 107D to clarify
when a bargaining period is deemed to have begun.
1428. A third note would be inserted after subsection 109L(1) to cross
reference this subsection with the provisions elsewhere in the Act
dealing with pattern bargaining.
1429. The AIRC would have discretion to refuse an application, despite
subsection 109L(1), if it is satisfied that granting the application
would be inconsistent with the object of this Division (see section
109), or if it is satisfied that the applicant, or an employee who
would be eligible to vote in the proposed ballot, has at any time
contravened a provision of this Division or an order or direction
made by the AIRC under the Division.
New section 109M - Grant of application - order for ballot to be
held
1430. Proposed section 109M would require the AIRC to order the applicant
to hold a ballot in accordance with Division 4, where it grants an
application for a ballot order.
New section 109N - Matters to be included in order
1431. Proposed section 109N would set out the information that would be
required to be contained in a ballot order made by the AIRC,
including:
. specifying the name of the applicant or the applicant's agent;
. the type of employees to be balloted;
. the voting method;
. the timetable for the ballot;
. the name of the person authorised by the AIRC to conduct the
ballot
. the name of the independent adviser for the ballot (if one is
appointed); and
. the question or questions to be put to the relevant employees in
the ballot, including the nature of the proposed action.
1432. Two notes would be inserted after subsection 109N to cross-reference
this provision with those provisions in the WR Act which specify who
may be authorised by the AIRC to conduct a protected action ballot
(section 109ZE) and who may be authorised by the AIRC to be an
independent advisor (section 109ZF).
1433. Subsection 109N(2) would require the order to specify a postal
ballot as the voting method unless the AIRC is satisfied that
another voting method proposed in the application is more efficient
and expeditious than a postal ballot.
1434. If the ballot is to be conducted by a postal ballot, the ballot
order would have to specify that voting is to take place by way of
declaration voting. Subsection 109N(3) would then set out what is
meant by declaration voting, including that the ballot paper must be
placed in a declaration envelope (this term is defined in section
109A).
1435. If a ballot is to be conducted by an attendance ballot, the ballot
order would be required to specify that voting is to take place
during breaks or otherwise outside work hours.
1436. The AIRC could specify in a ballot order a longer period than the
existing three days written notice, required by paragraph
108F(2)(b), before protected industrial action can be taken. The
period could be extended to up to seven days if the AIRC is
satisfied that there are exceptional circumstances.
New section 109O - Guidelines for ballot timetables
1437. Proposed subsection 109O(1) would assist the AIRC to more speedily
determine applications by allowing the President of the AIRC to
develop guidelines concerning timetables for the conduct of
protected action ballots. The President would be able to consult
with the Australian Electoral Commission (the AEC) and any other
person in developing any guidelines under this section.
1438. Subsection 109O(2), which has been included to assist readers, would
make clear that any guidelines developed under subsection 109O(1)
are not legislative instruments within the meaning of section 5 of
the Legislative Instruments Act 2003.
New section 109P - Power of Commission to require information
relevant to roll of voters
1439. The only employees who would be eligible to vote in a protected
action ballots are those who would be subject to the proposed
agreement and, in the case of union initiated ballots, who are also
members of the union that is the applicant for the order. To
determine whether a particular person is eligible to vote in a
ballot would frequently require the AIRC (or the authorised ballot
agent) to obtain information from the employer and the applicant.
1440. Proposed subsection 109P(1) would allow the AIRC to order the
applicant or the employer of the employees (or both) to provide the
AIRC with a list of employees who might be eligible to vote in a
proposed ballot, and any other information that the AIRC reasonably
requires to assist in compiling the roll of voters for the proposed
ballot.
1441. The AIRC would be able to require the list or other information to
be provided either to it or to the authorised ballot agent and could
require it be provided in whatever form the AIRC thinks is
appropriate.
New section 109Q - Roll to be compiled by Commission or ballot
agent
1442. Proposed subsection 109Q would provide for the compilation of the
roll of voters by the AIRC to give to the authorised ballot agent or
for the AIRC to order that the authorised ballot agent compile the
roll of voters.
New section 109R - Eligibility to be included on the roll
1443. Proposed section 109R would establish who is eligible to be included
on a roll to vote in a protected action ballot.
1444. It would establish that a person is only eligible to vote in a
protected action ballot if the person:
. was employed by the relevant employer on the day the ballot order
was made; and
. would be subject to the proposed agreement in respect of which the
relevant bargaining period was initiated.
1445. If the applicant for the ballot order is an organisation of
employees, the person would be required to have been a member of the
organisation on the day the ballot order was made by the AIRC.
1446. Under subsection 109R(2), a person whose employment is subject to an
AWA whose nominal expiry date has not passed would not be eligible
to vote in a ballot, even if the person meets the other requirements
for eligibility in subsection 109R(1).
New section 109S - Adding or removing names from the roll
1447. Proposed section 109S would set out the circumstances under which
names can be added or removed from the roll of voters.
1448. The ballot agent would be required to add a person's name to the
roll of voters for a ballot at any time before the day on which the
roll is to close, if the person requests that their name be added to
the roll, and the ballot agent is satisfied that the person is
eligible to be included on the roll of voters (subsection 109S(1)).
1449. A person could apply to the AIRC for a declaration that they are
eligible to be included on the roll of voters for a ballot. If the
AIRC is satisfied that the person is eligible to be included on the
roll of voters, and the application is made before the day on which
the roll is to close, the AIRC must make the declaration sought, and
direct the ballot agent to include the person's name on the roll of
voters for the ballot (subsection 109S(2)).
1450. A process for removing a person's name from the roll of voters would
be provided under subsection 109S(3). A party to a ballot order, a
person whose name is on the roll of voters for the ballot or the
authorised ballot agent, would be able to apply to the AIRC, before
the day on which the roll is to close, for a declaration that a
person whose name is on the roll of voters is not eligible to be
included on the roll. If the AIRC is satisfied that the person is
not eligible to be included on the roll of voters, the AIRC must
make the declaration sought and direct the ballot agent to remove
the person's name from the roll of voters.
New section 109T - Variation of order
1451. Proposed section 109T would set out the circumstances in which it is
possible to vary a protected action ballot order.
1452. Subsection 109T(1) would allow an applicant for a ballot order to
apply to the AIRC, at any time before the expiry of the ballot
order, to have the ballot order varied (for example, to deal with
unanticipated circumstances).
1453. Subsection 109T(2) would allow the authorised ballot agent to apply
to the AIRC, at any time before voting had closed, to have the
voting method or timetable for the ballot specified in the ballot
order varied. This would enable the ballot agent to request an
alteration in the timetable if, for example, they encountered
difficulties in compiling the roll of voters that would prevent the
completion of the ballot within the ordered timeframe.
New section 109U - Expiry and revocation of order
1454. Proposed section 109U would set out how ballot orders expire and in
what circumstances they could be revoked.
1455. A ballot order expires if a ballot has not been held within the
period specified in the ballot order.
1456. It would be open for the applicant for a ballot order to apply to
the AIRC to have the order revoked at any time before the order
expires. If such an application were made, the AIRC must revoke the
order.
New section 109V - Compliance with orders and directions
1457. Proposed section 109V would provide that if the AIRC makes an order
or direction under this Division expressed to apply to a person or
an organisation of employees, that person or organisation must
comply with the order or direction.
1458. Subsection 109V(2) would provide that subsection 109V(1) is a civil
remedy provision (and a note at the bottom of the section will refer
to Division 4 of Part VIII which deals with civil remedy
provisions). A pecuniary penalty of up to 300 penalty units for a
body corporate (or 60 penalty units for a natural person) may be
imposed in relation to a breach of this section. Subsection 109V(5)
would set out who may apply for a civil remedy order for breach of
subsection 109V(1).
New section 109W - Commission to notify parties and authorised
ballot agent
1459. Proposed section 109W would require the AIRC, as soon as practicable
after it makes, varies, or revokes a ballot order, to ensure that a
copy of that order or revocation is given to each party to the
application and the authorised ballot agent.
New Subdivision D - Conduct and results of protected action ballot
New section 109X - Conduct of ballot
1460. Proposed section 109X would provide that a ballot will not be a
protected action ballot unless it is conducted by the authorised
ballot agent (defined in section 109A).
1461. The effect of this section would be that a ballot must be conducted
by the ballot agent appointed by the AIRC in the ballot order for
the ballot to comply with the requirements of Division 4. If
someone else conducts the ballot then any industrial action that was
to be taken following such a ballot would not be protected
industrial action under section 108J.
New section 109Y - Form of ballot paper
1462. Proposed section 109Y would require the ballot paper for a protected
action ballot to be in the prescribed form, and contain the
following information:
. the name of the applicant or applicant's agent (as the case
requires);
. the types of employees who are to be balloted (for example, their
occupations, work groups and locations);
. the name of the ballot agent authorised to conduct the ballot;
. the question or questions to be put to voters, including the
nature of the proposed industrial action;
. a statement that the voter's vote is secret and that the voter is
free to choose whether or not to support the proposed industrial
action;
. instructions to the voter on how to complete the ballot paper; and
. the day on which voting in the ballot is to close.
New section 109Z - Who can vote
1463. Proposed section 109Z would provide that a person cannot vote in a
ballot unless the persons name is on the roll of voters for the
ballot (established under section 109Q and, if applicable, as varied
under section 109S).
New section 109ZA - Declaration of ballot results
1464. Proposed section 109ZA would require the authorised ballot agent to
make a declaration of the results of the ballot in writing, and
inform the applicant, the affected employer and the Industrial
Registrar, in writing, of the results as soon as practicable after
the close of voting.
New section 109ZB - Ballot reports
1465. Proposed section 109ZB would provide a mechanism for the AIRC to
ensure that protected action ballots are conducted in an open and
fair manner. The reports required to be produced under this section
could be relevant in any future consideration by the AIRC as to
whether someone is a fit and proper person to be an authorised
ballot agent or independent ballot adviser.
1466. Under this section, the authorised ballot agent and the authorised
independent adviser (if one has been appointed), would be required
to provide a written report to the Industrial Registrar about the
conduct of the ballot as soon as practicable after the close of
voting in the ballot.
1467. The provisions requiring the provision of a written report would be
civil remedy provisions to which Part VIII of the Act applies
(subsection 109ZB(7)). A pecuniary penalty of up to 300 penalty
units for a body corporate or 60 penalty units for a natural person
may be imposed for breach of these provisions.
1468. The ballot reports would be required to set out the details of any
complaints made to the authorised ballot agent or authorised
independent adviser about the conduct of the ballot or any
irregularities in the conduct of the ballot that have come to their
attention. However, these provisions would not limit the scope of
any report to the Industrial Registrar.
1469. Subsection 109ZB(11) would define what is meant by conduct and
irregularity in this section. However, these requirements would not
limit what may be included in the report; nor does the absence of
these factors mean a report is not necessary.
New section 109ZC - Effect of ballot
1470. Proposed section 109ZC would set out the effects of a protected
action ballot. Under this section, industrial action would only be
authorised by a protected action ballot if:
. the industrial action was the subject of a ballot conducted in
accordance with the provisions of this Division;
. at least 50 per cent of persons on the roll of voters for the
ballot voted in the ballot;
. more than 50 per cent of the votes validly cast in the ballot
approved the industrial action; and
. the action commences within a 30 day period, beginning on the day
the results of the ballot are declared. The AIRC could extend
this 30 day period by up to 30 days if both the employer and
applicant for the ballot order jointly apply for such an
extension. There may only be one such extension (subsection
109ZC(4)).
1471. A note would be inserted after subsection 109ZC(1) to clarify that
industrial action can only be protected industrial action if it is
authorised under this Division or unless it is in response to
industrial action by the employer.
1472. However, action would not be authorised if it occurs after the end
of the bargaining period that gave rise to the application for a
ballot (section 107E sets out when a bargaining period ends). A
note would be inserted after subsection 109ZC(2) to make clear that
if another bargaining period is initiated later, and industrial
action is proposed, then that industrial action will only be
protected if a new application for a ballot is granted and the other
requirements of this Division are met.
New section 109ZD - Registrar to record questions put in ballot, and
to publish results of ballot
1473. Proposed section 109ZD would require the Industrial Registrar to
keep records relating to ballots and to publish the results of a
ballot.
New Subdivision E - Authorised ballot agents and authorised
independent advisers
New section 109ZE - Who may be an authorised ballot agent?
1474. Proposed section 109ZE would deal with who the AIRC may name as an
authorised ballot agent.
1475. The AIRC may name either the AEC or another person as an authorised
ballot agent (subsection 109ZE(1)).
1476. The AIRC could not name a person other than the AEC unless the AIRC
is satisfied that the person:
. is capable of ensuring the security and secrecy of votes cast in
the ballot, and that the ballot will be fair and democratic;
. will conduct the ballot expeditiously; and
. is otherwise a fit and proper person to conduct the ballot.
1477. Subsection 109ZE(5) would allow for regulations to be made to
prescribe conditions a person must meet, and factors the AIRC must
take into account, for the AIRC to be satisfied that a person is a
fit and proper person to conduct a ballot.
1478. An applicant for a ballot may apply to be the authorised ballot
agent. However, the AIRC must not name that applicant as the
authorised ballot agent unless the applicant nominates another
person to be the authorised independent adviser for the ballot and
the AIRC names that person as the authorised independent adviser
(subsection 109ZE(3)). A note would be inserted after subsection
109ZE(3) to refer to section 109ZF which would set out who may be
appointed by the AIRC to be the independent adviser. This
requirement is designed to allow applicants to run their own
ballots, provided that the applicants are properly advised by
independent advisers so as to ensure the maintenance of fairness and
democracy in the running of ballots.
1479. If the AIRC is not satisfied that a person nominated by the
applicant to be the authorised ballot agent is sufficiently
independent of the applicant, then the AIRC is not to name the
person as the authorised ballot agent unless an authorised
independent adviser has been nominated by the applicant and
appointed by the AIRC (subsection 109ZE(4)). A note would be
inserted after subsection 109ZE(4) to refer to section 109ZF which
would set out who may be authorised by the AIRC to be the
independent adviser.
New section 109ZF - Who may be an authorised independent adviser?
1480. Proposed section 109ZF would set out who may be appointed as an
authorised independent adviser.
1481. The AIRC must not name a person as the authorised independent
adviser for a ballot unless it is satisfied that the person is:
. sufficiently independent of the applicant;
. is capable of providing advice and recommendations to the
authorised ballot agent that are directed towards ensuring that
the ballot will be fair and democratic; and
. has consented to being named as the authorised independent
advisor.
1482. These requirements are designed to safeguard the fair and democratic
conduct of ballots in circumstances where the applicant is appointed
as a ballot agent. They would also protect persons from being named
as authorised ballot agents without their knowledge or consent.
1483. Subsection 109ZF(3) would allow the making of regulations to
prescribe factors that the AIRC must take into account when
determining if a person is capable of providing such advice and
recommendations to the authorised ballot agent.
New Subdivision F - Funding of ballots
New section 109ZG - Liability for cost of ballot
1484. Proposed section 109ZG would establish who will be liable for the
cost of carrying out that ballot.
1485. The applicant for a ballot order is liable for the cost of holding
the ballot. Where a ballot application is made jointly, each
applicant will be jointly and severally liable for the cost of
holding the ballot (subsections 109ZG(1) and (2)).
1486. However, these requirements would operate subject to subsections
109ZH(3) and (6) which provide for the Commonwealth being partly
liable for the reasonable costs of a ballot if certain conditions
are met. The conditions under which the Commonwealth would partly
meet the reasonable and genuine cost of holding the ballot would be
found in section 109ZH.
1487. Subsection 109ZG(4) would provide a definition of the cost of
holding the ballot.
New section 109ZH - Commonwealth has partial liability for cost of
ballot
1488. Proposed section 109ZH would provide that the Commonwealth will be
liable to pay to the authorised ballot agent 80 per cent of the
reasonable ballot costs in certain circumstances.
1489. Where the authorised ballot agent is not the AEC, the Industrial
Registrar would be required to determine the reasonable ballot cost,
on application by the applicant, within a reasonable time after the
day on which the ballot closed.
1490. Subsection 109ZH(2) would provide that where the Industrial
Registrar has determined the reasonable cost of a ballot conducted
by an authorised ballot agent other than the AEC under subsection
109ZH(1), the Commonwealth is liable to pay to the authorised ballot
agent 80 per cent of the amount.
1491. To the extent that the Commonwealth becomes liable for the ballot
costs, the liability of the applicant would be discharged.
1492. Subsection 109ZH(4) would enable regulations to be made prescribing
matters that are to be taken into account by the Industrial
Registrar in determining whether ballot costs are reasonably and
genuinely incurred.
1493. Where the authorised ballot agent is the AEC, the AEC must certify,
within a reasonable time after the completion of the ballot, the
amount of the reasonable costs charged to the applicant in relation
to holding the ballot (subsection 109ZH(5)). The liability of the
applicant would then be reduced by 80 per cent of the amount
certified by the AEC.
New section 109ZI - Liability for cost of legal challenges
1494. Proposed section 109ZI would allow the making of regulations to deal
with who would be liable for costs incurred in relation to any legal
challenges to ballots. The definition of the costs of holding the
ballot would not include legal costs.
New Subdivision G - Miscellaneous
New section 109ZJ - Identity of certain persons not to be disclosed
by Commission
New section 109ZK - Persons not to disclose identity of certain
persons
1495. Proposed sections 109ZJ and 109ZK would set out the limited
circumstances in which the AIRC or a person could lawfully disclose
information that would identify certain persons.
1496. The AIRC must not disclose information that it has reasonable
grounds to believe would identify a person as:
. an applicant for a ballot order, where the applicant is
represented by an agent;
. an employee who supports an application for a ballot order, for
the purposes of subsection 109B(5);
. a person whose name appears on the roll of voters for a ballot; or
. a person who is party to an Australian Workplace Agreement.
1497. Subsection 109ZJ(2) would provide exceptions to the prohibition in
on disclosure by the AIRC in subsection 109ZJ(1). It would provide
that the AIRC could disclose information specified in subsection
109ZJ(1) if the disclosure is required or permitted by law or if the
disclosure has been authorised in writing by the person whose
identity would otherwise be protected.
1498. A similar prohibition on revealing protected information would apply
to persons generally under proposed section 109ZK. Under this
section, it would be an offence for a person to disclose certain
persons' identity.
1499. In order for a prosecution of this offence to be successful all
elements of the offences must be proved. The person must have
reasonable grounds to believe that the information will identify
another person as someone referred to in subsection 109ZJ(1). In
relation to the other elements of the offence, the default fault
elements contained in the Criminal Code Act 1995 would apply.
Therefore, for the offence to be proved, a person must intentionally
disclose information while being reckless as to whether the
circumstances set out in paragraphs 109ZK(1)(b) and (d) - (f) exist.
The proposed maximum penalty for this offence is 6 months
imprisonment.
New section 109ZL - Immunity if person acted in good faith on ballot
results
1500. Proposed section 109ZL would provide that where the results of a
protected action ballot, as declared by the authorised ballot agent,
purport to authorise particular industrial action, and an
organisation or person goes ahead and takes or participates in
industrial action acting in good faith relying on the results of the
ballot, no legal action is able to be taken against that
organisation or those persons, if it is subsequently established
that the action was not in fact authorised by the ballot.
1501. This immunity would not apply in cases where the industrial action
resulted in personal injury, wilful or reckless damage to property
or the unlawful taking, keeping or use of property. There would be
no immunity against legal action for defamation in the course of
industrial action. These exceptions are in line with the exceptions
to immunity provided by proposed section 108L.
New section 109ZM - Limits on challenges etc. to ballot orders etc.
New section 109ZN - Limits on challenges etc. to ballots
New section 109ZO - Penalties not affected
1502. These three proposed sections would protect the integrity of the
conduct of ballots and ballot results, by limiting the circumstances
in which ballot orders, the conduct of ballots and ballot results
may be challenged.
1503. Under section 109ZM, a ballot order, or a decision, direction or
order relating to a ballot order, would only be open to challenge
where:
. it is being alleged that another party has contravened (other than
in a technical way) the secret ballots provisions or an AIRC order
or direction relating to secret ballots; or misled the AIRC in
proceedings to which the order or decision relates; and
. the relevant court considers that there is a reasonable basis for
the allegation.
1504. Proposed section 109ZN would protect ballot results and the conduct
of ballots from challenge where the ballot has been conducted or has
purportedly been conducted unless:
. it is being alleged that another party has contravened (other than
in a technical way) the secret ballots provisions or a AIRC order
or direction relating to secret ballots; acted fraudulently in
relation to the conduct or declaration; or acted in such a way as
to cause an irregularity that affected, or could have affected,
the outcome of the ballot; and
. the relevant court is satisfied that there is a reasonable basis
for the allegation.
1505. The terms conduct and irregularity would be defined, for the
purposes of this section by subsection 109ZN(3).
1506. Proposed section 109ZO would make clear that the limitations in
sections 109ZM and 109ZN do not prevent a penalty being imposed upon
a person for a contravention of the WR Act. The effect of this
provision would be to ensure that criminal and civil sanctions that
would otherwise be relevant to conduct in relation to a protected
action ballot remain applicable (for example, the criminal sanctions
contained in section 317 of the Act).
New section 109ZP - Preservation of roll of voters, ballot
papers etc.
1507. Under proposed section 109ZP an authorised ballot agent who conducts
a protected action ballot would be required to keep the roll of
voters, all ballot papers, envelopes and other records relevant to
the ballot for one year after completion of the ballot. This would
be an offence provision. The default fault element of intention
(under the Criminal Code) would apply to the conduct of failing to
keep this material. Contravention of this section would be an
offence subject to a maximum penalty of 6 months imprisonment.
New section 109ZQ - Conferral of function on Australian Electoral
Commission
1508. Proposed section 109ZQ would ensure that if the AEC is the
authorised ballot agent for a ballot under Division 4, it is a
function of the AEC to conduct the ballot. That is, if the AIRC
authorises the AEC to conduct a ballot in a ballot order, the AEC
would be required to conduct the ballot. The AEC would also be
unable to make a submission or application to the AIRC to avoid
being nominated or appointed as an authorised ballot agent
(subsection 109ZQ(2)).
New section 109ZR - Regulations
1509. Under proposed section 109ZR, regulations would be able to be made
in relation to the following matters:
. the qualifications and appointment of applicants' agents;
. procedures to be followed in conducting a ballot or class of
ballot;
. the qualifications, appointment, powers and duties of scrutineers;
. the powers and duties of authorised independent advisers; and
. the manner in which ballot results are to be published under
section 109ZD.
Division 5 - Industrial action not to be engaged in before nominal
expiry of workplace agreement or workplace determination
New section 110 - Industrial action etc must not be taken before
nominal expiry day of collective agreement or workplace
determination
1510. Proposed section 110 would provide that industrial action cannot be
taken or organised from the time that a collective agreement made
under Part VB or a workplace determination made under Division 8 of
this Part comes into operation until the nominal expiry date of the
agreement or determination has passed.
1511. Subsection 110(1) deals with industrial action taken by an employee,
or organised by an organisation or officer or employee of an
organisation. Subsection 110(3) deals with industrial action taken
by an employer.
1512. The section would be a civil remedy provision. The possible
remedies for breach of section 110 are pecuniary penalties 300
penalty units for a body corporate or 60 penalty units for a natural
person and/or an injunction or any other orders the Court considers
necessary to stop the breach or remedy its effects.
1513. Proposed subsections 110(7) and (8) would set out who can apply to
the Federal Court or Federal Magistrates Court in respect of a
breach of this proposed section
New section 110A - Industrial action must not be taken before
nominal expiry date of AWA
1514. Proposed section 110A would provide that industrial action cannot be
taken from the time that an AWA comes into operation until its
nominal expiry date has passed.
1515. Subsection 110A(1) deals with industrial action taken by an
employee. Subsection 110A(2) deals with industrial action by an
employer.
1516. The section would be a civil remedy provision. The possible
remedies for breach are pecuniary penalties - up to or 300 penalty
units for a body corporate or 60 penalty units for a natural person
and/or an injunction or any other orders the Court considers
necessary to stop the breach or remedy its effects.
1517. Subsections 110A(6) and (7) would set out who can apply to the
Federal Court or Federal Magistrates Court in respect of a breach of
the proposed section.
Division 6 - Orders and injunctions against industrial action
New section 111 - Orders and injunctions against industrial action-
general
1518. Pre-reform section 127 of the WR Act allows the AIRC to make orders
to stop or prevent unprotected industrial action in relation to an
industrial dispute, the negotiation or proposed negotiation of an
agreement, or work that is related to an award or agreement which is
either happening, threatened, impending or probable.
1519. Proposed section 111 reflects the changed constitutional basis of
the Act and is designed to strengthen and enhance pre-reform section
127, consistent with the Government's policy intention of providing
effective and timely relief in respect of unprotected industrial
action.
1520. Section 111 would provide remedies for unprotected industrial action
by federal system employees and employers and for industrial action
by wholly state system employees and employers where that industrial
action has a substantial effect on the business of a constitutional
corporation (constitutional corporation is defined in subsection
4(1) of the Bill).
1521. Subsections 111(1) and (2) would set out the pre-requisites for the
making of an order to stop or prevent unprotected industrial action,
depending upon whether the action is by federal-system employees or
employers (subsection 111(1)) or non-federal system employees or
employers (subsection 111(2)).
1522. Subsection 111(4) would set out the category of those who may seek
an order to stop or prevent the industrial action being taken or
organised.
1523. Subsection 111(5) would require the AIRC, as far as practicable, to
hear and determine an application for an order under this section
within 48 hours of the application being made.
1524. Subsections 111(6), (7) and (8) would address the situation where
the AIRC is unable to determine an application within 48 hours of it
being made. In such circumstances, the AIRC would be required to
issue an interim order (within 48 hours of the application being
made), which would operate until the application is determined. The
only circumstance in which the AIRC must not make an order is where
it would be contrary to the public interest to do so.
1525. Subsection 111(9) would provide that in making an order concerning
industrial action, the AIRC is not required to state the specific
industrial action to which the order relates. This provision is
designed to allow comprehensive orders to be made, without the need
to identify each instance of industrial action separately.
1526. Subsection 111(10) would expressly state that a person to whom an
order or interim order applies must comply with that order. This
would be a civil remedy provision (subsection 111(11)).
1527. An order under subsection 111(1) or an interim order under
subsection 111(6) would not apply to protected action (subsection
111(13)).
1528. The Federal Court or the Federal Magistrates Court would be
empowered to grant an injunction (on terms it considers appropriate)
where it is satisfied that a person has failed to comply or is
proposing to fail to comply with an order or interim order of the
AIRC under this section.
New section 111A - Injunction against industrial action if pattern
bargaining engaged in in relation to proposed collective agreement
1529. Proposed section 111A would allow any person to make application to
the Federal Court or the Federal Magistrates Court for an injunction
to stop or prevent industrial action that is taken to support or
advance claims by a negotiating party that is engaged in pattern
bargaining.
Division 7-Ministerial declarations terminating bargaining periods
New section 112 - Minister's declaration
1530. Proposed section 112 would allow the Minister to terminate by
written declaration a bargaining period if the Minister is satisfied
that industrial action is being taken or is threatened, impending or
probable and the Minister is satisfied that the action:
. is adversely affecting (or would adversely affect) an employer who
is a negotiating party, or that employer's employees; and
. is threatening (or would threaten) to endanger the life, the
personal safety or health, or the welfare of the population or a
part of the population, or to cause significant damage to the
Australian economy or an important part of it.
1531. Subsections 112(3) - (5) would require the Minister to publish any
declaration in the Gazette, to inform the AIRC of the making of the
declaration, and to take all reasonable steps to make the
negotiating parties in relation to the bargaining period aware of:
. the fact that the declaration has been made;
. the effect of the provisions of the Bill about workplace
determinations; and
. the fact that they may agree to submit the matters at issue during
bargaining to an alternative dispute resolution process conducted
by the AIRC or a private provider.
1532. Subsection 112(6) would provide that any declaration may state that
a specified negotiating party or employee of the employer is
restricted from initiating a new bargaining period or may impose
conditions on the initiation of a new bargaining period.
1533. Subsection 112(7) is included to provide assistance to readers, as a
declaration made by the Minister is not a legislative instrument
within the meaning of section 5 of the Legislative Instruments Act
2003.
New section 112A - Minister's directions to remove or reduce the
threat
1534. Proposed subsection 112A(1) would permit the Minister to make
written directions, if the Minister makes a declaration terminating
the bargaining period under section 112, if the Minister is
satisfied that the directions are reasonably directed to removing or
reducing the threat to endanger the life etc. set out in paragraph
112(1)(c). The directions could require specified negotiating
parties, or specified employees of an employer who is a negotiating
party, to take, or refrain from taking, the actions set out in the
directions.
1535. Subsection 112A(2) would require the Minister to take all reasonable
steps, as soon as reasonably practicable, to make the persons to
whom any directions apply aware of the directions.
1536. Subsection 112A(3) would be included to provide assistance to
readers, as directions made by the Minister are not legislative
instruments within the meaning of section 5 of the Legislative
Instruments Act 2003.
1537. Subsection 112A(4) would provide that a person must comply with any
direction made by the Minister.
1538. Subsection 112A(4) would be a civil remedy provision (subsection
112A(5)). The possible remedy for breach of subsection 112A(4)
would be a pecuniary penalty - up to 300 penalty units for a body
corporate or 60 penalty units for a natural person.
1539. Subsection 112A(8) would provide that only a workplace inspector may
apply to the Court in respect of a breach of a Ministerial direction
under this section.
Division 8 - Workplace determinations
New section 113 - Application of Division
1540. Proposed section 113 would provide that Division 8 of Part VC would
apply if a bargaining period has been terminated by the AIRC because
of industrial action endangering the life etc. (under proposed
subsection 107G(3)) or by a Ministerial declaration.
New section 113A - Definitions
1541. Proposed section 113A would set out certain defined terms that are
used in Division 8 of Part VC.
New section 113B - Negotiating period
1542. Proposed section 113B would provide for a negotiating period
following the termination of a bargaining period. The negotiating
period would be 21 days. The AIRC must extend the negotiating
period by a further 21 days if the negotiating parties have not
settled the matters at issue during bargaining, and all of the
negotiating parties apply for an extension. This power could be
exercised by a single member, and could be exercised once only.
New section 113C - When Full Bench must make workplace determination
1543. Proposed section 113C would provide that if the negotiating period
has ended and the negotiating parties have not settled the matters
at issue during bargaining, a Full Bench of the AIRC must make a
workplace determination as soon as practicable.
1544. Subsection 113C(5) is included to provide assistance to readers, as
a workplace determination is not a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act 2003.
New section 113D - Content of workplace determination
1545. Proposed section 113D would set out the terms that could be included
in workplace determinations. Terms not mentioned in the section
could not be included.
1546. Subsection 113D(1) would require the workplace determination to
contain terms that deal with the matters at issue during bargaining.
However, the Full Bench would not be restricted to determining
matters on which the negotiating parties had not reached agreement.
1547. Subsections 113D(2) - (3) would provide that the workplace
determination comes into operation when it is made, and must contain
a nominal expiry date no later than five years after that date.
1548. Subsection 113D(4) would provide that a workplace determination must
not contain prohibited content. A definition of prohibited content
would be set out in section 101D.
1549. Subsection 113D(5) would set out the factors to which the Full Bench
must have regard when making a determination. The list of factors
would be exhaustive and the Full Bench would not be able to consider
any additional matters, although further matters can be added by
regulation.
1550. Subsection 113D(6) would provide that the workplace determination
must require disputes about matters arising under the determination
to be dealt with in accordance with the model dispute resolution
process in Part VIIA.
New section 113E - Who is bound by a workplace determination?
1551. Proposed section 113E would set out the parties that are bound by a
workplace determination, being:
. the negotiating parties in relation to the terminated bargaining
period; and
. all employees whose employment is subject to the workplace
determination.
New section 113F - Act applies to workplace determination as if it
were a collective agreement
1552. Proposed section 113F would provide that, subject to certain
exceptions, the Act would apply to a workplace determination as if
it were a collective agreement in operation. This would mean that
other provisions of the Act which affect a collective agreement in
operation - such as rules about the interaction of collective
agreements with other industrial instruments - apply to workplace
determinations.
1553. Subsection 113F(2) would provide that the following provisions would
be exceptions to the above rule:
. provisions stating who would be bound by a collective agreement -
because the persons bound by a workplace determination would be
set out in section 113E;
. provisions relating to the content of collective agreements -
because the content of workplace determinations would be set out
in section 113D; and
. provisions relating to the variation of collective agreements -
because workplace determinations cannot be varied (the parties
would need to make a workplace agreement if they wished to change
the terms and conditions governing the employment).
1554. Subsection 113F(3) would provide that the provisions stating when
parties may agree to terminate a collective agreement (at
Subdivision B of Division 9 of Part VB) would apply to a workplace
determination only once a workplace determination has passed its
nominal expiry date.
1555. Subsection 113F(4) would provide that a workplace determination can
be replaced by a collective agreement at any time, including before
its nominal expiry date has passed. The effect of subsections
113F(1) and 100(5) would be that if an employee bound by a workplace
determination subsequently makes an AWA, the workplace determination
would be of no effect while the AWA is in operation.
Division 9 - Payments in relation to periods of industrial action
New section 114 - Payments not to be made or accepted in relation to
periods of industrial action
1556. Division 9 would deal with the prohibition on paying or seeking the
payment of strike pay.
1557. Proposed subsection 114(2) would prohibit an employer, in the
circumstances set out in the provision, from making a payment to an
employee for a period during which the employee engages in
industrial action. Where the period of industrial action is fewer
than four hours in a day, the employer must not pay an employee for
four hours. If the period of industrial action is four hours or
more in a day then the employer must not pay an employee for the
period of the industrial action. Subsection 114(5) would prohibit
an employee from accepting such a payment.
1558. Subsections 114(2) and (5) would be civil remedy provisions
(subsection 114(6)). The possible orders that the Federal Court or
Federal Magistrates Court could make for a breach of these
provisions are:
. a pecuniary penalty - up to 60 penalty units for a natural person
and 300 penalty units for a body corporate;
. an injunction or any other orders the Court considers necessary to
stop the breach or remedy its effects; and
. any other consequential orders.
1559. Applications in relation to contraventions may be made by a
workplace inspector, a person who has an interest in the matter or
any other person prescribed by the regulations (subsection 114(9)).
New section 114A - Organisations not to take action for payments in
relation to periods of industrial action
1560. Proposed subsection 114A(1) would prohibit an organisation or an
officer, member or employee of an organisation from making a claim
against an employer for payment to an employee in relation to a day
when the employee was engaged, or engages in, industrial action.
The provision also prohibits conduct intended to coerce the employer
into making such a payment (paragraph 114A(1)(b)).
1561. By subsections 114A(2) and (3), an action done by the committee of
management of an organisation or the persons specified in subsection
114A(2) would be taken to be an act of the organisation unless the
committee of management or a person authorised by the committee or
an officer of the organisation has taken reasonable steps to prevent
the action.
1562. Subsection 114A(1) would be a civil remedy provision (subsection
114A(4)). The possible orders that the Court could make for a
breach of this provision are:
. a pecuniary penalty - up to 300 penalty units for a body corporate
or 60 penalty units for a natural person;
. compensation to the affected employer;
. an injunction or any other orders the Court considers necessary to
stop the breach or remedy its effects; and
. any other consequential orders.
1563. However, an order for compensation in favour of the employer could
not be made if the employer had itself contravened the prohibition
on paying strike pay (subsection 114A(7)).
1564. Applications in relation to contraventions may be made by the
employer concerned, a workplace inspector, a person who has an
interest in the matter or any other person prescribed by the
regulations (subsection 114A(8)).
New section 114B - Persons not to coerce people for payments in
relation to periods of industrial action
1565. Proposed subsection 114B(1) would prohibit pressure being applied to
independent contractors to make payments to their employees in
respect of days on which industrial action is taken. This
prohibition would apply irrespective of whether the industrial
action was protected or unprotected. Subsection 114B(7) would make
the term independent contractor an exception to the general rule
that a reference to an independent contractor is limited to a
natural person - see proposed subsection 4(2).
1566. Subsection 114B(1) would be a civil remedy provision (subsection
114B(2)). The possible orders that the Court could make for a
breach of this provision are:
. a pecuniary penalty - up to 300 penalty units for a body corporate
or 60 penalty units for a natural person;
. an injunction or any other orders the Court considers necessary to
stop the breach or remedy its effects; and
. any other consequential orders.
1567. Applications in relation to contraventions may be made by the
contractor concerned, a workplace inspector, a person who has an
interest in the matter or any other person prescribed by the
regulations.
New Part VI - Awards
1568. The proposed provisions of Part VI are directed at ensuring that
awards operate as a modern and simple safety net, providing minimum
safety net entitlements for award-reliant employees. To this end:
. awards will continue to provide for a range of matters including
pay-related benefits such as penalty rates and overtime loadings,
as well as public holidays and meal breaks;
. awards will be simplified to reduce complexity and ensure a
greater focus at the workplace level: a number of currently
allowable award matters will cease to be allowable, while other
allowable matters will be changed in scope;
. awards will be rationalised to remove duplication and minimise the
number of awards applying to employers - an Award Review Taskforce
will recommend to Government an approach to rationalising awards,
which will then be undertaken by the AIRC in accordance with a
request from the Minister;
. the AIRC's powers to vary awards, other than as part of the
rationalisation or simplification processes, will be limited to
circumstances where variation is essential to the maintenance of a
minimum award safety net.
New Division 1 - Preliminary
New section 115 - Objects of Part
1569. Proposed section 115 would set out the objects of the Part. The
objects make clear that awards are to provide minimum safety net
entitlements for award-reliant employees.
1570. The proposed objects of the Part are to ensure that:
. minimum safety net entitlements are protected through a system of
enforceable awards maintained by the AIRC (paragraph 115(a));
. awards are simplified and rationalised to reduce complexity and
make them more conducive to the efficient performance of work
(paragraph 115(b)); and
. the AIRC performs its functions in a way which encourages the
making of agreements at the workplace level, and protects the
competitive position of young people in the labour market and
promotes youth employment, youth skills and community standards,
and assists in reducing youth unemployment (paragraph 115(c)).
New section 115A - Performance of functions by the Commission
1571. Proposed section 115A would direct the AIRC as to the manner in
which it performs its functions under the Part.
1572. Subsection 115A(1) would require the AIRC to perform its functions
under the Part in a manner that furthers the objects of the Act and
the Part.
1573. Subsection 115A(2) would set out the matters to which the AIRC must
have regard when performing its functions. These matters reflect
the safety net role of award entitlements in the new system, the
central role of the AFPC in setting wage rates, and the importance
of ensuring a strong economy. The factors are:
. the desirability of high levels of productivity, low inflation,
job creation and high employment (paragraph 115A(2)(a));
. decisions of the AFPC, and particularly the need to ensure that
its decisions are not inconsistent with wage-setting decisions of
the AFPC (paragraph 115A(2)(b)); and
. providing minimum safety net entitlements that do not act as a
disincentive to bargaining at the workplace level
(paragraph 115A(2)(c)).
New section 115B - This Part does not apply in relation to
prescribed employees in Australia
1574. Proposed subsection 115B(1) would authorise the making of
regulations to prescribe employees in Australia (by class or
otherwise - see Note 1 to the subsection) to whom the provisions of
the Part do not apply. If an employee was prescribed, the Part
would not apply to the employee's employer in respect of that
employee. Legislative note 1 to subsection 115B(1) would note that,
for the purposes of section 115B, Australia includes the Territory
of Christmas Island and the Territory of Cocos (Keeling) Islands and
the coastal sea.
1575. The purpose of the regulation making power would be to dis-apply the
award provisions on the basis of insufficiency of connection between
the employment and Australia. Proposed subsection 115B(2) would
require that the Minister be satisfied that there was not a
sufficient connection between the employee's employment and
Australia. Although it would be open to the Commonwealth to apply
an award to any employee in Australia, it may be impracticable or
inappropriate to apply awards to some employees in Australia (for
example, flight crew of a foreign airline who transit in and out of
Australia, or an employee of a foreign employer on a short visit to,
or tour of, Australia), and the regulation making power could be
used to dis-apply the award provisions to those employees.
New section 115C - Extraterritorial operation
1576. Proposed subsection 115C(1) would extend the application of the Part
(and related provisions of the WR Act) to certain employees outside
Australia and to their employers. The legislative note to
subsection 115C(1) would note that, for the purposes of section
115C, Australia includes the Territory of Christmas Island and the
Territory of Cocos (Keeling) Islands and the coastal sea.
1577. In Australia's exclusive economic zone, awards would apply to
employees of Australian employers (as defined in subsection 4(1))
unless regulations were made to dis-apply the application of the
Part to such an employee (see proposed paragraph 115C(2)(a)).
Regulations could also extend the operation of award provisions to
other employees in the exclusive economic zone (see proposed
paragraph 115C(2)(b)). In making regulations, account would be
taken of Australia's international law obligations in relation to
foreign-flagged ships and foreign-registered aircraft.
1578. In relation to employees in, on or over Australia's continental
shelf beyond the exclusive economic zone, the award provisions would
apply only if regulations prescribed the part of the continental
shelf where the employee was located and the employee met the
requirements prescribed by the regulations (see proposed subsection
115C(3)). In making regulations, account would be taken of
Australia's international law obligations in relation to foreign-
flagged ships and foreign-registered aircraft and its obligations in
relation to matters in, on or over the continental shelf (including
under agreements with other countries in relation to particular
areas of the continental shelf). The legislative note to subsection
115C(3) would make clear that the regulations could prescribe
different requirements for different parts of the continental shelf,
including for reasons connected with Australia's international
obligations.
1579. Outside Australia and the exclusive economic zone and continental
shelf, the award provisions would apply to Australian-based
employees of Australian employers (as those expressions would be
defined in subsection 4(1)). Regulations could be made to prescribe
an employee outside Australia and the exclusive economic zone and
continental shelf as an employee to whom the award provisions do not
apply. (See proposed subsection 115C(4).)
New Division 2 - Terms that may be included in awards
1580. This Division would make provision for the terms that may be
included in an award. The Division would set out what matters are
allowable award matters, and list some specific matters that would
not be allowable (Subdivision A). The Division would also specify
other matters that are permitted to be included in an award
(Subdivision B), provide for certain terms in awards to cease to
have effect (Subdivision C), and permit regulations to be made to
deal with award conditions for part-time employees (Subdivision D).
New Subdivision A - Allowable award matters
1581. This Subdivision would list allowable award matters and specific
matters that are not allowable award matters. In this way the
subdivision would establish both what may be included in an award
and what may not.
New section 116 - Allowable award matters
1582. Proposed subsection 116(1) would set out the list of allowable award
matters. Each of the allowable award matters would have its
ordinary workplace relations meaning. The list of allowable matters
would be affected by proposed section 116B.
1583. Paragraph 116(1)(a) would make ordinary time hours of work and the
times within which they are performed, rest breaks, notice periods
and variations to working hours an allowable award matter.
Ordinary time hours of work
1584. The 'ordinary time' aspect of this allowable award matter will
intersect with the guarantee of maximum ordinary hours of work that
is part of the Standard (proposed section 91C). Where an award
provides for less than the maximum guaranteed by the Standard, the
award would continue to apply (as such an award would be compliant
with the Standard). However, a three year transitional period will
be provided for pre-reform awards. After that period, an award term
that provides a lower standard than the maximum ordinary hours
guaranteed by the Standard (eg if it provides for 40 maximum hours
of work per week) will not operate to the extent it would be
contrary to the Standard.
The time within which ordinary time hours of work are performed
1585. This aspect of the allowable matter would encompass award terms
about, for example, the span of ordinary time hours of work or
flexible hours arrangements.
Rest breaks
1586. The reference to 'rest breaks' would mean that award terms
specifying rest breaks, including meal breaks, crib breaks and
breaks between shifts, are allowable award matters.
Notice periods and variations to working hours
1587. The reference to 'notice periods and variations to working hours'
would mean that award terms that regulate the amount of notice
required to a change to a roster of working hours, variations to
working hour rosters, and make up time arrangements would be
allowable.
1588. Paragraph 116(1)(b) would make allowable terms in awards about
incentive based payments and bonuses and the derivation or
alteration of such payments. An incentive based payment or bonus is
a payment that is a direct or indirect inducement, reward or benefit
which aims to motivate an employee to achieve a particular goal or
target. Payments can be ongoing or made on a periodic or one-off
basis. This matter also includes piece rate payments where piece
workers have a minimum rate of pay guaranteed by a periodic rate of
pay set by the Australian Fair Pay Commission.
1589. Paragraph 116(1)(c) would make annual leave loadings an allowable
award matter. This means that an award term may grant an additional
payment to an employee taking annual leave.
1590. Paragraph 116(1)(d) would make ceremonial leave an allowable award
matter. This would encompass, for example, a clause which provides
an entitlement for an Aboriginal or Torres Strait Islander employee
to attend a culturally significant ceremonial event.
1591. Paragraph 116(1)(e) would make allowable the observance of certain
days as public holidays, and entitlements of employees to payment in
respect of those days.
1592. The scope of this allowable matter would be limited to days declared
by or under a law of a State or Territory as days to be observed
generally with that State or Territory, or a region of that State or
Territory, as public holidays by employees who work in that State,
Territory or region.
1593. This allowable award matter would include days such as New Year's
Day, Australia Day, Good Friday, Easter Saturday, Easter Monday,
ANZAC Day, Queen's Birthday, Labour Day, Christmas Day and Boxing
Day, plus Adelaide Cup Day and Proclamation Day in South Australia,
Foundation Day in Western Australia, Canberra Day in the ACT and
Picnic Day in the Northern Territory as these days are observed
generally within the State or Territory. It would also include
declared regional holidays such as Melbourne Cup Day, Brisbane Show
Day, Regatta Day in southern Tasmania and Recreation Day in northern
Tasmania as these days are observed generally within a region of a
State or Territory.
1594. The allowable award matter would exclude other days not declared
under a law of a State or Territory to be observed generally
throughout a State or Territory or a region a State or Territory.
For example, the observance of a public holiday within a particular
industry (such as bank holidays) would not be an allowable award
matter if that day would only be observed by some sections of the
population within a State or Territory or a region of that State or
Territory.
1595. Paragraph 116(1)(e) would not preclude an award from providing for
the substitution of different days to be observed as public holidays
or from providing for arrangements to be made at the workplace or
enterprise level for the substitution of different days to be
observed as public holidays.
1596. Paragraph 116(1)(f) would make allowable in awards monetary
allowances for:
. expenses incurred in the course of employment - for example,
travel, accommodation, uniform, motor vehicle, meal or telephone
expenses incurred in the course of employment;
. responsibilities or skills that are not taken into account in
rates of pay for employees - for example, a monetary allowance for
the performance of additional duties at a higher level or for
holding a particular qualification;
. disabilities associated with the performance of particular tasks
(for example, handling hazardous materials) or work in particular
conditions (for example, work in cold rooms) or locations (for
example, work in remote locations).
1597. Paragraph 116(1)(g) would make allowable loadings for working
overtime or for shift work. This would allow awards to include
terms about, for example: the definition of overtime, time off in
lieu of payment for overtime, and a rate of pay that is higher than
a minimum rate for working overtime or shift work.
1598. Paragraph 116(1)(h) would make penalty rates an allowable award
matter. This means that a rate of pay higher than the rate for
ordinary pay, and payable in specified circumstances, may be set in
an award - for example, award terms providing for overtime, weekend
and public holiday rates.
1599. Paragraph 116(1)(i) would make redundancy pay within the meaning of
subsection 116(4) an allowable award matter. This would limit
redundancy pay to redundancy pay in relation to a termination of
employment by an employer of 15 or more employees; and which is
either, at the initiative of the employer and on the grounds of
operational requirements, or, because the employer is insolvent.
1600. Paragraph 116(1)(j) would make stand-down provisions an allowable
award matter. This means that a term of an award may provide, for
example, for a temporary suspension of employees where they cannot
be usefully employed because of a breakdown of machinery at the
employer's business premises for which the employer cannot
reasonably be held responsible. An award term that provides for the
deduction of wages in circumstances of a stand down would also be
allowable under this paragraph.
1601. Paragraph 116(1)(k) would make dispute settling procedures an
allowable award matter. However, the effect of proposed section
116A would be that the model dispute resolution process set out in
proposed Part VIIA would apply to all awards. A term providing for
any other dispute settling process or procedure would cease to
operate from the reform commencement.
1602. Paragraph 116(1)(l) would make allowable terms in an award about
type of employment, such as full-time employment, casual employment,
regular part-time employment and shift work. Type of employment is
that category of employment which identifies the basis upon which a
particular employee is employed. This allowable matter would also
encompass terms in an award providing for, for example, fixed term
employees, daily hire employees, apprentices and trainees.
1603. Paragraph 116(1)(m) would make allowable certain conditions for
outworkers, such as chain of contract arrangements, registration of
employers, employer record keeping and inspection.
1604. This allowable award matter would require outworkers' overall
conditions of employment to be fair and reasonable in comparison
with the conditions of employment specified in a relevant award or
awards for employees who perform the same kind of work at an
employer's business or commercial premises. This means that what is
allowable under this paragraph is affected by a comparison with the
award conditions of employment for employees who perform the same
kind of work at an employer's business or commercial premises as
outworkers.
1605. Subsection 116(2) would ensure that a matter listed in subsection
116(1) is only allowable to the extent that it pertains to the
relationship between employers bound by the award and their
employees. This means that the matters listed in subsection 116(1)
must not pertain to any other relationship, including a relationship
between an employer bound by the award and an independent
contractor, or the relationship between an employee and an
organisation of employees.
1606. Subsection 116(3) would ensure that the terms of an award about any
given allowable award matter may only provide a minimum safety net
entitlement in relation to that matter, independent of any other
award term or to the award as a whole.
1607. Subsection 116(4) would define redundancy pay for the purposes of
paragraph 116(1)(i) as redundancy pay in relation to a termination
of employment that is:
. by an employer of 15 or more employees;
. either at the initiative of the employer and on the grounds of
operational requirements or because the employer is insolvent.
1608. Termination of employment would be at the initiative of the employer
and on the grounds of operational requirements where the employer
decides that for economic, technological or other reasons the
position or job occupied by an employee has become superfluous, in
excess of, or unnecessary for, the requirements of that employer's
enterprise.
1609. Some current awards define redundancy as occurring when an employee
ceases to be employed by an employer in any situation, other than
for reasons of misconduct or refusal of duty. This broad definition
of redundancy may lead to redundancy payments being paid in some
circumstances where termination of employment was not at the
initiative of the employer and on the grounds of operational
requirements. This includes, for example, to the estate of an
employee that has died while still employed. Award terms providing
for redundancy payments in ordinary resignation situations are also
not to be treated as a redundancy.
1610. Redundancy would also arise in circumstances where an employer is
insolvent and the termination arises from the insolvency, whether
the employer actively terminates the employment relationship or not.
1611. Subsection 116(5) would set out how to determine whether an employer
has 15 or more employees at the relevant time, for the purposes of
paragraph 116(4)(a). The provision makes clear that this
calculation is to include any employee who becomes redundant, and
any casual employee engaged by the employer on a regular and
systematic basis for at least 12 months. The relevant time is when
notice of the redundancy is given or when the redundancy occurs,
whichever happens first.
1612. Subsection 116(6) would provide definitions for conditions and
outworker - these terms relate to paragraph 116(1)(m).
New section 116A - Dispute settling procedures
1613. Proposed section 116A would ensure that each award contains the
model dispute resolution process contained in proposed Part VIIA.
Terms in awards that provide for any other dispute resolution
process would not be allowable for the purposes of paragraph
116(1)(k) (which would provide that dispute resolution procedures
are an allowable award matter).
New section 116B - Matters that are not allowable award matters
1614. Proposed section 116B would affect the scope of the allowable
matters contained in subsection 116(1), by specifying particular
matters that are not allowable matters.
1615. Paragraph 116B(1)(a) would specify as non-allowable terms in an
award about the rights of an organisation of employers or employees
to participate in, or represent the employer or employee in, the
whole or part of a dispute settling procedure, unless the
organisation is a representative of the employer's or employee's
choice.
1616. This limitation is intended to ensure that an award provides
employees and employers with choice as to representation, and also
to give employees and employers a choice about whether or not they
want a representative present at all. It is intended to prevent
award terms that allow an organisation to intervene using the model
dispute settling procedure if an employee or employer has not
requested its assistance.
1617. Paragraph 116B(1)(b) would provide that the matter of transfers from
one type of employment to another type of employment is not an
allowable award matter. This means an award term that, for example,
provides for the conversion of an employee from casual employment to
part-time or full-time employment would not be an allowable award
matter. However, a term of an award that permits access to a
different type of employment for a set period of time, for example,
a full-time employee who returns to work part-time after parental
leave until their child reaches school age, would not fall under
paragraph 116B(1)(b) and would therefore be allowable.
1618. Paragraph 116B(1)(c) would provide that the number or proportion of
employees that an employer may employ in a particular type of
employment is not an allowable award matter. This means that an
award would not be allowed to contain terms that impose, or would
have the effect of imposing, a limit on the number of persons that
may be employed in a particular type of employment, whether by
imposing a quota on that employment type or requiring a minimum or
maximum number of employees in a particular type of employment.
1619. Paragraph 116B(1)(d) would provide that direct or indirect
prohibitions on an employer employing employees in a particular type
of employment is not an allowable award matter. For example, an
award term limiting the employment of casual employees only to
periods up to but not exceeding a specified number of weeks (say six
or 12 weeks), would be an indirect prohibition on an employer
employing employees in a particular type of employment and would
not, therefore, be a term about an allowable award matter.
1620. Paragraph 116B(1)(e) would provide that the maximum or minimum hours
of work for regular part-time employees is not an allowable award
matter. This means an award term that prescribes the maximum or
minimum hours for regular part-time employees would not be about an
allowable award matter. Paragraph 116B(1)(e) would operate subject
to the terms of subsection 116B(2), which would permit an award term
setting a minimum number of consecutive hours that an employer may
require a regular part-time employee to work.
1621. Paragraph 116B(1)(f) would provide that restrictions on the range or
duration of training arrangements are not allowable award matters.
This means, for example, that an award term providing that
apprenticeships will be for a specific duration would not be a term
about an allowable award matter. Equally, an award term that
limited the circumstances in which the duration of a training
arrangement could be varied (for example, by requiring the agreement
of a State or Territory training authority) would not be a term
about an allowable award matter.
1622. Paragraph 116B(1)(g) would provide that restrictions on the
engagement of independent contractors and requirements relating to
their engagement are not allowable award matters. This means, for
example, that an award term that only allows the use of independent
contractors to top up the existing full-time labour force (to cover
seasonal or peak work loads, for instance) would not be a term about
an allowable award matter - such a cap on the use of independent
contractors would amount to a restriction on the engagement of
independent contractors. Similarly, a clause that required certain
prerequisites (such as consultation with employees or a union) to be
satisfied before independent contractors could be engaged by an
employer would not be allowable.
1623. Paragraph 116B(1)(h) would make non-allowable restrictions on the
engagement of labour hire workers, and requirements relating to the
conditions of their engagement, imposed on an entity or person for
whom the labour hire worker performs work under a contract with a
labour hire agency. For example, a term of an award which prevented
the use of labour hire workers except in cases where those workers
were paid at the same rate as employees of the business where the
labour hire workers are also engaged would not be a term about an
allowable award matter. (Proposed subsection 116(3) defines terms
relevant to this paragraph.)
1624. Paragraph 116B(1)(i) would provide that union picnic days is not an
allowable award matter. This means an award term that provides for
a union picnic day that would otherwise be allowable under paragraph
116(1)(e) (which relates to public holidays) is not an allowable
award matter.
1625. Paragraph 116B(1)(j) would provide that tallies is not an allowable
award matter. This means an award term that, for example, provides
for a tally payment system in the meat industry is not a term about
an allowable award matter.
1626. Paragraph 116B(1)(k) would provide that dispute resolution training
leave is not an allowable award matter. This means an award term
providing leave to attend a training course directed to the dispute
resolution process is not a term about an allowable award matter.
1627. Paragraph 116B(1)(l) would provide that trade union training leave
is not an allowable award matter. This means that an award term
providing leave to attend a course directed to the training of union
delegates or workplace representatives is not a term about an
allowable award matter. Terms about other trade union training
courses dealing with workplace relations issues would also be non-
allowable award matters.
1628. Paragraph 116B(1)(m) would allow additional matters to be prescribed
by the regulations as not allowable.
1629. Subsection 116B(2) would ensure that paragraph 116B(1)(e) (which
would render not allowable terms about the maximum or minimum hours
for regular part-time employees) would not prevent a term being
included in an award that:
. sets a minimum number of consecutive hours that an employer may
require a regular part-time employee to work - for example, a term
that allowed an employer to require a regular part-time employee
to work at least three consecutive hours; or
. facilitated a regular pattern in the hours worked by regular part
time employees - for example, an award term may enable a regular
part-time employee to work fifteen hours each week over the course
of a four week period.
Subsection 116B(3) would provide a definition of labour hire agency and
labour hire worker for the purposes of proposed section 116B.
New section 116C - Matters provided for by the Australian Fair Pay
and Conditions Standard
1630. Subsection 116C(1) would make clear that a matter that is provided
for by the Standard, for example, minimum rates of pay, is not an
allowable award matter.
1631. The exception to this rule - terms in an award about ordinary hours
of work - would be provided by subsection 116C(2). Ordinary hours
of work would be expressly allowable under paragraph 116(1)(a).
New section 116D - Awards may not include terms involving
discrimination and preference
1632. Proposed section 116D would provide that a term of an award is not
allowable to the extent that it requires or permits, or has the
effect of requiring or permitting, any conduct that would contravene
proposed Part XA (Freedom of Association).
New section 116E - Awards may not include certain terms about rights
of entry
1633. Proposed section 116E would provide that an award term is not
allowable to the extent that it would require or authorise an
officer or employee of an organisation to enter premises for the
purposes listed in the section - which include inspecting or viewing
work performed on premises of an employer bound by the award.
New section 116F - Awards may not include enterprise flexibility
provisions
1634. Proposed section 116F would provide that to the extent that an award
term is an enterprise flexibility provision (as defined immediately
before the reform commencement), it would not be about an allowable
award matter.
New Subdivision B - Other terms that are permitted in awards
New section 116G - Preserved award terms
1635. Proposed section 116G would provide that preserved award terms are
terms that are permitted to be in awards. Preserved award terms are
dealt with in proposed Division 3.
New section 116H - Facilitative provisions
1636. A facilitative provision is a term of an award which permits an
employer and employees to agree on how specified terms of an award
are to apply at the workplace level.
1637. Subsection 116H(1) would allow a facilitative provision in an award.
This subsection would operate subject to the requirements of the
remainder of this section.
1638. Subsection 116H(2) would ensure that a facilitative provision must
not require agreement between a majority of employees and an
employer on how a term in the award is to operate; rather a
facilitative provision must permit agreement between an individual
employee and his or her employer.
1639. Subsection 116H(3) would provide that a facilitative provision may
only operate in respect of an allowable award matter or a preserved
award term.
1640. Subsection 116H(4) would provide that a facilitative provision is of
no effect to the extent that it does not comply with subsections
116H(2) and (3).
New section 116I - Incidental and machinery terms
1641. Subsection 116I(1) would permit an award to include terms that are
both:
. incidental to a term in the award that is allowable; and
. are essential to enable an award term to function in a practical
way.
1642. Subsection 116I(2) would provide that an award term that is not an
allowable award matter because of other proposed sections (proposed
sections 116B, 116D, 116E or 116F) cannot be included in an award
because of the operation of proposed section 116I.
New section 116J - Anti-discrimination clauses
1643. Proposed section 116J would permit an award to include a model anti-
discrimination clause.
New section 116K - Boards of reference
1644. Proposed section 116K would provide for the ongoing operation of
terms in awards that appoint, or permit the appointment of, boards
of reference, subject to specific operational limitations. To the
extent that an existing term would not comply with these
requirements, it would be of no effect (subsection 116K(2)). The
key provision in this regard is subsection 116K(4), which would
provide that a term of an award that appoints, or gives power to
appoint, a board of reference may confer upon the board of reference
an administrative function (as defined), and must not confer upon
the board of reference a function of settling or determining
disputes about any matter arising under the award. A function
conferred under subsection 116K(4) may only relate to an allowable
award matter or other terms that are permitted to be included in an
award (subsection 116K(5)). In this regard, subsection 116K(3)
would provide for how terms providing for boards of reference are
dealt with during award rationalisation.
1645. Subsection 116K(6) would provide that a board of reference may
consist of or include a member of the AIRC.
1646. Subsection 116K(7) would provide for regulations to be made in
relation to a particular board of reference or boards of reference
in general including, but not limited to, the functions and powers
of the board or boards. This would enable the operation of boards
of reference to be monitored and adjusted, if necessary.
New Subdivision C - Terms in awards that cease to have effect
New section 116L - Terms in awards that cease to have effect after
the reform commencement
1647. An award term that is not permitted to be included in an award - for
example because it is not about a matter within the list of
allowable award matters (subsection 116(1)), or is specifically made
not allowable (subsection 116B(1)) - would cease to have effect
immediately after the reform commencement. For example, an award
term providing for the circumstances in which casual employment may
be converted to part-time or full-time employment (which would not
be allowable because of subsection 116B(1)) would cease to apply
after reform commencement (subsection 116L(1)). This would not
affect preserved award terms (subsection 116L(2)).
New Subdivision D - Regulations relating to part-time employees
New section 116M - Award conditions for part-time employees
1648. Proposed section 116M would permit regulations to be made to deal
with conditions for part-time employees. Such regulations may:
. provide for an award to have effect so that a part-time employee
is entitled to conditions to which a full time employee is
entitled under the award; and/or
. provide for an award to have effect so that conditions that would
apply to the part-time employee are adjusted in proportion to the
hours worked by the part-time employee.
New Division 3 - Preserved award entitlements
1649. Proposed Division 3 would provide for the preservation of certain
terms in awards upon the reform commencement. Division 3 would also
address how an employee's entitlements under preserved award terms
interact with the Standard - as a number of the award terms that
would be preserved deal with matters also covered by the Standard.
New section 117 - Preservation of certain award terms
1650. Proposed section 117 would provide for the preservation of terms in
pre-reform and post-rationalisation awards (subsection 117(1)). The
terms are preserved to the extent that they are about the matters
listed in subsection 117(2) (subsection 117(3)). Unlike other
matters that are not included as allowable award matters (see
proposed Division 2), preserved award terms do not cease to operate
on reform commencement. This is made clear by the note under
subsection 117(1).
1651. The matters are: annual leave, personal/carer's leave, parental
leave (including maternity leave and adoption leave), long service
leave, notice of termination, jury service and superannuation
(subsection 117(2)). A preserved award term about superannuation
would cease to have effect at the end of 30 June 2008 (subsection
117(4)).
. The first three of these matters are also dealt with by the
Standard. Employees will continue to have entitlements under
these terms where they are more generous than the Standard (see
proposed sections 117C-117E).
. In relation to superannuation, the Government announced in 2004,
with the passage of the Superannuation Laws Amendment (2004
Measures No.2) Act 2004, that all employees would be treated in a
consistent manner for superannuation guarantee purposes. The
Government announced that from 1 July 2008 ordinary time earnings
(as defined by the Superannuation Guarantee legislation) would be
the earnings base for determining the superannuation guarantee
liability for all employees. Accordingly, award-based earnings
bases will cease to operate from this date.
1652. Subsection 117(5) would provide that a preserved award term
continues to have effect for the purposes of the Act. Such terms
may not be varied.
1653. Proposed subsection 117(6) would make clear that personal/carer's
leave includes war service sick leave, infectious diseases sick
leave and other like forms of sick leave.
1654. Proposed subsection 117(7) would enable regulations to provide that
parental leave does not include special maternity leave and
personal/carer's leave does not include compassionate leave and
unpaid carer's leave. The effect of such regulations would be to
exclude these matters from the 'more generous' comparison between
the preserved award term and the Standard - meaning that employees
would be entitled to special maternity leave, compassionate leave
and unpaid carer's leave as provided under the Standard regardless
of the terms of their award. This is necessary as such entitlements
are not part of the general award standard, and may otherwise be
lost when applying a global more generous test (based on overall
quantum of entitlement - as described below).
1655. Proposed subsection 117(8) would provide that regulations made under
proposed subsection 117(7) may apply generally or in respect of
employees engaged in specified types of employment.
New section 117A - Preserved award terms of rationalised awards
1656. Proposed section 117A would ensure that preserved award terms are
included in awards that replace existing awards because of the award
rationalization process. This is the case whether the award results
from a new award being made (made under proposed section 118E) or an
existing award being varied (under proposed section 118J).
1657. A note immediately following proposed subsection 117A(1) clarifies
that a replaced award may be either a rationalised award (proposed
section 118E) or a pre-reform award.
1658. Proposed subsection 117A(2) would provide that the preserved award
term of the replaced award is taken to be included in the
rationalised award. This means that if the preserved award term is
not included in the rationalised award the preserved award term
would be taken to be in the award in any event as a matter of law.
1659. Subsections 117A(3), (4) and (5) explain that the 'coverage' of a
preserved award term included in an award remains the same, but does
not expand, as a result of its being included in a rationalised
award - that is, the same employers and class or classes of
employees (including employees employed after the rationalised award
was made) remain subject to the term.
New section 117B - When preserved award entitlements have effect
1660. Proposed section 117B would deal with the effect of entitlements
under preserved award terms, and the interaction of some of those
entitlements with the Standard.
1661. Where an employee has an entitlement under a preserved award term to
a matter that is also dealt with by the Standard (ie annual leave,
personal/carer's leave or parental leave), the employee is entitled
to the more generous of the award term and the Standard (subsection
117B(2)). (The meaning of more generous would be dealt with by
proposed section 117C.)
1662. Where an employee has an entitlement under a preserved award term
about one of the other matters (ie long service leave, notice of
termination, jury service or superannuation), the entitlement has
effect in accordance with the award term. Where an award term
relates to a matter dealt with by State or Territory legislation -
such as long service leave, jury service or superannuation (among
other matters), that legislation is not excluded by the Act, but
section 7D provides that awards prevail over State laws to the
extent of any inconsistency. This means that where an award
provides for such matters as long service leave or jury service, the
award would continue to apply to the extent of any inconsistency.
New section 117C - Meaning of more generous
1663. Proposed subsection 117C(1) would identify the circumstances when an
employee's entitlement under a preserved award term about a matter
is more generous than the employee's entitlement about an equivalent
matter under the Standard.
1664. Subsection 117C(1) would provide that whether an entitlement under a
preserved award term is more generous than an entitlement about a
corresponding matter under the Standard:
. is to be determined by regulations (paragraph 117C(1)(a)); or
. if regulations do not deal with a matter, in accordance with the
ordinary meaning of the term more generous (paragraph 117C(1)(b)).
1665. It is intended that regulations will be made specifying
circumstances in which an award entitlement is to be taken to be
more generous than the Standard, based on the overall quantum of the
entitlement. Where an award entitlement is more generous than the
Standard, the whole of the award term will apply to the exclusion of
the Standard - including any associated administrative arrangements
set out in the award relating to that leave entitlement.
An example of a more generous award entitlement would be the entitlement to
annual leave set out in the Nurses (Victorian Health Services) Award 2000.
An employee covered by that award is entitled to up to six weeks annual
leave, while the corresponding entitlement in the Standard is four weeks
(or, potentially five weeks if the employee is a shiftworker as defined by
the Standard). In this instance, the award entitlement would apply.
1666. Proposed subsection 117C(2) would provide that if a matter does not
correspond directly to a matter in the Standard, regulations made
under paragraph 117C(1)(a) may provide that the matters correspond
for the purposes of Division 3.
New section 117D - Modifications that may be prescribed-
personal/carer's leave
1667. Proposed section 117D would enable regulations to be made to specify
that certain aspects of preserved award terms about personal/carer's
leave are to be treated as preserved award terms about separate
matters.
1668. The matters about which such regulations could be made are:
. war service sick leave (paragraph 117D(1)(a));
. infectious diseases sick leave (paragraph 117D(1)(b)); and
. any other like form of sick leave. (paragraph 117D(1)(c))
1669. This is necessary to ensure that, in applying the global more
generous test (based on overall quantum of entitlement), specific
entitlements under the preserved award terms that apply to some
employees are not lost. The effect of the regulations would be to
ensure that in respect of those matters, there would be no
comparable matter against which an assessment with the Standard
could be made - meaning that the award entitlement would continue to
apply.
New section 117E - Modifications that may be prescribed-parental
leave
1670. Proposed section 117E would enable regulations to be made to specify
that paid and unpaid parental leave are to be treated as separate
matters for the purpose of the more generous comparison (subsection
117E(1)).
1671. The effect of such regulations would be to enable an award
entitlement to paid parental leave to continue to operate, despite
the terms of the Standard.
1672. The parental leave provisions of the Standard (see proposed section
94D) would operate to ensure that the amount of unpaid leave that an
employee is entitled to under the Standard is reduced by any amount
of paid leave (subsection 117E(2)). This reflects how the Standard
would operate generally in relation to other forms of leave taken in
conjunction with parental leave.
New section 117F - Preserved award terms-employers bound after
reform commencement
1673. Proposed section 117F would provide that, where an employer that was
not bound by a particular award immediately before the reform
commencement is subsequently bound by the award, then the employer
would not become bound by any preserved award terms included in the
award - that is, the 'coverage' of preserved award terms does not
change.
New Division 4 - Award rationalisation and award simplification
1674. The Award Review Taskforce is an independent body established to
examine and report to the Government on two projects relevant to the
Government's workplace relations reform agenda. They are to report
to the Government with recommendations for the rationalisation of:
. award wage and classification structures; and
. federal awards.
New Subdivision A - Award rationalisation
1675. Under its Terms of Reference, the Award Review Taskforce would
review awards and recommend to the Government an approach to
rationalising awards:
. on an industry sector basis;
. to permit general coverage of employers and employees (and
appropriate organisations of employers and employees) according to
relevant industry sector based awards; and
. to address coverage of award free employers and employees who
would be in the federal system at or after reform commencement and
who have not been able to reach individual or collective workplace
agreements. In this regard, the Award Review Taskforce should
give consideration to the option of a 'general' or 'miscellaneous'
award to cover these employers and employees.
1676. Preserved award entitlements (see proposed Division 3 of Part VI)
will be protected during this process. The Award Review Taskforce
will consider the manner in which preserved award entitlements are
to be accommodated in the new awards that result from the
rationalisation process.
1677. This process, coupled with award simplification, is designed to
ensure a modern and less complex award framework that is more
conducive to the efficient performance of work.
1678. The award rationalisation process will be the only way the AIRC can
make new awards after reform commencement.
New section 118 - Commission's award rationalisation function
1679. Proposed section 118 would set out the manner in which the AIRC is
to perform its function of rationalising awards (subsection 118(1)).
1680. Subsection 118(2) would provide that award rationalisation is to be
carried out in accordance with a written request (an award
rationalisation request) made by the Minister to the President. The
intention is that an award rationalisation request will not be made
until such time as the Award Review Taskforce has provided its
report to the Minister. The Minister will consider the report
provided when making the award rationalisation request.
1681. Subsection 118(3) would provide that each award rationalisation
request must specify:
. the rationalisation process to be undertaken
(paragraph 118(3)(a));
. the principles to be applied by the AIRC in rationalising awards
(paragraph 118(3)(b)); and
. the time by which the process must be completed (which must be no
later than 3 years after the request is made)
(paragraph 118(3)(c)).
1682. The legislation will allow subsequent award rationalisation
requests, should this prove necessary or desirable.
1683. Subsection 118(4) would provide some guidance on the principles that
the Minister may include in an award rationalisation request made
under subsection 118(3). These principles may include:
. the awards to which the rationalisation process relates (paragraph
118(4)(1)(a));
. the nature of, and the extent of coverage of, awards resulting
from award rationalization (paragraph 118(4)(1)(b));; and
. matters that may be included in rationalised awards (subject to
the terms of the Act)(paragraph 118(4)(1)(c)).
1684. An award rationalisation request may be varied or revoked by the
Minister (subsection 118(5)).
1685. An award rationalisation request, and an instrument varying or
revoking a request, are not legislative instruments for the purposes
of the Legislative Instruments Act 2003 (subsection 118(6)). The
reason for this is that the exemption is consistent with the
existing exemption for instruments that deal with persons' terms and
conditions of employment. The request, and any variation or
revocation, is the first step in the process of a new award being
made or awards being varied as a result of the award rationalisation
process.
New section 118A - Commission must deal with State-based differences
1686. Proposed section 118A would provide that when rationalising awards,
the AIRC must ensure that terms and conditions of employment
included in awards made or varied as a result of the award
rationalisation process are not determined by reference to State or
Territory boundaries and that the terms of the award apply in each
State and Territory. This direction to the AIRC reflects the move
to a unified national system of workplace relations. Removing State-
based differences is an essential element of this.
1687. Subsections 118A(1) - (2) would confirm the priority the AIRC is to
give to the task of removing State-based differences.
1688. Subsection 118A(3) would confirm that the AIRC must ensure, during
any subsequent award rationalisation process, that terms and
conditions of employment contained in varied or new awards continue
to be set without reference to State or Territory boundaries and to
apply in each State or Territory.
1689. Subsection 118A(4) would provide one exception to this - preserved
award terms (see proposed Division 3 of Part VI), are to be included
in the rationalised award without variation, because of the 'frozen'
nature of those terms.
New section 118B - Award rationalisation to be undertaken by Full
Bench
1690. Proposed section 118B would provide that once an award
rationalisation request is received, the President must establish
one or more Full Benches to undertake the award rationalisation
process. Due to the anticipated breadth of the award
rationalisation process, it is anticipated that the President may
need to establish more than one Full Bench to undertake the process
within the timeframe established by a request made under proposed
section 118.
New section 118C - Award rationalisation request to be published
1691. Proposed section 118C would provide that the award rationalisation
request must be published, as soon as practicable after it has been
received by the President, in a manner prescribed in the
regulations, or if not so prescribed, in a manner a Registrar thinks
appropriate.
New section 118D - Minister may intervene
1692. Proposed section 118D would provide the Minister with a right to
intervene in proceedings that relate to award rationalisation. Such
a right is appropriate, given the Minister would have initiated the
rationalisation process and established the principles under which
it is to be conducted. The Minister may, for example, be able to
assist the AIRC in relation to the conduct of the process or to
clarify the intention of matters set out in the award
rationalisation request.
New section 118E - Making awards as a result of award
rationalisation
1693. Proposed section 118E would provide that one or more new awards may
result from an award rationalisation process undertaken by a Full
Bench.
New section 118F - Making awards as a result of award
rationalisation
1694. Proposed section 118F would provide that after reform commencement,
the award rationalisation process is the only way in which the AIRC
may make a new award. There would be no other mechanism for the
AIRC to make new awards.
New section 118G - Awards may not include certain terms
1695. Proposed section 118G would make clear that the AIRC may only
include matters in a rationalised award that are permitted by
Division 2 to be included in an award.
1696. Awards that result from the award rationalisation process must only
contain those matters that may be included in awards that are set
out in proposed Division 2 of Part VI - including, allowable award
matters (proposed section 116), preserved award terms (proposed
section 116G), facilitative provisions (proposed section 116H) and
incidental and machinery terms (proposed section 116I). Proposed
sections 116B, 116C, 116D and 116E would identify matters that are
not allowable award matters and may not, as a result, be included in
an award.
New section 118H - Awards must include term about regular part-time
employment
1697. Proposed section 118H would require the AIRC to ensure that, in
making a new award as part of an award rationalisation process, the
award provides for regular part-time employment. The proposed note
at the end of this section would identify clauses 15.3.1 to 15.3.5
of the Hospitality Industry - Accommodation, Hotels, Resorts and
Gaming Award 1998 as an appropriate model.
New section 118I - Who is bound by awards
1698. Proposed section 118I would identify the employers, employees and
organisations that are to be bound by a rationalised award. Under
this proposed section, a rationalised award must be expressed to
bind:
. specified employers (paragraph 118I(2)(a)) - who may be specified
either by name or by inclusion in a specified class or classes
(paragraph 118I(4)(a));
. specified employees of employers bound by the award in respect of
work that is regulated by the award (paragraph 118I(2)(b)) -
specified by inclusion in a specified class or classes
(paragraph 118I(4)(b)).
1699. A class or classes of employers or employees may be described by
reference to a particular industry or particular kinds of work
(subsection 118I(5)).
1700. Further, the award may be expressed to bind one or more specified
organisations (subsection 118I(3)) (that is unions or employer
associations registered under Schedule 1B). Organisations must be
specified by name (paragraph 118I(4)(c)).
New section 118J - Variation of awards as part of award
rationalisation
New section 118K - Revocation of awards as part of award
rationalisation
1701. Proposed sections 118J and 118K set out powers the AIRC may exercise
as part of an award rationalisation process - in addition to the
power to make new awards described above.
1702. Proposed section 118J would allow the AIRC to vary existing awards
to give effect to the outcomes of the rationalisation process.
1703. The ability to vary awards under proposed section 118J is subject to
the same constraints as when a new award or awards are made as a
result of the rationalisation process under proposed section 118E.
Therefore:
. the only matters that can be dealt with in an award that is varied
are those matters identified as being able to be included in an
award in proposed Division 2 of Part VI (subsection 118J(2));
. the AIRC must include a term about regular part-time employment in
a varied award (unless such a clause is already included in the
award) (subsection 118J(3)); and
. any additional employers, employees and organisations to be bound
by the award as varied must be specified in the same manner as
provided for in subsections 118I(2) - (6) (subsections 118J(4) -
(5)).
1704. Proposed section 118K would provide that awards may be revoked by
the AIRC as part of the award rationalisation process (noting that
identifying awards to be deleted is one of the matters to be
considered by the Award Review Taskforce under its Terms of
Reference).
1705. The intended operation of sections 118J and 118K with proposed
section 118E can be illustrated by the following examples:
. If the award rationalisation request specifies that the AIRC is to
make new awards to operate either as respondency based or to all
employers in a particular industry in a number of defined industry
sectors, a Full Bench may decide to make new awards to operate on
a respondency or common rule basis in each of the nominated
industry sectors.
. As a result, the AIRC would then revoke the awards that are
replaced by the new award.
. An alternative course of action may be for the AIRC to nominate an
award to be the rationalised award, make appropriate variations to
that award (including extending its coverage) and then revoke the
awards that are replaced by the varied award.
New section 118L - Preserved award terms
1706. Proposed section 118L would provide that the AIRC's power to vary or
make an award as part of the award rationalisation process must not
be exercised in a manner that is inconsistent with proposed
Division 3 of Part VI (which relates to preserved award
entitlements).
1707. This proposed section would make it clear that preserved award terms
from the award or awards that are replaced by a rationalised award
are to be included in the rationalised award.
New Subdivision B - Award simplification
1708. Award simplification is the process whereby the content of an award
is adjusted to ensure that the award contains only allowable award
matters and other terms that are permitted to be in awards. The
matters that would be able, from reform commencement, to be included
in awards, and those which are not, are dealt with in proposed
Division 2 of the Part.
1709. Matters that are not allowable matters would cease to have effect
from reform commencement (see proposed section 116L). The AIRC will
subsequently be required to vary awards so that they no longer deal
with non-allowable matters. The Award Review Taskforce is to report
to Government on how the process and timing of this phase of award
simplification can be best coordinated with the award
rationalisation process described above (see proposed Subdivision A,
Division 4).
New section 118M - Review and simplification of awards
1710. Proposed section 118M provides for the review and simplification of
awards. Where an award is obsolete or no longer capable of
operating, simplification would not be required - such an award must
be revoked (subsection 118M(5)).
1711. Subsection 118M(1) would require the AIRC to review all awards for
the purpose of determining whether the awards include terms that may
not be included (see proposed Division 2 of Part VI).
1712. Subsection 118M(2) would provide that the AIRC may review awards for
the purpose of determining the terms that may be included in awards
under proposed Part VI at the same time or in conjunction with
reviewing the awards for other purposes - this would enable the
process to occur in conjunction with award rationalisation, if
appropriate.
1713. Subsection 118M(3) would require the AIRC to carry out the review
within the time prescribed by the regulations and in accordance with
any directions prescribed in the regulations. After reviewing an
award, the AIRC would be required to vary the award (if necessary)
to ensure that it contains only terms that may be included in an
award (subsection 118M(4)).
New section 118N - Principles for award simplification
1714. Proposed section 118N would provide the AIRC with the power to
establish principles for award simplification.
1715. Proposed subsection 118N(1) would provide that, subject to the
review and simplification of awards (see proposed section 118M the
AIRC may establish principles for the review and simplification of
awards relating to the operation of proposed section 118M. Under
subsection 118N(2), these principles would be able to relate to:
. the making or varying of awards about each allowable award matter;
and
. terms that may be included in awards (including allowable
matters).
1716. Subsection 118N(3) would provide that once principles (if any) have
been established, the power of the AIRC to vary an award is
exercisable only in a manner consistent with those principles.
1717. In exercising its powers under this section, the President of the
AIRC or a Full Bench would be empowered to direct a member of the
AIRC to provide a report in relation to a particular matter
(subsection 118N(4)). The member would be required to provide the
report requested, after conducting such investigation as is
necessary (subsection 118N(5)).
New section 118O - Minister may intervene
1718. Proposed section 118O would provide the Minister with a right to
intervene in a proceeding that relates to an award simplification
process.
New subdivision C - Special technical requirements
New section 118P - Inclusion of preserved award terms in written
awards
1719. Proposed section 118P would set out the technical requirements for
the inclusion of preserved award terms in awards that are
rationalised under proposed sections 118E and 118J.
1720. Subsection 118P(2) would require the AIRC to:
. include any preserved award term in the award, and identify it as
a preserved award term (paragraphs 118P(2)(a) and (b)); and
. identify the employers and employees bound by the preserved award
term 118P(2)(c) and (d)).
1721. Subsection 118P(3) would enable the AIRC to condense preserved award
terms of the same substantive effect. The AIRC would be required to
identify the employers and employees bound by the condensed term.
1722. This provision would mean that if a number of the awards to be
replaced by a rationalised award contain a preserved award term that
relates to, for example, annual leave, and these terms are in
substance the same, then the preserved award term need only be
included once in the rationalised award.
1723. Subsections 118P(4) and (5) would clarify the manner in which
employers and employees bound by the preserved award term are to be
identified in the rationalised award.
New section 118Q - Reprints of varied awards
1724. Proposed section 118Q would provide that awards varied as part of
the rationalisation process must be consolidated and printed by the
Industrial Registrar as soon as is practicable after the award is
varied.
New Division 5 - Variation and revocation of awards
New Subdivision A - Variation of awards
New section 119 - Variation of awards - general
1725. Proposed section 119 would identify the only ways in which an award
may be varied. Under subsection (1) these would be:
. as a result of the award rationalisation process;
. as a result of the award simplification process;
. if essential to maintain minimum safety net entitlements (proposed
section 119A);
. to remove ambiguity or uncertainty, remove discrimination and on
other technical grounds (proposed section 119B);
. to bind additional employers, employees or organisations to an
award 120);
. to remove objectionable provisions from an award (proposed
section 273); or
. in any further circumstances prescribed by the regulations.
1726. Subsection 119(2) would ensure that the AIRC does not vary a
preserved award term. Preserved award terms are terms that are to
be 'frozen' in awards on reform commencement. They are to be
included in rationalised awards, but their content and coverage must
not change.
1727. Subsection 119(3) would prevent the AIRC varying a facilitative
provision included in an award under proposed section 116H except:
. as part of an award rationalisation process (paragraph 119(3)(a));
. as part of the award simplification process (paragraph 119(3)(b));
or
. for one of the technical reasons set out in proposed section 119B
(paragraph 119(3(c)).
1728. Subsection 119(4) would also prevent the AIRC varying the model
dispute resolution clause that is inserted in all awards by proposed
section 116A. The model dispute resolution clause is contained in
proposed Part VIIA.
New section 119A - Variation of awards if essential to maintain
minimum safety net entitlements
1729. Proposed section 119A would focus the AIRC on maintaining minimum
safety net entitlements, by providing that an award may only be
varied on the basis that the variation is essential to the
maintenance of minimum safety net entitlements (subsection 119A(1)).
1730. Subsection 119A(2) would vest in the AIRC the ability to take the
steps it considers appropriate to notify those bound by the award
and any other interested persons or bodies (which may include peak
employer and employee bodies) of an application to vary an award.
1731. Subsection 119A(3) would provide the Minister with a right to
intervene in a variation application made under proposed
section 119A. In light of the proposed role of the award system -
fewer, simpler awards focussed more directly on providing minimum
safety net entitlements - it is appropriate that the Minister have a
right to make submissions on the content of the minimum safety net.
1732. The criteria for varying an award would be set out in
subsection 119A(4). Paragraph 119A(4)(a) provides that the
variation may only be made if the AIRC is satisfied that the
variation is essential to the maintenance of minimum safety net
entitlements. An example of such a variation would be to include in
an award the model clauses that result from test case decisions of
the AIRC such as in the Reasonable Hours Case [PR072002].
1733. In addition, all of the conditions set out in paragraph 119A(4)(b)
must be met for an order varying the award to be made. These
conditions are:
. the award as varied would not be inconsistent with decisions of
the AFPC (subparagraph 119A(4)(b)(i));
. the award as varied would provide only minimum safety net
entitlements for employees bound by the award
(subparagraph 119A(4)(b)(ii));
. the award as varied would not be inconsistent with the outcomes
(if any) of award simplification and award rationalisation
(subparagraph 119A(4)(b)(iii)); and
. the making of the variation would not operate as a disincentive to
agreement-making at the workplace level
(subparagraph 119A(4)(b)(iv)).
1734. Regulations would be able to prescribe additional requirements, if
appropriate (subparagraph 119A(4)(b)(v)).
New section 119B - Variation of awards - other grounds
1735. Proposed section 119B would provide for other limited circumstances
in which the AIRC may vary awards.
1736. Subsection 119B(1) would enable the AIRC to vary an award or a term
of an award to remove any ambiguity or uncertainty.
1737. Subsections 119B(2), (3), (4) and (7) would provide for the
variation of an award to remove discrimination if an award is
referred to the AIRC under section 46PW of the Human Rights and
Equal Opportunity Commission Act 1986 (HREOC Act 1986).
1738. Subsection 119B(5) would enable the AIRC on application by an
employer, employee or organisation to vary an award to reflect a
name change or omit the name of an employer, employee or
organisation that is bound by the award.
1739. The applicant would bear the onus of demonstrating that a variation
under subsection 119B(5) should be made (subsection 119B(6)).
New Subdivision B - Revocation of awards
1740. This Subdivision would set out the circumstances in which an award
can be revoked. The use of the word 'revoke' and not the previous
formulation, 'set aside or revoke', is not intended to change the
scope of the AIRC's power. Rather, the intention is to use a
clearer style consistent with section 15AC of the Acts
Interpretation Act 1901.
New section 119C - Revocation of awards - general
1741. Proposed section 119C would identify the various ways in which an
award may be revoked. These are:
. as a result of an award rationalisation process (paragraph
119C(a));
. as a result of the award simplification process (the current award
simplification process has already resulted in over 900 awards
being revoked) (paragraph 119C(b));; or
. if the award is obsolete or no longer capable of operating
(paragraph 119C(c)).
1742. It is expected that a number of awards will need to be revoked as a
result of the award rationalisation and award simplification
processes. Under its Terms of Reference, the Award Review Taskforce
is being asked to report to the Minister, as part of its
consideration of award rationalisation, on the extent to which
awards can be amalgamated/combined to avoid overlapping of awards,
and to minimise the number of awards applying in relation to
particular employers, and whether some awards should be deleted.
New section 119D - Revocation of awards - award obsolete or no
longer capable of operating
1743. Proposed section 119D would enable an employer, employee or
organisation bound by an award to apply to the AIRC to have the
award revoked if the award is obsolete or is no longer capable of
operating (119D(1)).
1744. Subsection 119D(2) would require the AIRC to take such steps as it
thinks appropriate to notify those bound by the award of the
application to revoke. This might include, for example, placing
advertisements in appropriate daily newspapers.
1745. An order revoking the award would have to be made by the AIRC if it
is satisfied that the award is obsolete and no longer capable of
operating and making the order would not be contrary to the public
interest (subsection 119D(3)).
New Division 6 - Binding additional employers, employees and
organisations to awards
1746. Proposed Division 6 would enable an award-free employer, employee or
organisation to apply to be bound by a federal award. The
application may only be made by an employer, employee or
organisation that is not already bound by an award. This will be
relevant, for example, for those employers, employees or
organisations that come into the expanded federal system from State
systems. It is not the intention to enable those employers,
employees or organisations that are already bound by a federal award
to apply to be bound by an additional award or awards. The ability
to make such an application will be more relevant before award
rationalisation occurs, than afterwards (as part of the award
rationalisation process will involve identifying those that are to
be bound by relevant post-rationalisation awards).
New section 120 - Binding additional employers, employees and
organisations to awards
1747. Proposed section 120 would provide that the AIRC may make an order
varying an award to bind an employer, employee or organisation to an
award (subsection 120(1)), and that such an order may only be made
in accordance with this Division (subsection 120(2)). Proposed
sections 120A, 120B and 120C would set out the circumstances in
which such an application can be made.
New section 120A - Application to be bound by an award - agreement
between employer and employees
1748. Proposed section 120A would enable an application to be made to the
AIRC by an employer for an order varying an award to bind the
employer and a specified class or classes of employees, in
circumstances where the application to be bound has the support of a
valid majority of employees whose employment would be covered by the
award.
1749. Subsection 120A(2) would require the AIRC to take such steps as it
thinks appropriate to notify those bound by the award of the
application. This might include, for example, placing
advertisements in appropriate daily newspapers.
1750. Subsection 120A(3) would provide that an order varying the award may
be made by the AIRC if it is satisfied that:
. a valid majority of the employees of the employer who would be
bound by the award support the application (paragraph 120A(3)(a))
- proposed section 120E would provide for the regulations to
prescribe the manner in which a valid majority of employees is to
be established;
. the award is an appropriate award to regulate the terms and
conditions of employment of the relevant employees
(paragraph 120A(3)(b)) - if the AIRC determines that the award
specified in the application is not appropriate, then an order
cannot be made; if the employer and employees wish to make an
application to be bound by a different award, evidence of a fresh
valid majority in support of the alternate award must be provided;
and
. the employer is not already bound by an award that regulates the
terms and conditions of employment of the employees to be covered
(paragraph 120A(3)(c)).
1751. Subsection 120A(4) would provide that the AIRC can make an order
approving the application and varying the award without convening a
hearing unless it requires further information in order to be
satisfied of the matters set out in paragraphs 120A(3)(a) - (b).
New section 120B - Application to be bound by an award - no
agreement between employer and employees
1752. Proposed section 120B would enable an employer, or an employee or
group of employees of the employer, to apply to the AIRC to be bound
by an award where there is no agreement between the employer and
employees.
1753. Subsection 120B(1) would provide for the making of such an
application.
1754. Subsection 120B(2) would enable an employer to make an application
without the support of the valid majority of its employees.
1755. Subsection 120B(3) would enable an employee or group of employees to
make an application without the support of the employer.
1756. Subsection 120B(4) would require the AIRC to take such steps as it
thinks appropriate to notify those bound by the award of the
application. This might include, for example, placing
advertisements in appropriate daily newspapers.
1757. Subsection 120B(5) would provide that the AIRC may make an order
varying the award in the manner specified in the application only if
it is satisfied that:
. the employer and the employees who would be bound by the award
have been unable to make a workplace agreement, despite having
made reasonable efforts to do so (paragraph 120B(5)(a));.
Reasonable efforts, as defined in subsection 120B(7), does not
require the taking of protected action (that is, industrial action
in pursuit of such an agreement). A workplace agreement is
defined in subsection 4(1) to be an Australian workplace agreement
or a collective agreement;
. the award is an appropriate award to regulate the terms and
conditions of employment of the relevant employees
(paragraph 120B(5)(b)); and
. the employer is not already bound by an award that regulates the
terms and conditions of employment of the employees to be covered
(paragraph 120B(5)(c)).
1758. Subsection 120B(6) would enable an organisation to make an
application on behalf of an employee and represent the employee in
the application if the employee requests such assistance
(paragraph 120B(6)(a)) and the organisation is entitled, under its
eligibility rules, to represent the industrial interests of the
employee.
1759. Subsection 120B(7) defines the terms protected action and reasonable
efforts for the purpose of this section.
New section 120C - Application to be bound by an award - new
organisations
1760. Proposed section 120C would enable a new organisation to apply to be
bound by an award.
1761. Subsection 120C(1) would provide for the making of such an
application.
1762. This provision would enable a State registered employer or employee
association that enter the federal system on or after reform
commencement, and obtain transitional or full registration in
accordance with the Registration and Accountability of Organisations
Schedule, to apply to the AIRC for an order binding it to an award.
1763. An organisation that comes into existence after reform commencement
will also be able to apply to be bound under this proposed section.
1764. Subsection 120C(2) would require the AIRC to take such steps as it
thinks appropriate to notify those bound by the award and other
interested persons and bodies (which may include peak employer and
employee bodies) of the application. This might include, for
example, placing advertisements in appropriate daily newspapers.
1765. Subsection 120C(3) would provide the Minister with a right to
intervene in the application.
1766. Subsection 120C(4) would provide that the AIRC may make an order if
it is satisfied that:
. the new organisation has at least one member who is bound by the
award and it may, under its eligibility rules, represent the
industrial interests of that member (paragraph 120C(4)(a));
. being bound by the specified award is necessary to enable the
organisation to properly represent the industrial interests of its
members - this may include, for example, enabling the organisation
to investigate a suspected breach of the award under proposed
section 208 or to enter premises to hold discussions with members
or prospective members under proposed section 221
(paragraph 120C(4)(b)); and
. the award regulates an industry in which the organisation has
traditionally represented the industrial interests of its members
that work in that industry (paragraph 120C(4)(c)).
1767. Subsection 120C(5) would define new organisation to mean an
association granted registration as an organisation under the
Registration and Accountability of Organisations Schedule on or
after reform commencement or a transitionally registered association
(see clause 2 of Schedule 17).
New section 120D - Application by new organisation to be bound by an
award - additional matters
1768. Proposed section 120D would set out important additional matters in
relation to an application made under proposed section 120C. They
are:
. the application under subsection 120C(1) must be made within one
year from the day on which the new organisation was registered
under Schedule 1B or Schedule 17 - therefore, if the new
organisation was registered on 1 July 2006, the application would
need to be made on or before 30 June 2007 (subsection 120D(1));
and
. if the application to be bound specifies a rationalised award made
under section 118E, the application must be heard by a Full Bench
(subsection 120D(2)).
New section 120E - Process for valid majority of employees
1769. Proposed section 120E would provide that the process to establish a
valid majority of employees for the purposes of this Division may be
prescribed in the regulations.
New section 120F - General provisions
1770. Proposed section 120F would provide guidance to the AIRC about the
manner in which employers, employees or organisations bound by an
award may be specified in the award.
1771. Subsection 120F(2) would provide that:
. employers may be specified by name or by inclusion in a specified
class or classes (paragraph 120F(2)(a));
. employees must be specified by inclusion in a specified class or
classes (paragraph 120F(2)(b)); and
. organisations must be specified by name (paragraph 120F(2)(c)).
1772. Subsection 120F(1) would enable a class of employees to be described
by reference to a particular industry (for example, retail,
insurance) or particular kinds of work (for example, clerical,
storeworker).
New Division 7 - Technical matters
1773. Proposed Division 7 would set out a range of technical matters
relating to the making and variation of awards.
New section 121 - Making and publication of awards and award-related
orders
1774. Proposed section 121 would provide for the making and publication of
awards and award-related orders.
. Subsection 4(1) defines award-related order to mean an order
varying, revoking or suspending an award. The circumstances in
which an award may be varied or revoked are listed in proposed
sections 119 and 119C. The AIRC may also revoke or suspend an
award or order under proposed section 44Q in proposed Division 3A
of Part II.
1775. Subsection 121(1) would provide that both an award and an award-
related order must:
. be reduced to writing (paragraph 121(1)(a));
. be signed by at least one member of the Full Bench if the award or
award-related order was made by a Full Bench or by at least one
member of the AIRC in the case of any other order
(paragraph 121(1)(b)); and
. show the date on which it is signed (paragraph 121(1)(c)).
1776. As soon as the award or award related order is signed, the AIRC must
(under subsection 121(2)) give to a Registrar:
. a copy of the award or order (paragraph 121(2)(a));
. written reasons for the award or order (paragraph 121(2)(b)); and
. a list that specifies the employers, employees and organisations
bound by the award or order (paragraph 121(2)(c)).
1777. The intention is that written reasons must accompany every decision
of the AIRC that results in an award or award-related order being
made.
1778. The Registrar must (under subsection 121(3)) promptly:
. make available a copy of the award or order and the written
reasons to each employer, employee and organisation shown on the
list given to the Registrar (paragraph 121(3)(a));
. ensure that the award, order and written reasons are made
available for inspection at each registry (paragraph 121(3)(b));
and
. ensure the publication of these items occurs as soon as is
practicable after they are received (paragraph 121(3)(c)).
New section 121A - Awards and award-related orders must meet certain
requirements
1779. Proposed section 121A would set out other general matters to which
the AIRC must have regard when making an award or an award-related
order.
1780. Subsection 121A(1) would provide that, when making an award or award-
related order, the AIRC must ensure that the award or order:
. does not include matters of detail or process that are more
appropriately dealt with by agreement at the workplace or
enterprise level (paragraph 121A(1)(a)). Awards are intended to
provide award-reliant employees with minimum safety net
entitlements. Matters above the safety net are matters about
which employers and employees may reach agreement;
. does not prescribe work practices or procedures that restrict or
hinder the efficient performance of work (paragraph 121A(1)(b));
and
. does not include terms that have the effect of restricting or
hindering productivity, having regard to fairness to employees
(paragraph 121A(1)(c)).
1781. Subsection 121A(2) would provide further guidance to the AIRC on the
matters it must consider when making an award or award-related
order:
. where appropriate, the AIRC may include facilitative provisions
(paragraph 121A(2)(a)) - proposed section 116H would provide that
an award may include a facilitative provision and set out how such
a provision may operate;
. the AIRC must ensure that the award includes terms providing for
the employment of regular part-time employees
(paragraph 121A(2)(b)) - this is a mandatory requirement. The
intention is to ensure that awards contain sufficient flexibility
to enable both employers and employees to choose the most
appropriate mode of employment to suit their particular
circumstances. The proposed note at the end of this paragraph
would identify clauses 15.3.1 to 15.3.5 of the Hospitality
Industry - Accommodation, Hotels, Resorts and Gaming Award 1998 as
an appropriate model for this term;
. the AIRC must ensure that the award or order is expressed in plain
English and is easy to understand in structure and content
(paragraph 121A(2)(c));
. the AIRC must ensure that the award or order does not include
terms that are obsolete or that need updating
(paragraph 121A(2)(d)); and
. the AIRC must ensure that the award or order does not include
discriminatory terms (paragraph 121A(2)(e)).
1782. Subsection 121A(3) would qualify paragraph 121A(2)(e) by setting out
the circumstances when an award or award-related order would not
discriminate against an employee. They are where an award or award-
related order discriminates:
. in respect of particular employment, on the basis of the inherent
requirements of that employment (paragraph 121A(3)(a)) - an
example of such genuine occupational requirements would be the
employment of persons of a particular age, sex or race in relation
to dramatic or an artistic performance; or
. in respect of employment with an institution conducted in
accordance with the teachings or beliefs of a particular religion
or creed, on the basis of those teachings and in good faith
(paragraph 121A(3)(b)).
New section 121B - Registrar's powers if member ceases to be a
member
1783. Proposed section 121B is a technical provision that would enable
continuity in circumstances where a member of the AIRC ceases to be
a member after an award or award-related order is made, but before
the award or award-related order made by the member has been reduced
to writing. In these circumstances, the award or award-related
order will be deemed to have effect as if it was signed by that
member if the Registrar reduces the award or award-related order to
writing, signs it and seals it with the seal of the AIRC.
New section 121C - Form of awards
1784. Proposed section 121C would provide that an award or award-related
order must be framed so as best to express the decision of the AIRC
and must avoid any unnecessary technicalities.
New section 121D - Date of awards
1785. Proposed section 121D would provide that the date of an award or
award-related order is the date upon which it is signed in the
manner set out in proposed section 121, that is, by at least one
member of a Full Bench in the case of an award or order is made by a
Full Bench, or in the case of any other order, at least one member
of the AIRC.
New section 121E - Commencement of awards
1786. Proposed section 121E would provide that an award or award-related
order must be expressed to come into force on a specified day
(subsection 121E(1)) which, unless exceptional circumstances exist,
must not be earlier than the date of the award or order.
New section 121F - Continuation of awards
1787. Proposed section 121F would provide that an award continues in force
until it is revoked in a manner set out in proposed section 119C,
that is, as a result of the award rationalisation or simplification
process or if the award is obsolete or is no longer capable of
operating.
New section 121G - Awards of the Commission are final
1788. Proposed section 121G would protect the validity of awards and award
related orders.
1789. Subsection 121G(1) would provide that, subject to this Act, protect
an award or award-related order (including an award or order made on
appeal) from being challenged or called into question in a court.
1790. Subsection 121G(2) would provide that an award or award-related
order is not invalid if the award or order is made by the AIRC
constituted otherwise than as provided in the WR Act.
New section 121H - Reprints of award as varied
1791. Proposed section 121H would confirm that a copy of a document
purporting to be a copy of an award as varied and printed by the
Government Printer is evidence of the award as varied in all courts.
New section 121I - Expressions used in awards
1792. Proposed section 121I would provide that, unless the contrary
intention appears in an award or award related order, an expression
used in these documents has the same meaning as it would have in an
Act because of either the Acts Interpretation Act 1901 or this Act.
New Part VIAA - Transmission of business rules
1793. Proposed Part VIAA would contain the transmission of business rules
relevant to the transfer of instruments created at or after reform
commencement, replacing paragraph 149(1)(d) and sections 170MB,
170MBA and 170VS of the pre-reform Act for these purposes.
New Division 1 - Introductory
1794. Proposed Division 1 would contain the object of the Part VIAA and
provide an outline of the structure of proposed Part VIAA and
relevant definitions.
New section 122 - Object
1795. Proposed section 122 would outline the object of Part VIAA which is
to provide for the transfer of employer obligations under those
instruments contained in Divisions 3 - 6 when the whole, or a part,
of a person's business is transmitted to another person.
1796. The Part uses the term 'transmitted'. This would also encompass
assignment of a business, or part of a business from one person to
another and the succession of a business, or part of a business, to
one person from another.
New section 122A - Simplified outline
1797. Proposed section 122A would create a simplified outline detailing
the way that Part VIAA is structured.
1798. Proposed Division 2 would provide for when Part VIAA is to apply and
define key terms that are used throughout Part VIAA.
1799. Proposed Division 3 would contain provisions particular to the
transfer of Australian Workplace Agreements (AWAs) from one employer
to another upon a transmission of business.
1800. Proposed Division 4 would contain provisions particular to the
transfer of collective agreements from one employer to another upon
a transmission of business.
1801. Proposed Division 5 would contain provisions particular to the
transfer of awards from one employer to another upon transmission of
business.
1802. Proposed Division 6 would contain provisions particular to the
transfer of Australian Preserved Classification Scales (APCSs) upon
a transmission of business.
1803. Proposed Division 7 would contain provisions detailing what happens
to an employee's parental leave and other entitlements arising under
the Standard when there is a transmission of business.
1804. Proposed Division 8 would deal with notification obligations for an
employer who becomes a successor, transmittee or assignee to a
transferring business, as well as lodgment of notices and civil
remedy provisions relevant to the notification requirements.
1805. Proposed Division 9 would enable regulations to be made to deal with
additional transmission of business issues that may arise.
New section 122B - Definitions
1806. Proposed section 122B would define key terms for the purposes of
Part VIAA, many by reference to definitions in proposed Division 2.
New Division 2 - Application of Part
1807. This Division would define when Part VIAA would apply and provide
definitions for key terms.
New section 123 - Application of Part
1808. Proposed section 123 would outline the circumstances in which Part
VIAA applies.
1809. Subsection 123(1) would provide that Part VIAA applies if a person
becomes the successor, transmittee or assignee of the whole, or a
part of, a business of another person.
1810. In this context the person who initially owned the business being
transferred is the old employer and the person who becomes the
successor, transmittee or assignee is the new employer. The term
'person' is used in this definition so that Part VIAA also captures
transmissions where the old employer ceased to be an employer (eg
because it dismisses all of its employees) before, or at the time
when the business transfers.
1811. Additionally, the term 'person' would cover the situation where the
new employer is not yet an employer because it does not have any
employees until, or after, the transmission occurs.
1812. Subsection 123(2) would define, for the purposes of Part VIAA, the
'business being transferred' as the business, or part of the
business, of which the new employer is the successor, transmittee or
assignee.
1813. Subsection 123(3) would define, for the purposes of Part VIAA, the
'time of transmission' as the time at which the new employer becomes
the successor, assignee or transmittee of the business being
transferred.
1814. Subsection 123(4) would define the 'transmission period' as the
period of 12 months from the time of transmission. This is the
maximum period of time that a new employer may be bound by a
transmitted instrument by operation of Part VIAA, except with
respect to an APCS which would not be subject to a transmission
period.
New section 123A - Transferring employees
1815. Proposed section 123A would create a definition of 'transferring
employees' for the purposes of Part VIAA.
1816. Subsection 123A(1) would provide that a person is a transferring
employee if the person is employed by the old employer immediately
before the time of transmission and the person ceases to be employed
by the old employer and then becomes employed by the new employer
within two months of the time of transmission.
1817. The proposed definition of transferring employees seeks to ensure
that the operation of Part VIAA cannot be avoided the new employer
delaying the employment of an employee of the old employer until
after the time of transmission, rather than at the time of
transmission.
1818. Subsection 123A(2) would provide that a person is also a
transferring employee for the purposes of Part VIAA if the person:
a) is employed by the old employer at any time within the period of one
month before the time of transmission; and
b) the person's employment is terminated because of, or for reasons that
include, genuine 'operational reasons'; and
c) the person becomes employed by the new employer within two months of
the time of transmission.
1819. Operational reasons is attributed with the same meaning as in
proposed subsection 170CE(5D) of the WR Act (see item 112).
Subsection 170CE(5D) would provide that the definition of
operational reasons are reasons of an economic, technological,
structural or similar nature relating to the employer's undertaking,
establishment, service or business, or to part of the employer's
undertaking, establishment, service or business.
1820. This limb of the definition of transferring employee is also an anti-
avoidance provision which is intended to ensure that the effect of
Part VIAA could not be avoided by the old employer terminating the
employment of the employees shortly before the time of transmission.
1821. Accordingly, the transmission of business rules in proposed Part
VIAA would extend to a situation where the old employer made
employees redundant in anticipation of a transmission of business,
or part of a business, close to the time of transmission and the new
employer employs those employees.
1822. Therefore, if an employee's position is genuinely redundant and thus
the employee's employment is terminated by the old employer within
one month of the time of transmission, this break in employment
would not preclude the employee from being a transferring employee
for the purposes of Part VIAA, if the employee is employed by the
new employer within two months of the time of transmission.
Illustrative Example
Liesl is employed by Marcus Holdings Corporation (Marcus) and has always
received high performance ratings. Marcus has been running at a loss for
the past two financial years and is finally placed in administration on 1
August 2005. As a result many of Marcus's employees, including Liesl, are
terminated by reason of redundancy on this date.
On 20 August 2005, the business and assets of Marcus are transmitted to
Levy Corp. To ensure the business is viable, Levy Corp wished to retain
those employees still with Marcus and take on some of those made redundant.
Liesl is employed by Levy Corp on 27 August 2005. Because she was
terminated for genuine operational reasons by Marcus within one month of
the time of transmission and employed by Levy Corp within two months of the
time of transmission, she will be a 'transferring employee'.
1823. Subsection 123A(3) would be a facilitative provision consequential
upon the inclusion of subsection 123A(2). It is to enable Part VIIA
to operate with respect to an employee who is a transferring
employee, but whose employment was terminated by the old employer
within one month prior to the time of transmission without need for
an additional reference or extension of the term transferring
employee wherever used in the Part.
New section 123B - transferring employees in relation to a
particular instrument
1824. Proposed section 123B would describe how an employee is a
transferring employee in relation to a particular instrument. In
this context, the term instrument incorporates all industrial
instruments created under the proposed Act (eg workplace agreements,
awards and APCSs).
1825. Subsection 123B(1) would provide that in order for a particular
instrument to bind a new employer there must be a transferring
employee who was, immediately before the time of transmission, bound
or covered by a relevant instrument. Additionally, the transferring
employee's employment with the new employer must be capable of being
covered by the particular instrument.
1826. Subsection 123B(2) would provide that an employee ceases to be a
transferring employee in relation to a particular instrument where
the transferring employee ceases to be employed by the new employer
after the time of transmission or the transferring employee's
employment with the new employer changes so that the instrument is
no longer capable of applying to that employment. Additionally, the
transferring employee ceases to be a transferring employee when the
transmission period ends, except in relation to an APCS. This is
because a transmitted APCS does not have a transmission period.
1827. The terms 'apply' or 'applied' in these provisions would encompass
all the various ways in which an instrument may regulate an
employee's terms and conditions of employment. Accordingly, the
term should not be read as a limitation on the scope of the
provision.
1828. Subsection 123B(2) would clarify that a preserved APCS is to be
treated as an instrument in this context.
Example
M Sparkles Corporation (Sparkles) has three divisions; the Human Resources
Division (HRD), the Engineering Division (ED) and the Maintenance Division
(MD). In respect of employees employed in the HRD, Sparkles is bound by a
collective agreement. For employees employed in the ED, Sparkles is bound
by AWAs. Finally, for employees of the MD, an award binds Sparkles.
Sparkles decide to sell off parts of its business, namely the maintenance
and human resources divisions. Spiller Corporation buys both divisions as
distinct and operative parts of a business.
Peter is employed by Sparkles as a recruitment officer and is bound by the
collective agreement. At the time of transmission Spiller Corporation
employs Peter as a recruitment officer. Peter would therefore be a
transferring employee in respect of the collective agreement, and the
collective agreement would become binding on Spiller Corporation.
Spiller Corporation employs none of Sparkles MD employees. This means that
there are no transferring employees in relation to the award. The
transmission of business does not have the effect of binding Spiller
Corporation with respect to the award.
New Division 3 - Transmission of AWA
1829. Proposed Division 3 would contain the transmission of business
provisions specific to the transfer of AWAs from an old employer to
a new employer.
New section 124 - Transmission of AWA
New employer bound by AWA
1830. Proposed subsection 124(1) would provide that where, immediately
before the time of transmission, the old employer and an employee
were bound by an AWA, and the employee is a transferring employee in
relation to the AWA, the new employer becomes bound by the AWA.
1831. This means that a new employer who is a successor, transmittee or
assignee to a business or part of a business, would be bound by the
AWA that was binding on the old employer, in respect of an employee
if that employee is employed by the new employer within two months
and the AWA is capable of covering the employee's employment with
the new employer.
1832. The proposed note would mention that where the AWA becomes binding
on the new employer by force of this section, the new employer may
have obligations under proposed sections 129 and 129A with respect
to notification.
Period for which the new employer remains bound
1833. Proposed Subsection 124(2) would establish for how long the new
employer is bound to the transmitted AWA. It would specify four
events which would cause the new employer to no longer be bound by
the transmitted AWA. This result would be brought about on the
occurrence of whichever of the events occurs first They are
outlined below.
1834. Firstly, the new employer would cease to be bound if the transmitted
AWA was terminated in accordance with Division 9 of Part VB (ie the
AWA may be terminated by approval). Note that section 125 would
provide that an AWA may not be unilaterally terminated during the
transmission period, even where it has reached its nominal expiry
date.
1835. Secondly, if the transmitted AWA ceased to be in operation because
it was replaced in accordance with proposed section 100(3)(c) by a
new AWA that binds the transferring employee and the new employer.
1836. Thirdly, the transmitted AWA would no longer bind the new employer
if the employee ceased to be a transferring employee in relation to
the AWA. For example, this could occur where the transferring
employee ceased to be employed by the new employer, or moved to
another job while still working for the new employer that is not
capable of being covered by the transmitted AWA.
1837. Finally, the transmitted AWA would no longer bind the new employer
once the transmission period ends. This means that the maximum
period for which a new employer would be bound by the transmitted
AWA by force of subsection 124(1) would be12 months.
Old employer's rights and obligations that arose before time of
transmission not affected
1838. Proposed subsection 124(3) would provide that this section does not
affect the rights and obligations of the old employer in respect of
a transferring employee that arose before the time of transmission.
This means, for example, that subsection 124(1) is not intended to
transfer liability for accrued employee entitlements to a new
employer from an old employer.
New section 124A - Termination of transmitted AWA
Modified operation of subsections 103K(2) and 103L(2)
1839. Proposed subsection 124A(1) would provide that during the
transmission period, the transmitted AWA may not be unilaterally
terminated in accordance with proposed subsections 103K(2) and
103L(2), even though it has reached its specified nominal expiry
date. Usually, a nominal expiry date is the date after which an AWA
could be unilaterally terminated. Proposed section 124A departs
from this rule for a transmitted AWA.
Subsection 103R(1) does not apply
1840. Proposed subsection 124A(2) would create an exception to the rule
proposed in proposed subsection 103R(1) which would usually provide
that where an AWA is terminated, an employee formerly bound by the
AWA could not return to a collective agreement or award that binds
the employer and would otherwise apply.
1841. Instead, where the transmission period ends or the transmitted AWA
is terminated, a transferring employee formerly bound by the
transmitted AWA could be bound by any workplace agreement or award
that binds the new employer and is capable of applying on its terms.
Where there is no workplace agreement or award capable of applying
to the transferred employee's employment, the transferred employee
would be covered by the Standard.
1842. The proposed Note would clarify the application of proposed
paragraph 124A(2)(b) which specifies what happens to a transferring
employee in relation to a transmitted AWA at the time the
transmission period ends.
New Division 4 - Transmission of collective agreement
1843. Proposed Division 4 would contain the transmission of business
provisions specific to the transfer of collective agreements from an
old employer to a new employer.
1844. In Division 4 collective agreement has the same meaning as in
proposed Part VB and includes a workplace determination (see
proposed s.113F).
New Subdivision A - General
1845. Subdivision A of Division 4 would contain the general provisions
relating to the transfer of collective agreements.
New section 125 - Transmission of collective agreement
New employer bound by collective agreement
1846. Proposed subsection 125(1) would provide that where the old employer
and employees of the old employer were bound by a collective
agreement immediately before the time of transmission and there is
at least one transferring employee in relation to the collective
agreement, the new employer would be bound by the collective
agreement.
1847. This means that a new employer who is a successor, transmittee or
assignee to a business or part of a business, would be bound by the
collective agreement that was binding on the old employer, in
respect of an employee if that employee is employed by the new
employer within two months, and the collective agreement is capable
of covering the employee's employment with the new employer.
1848. Proposed Note 1 would mention that where the collective agreement
becomes binding on the new employer by force of this section, the
new employer may have obligations imposed by section 129 and section
129A with respect to notification.
1849. Proposed Note 2 would mention that the provision should be read in
conjunction with and subject to proposed section 125A.
Period for which new employer remains bound
1850. Proposed subsection 125(2) would establish for how long the new
employer will be bound by the transmitted collective agreement. It
would specify four events which would cause the new employer to no
longer be bound by the transmitted collective agreement in its
entirety. This result would be brought about on the occurrence of
whichever of the events occurs first. They are outlined below.
1851. Firstly, the transmitted collective agreement could be terminated in
accordance with proposed Division 9 of Part VB (ie the collective
agreement may be terminated by approval). Note that section 125C
would provide that a transmitted collective agreement may not be
unilaterally terminated during the transmission period, even where
it has reached its nominal expiry date.
1852. Secondly, the transmitted collective agreement would cease to bind
the new employer when there are no longer any transferring employees
in relation to the transmitted collective agreement. This is where
all transferring employees for example, either cease to be employed
by the new employer or move to another job while working for the new
employer that is not capable of being covered by the transmitted
collective agreement.
1853. Thirdly, the new employer would cease to be bound by the transmitted
collective agreement in respect of the transferring employees if the
transferring employees replace the transmitted collective agreement
with another collective agreement, or all of the transferring
employees enter into AWAs with the new employer.
1854. The proposed note would mention that proposed subsection 125(3)
should be considered to determine how the new employer ceases to be
bound by a transmitted collective agreement in respect of each
transferring employee in order to assess whether all transferring
employees are no longer bound by the transmitted collective
agreement.
1855. Lastly, the transmitted collective agreement would not be binding on
the new employer once the transmission period ends. This means that
a new employer would only be bound by the transmitted collective
agreement by force of subsection 125(1) for a maximum period of 12
months.
Period for which new employer remains bound in relation to a particular
transferring employee
1856. Proposed subsection 125(3) would provide the circumstances where the
new employer would no longer be bound by the transmitted collective
agreement in relation to each transferring employee in contrast to
proposed subsection 125(2) which would stipulate when the new
employer ceases to be bound by the transmitted collective agreement
in respect of all employees. Subsection 125(3) lists three ways in
which this can occur.
1857. Firstly, the transmitted collective agreement would cease to be in
operation in relation to a transferring employee where the new
employer makes an AWA with the transferring employee.
1858. Secondly, the transmitted collective agreement would cease to be in
operation in relation to the transferring employee where it is
replaced by another collective agreement that binds the new employer
and the (formerly) transferring employee. Note that proposed
section 125B(3) would provide that another collective agreement
could replace a transmitted collective agreement, even where the
transmitted collective agreement has not reached its specified
nominal expiry date.
1859. Finally, the transmitted collective agreement would cease to be
binding on a particular transferring employee because an event in
proposed subsection 125(2) has occurred.
New employer bound only in relation to employment of transferring
employees in the business being transferred
1860. Proposed subsection 125(4) would provide that a new employer is
bound by the transmitted collective agreement in respect of
transferring employees only, in relation to the business being
transferred. This provision is intended to limit the application of
the transmitted collective agreement to transferring employees while
they are employed in the business being transferred. Therefore,
employees of the new employer who are not transferring employees
cannot be bound by the transmitted collective agreement.
New employer bound subject to Commission order
1861. Proposed subsection 125(5) would provide that a new employer is
bound by the transmitted collective agreement by force of proposed
subsections 125(1), 125(2) and 125(3), subject to an order of the
AIRC under proposed section 125E.
Old employer's rights and obligations that arose before time of
transmission not affected
1862. Proposed subsection 125(6) would provide that this section does not
affect the rights and obligations of the old employer in respect of
a transferring employee that arose before the time of transmission.
This means, for example, that the subsection 125(1) is not intended
to transfer liability for accrued employee entitlements to a new
employer from an old employer.
New section 125A - Interaction rules
1863. Proposed section 125A would provide interaction rules that are
specific to transmitted collective agreements and other instruments.
Proposed section 125A is to be read in conjunction with section
125.
Transmitted agreement
1864. Proposed subsection 125A(1) would provide that this section applies
if subsection 125(1) applies to the collective agreement (ie to an
agreement that is a transmitted collective agreement).
Existing collective agreement
1865. Subsection 125A(2) would specify arrangements for where the new
employer is bound by a collective agreement immediately before the
time of transmission (the existing collective agreement) with
respect to other employees who are not transferring employees, and
the existing collective agreement would be capable of applying on
its terms to a transferring employee. The existing collective
agreement would not apply to the transferring employee by force of
this section.
1866. This would ensure that a transmitted collective agreement would not
be 'overridden' by another existing collective agreement that binds
the new employer because of the interaction rules in Part VC that
would otherwise apply.
1867. However, the subsection is not intended to limit the operation of
the existing collective agreement where the transmitted collective
agreement is terminated.
1868. Proposed subsection 125A(3) would provide that subsection 125A(2)
only applies until the end of the transmission period. Therefore,
at the end of 12 months from the time of transmission, the existing
collective agreement if it is capable of applying on its terms,
would not be precluded from applying to a former transferring
employee by subsection 125A(2). A new employer's existing
collective agreement might therefore become binding on former
transferring employees once the end of the transmission period has
passed or the transmitted collective agreement is terminated.
New section 125B - Transmitted collective agreement ceasing in
relation to transferring employee
Transmitted agreement
1869. Proposed subsection 125B(1) would provide that this section applies
if
subsection 125(1) applies to the collective agreement (ie to an
agreement that is a transmitted collective agreement).
AWA
1870. Proposed subsection 125B(2) would provide that, despite proposed
subsection 100(2), the transmitted collective agreement ceases to be
in operation in relation to a transferred employee if the new
employer and the transferred employee make a new AWA. This means
that the transmitted collective agreement would not bind the new
employer in respect of the transferring employee again, when an AWA
has operated in respect of the employment, even if the AWA is
terminated prior to the end of the transmission period.
1871. The proposed Note would explain the need for this rule, by
indicating that a collective agreement is normally only suspended in
respect of a particular employee while an AWA is in operation,
whereas the effect of proposed subsection 125B(2) would be to
permanently cancel the transmitted collective agreement's operation.
Replacement collective agreement
1872. Proposed subsection 125B(3) would provide that a transmitted
collective agreement could be replaced by another collective
agreement even if the transmitted collective agreement has not
passed its nominal expiry date. This could arise either because the
new employer makes a new agreement with the transferring employee or
if the employer varies an existing collective agreement so that it
applies on its terms to the transferring employees. This provision
operates with respect to a transmitted collective agreement, despite
proposed subsection 100(5).
New section 125 - Termination of transmitted collective agreement
Transmitted agreement
1873. Proposed subsection 125C(1) would provide that this section applies
if
subsection 125(1) applies to the collective agreement (ie to an
agreement that is a transmitted collective agreement).
Modified operation of subsections 103K(2) and 103L(2)
1874. Proposed subsection 125C(2) would provide that a transmitted
collective agreement may not be terminated under subsections 103K(2)
or 103(2) (ie by unilateral termination) during the transmission
period even though the agreement has passed its nominal expiry date.
This provision is intended to be an exception to the rule that a
collective agreement can be unilaterally terminated when it has
reached its nominal expiry date to ensure that a valid majority of
transferring employees must approve the termination of the
transmitted collective agreement.
Subsection 103R(1) does not apply
1875. Proposed subsection 125C(3) would create an exception to the rule in
proposed subsection 103R(1) which would usually provide that where a
collective agreement is terminated, an employee formerly bound by
the collective agreement could not return to an award that would
otherwise apply.
1876. Instead, where the transmission period ends or the transmitted
collective agreement is terminated, a transferring employee formerly
bound by the transmitted collective agreement can be bound by any
workplace agreement or award capable of applying. Where there is no
workplace agreement or award capable of applying to the transferred
employee's employment, the transferred employee would be covered by
the Standard.
1877. The proposed Note would clarify the application of proposed
paragraph 125C(3)(b) which specifies what happens to a transferring
employee in relation to a transmitted collective agreement at the
time the transmission period ends.
Special rule for transmitted workplace determination
1878. Proposed subsection 125C(4) would address the case where the
transmitted collective agreement is a workplace determination.
Proposed subsection 113F(3) would not apply from the time of
transmission. This means that a workplace determination may be
terminated as if it were a collective agreement, for the purposes of
Division 4.
1879. Proposed Notes 1 and 2 would indicate that proposed subsection
125C(4) departs from the usual rule that workplace determinations
cannot be terminated by approval prior to their nominal expiry
dates.
New Subdivision B - Commission's powers
1880. Subdivision B would deal with the AIRC's power to make orders with
respect to transferring collective agreements.
New section 125D - Application and terminology
1881. Proposed subsection 125D(1) would provide that the Subdivision
applies if a person is bound by a collective agreement and that
person's business or part of a business becomes, or is likely to
become transmitted.
1882. This definition would enable the Subdivision to capture the time
before transmission, as well as the time at, or after transmission.
1883. Proposed subsection 125D(2) defines terms to be used in the
Subdivision, which again reflect that the Subdivision is to apply
before, at and after the time of transmission.
New section 125E - Commission may make order
1884. Proposed subsections 125E(1) and (2) would provide that the AIRC can
make an order that an incoming employer:
. is not, or will not be, bound by a collective agreement that would
otherwise bind the incoming employer under proposed subsection 125(1);
or
. is, or will be, bound by the collective agreement that binds an
incoming employer by operation of subsection 125(1), but only to
the extent that the AIRC's order specifies including for a
specified period.
1885. The AIRC's order must specify the day from which the order takes
effect, however this time cannot be before the transfer time.
1886. Proposed subsection 125E(3) would provide that the AIRC cannot make
an order that would vary or extend the transmission time to provide
that a transmitting collective agreement is binding on a new
employer for a period longer than 12 months.
New section 125F - When an application for an order can be made
1887. This item would provide that an application for an order under
subsection 125E(1) can be made before, at or after the transfer
time.
New section 125G - Who may apply for order
1888. Proposed section 125G would prescribe who may apply for an order
from the AIRC under proposed section 125E in respect of a
transmitted collective agreement.
1889. Proposed subsection 125G(1) would provide that before the transfer
time, an application for an order can only be made by the outgoing
employer. Therefore, before the transfer time the incoming employer
could not apply for an order that would limit the effect of a
transmitting collective agreement.
1890. Proposed subsection 125G(2) would provide that at or after the
transfer time, an application may be made by:
. the incoming employer;
. a transferring employee in relation to the collective agreement;
. an organisation of employees that is bound by the collective
agreement;
. or an organisation of employees that is entitled to apply in
accordance with proposed paragraph 125G(2)(d).
1891. The outgoing employer cannot apply for an order at or after the
transfer time as it would no longer be bound by the collective
agreement in respect of the transferring employee under this
Subdivision.
New section 125H - Applicant to give notice of application
1892. Proposed section 125H would provide that an applicant for an order
by the AIRC under proposed section 125E must take reasonable steps
to give written notice of the application to all persons who may
make submissions in relation to the application (a person who can
make a submission would be specified by proposed section 125I).
This is not a civil remedy provision.
New section 125I - Submissions in relation to application
1893. Proposed section 125I would establish who may make a submission to
the AIRC in relation to an application for an order under proposed
section 125E to prevent or stop a collective agreement from
transmitting.
1894. Under subsections 125I(1) and (2), before the transfer time the
following persons must be given an opportunity by the AIRC to make a
submission:
. the applicant;
. an employee of the outgoing employer who is bound by the
collective agreement and who is employed in the business
concerned;
. the incoming employer;
. an organisation of employees that is bound by the collective
agreement;
. an organisation of employees that is entitled to make a submission
under proposed paragraph 125I(2)(d).
1895. Under proposed subsections 125I(1) and 125I(3), at or after the
transfer time the following persons must be given an opportunity by
the AIRC to make a submission:
. the applicant;
. the incoming employer;
. a transferring employee in relation to the transmitted collective
agreement;
. an organisation of employees that is bound by the transmitted
collective agreement; and
. an organisation of employees that is entitled to make a submission
under proposed paragraph 125I(3)(d).
1896. The requirements for organisations under proposed paragraphs
125I(2)(d) and 125I(3)(d) mirror the requirements for standing with
respect to enforcement and compliance in proposed Part VIII.
New Division 5 - Transmission of award
1897. Proposed Division 5 would contain the transmission of business rules
specific to the transfer of awards from an old employer to a new
employer.
1898. In Division 5, awards would have the same meaning as under proposed
Part VI.
New section 126 - Transmission of award
New employer bound by award
1899. Proposed subsection 126(1) would provide that where the old employer
was immediately before the time of transmission bound by an award,
and there is as least one transferring employee in relation to the
award, and the new employer would not otherwise be bound by the
award, this section binds the new employer to the award.
1900. This means that a new employer who is a successor, transmittee or
assignee to a business or part of a business, will be bound by the
award that was binding on the old employer, in respect of an
employee if that employee is employed by the new employer within two
months and the award is capable of covering the employee's
employment with the new employer.
1901. Proposed Note 1 would explain that proposed paragraph 126(1)(c)
(which requires that the new employer is not otherwise bound by the
award) is required as there are circumstances where a transmitting
award might already be binding on the new employer though in respect
of non-transferring employees.
1902. Proposed Note 2 would mention that where the award becomes binding
on the new employer by force of this section, the new employer may
have obligations imposed by sections 129 and 129A with respect to
notification.
1903. Proposed Note 3 would mention that the provision should be read in
conjunction with, and is subject to, proposed section 126A.
Period for which new employer remains bound
1904. Proposed subsection 126(2) would establish for how long the new
employer will be bound by the transmitted award. It would specify
four events which would cause the new employer to no longer be bound
by the transmitted award in its entirety. This result would be
brought about on the occurrence of whichever of the events occurs
first. They are outlined below.
1905. Firstly, the transmitted award could be revoked (see proposed Part
VI). The AIRC can revoke an award in limited circumstances (ie as
part of award rationalisation, award simplification, or where the
award is no longer applicable or is obsolete), so that it is no
longer binding on the new employer.
1906. Secondly, the transmitted award would cease to bind the new employer
when there are no longer any transferring employees in relation to
the transmitted award. This is where all transferring employees for
example, either cease to be employed by the new employer or move to
another job while working for the new employer that is not capable
of being covered by the transmitted award.
1907. Thirdly, the new employer would cease to be bound by the transmitted
award in respect of the transferring employees if a collective
agreement comes into operation in relation to all of the
transferring employees, or all the employees enter into AWAs with
the new employer.
1908. The proposed Note would mention that proposed subsection 126(3)
should be considered to determine how the new employer ceases to be
bound by a transmitted award in respect of each transferring
employee in order to assess whether all transferring employees are
no longer bound by the transmitted award
1909. Finally, the transmitted award would not be binding on the new
employer once the transmission period ends. This means that a new
employer would only be bound by the transmitted award by force of
subsection 126(1) for a maximum period of 12 months.
Period for which new employer remains bound in relation to particular
transferring employee
1910. Proposed subsection 126(3) would provide the circumstances where the
new employer would no longer be bound by the transmitted award in
relation to each transferring employee in contrast to proposed
subsection 126(2) which would stipulate when the new employer ceases
to be bound by the transmitting award in respect of all employees.
Subsection 126(3) lists three ways in which this can occur.
1911. Firstly, the award would cease to be in operation in relation to a
transferring employee where the new employer makes an AWA with the
transferring employee.
1912. Secondly, the award would cease to be in operation in relation to
the transferring employee where it is replaced by a collective
agreement that binds the new employer and the (formerly)
transferring employee.
1913. Finally, the award may cease to be binding on a particular
transferring employee because an event in proposed subsection 126(2)
has occurred.
1914. New employer bound only in relation to employment of transferring
employees
1915. Proposed subsection 126(4) would provide that a new employer is
bound to the transmitted award in respect of transferring employees
only. Therefore, the transmitted award cannot bind employees of the
new employer who are not transferring employees by force of
subsection 126(1).
Commission order
1916. Proposed subsection 126(5) would provide that proposed subsections
126(1), 126(2) and 126(3) have effect subject to any order of the
AIRC.
1917. Proposed subsection 126(6) would ensure that the AIRC cannot make an
order which would extend the transmission period for more than 12
months. This would be the only limitation imposed by this section
on orders of the AIRC in relation to transmitted awards.
Old employer's rights and obligations that arose before time of
transmission not affected
1918. Proposed subsection 126(7) would provide that this section does not
affect the rights and obligations of the old employer in respect of
a transferring employee that arose before the time of transmission.
This means, for example, that the subsection 126(1) does not intend
to transfer liability for accrued employee entitlements to a new
employer from an old employer.
New section 126A - Interaction rules
Transmitted award
1919. Proposed subsection 126A(1) would provide that this section applies
if subsection 126(1) applies to the award (ie to a transmitted
award).
Collective agreement
1920. Proposed subsection 126A(2) would provide that an award would
transmit to a new employer under subsection 126(1) subject to
proposed section 100B. Proposed section 100B would provide that an
award has no effect in relation to an employee's employment while a
collective agreement operates in relation to that employment.
Therefore, if at the time of transmission the new employer is bound
by a collective agreement that applies on its terms to a
transferring employee, the transmitting award would have no effect
while that collective agreement is in operation and the collective
agreement would come into force in relation to any transferring
employees immediately after the time of transmission.
1921. The proposed Note would indicate that proposed section 126B modifies
the operation of section 100B in relation to AWAs and collective
agreements that come into operation after the time of transmission.
New section 126B - Transmitted award ceasing in relation to
transferring employee
Transmitted award
1922. Proposed subsection 126B(1) would provide that this section applies
if subsection 126(1) applies to the award (ie to an award that is a
transmitted award).
AWA
1923. Proposed subsection 126B(2) would provide that a transmitted award
ceases to be in operation in relation to a transferring employee if
the new employer and the transferring employee make an AWA after the
time of transmission.
1924. The proposed Note would clarify that under this section, a
transmitted award is not suspended while the AWA is in operation.
Rather the transmitted award ceases to operate with respect to the
particular transferring employee and would not revive even if the
AWA is terminated within the transmission period.
Collective agreement
1925. Proposed subsection 126B(3) would provide that a transmitted award
ceases to be in operation in relation to a transferring employee if
the new employer and the transferring employee make a collective
agreement after the time of transmission.
1926. The proposed Note would clarify that under this section, a
transmitted award is not suspended while the collective agreement is
in operation, rather the transmitted award ceases to operate with
respect to the particular transferring employee and would not revive
even if the collective agreement was terminated within the
transmission period.
Illustrative Example
Arianna is a mechanic employed by Clarke Enterprises who is bound by the
Vehicle Industry - Repair, Services and Retail Award 1983 (the Award) in
relation to Arianna's employment.
Clarke Enterprises is sold to TJ Mechanical Repairs Pty Ltd (TJ) which
takes Arianna on as a transferring employee to work as a mechanic, so that
TJ is bound in relation to the Award, in relation to Arianna's employment.
However, TJ has a collective agreement that is binding on all of its
employees who are mechanics. Because this agreement is on its terms
capable of applying to Arianna, the Award ceases to operate in respect of
Arianna. Arianna is now bound by the collective agreement.
New Division 6 - Transmission of APCS
1927. Proposed Division 6 would contain the transmission provisions
specific to the transfer of an APCS from an old employer to a new
employer. APCSs would be established under Division 2 of Part VA
(the Australian Fair Pay and Conditions Standard).
New section 127 - Transmission of APCS
New employer bound by APCS
1928. Proposed subsection 127(1) would provide that where, immediately
before the time of transmission, an employee's employment with the
old employer is covered by an APCS, the employee is a transferring
employee in relation to the APCS and the new employer would not
otherwise be covered by the APCS, this section binds the new
employer to the APCS in respect of the transferring employee.
1929. This means that a new employer who is a successor, transmittee or
assignee to a business or part of a business, will be bound by the
APCS that was binding on the old employer in respect of an employee
if that employee is employed by the new employer within two months
and the APCS is capable of applying to the employee's employment
with the new employer.
1930. Under subsection 127(1) the term covered by would be intended to
include 'bound by' and 'applied to'. The term should not be read as
a limitation to the provision.
Employee ceasing to be transferring employee
1931. Proposed subsection 127(2) would provide that where the employee
ceases to be a transferring employee in relation to the APCS, the
new employer would not be bound to the APCS by force of subsection
127(1). This could occur if the transferring employee resigns or
moves to another job while still working for the new employer in a
position that is not capable of being covered by the APCS.
1932. An APCS would not stop applying to an APCS at the end of 12 months
after transmission, as there is no transmission period for an APCS.
Old employer's rights and obligations that arose before time of
transmission not affected
1933. Proposed subsection 127(3) would provide that this section does not
affect the rights and obligations of the old employer in respect of
a transferring employee that arose before the time of transmission.
This means, for example, that the subsection 127(1) is not intended
to transfer liability for accrued employee entitlements to a new
employer from an old employer.
New Division 7 - Entitlements under Australian Fair Pay and
Conditions Standard
1934. Proposed Division 7 would contain provisions that prescribe what
happens to certain entitlements accrued or arising under the
Australian Fay Pay and Conditions Standard upon a transmission of
business.
New section 128 - Parental leave entitlements
1935. Proposed section 128 would provide for the transfer of parental
leave entitlements to a new employer from an old employer. Parental
leave has the same meaning as under proposed Division 6 of Part VA
(ie it includes maternity, paternity and adoption leave).
1936. Subsection 128(1) would provide that at the time of transmission, a
new employer would become liable for a transferring employee's
entitlements in relation to parental leave entitlement that arise
under the Standard, and any other parental leave entitlement, that
the old employer was liable for immediately before the time of
transmission. When this occurs, the old employer ceases to be
liable for those entitlements.
1937. Subsection 128(2) would stipulate how service is to be counted for
the purposes of calculating parental leave under the Standard where
a new employer takes on the entitlement under subsection 128(1).
1938. Paragraph 128(2)(a) would provide that any of the transferring
employee's service with the old employer which counted towards
parental leave would count for the purposes of working out the
transferring employees entitlement to parental leave.
1939. Paragraph 128(2)(b) would provide that any service with a previous
employer that the old employer recognised as service towards working
out the employee's parental leave entitlement, would also count when
calculating the transferring employee's entitlement to parental
leave.
1940. Subsection 128(2) would have the effect of providing for continuity
of service where the new employer takes on the old employer's
liability for a parental leave entitlement arising under the
Standard.
1941. The combined effect of subsections 128(1) and 128(2) would be that
where a new employer takes on the old employer's liability for
parental leave in relation to a transferring employee's entitlement
under the Standard, any entitlement to parental leave would be
unaffected by the transmission of business. This would be the case
even where a transferring employee is on parental leave at the time
of transmission.
1942. Subsection 128(3) would deal with the documentation in relation to
parental leave arising under the Standard.
1943. Where documentation is given to the old employer by a transferring
employee who has not commenced parental leave before the time of
transmission and the old employer notified the new employer of the
documentation in accordance with subsection 128(4), the
documentation is treated as if it had been given to the new
employer.
1944. Under proposed Division 6 of Part VA, the employee usually only has
to provide documentation to their employer in order to take parental
leave. Subsection 128(3) would ensure that where documentation has
been given to an old employer by a transferring employee and there
is a transmission of business, the transmission of business would
not 'interrupt' a transferring employee's entitlement to parental
leave. This is because documentation given to an old employer,
would be treated as if it were originally given to the new employer.
1945. Subsection 128(3) would provide that where there are transferring
employees who have parental leave entitlements under the Standard,
an old employer may have notification obligations in respect of the
new employer under subsection 128(4).
1946. Subsection 128(4) would provide that an old employer must notify the
new employer of any person who is or is likely to be a transferring
employee and is on parental leave at the time of transmission.
1947. Additionally, the old employer must notify the new employer of any
parental leave documentation that is given to the old employer
before the time of transmission by a person who is, or is likely to
be a transferring employee.
1948. The notification must be given to the new employer in writing,
within 14 days of the time of transmission.
1949. The proposed Note indicates that this is a civil remedy provision
and should be read in conjunction with proposed section 129C.
New section 128A - New employer assuming liability for particular
entitlements
1950. Proposed section 128A would provide for the transfer of accrued
employee entitlements in relation to matters, other than parental
leave, under the Standard, in certain circumstances. The provisions
allow for new and old employers to agree to transfer particular
employee entitlements to the new employer upon transmission of
business. Where this does not occur, the old employer will remain
liable for those accrued entitlements The provisions intend to
allow for a 'clean break' in relation to particular accrued
entitlements (with the exception of parental leave).
1951. Subsection 128A(1) would provide that the section applies where the
new employer agrees in writing, before the time of transmission to
take on a transferring employee's entitlements in relation to a
particular matter.
1952. Paragraphs 128A(1)(a) and (b) are intended to include all the ways
that an employer may agree to take on a transferring employee's
particular entitlement. However, if a new employer takes on a
transferring employee's entitlement in some other way, the provision
should not be read as excluding that from its operation.
1953. The words particular matter would refer to the type of entitlement
that has accrued, for example the matter of annual leave, or the
matter of sick leave.
1954. Subsection 128A(2) provides that where the requirements of
subsection 128A(1) are met, then at the time of transmission the new
employer becomes liable for the balance of the transferring
employee's entitlements if any (not including parental leave):
. that accrued under the Standard in relation to the matter before
the time of transmission; and
. for which the old employer was liable immediately before the time
of transmission.
1955. Where this occurs the old employer ceases to be liable for the
entitlements.
1956. Subsection 128A(3) would provide that where liability for a matter
transfers to the new employer under proposed subsection 128A(1), for
the purposes of calculating the transferring employee's entitlements
under the Standard, both of the following count:
. the transferring employee's service with the old employer that
counts for the purposes of calculating that matter; and
. any service with a previous employer (that counted for the
purposes of calculating that matter) that the old employer
recognised as counting in relation to that matter.
128B - New employer assuming entitlements generally
1957. Proposed section 128B would provide for the transfer of accrued
employee entitlements in relation to matters, other than parental
leave, under the Standard in certain circumstances. The provisions
allow for new and old employers to agree to transfer employee
entitlements to the new employer upon transmission of business.
Where this does not occur, the old employer will remain liable. The
provisions intend to allow for a 'clean break' in relation to
accrued entitlements (with the exception of parental leave).
1958. Subsection 128B(1) would provide that the section applies where the
new employer agrees in writing, before the time of transmission to
take on a transferring employee's entitlements generally.
1959. Paragraphs 128B(1)(a) and (b) are intended to include all the ways
that an employer may agree to take on a transferring employee's
entitlements. However, if a new employer takes on a transferring
employee's entitlement in some other way, the provision should not
be read as excluding that from its operation.
1960. Subsection 128B(2) provides that where the requirements of proposed
subsection 128B(1) are met, then at the time of transmission the new
employer becomes liable for the balance of the transferring
employee's entitlements if any (not including parental leave):
. that accrued under the Standard in relation to the matter before
the time of transmission; and
. for which the old employer was liable immediately before the time
of transmission.
1961. Where this occurs the old employer ceases to be liable for the
entitlements.
1962. Subsection 128B(3) would provide that where liability for a matter
transfers to the new employer under 128B(1), for the purposes of
calculating the transferring employee's entitlements under the
Standard, both the following count:
. the transferring employee's service with the old employer that
counts for the purposes of calculating the entitlements; and
. any service with a previous employer (that counted for the
purposes of calculating the entitlements) that the old employer
recognised as counting in relation to those entitlements.
New Division 8 - Notice requirements and enforcement
New section 129 - Informing transferring employees about
transmission instrument
1963. Proposed section 129 would create notification obligations for a new
employer with respect to a transferring employee. The effect of the
provisions would be to inform the transferring employee about the
operation of transferred instruments and the nature of the
instruments that could apply to the transferred employee and new
employer in a transmission of business situation. The provisions
are civil remedy provisions.
1964. Subsection 129(1) would apply where an instrument binds an employer
by force of the transmission of business provisions (see proposed
sections 124, 125 and 126) in respect of a transferring employee.
1965. Subsection 129(2) would provide that within 28 days after the
transferring employee commences employment with the new employer,
the new employer must take reasonable steps to give the transferring
employee a notice that complies with subsection 129(3). There may
be exceptional circumstances which prevent a new employer from
complying with subsection 129(1).
1966. Subsection 129(3) would set out what must be contained in the notice
for it to comply with the provision.
1967. The notice must:
. identify the transmitted instrument (eg the name and date of
commencement of the award, collective agreement or AWA);
. confirm that the new employer is bound by the transmitted
instrument;
. specify the end date for the transmission period (ie the actual
date that is 12 months from the time of transmission);
. explain that the new employer will continue to be bound by the
transmitted instrument until the end of the transmission period
unless it is terminated or otherwise ceases to have effect before
the end of that period;
. specify how the transferred employee and the new employer might
cease to be bound to the transmitted instrument;
. set out the new employer's intentions for what instruments will
cover the transferring employer (eg the employer intends to make a
new collective agreement with the transferred employees); and
. identify any other instrument that may be capable of applying on
its terms to the transferring employees when the transmission
period ends, or if the transmitted instrument was terminated.
1968. The requirement that the new employer's intentions be indicated in
relation to the instrument that would regulate the transferring
employees employment at the end of the transmission period (or if
the transmitted instrument is terminated), should not of itself be
seen as imposing any legal obligation on the new employer to act as
intended. However, this would not preclude penalties under some
other law if these statements amounted to, for example, fraud or
misleading conduct.
1969. Subsection 129(4) would establish situations where a new employer
does not have the notification obligations imposed by section 129.
1970. The first is where a transmitted award ceases to operate with
respect to all transferring employees at the time of transmission
because an existing collective agreement is capable of applying to
all the transferring employees under proposed section 126A.
1971. The second situation is where the new employer and the transferring
employee become bound by an AWA or collective agreement at the time
of transmission or within 14 days of the time of transmission.
1972. Finally, where the relevant instrument is a transmitted workplace
agreement, and the new employer and a transferring employee make an
AWA within 14 days after the time of transmission, then the new
employer would not have notification obligations in respect of that
transferring employee.
1973. The reason for removing the notification requirements in these
situations is that the transmitted instrument ceases to operate
under Part VIAA or, at the choice of a transferring employee, soon
after the time of transmission, making notification redundant.
New section 129A - Lodging copy of notice with Employment Advocate
Only one transferring employee
1974. Proposed subsection 129A(1) would deal with the situation where
there is only one transferring employee with respect to the
particular transmitted instrument.
1975. Where there is only one transferring employee with respect to a
transmitting AWA, collective agreement or an award, and the new
employer gives notice under
subsection 129(2) to that employee, the employer must also lodge a
copy of the notice with the Employment Advocate.
1976. This notice must be lodged in accordance with subsection 129A(4)
within 14 days of giving the notice to the transferring employee.
1977. Proposed Note 1 would indicate that subsection 129A(1) is a civil
remedy provision with reference to section 129C.
1978. Proposed Note 2 would refer to obligations imposed by sections 137.1
and 137.2 of the Criminal Code Act 1995 in relation to the provision
of information or documents.
Multiple transferring employees and notices all given on the one day
1979. Proposed subsection 129A(2) would deal with the situation where
there are a number of transferring employees with respect to a
particular instrument, who were all given notice under subsection
129(2) on the same day.
1980. Where the new employer gives a number of notices under subsection
129(2) to transferring employees in relation to a collective
agreement or an award, and all the notices are given on the one day,
the employer must lodge a copy of one of those notices with the
Employment Advocate.
1981. This notice must be lodged in accordance with subsection 129A(4)
within 14 days of giving the notice to the transferring employee.
1982. Proposed Note 1 would indicate that subsection 129A(2) is a civil
remedy provision with reference to section 129C.
1983. Proposed Note 2 would refer to obligations imposed by sections 137.1
and 137.2 of the Criminal Code Act 1995 in relation to the provision
of information or documents.
Multiple transferring employees and notices given on different days
1984. Proposed subsection 129A(3) would deal with the situation where
there are a number of transferring employees with respect to a
particular instrument, who were all given notice under subsection
129(2) but on different days.
1985. Where the new employer gives a number of notices under subsection
129(2) to transferring employees in relation to a collective
agreement or an award, and all the notices are given on different
days, the employer must also lodge a copy of one of those notices
with the Employment Advocate.
1986. This notice must be a copy of the notice given on the first of those
days and lodged in accordance with subsection 129A(4) within 14 days
of giving the first notice to a transferring employee.
1987. Proposed Note 1 would indicate that subsection 129A(3) is a civil
remedy provision with reference to section 129C.
1988. Proposed Note 2 would refer to obligations imposed by sections 137.1
and 137.2 of the Criminal Code Act 1995 in relation to the provision
of information or documents.
Lodgment with the Employment Advocate
1989. Proposed subsection 129A(4) would provide that a notice is lodged in
accordance with this subsection only once it is actually received by
the Employment Advocate.
1990. The proposed note would explain that subsection 129A(4) departs from
section 29 of the Acts Interpretation Act 1901 (AI Act). Section 29
of the AI Act provides that service of a document is normally
effected when it is 'properly prepaid, addressed and posted'.
New section 129B - Employment Advocate must issue receipt for
lodgment
1991. Proposed section 129B would oblige the Employment Advocate to issue
a receipt for a notice that it receives under section 129A. The
receipt must state that it was lodged in accordance with section
129A and specify the date.
1992. The Employment Advocate would need to give a copy of the receipt to
the person who lodged the notice under section 129A.
New section 129C- Civil remedies
1993. Proposed section 129C would deal with the civil remedy provisions of
Part VIAA.
1994. Subsection 129C(1) that would specify the notification provisions
are civil remedy provisions. These include the notification
requirements in relation to parental leave under subsection 128(4),
and the obligations of a new employer in relation to the operation
of transmitted instruments under subsections 129(2), 129A(1), (2)
and (3).
1995. The proposed note would indicate that proposed Division 4 of Part
VIII also contains provisions that are relevant to the consideration
of civil remedies under the WR Act.
1996. Proposed subsections 129C(2) and (3) would provide that the Federal
Magistrates Court, or the Federal Court (the Court) may order a
person who has contravened the civil remedy provisions to pay a
pecuniary penalty of not more than 300 penalty units for a body
corporate or 60 penalty units in other cases.
1997. Subsection 129C(4) would establish who has standing (ie who is
entitled) to make an application in relation to enforcing the
notification requirements for parental leave under subsection
128(4). Relevantly, a transferring employee, an organisation of
employees that is entitled to represent a transferring employee
under paragraph 129C(4)(b), a workplace inspector or the new
employer is entitled to make an application in respect of subsection
128(5).
1998. Subsection 129C(5) would establish who has standing (ie who is
entitled) to make an application in relation to enforcing the
provision of notices under subsections 129(2), 129A(1), 129A(2) and
129A(3). Who has standing will vary depending on the nature of the
transmitted instrument.
New Division 9 - Miscellaneous
1999. Proposed Division 9 would contain facilitative provision in relation
to Part VIAA.
New section 130 - Regulations
2000. Proposed section 130 would enable regulations to be made with
respect to the succession, transmission or assignment of a business
or part of a business, and the obligations of employers in these
situations. The regulations might also deal with the terms and
conditions of the employment of employees whose employment is
affected by a transmission, assignment or succession of a business,
or part of a business.
2001. This regulation making power is intended to be broad in scope, and
should not be construed narrowly.
Item 72 - Before Division 2
2002. This item would insert a new Division in Part VIA.
Division 1 - Entitlement to meal breaks
2003. Proposed Division 1 of Part VIA would provide an entitlement to an
unpaid meal interval of at least 30 minutes after 5 hours continuous
work to employees who are:
. within the meaning of the term 'employees' in subsection 4AA(1) of
the WR Act; and
. not covered by an award or a workplace agreement, or an industrial
instrument prescribed in the regulations.
2004. The entitlement provided by proposed Division 1 would not form part
of the Standard.
2005. Proposed Division 1 would comprise of new sections 170AA, 170AB,
170AC and 170AD.
2006. The model dispute resolution process set out in Part VIIA would be
available to deal with disputes under Division 1 of Part VIA.
2007. Enforcement of and compliance with the entitlement provided under
Division 1 of Part VIA would be addressed in proposed Part VIII.
New section 170AA - Meal breaks
2008. Proposed section 170AA would provide that an employer must not
require an employee to work for more than five hours continuously
without an unpaid interval of at least 30 minutes for a meal. This
would be subject to proposed section 170AB. Proposed section 170AB
would provide which 'employers' and 'employees' are subject to this
requirement.
New section 170AB - Displacement of entitlement to meal breaks
2009. Proposed section 170AB would provide that proposed section 170AA
does not apply in relation to the employment of an employee (for the
purposes of this Division) while an award, workplace agreement, or
an industrial instrument prescribed by the regulations, operates in
respect of that particular employment. This would prevent any
conflict arising between entitlements contained in industrial
instruments and the new minimum entitlement.
New section 170AC - Model dispute resolution process
2010. Proposed section 170AC would provide that the model dispute
resolution process, set out in proposed Part VIIA, would be capable
of applying to disputes under proposed Division 1 of Part VIA,
including whether the provisions apply to the particular employment
of an employee.
New section 170AD - Extraterritorial extension
2011. Proposed subsection 170AD(1) would extend the application of Part
VIA (as amended) and the rest of the WR Act as it relates to Part
VIA to employees outside Australia and their employers provided they
meet the requirements of this section. The legislative note to
subsection 170AD(1) would clarify that, for the purposes of section
170AD, Australia includes the Territory of Christmas Island, the
Territory of Cocos (Keeling) Islands and the coastal sea.
2012. In Australia's exclusive economic zone, the meal break provisions
would apply only to employees of Australian employers (as defined in
subsection 4(1)) unless regulations were made to dis-apply the
application of the Part to such an employee (subsection
170AD(2)(a)). However, regulations could extend the operation of
the meal break provisions to other employees in the exclusive
economic zone (subsection 170AD(2)(b)). In making regulations,
account would be taken of Australia's international law obligations
in relation to foreign-flagged ships and foreign-registered
aircraft.
2013. In relation to employees in, on or over Australia's continental
shelf beyond the exclusive economic zone, the meal break provisions
would apply only if regulations prescribed the part of the
continental shelf where the employee was located and the employee
met the requirements prescribed by the regulations (subsection
170AD(3)). In making regulations, account would be taken of
Australia's international law obligations in relation to foreign-
flagged ships and foreign-registered aircraft and its obligations in
relation to matters in, on or over the continental shelf (including
under agreements with other countries in relation to particular
areas of the continental shelf). The legislative note to subsection
170AD(3) would make clear that the regulations could prescribe
different requirements for different parts of the continental shelf,
including for reasons connected with Australia's international
obligations.
2014. Outside Australia and the exclusive economic zone and continental
shelf, the meal break provisions would apply to Australian-based
employees of Australian employers (as those expressions would be
defined in subsection 4(1)). Regulations could be made to prescribe
an employee outside Australia and the exclusive economic zone and
continental shelf as an employee to whom the meal break provisions
do not apply (subsection 170AD(4)).
2015. Subsection 170AD(5) would provide a specific definition of this Act
for the purposes of section 170AD. This is because the definition
of this Act in subsection 4(1) (which would otherwise apply) does
not include the Registration and Accountability of Organisations
Schedule and regulations made under it. The specific definition
would ensure that the extraterritorial extension under subsection
170AD(1) would apply to that Schedule and those regulations so far
as they relate to Division 1 of Part VIA.
Item 73 - At the end of section 170B
2016. This item would insert a legislative note at the end of section
170B, indicating that the terms employer, employee and employment
have their ordinary meaning for the purposes of Division 2 of Part
VIA. This is provided for in sections 4AA, 4AB and 4AC and Schedule
1.
2017. This is because Division 2 of Part VIA has universal application to
employees in Australia, regardless of the identity or corporate
status of their employer, in keeping with its purpose to give
effect, or further effect, to:
. the Equal Remuneration Convention, 1951;
. the Convention on the Elimination of all Forms of Discrimination
against Women;
. the Convention concerning Discrimination in respect of Employment
and Occupation;
. Articles 3 and 7 of the International Covenant on Economic, Social
and Cultural Rights;
. the Equal Remuneration Recommendation, 1951, which the General
Conference of the International Labour Organisation adopted on 29
June 1951 and is also known as Recommendation No. 90; and
. the Discrimination (Employment and Occupation) Remuneration
Recommendation, 1958, which the General Conference of the
International Labour Organisation adopted on 25 June 1957 and is
also known as Recommendation No. 111 (see section 170BA, and
definition of 'Anti-Discrimination Conventions' in subsection
4(1)).
Item 74 - After section 170BA
2018. This item would insert new sections 170BAB and 170BAC.
New section 170BAB - Relationship of this Division to other laws
providing alternative remedies
2019. Proposed section 170BAB would specify when the AIRC is able to hear
and/or determine an application under Division 2 of Part VIA where
other similar remedies are available.
2020. Subsection 170BAB(1) would provide that the AIRC must not deal with
an application for equal remuneration orders, if it is satisfied
that an adequate alternative remedy exists. If a State or Territory
law is excluded by the operation of proposed section 7C, and if no
other adequate alternative remedies exist, subsection 170BAB(1)
would not prevent the AIRC from dealing with an equal remuneration
application under Division 2 of Part VIA.
2021. Subsections 170BAB(2) - (5) are intended to preclude an applicant
from bringing proceedings under Division 2 of Part VIA and some
other provision of the WR Act or another law of the Commonwealth, a
State or Territory, seeking equal remuneration for work of equal
value either concurrently or where one set of proceedings has been
successfully resolved. For example, where an applicant has two
remedies open to him or her to seek an order providing equal
remuneration for work of equal value, the applicant must elect to
pursue one remedy or the other, but not both. Under subsection
170BAB(2), the applicant would be precluded from bringing an
application under Division 2 of Part VIA if an action seeking an
alternative remedy has commenced. Conversely, if an application is
made under Division 2 of Part VIA, subsection 170BAB(4) would
prevent the applicant commencing proceedings in respect of an
alternative remedy.
2022. However, if an application for an alternative remedy is discontinued
by the applicant or fails for want of jurisdiction, the applicant
would not be prevented from making an application under this
Division as provided by subsection 170BAB(3). Under subsection
170BAB(5), the applicant would also not be precluded from commencing
proceedings for an alternative remedy if an application for equal
remuneration under Division 2 of Part VIA was discontinued or failed
for lack of jurisdiction.
2023. Subsection 170BAB(6) would clarify that the making of an application
under a Commonwealth, State or Territory law seeking compensation
for past discrimination in relation to employment, and no other
orders, would not prevent an applicant from seeking orders under
Division 2 of Part VIA. This is because an order for compensation
only addressing past wrongs is different in substance to an equal
remuneration order under Division 2 of Part VIA, which would deal
with future rights and remedies.
New section 170BAC - Relationship of this Division to orders,
determinations or decisions of the AFPC
2024. Proposed section 170BAC would specify how decisions of the AIRC and
the AFPC interact in the equal remuneration context.
2025. Under proposed Part IA of the WR Act, the AFPC would replace the
AIRC in its role of making decisions about minimum wages. In making
those decisions, the AFPC would be required to apply the principle
that men and women should receive equal remuneration for work of
equal value (see proposed section 90ZR).
2026. To provide consistency between AFPC and AIRC decisions, subsection
170BAC(1) would direct the AIRC to have regard to decisions of the
AFPC in making orders under Division 2 of Part VIA, including any
statements that the AFPC makes about the principle that men and
women should receive equal remuneration for work of equal value.
2027. Further, to ensure that decisions of the AFPC made on a national
level are not inadvertently undermined, subsection 170BAC(2) would
prevent the AIRC dealing with an application if the proposed order
would have the effect of setting aside or varying rates set by the
AFPC. Specifically, subsection 170BAC(2) would provide that the
AIRC must not deal with an application under Division 2 of Part VIA
if:
. the comparator group of workers (workers whom the applicant
contends are performing work of equal value to the work performed
by the employees who would be covered by the proposed order) is
being paid a wage set by the AFPC under the WR Act;
. enforcement of the orders sought by the applicant would have the
effect of changing a wage set by the AFPC; or
. the proposed order would be inconsistent with a decision of the
AFPC that is in force.
Item 75 - Subsection 170BC(2)
2028. Consistent with ensuring the integrity of the AFPC's role in
relation to minimum wages, this item would amend subsection 170BC(2)
to provide that the AIRC may make an order to provide for increases
in rates of pay to provide equal remuneration for work of equal
value, except the rates of pay set by the AFPC (as per subsection
170BAC(2)).
Item 76 - Subsection 170BC(3)
2029. This item would repeal and replace paragraph 170BC(3)(b) to clarify
that, amongst other things, before making an order under this
Division the AIRC would need to be satisfied that the proposed order
could be reasonably regarded as appropriate and adapted to giving
effect to one or more of:
. the Equal Remuneration Convention, 1951;
. the Convention on the Elimination of all Forms of Discrimination
against Women;
. the Convention concerning Discrimination in respect of Employment
and Occupation;
. Articles 3 and 7 of the International Covenant on Economic, Social
and Cultural Rights;
. the Equal Remuneration Recommendation, 1951; and
. the Discrimination (Employment and Occupation) Remuneration
Recommendation, 1958.
Item 77 - After section 170BD
2030. This item would insert new sections.
New section 170BDA - Conciliation or mediation
2031. Proposed section 170BDA would specify a compulsory conciliation or
mediation process as part of equal remuneration proceedings. This
would formalise current practice by the AIRC, which often conducts
conciliation of equal remuneration matters.
2032. Subsection 170BDA(1) would provide that the AIRC must not start
hearing and determining an application for orders under Division 2
of Part VIA until it has attempted to settle the matter by
conciliation or alternatively until an (agreed) independent third
person has attempted to settle the matter by mediation. Where the
parties do not agree to mediation, or cannot agree on who will
conduct mediation, the AIRC would conduct conciliation.
2033. Subsection 170BDA(2) would provide that the AIRC may order the
applicant, and each employer against whom an order is sought, to be
present or represented at the conciliation or mediation.
2034. Subsections 170BDA(3) and (4) would provide for interested parties
(as well as the applicant and the employer) to participate in the
conciliation or mediation. This is to allow all employees who would
be covered by a proposed order an opportunity to participate in the
conciliation or mediation.
2035. Subsection 170BDA(3) would provide that the AIRC may order that the
employees to be covered by the proposed order be allowed to be
present or represented at the conciliation or mediation. Subsection
170BDA(4) would provide that the AIRC may order that the applicant,
or each employer against whom an order is sought, must inform the
employees to be covered by the proposed order of:
. the making of the application for an equal remuneration order;
. the details of the application and the proposed order; and
. the time and place of the proposed conciliation or mediation.
New section 170BDB - If conciliation or mediation is unsuccessful
2036. Proposed section 170BDB would specify what the AIRC can or must do
if all reasonable attempts to settle a matter by conciliation or
mediation, or part of a matter, are unsuccessful. The process
outlined would provide all interested persons with a clear
indication of when the conciliation or mediation process has
concluded and when the AIRC can commence to hear and determine the
application.
2037. Subsection 170BDB(1) would provide that if the AIRC decides that
conciliation is, or is likely to be, unsuccessful, or alternatively,
the person conducting the mediation informs the AIRC that mediation
has not, or is unlikely to produce, a settled outcome, the AIRC must
advise the parties accordingly.
2038. Subsection 170BDB(2) would provide that the AIRC may order that the
applicant, and each employer against whom an order is sought, inform
the employees who would be covered by the order (such as those
informed pursuant to proposed subsection 170BDA(4)) that
conciliation or mediation has been unsuccessful.
2039. Once the parties have been informed that conciliation or mediation
has been unsuccessful, subsection 170BDB(3) would allow the AIRC to
hear and determine the matter, or the part that was not settled.
New section 170BDC - Hearing of matter by member who conducted
conciliation
2040. Proposed section 170BDC would provide that if a member of the AIRC
has exercised conciliation powers under proposed section 170BDA in
relation to a matter, the member must not hear and determine, or
take part in the hearing and determination of, the matter if a
person who was at the conciliation objects. Proposed section 170BDC
would only apply if conciliation occurred under paragraph
170BDA(1)(a).
Item 78 - Section 170BE
2041. This item would repeal section 170BE as the requirement for the AIRC
to refrain from hearing an equal remuneration application if an
adequate alternative remedy exists would be contained in proposed
subsection 170BAB(1).
Item 79 - After section 170BG
2042. This item would insert new sections 170BGA, 170BGB, 170BGC and
170BGD which are explained below
New section 170BGA - Employer not to prejudice employee
2043. Proposed subsection 170BGA(1) would provide that an employer must
not for the reason, or for reasons including the reason, that an
equal remuneration application or order has been made, do or
threaten to do any of the following:
. dismiss an employee;
. injure an employee;
. alter the position of an employee to the employee's prejudice.
2044. Proposed section 170BGA would protect the employees of an employer
against whom an equal remuneration order is sought, from any injury
resulting from the fact that an equal remuneration order is being
sought. The protection afforded by proposed section 170BGA would
cover not only those employees who would be covered by the proposed
order, but all employees of an employer against whom an application
is sought, including those in the comparator group for the purposes
of the action. For example, where a female employee makes an equal
remuneration application on the basis that male employees at the
same level doing the same job are paid $50 more than herself, it
would be a breach of proposed section 170BGA for the employer to
terminate either the female applicant, or any or all of the male
employees who the applicant alleges are performing work of equal
value and are paid more, to prevent the AIRC from making the
relevant comparison.
2045. Subsection 170BGA(2) would provide that this is a civil remedy
provision.
New section 170BGB - Penalties etc. for contravention of section
170BGA
2046. Proposed section 170BGB would provide that the Federal Court, or the
Federal Magistrates Court, may make certain orders upon application
in relation to a person who has contravened proposed section 170BGA.
2047. Subsections 170BGB(1) and 170BGB(3) would allow a broad range of
remedies to be ordered including penalties (to the maximum amount
provided under subsection 170BGB(2) of 300 penalty units for a body
corporate or 60 penalty units otherwise), compensation, injunctions
and any other order.
2048. An application may be made by an eligible person. Eligible person
would be defined by subsection 170BGB(4) to include:
. a workplace inspector;
. a person affected by the contravention of subsection 170BGA;
. an organisation of employees that has been requested by an
employee of the employer, whom it is entitled to represent, to
make an application on the employee's behalf;
. the Sex Discrimination Commissioner (appointed under the Sex
Discrimination Act 1984); and
. a person prescribed by the regulations to be an 'eligible person'
(subsection 170BGB(5) would provide that the regulations may
provide that a person is prescribed as an 'eligible person' only
in relation to certain circumstances).
New section 170BGC - Proof not required of the reason for conduct
2049. Proposed subsection 170BGC(1) would provide that, in an application
under proposed section 170BGB, a reverse onus of proof shall apply.
Therefore, to avoid a civil penalty, the defendant employer would be
required to demonstrate that its reasons for engaging in the
impugned conduct (that was alleged to be a breach of proposed
section 170BGA) did not include that an equal remuneration
application or order had been made. If the defendant employer
failed to discharge this onus of proof, then their conduct would be
taken to constitute a breach of section 170BGA.
2050. A 'reverse onus of proof' applies because an employer against whom
an order is sought would be in a better position than the applicant
to know, and to provide evidence of its reasons for engaging in
particular conduct.
2051. Subsection 170BGC(2) would provide that the reverse onus of proof
would not apply in relation to an application for an interim
injunction.
New section 170BGD - Extraterritorial extension
2052. Proposed subsection 170BGD(1) would extend the applications of this
Division (and the rest of the WR Act so far as it relations to this
Division) so that the AIRC would have power to make an equal
remuneration order in respect of an employee whose remuneration was
determined by or under an Australian law (whether Commonwealth,
State or Territory) or a contract of employment made in Australia,
regardless of where the employment took place or where the employer
operated or was formed. The legislative note to subsection
170BGD(1) would note that, for the purposes of section 170BGD,
Australia includes the Territory of Christmas Island and the
Territory of Cocos (Keeling) Islands and the coastal sea.
2053. Proposed subsection 170BGD(2) would provide a section-specific
definition of this Act. This is because the definition of this Act
in subsection 4(1) (which would otherwise apply) does not include
the Registration and Accountability of Organisations Schedule and
regulations made under it. The specific definition would ensure
that the extraterritorial extension under subsection 170BGD(1) would
apply to that Schedule and those regulations so far as they relate
to Division 2 of Part VIA.
Item 80 - Sections 170BH, 170BHA and 170BI
2054. This item would delete sections 170BH, 170BHA and 170BI.
2055. Section 170BH would no longer be required as proposed paragraph
7C(1)(c) would determine the extent to which State of Territory laws
provide other rights to secure equal remuneration for work of equal
value.
2056. The requirement for the AIRC to refrain from hearing an equal
remuneration application under Division 2 of Part VIA if proceedings
in respect of an alternative remedy are on foot, and provisions
precluding an applicant from commencing other proceedings for an
alternative remedy where an application under Division 2 of Part VIA
is on foot, would be contained in proposed section 170BAB, making
section 170BHA redundant.
2057. Section 170BI would no longer be required as it relies on the
conciliation and arbitration power under the Constitution to give
secondary effect to Division 2 of Part VIA. Given the proposed
changed constitutional underpinnings to the WR Act, as well as the
fact that the external affairs power which supports this Division
provides for universal coverage, section 170BI would be redundant.
Item 81 - Paragraph 170CA(1)(e)
2058. This item would amend paragraph 170CA(1)(e) by deleting a reference
to Subdivision D of Part VIA. This item is consequential upon item
144, which would repeal Subdivision D of Division 3 of Part VIA.
Item 82 - After section 170CA
2059. This item would insert a new section 170CA
New section 170CAA - Meaning of employee, employer and employment
2060. Proposed section 170CAA would define the terms employee, employer
and employment, for the purposes of Division 3 of Part VIA of the WR
Act. It is intended that the definitions of employee, employer and
employment provided by subsection 4AA(1) of the WR Act would not
apply, except where a provision expressly states that it applies to,
or in relation to, the termination of the employment of an employee
within the meaning of subsection 4AA(1).
2061. It is intended that the meaning of employee provided by subsection
4AA(1) will only apply to the following provisions of Division 3 of
Part VIA of the WR Act:
. subsection 170CB(1); and
. subsection 170CB(4).
2062. It is intended that the meaning of employee provided by paragraph
(b) of the definition of employee in section 170CAA, which is an
employee within the ordinary meaning of that expression, will apply
to all other provisions of Division 3 of Part VIA of the WR Act
which are not listed in the paragraph set out immediately above.
2063. The distinction in subsection 170CAA, between an employee within the
meaning of subsection 4AA(1) and an employee within the meaning of
paragraph (b) of the definition of employee in subsection 170CAA, is
drawn because of the different jurisdictional application of the
termination of employment provisions:
. applications to the AIRC for conciliation and arbitration on the
ground that a termination was harsh, unjust or unreasonable
('unfair dismissal') only apply to the termination of employment
of an employee within the meaning of subsection 4AA(1);
. applications alleging that an employee's employment has been
terminated on certain unlawful grounds (section 170CK), that in
certain redundancy situations Centrelink has not been
appropriately informed before terminations occur (section 170CL)
or which claim an entitlement to notice, or payment in lieu of
notice, of termination of employment (section 170CM), apply to all
employees in Australia, regardless of the identity of their
employer, and therefore proposed paragraph (b) of the definition
of employee in section 170CAA would apply; and
. Subdivision E, which provides that certain orders may be made by
the AIRC in certain redundancy situations, has universal
application for employees in Australia, regardless of the identity
of their employer, and therefore proposed paragraph (b) of the
definition of employee in section 170CAA would apply.
2064. The definitions of employer and employment for the purposes of
Division 3 of Part VIA are similarly stated to limit the unfair
dismissal provisions to applications brought by employees who fall
within proposed subsection 4AA(1).
Item 83 - Subsection 170CB(1)
2065. This item would repeal the words after the word 'before' in
subsection 170CB(1), and replace them with the words 'the
termination, an employee within the meaning of subsection 4AA(1)'.
2066. As a result, subsection 170CB(1) would provide that Subdivision B of
Division 3 of Part VIA (applications to the AIRC for conciliation
and arbitration on the ground that a termination was harsh, unjust
or unreasonable) is intended to apply to employees within the
meaning provided by subsection 4AA(1), that is, to an individual so
far as he or she is employed, except on a vocational placement, by:
. a constitutional corporation; or
. the Commonwealth; or
. a person or entity (which may be an unincorporated club), so far
as the person or entity, in connection with constitutional trade
or commerce, employs an individual as a flight crew officer, a
maritime employee or a waterside worker; or
. a body corporate incorporated in a Territory; or
. a person or entity (which may be an unincorporated club) that
carries on an activity in a Territory in Australia, so far as the
person or entity employs the employee in connection with the
activity carried on in the Territory.
Item 84- Subsection 170CB(2)
2067. This item would amend subsection 170CB(2) by deleting a reference to
section 170CN. This item is consequential upon items 132 and 144,
which would repeal subsection 170CN and Subdivision D of Division 3
of Part VIA respectively.
Item 85 - Subsection 170CB(3)
2068. This item would amend subsection 170CB(3) by deleting a reference to
Subdivision D of Part VIA. This item is consequential upon item
144, which would repeal Subdivision D of Division 3 of Part VIA.
Item 86 - Subsection 170CB(4)
2069. This item would amend subsection 170CB(4) by deleting a reference to
Subdivision D of Part VIA. This item is consequential upon item
144, which would repeal Subdivision D of Division 3 of Part VIA.
Item 87 - Subsection 170CB(4)
2070. This item would repeal all the words after the word 'termination' in
subsection 170CB(4), and replace them with the words 'the employment
of an employee within the meaning of subsection 4AA(1)'.
2071. This item would provide that, in addition to the effect that they
have in accordance with other provisions of section 170CB,
Subdivisions C and E of Division 3 also apply to employees within
the meaning provided by subsection 4AA(1), in reliance on the
constitutional powers which underpin the definition of employee in
subsection 4AA(1).
Item 88 - Subsection 170CB(5)
2072. This item would amend subsection 170CB(5) by deleting a reference to
Subdivision D of Part VIA. This item is consequential upon item
144, which would repeal Subdivision D of Division 3 of Part VIA.
Item 89 - Subsection 170CBA(1)
2073. This item would amend subsection 170CBA(1) by deleting a reference
to Subdivision D of Part VIA. This item is consequential upon item
144, which would repeal Subdivision D of Division 3 of Part VIA.
Item 90 - Subparagraph 170CBA(1)(f)(i)
2074. This item would amend subparagraph 170CBA(1)(f)(i), by replacing the
term 'award conditions' with the term 'award-derived conditions', as
defined by subsection 170CD(3). The need for changing this term
arises from the fact that, after the reform commencement, awards
within the meaning of subsection 4(1) would no longer regulate
wages. For award covered employees, wages would be regulated by an
APCS.
2075. The new term 'award-derived conditions' incorporates those changes
as to how wages are to be determined, so that the exclusion relating
to the remuneration cap in proposed subparagraph 170CBA(1)(f)(i)
continues to operate to capture award-free employees.
Item 91 - At the end of subsection 170CBA(1)
2076. This item would insert a new paragraph to subsection 170CBA(1).
2077. Proposed paragraph 170CBA(1)(g) would exclude an employee who is
engaged on a seasonal basis, within the meaning of subsection
170CBA(6A), from the operation of Subdivisions B, E and F of Part
VIA and sections 170CL and 170CM.
2078. An employee employed on a seasonal basis would retain access to a
remedy under section 170CK.
2079. In SPC Ardmona v Esam and Organ [Print PR957947], the AIRC held that
a contract that would run until the end of a season (that was not
defined to end at a certain predetermined date) would not be a
contract for a specified period of time such as to attract the
exclusion in paragraph 170CBA(1)(a). In that decision, the AIRC
applied previous case law which provided that, if a contract of
employment 'provides that it is to run until some future event, the
timing of the happening of which is uncertain when the contract is
made, the contract will be for an indeterminate period of time.'
Therefore, the AIRC held that such a contract would not be within
the exclusion in paragraph 170CBA(1)(a).
2080. The exclusion provided by paragraph 170CBA(1)(g) would apply to an
employee engaged under a contract of employment which the parties
understood to be short term or temporary in nature and would run
until some future event:
. the timing of the happening of which was uncertain when the
contract was made;
. which was related to the nature of the work to be performed; and
. which was objectively ascertainable when it occurs.
2081. The exclusion provided by paragraph 170CBA(1)(g) would not create an
additional subset of casual employment. The exclusion for casual
employees is provided by paragraph 170CBA(1)(d).
2082. Paragraph 170CBA(1)(g) would be consistent with the principle,
reflected in paragraphs 170CBA(1)(a) and (b), that employees who are
engaged on a defined short-term basis which will end at a time
foreseen by the parties should not be able to access remedies under
Subdivisions B, E and F of Part VIA and sections 170CL and 170CM.
Illustrative Example (Employment for the duration of a defined season)
Frances is offered employment with Best Prices in Town Pty Ltd, to work in
the store for the duration of the pre-Christmas period and until a day in
January when the post-Christmas sales have ended. She accepts employment
on that basis, and her contract of employment states that she will be
employed until the post-Christmas sales have ended at Best Prices in Town
Pty Ltd.
At the time that Frances commences employment in the store, both employees
and the manager of the store are uncertain when exactly the post-Christmas
sales will end as this will depend upon, among other things, how much stock
is purchased before Christmas and how quickly stock is purchased after
Christmas.
In mid-January, Best Prices in Town Pty Ltd takes down its sale signs and
fills its shelves with regular stock. At the same time, Frances's
employment is terminated as the post-Christmas sales have ended. She would
have no recourse to an unfair dismissal remedy as she was engaged on a
seasonal basis and her employment ended at a time foreseen by the parties
(the end of the Christmas season).
Item 92 - Subsection 170CBA(1) (note 2)
2083. This item would amend one of the notes to subsection 170CBA(1) and
is consequential upon item 9, which would insert section 7C to
exclude certain State and Territory laws in respect of employees
within the meaning of proposed subsection 4AA(1).
Item 93 - After subsection 170CBA(1)
2084. This item would insert a new subsection 170CBA(1A).
2085. Proposed subsection 170CBA(1A) would be a technical amendment aimed
at ensuring that all employees have access to a remedy under section
170CK.
2086. This means that there would be no excluded categories of employees
under section 170CBA for the purposes of making an application
alleging a breach of section 170CK.
Item 94 - Subsection 170CBA(2)
2087. This item would amend subsection 170CBA(2) by deleting a reference
to Subdivision D of Part VIA. This item is consequential upon item
144, which would repeal Subdivision D of Division 3 of Part VIA.
Item 95 - Subsection 170CBA(4)
2088. This item would repeal subsection 170CBA(4) and is consequential
upon the use of the new term 'award-derived conditions' that would
be defined in proposed subsection 170CD(3).
Item 96 - After subsection 170CBA(6)
2089. This item would insert new subsections 170CBA(6A), (6B) and (6C).
2090. Proposed subsection 170CBA(6A) would provide that, for the purposes
of the 'seasonal employee' exclusion in proposed paragraph
170CBA(1)(g), an employee must be engaged to perform work for the
duration of a specified season.
2091. Proposed subsection 170CBA(6B) would define season, for the purposes
of the 'seasonal employee' exclusion in proposed paragraph
170CBA(1)(g), as a period that:
. is determined at the commencement of the employee's engagement;
. begins at the commencement of the employee's engagement; and
. will end at the occurrence of a future event, the timing of which
is uncertain when the contract is made, but which is related to
the nature of the work to be performed and will be objectively
ascertainable when it occurs.
2092. Save that the timing of the future event will be uncertain until it
occurs, it is intended that the 'seasonal employee' exclusion would
operate in a similar manner to the 'specified period of time'
exclusion in subparagraph 170CBA(1)(a).
2093. As an example, each of the following engagements may be a specified
season within the meaning of subsection 170CBA(6B):
. engagement at a fruit cannery for the duration of the picking
season for a particular fruit or fruits;
. engagement at a retail store until the end of the post-Christmas
sales; or
. engagement at a beach-side resort until the end of the summer peak
holiday season.
2094. Each of the following is an example of an engagement that would not
be a specified season within the meaning of subsection 170CBA(6B):
. an engagement until the employer decides, for whatever reason the
employer likes, to terminate the employment - this would involve a
subjective assessment by the employer of when the employment ends
and would not be objectively ascertainable; or
. an engagement as a motor mechanic until Collingwood Football Club
wins another AFL premiership - although the timing of this event
is uncertain at commencement and would be objectively
ascertainable when it occurs, it fails to meet the requirement
that the future event is related to the nature of the work to be
performed by the employee.
2095. Proposed subsection 170CBA(6C) would provide that regulations may be
made providing that a particular period is, or is not, a 'season'
for the purposes of subsection 170CBA(6A).
Item 97 - Subsection 170CBA(7)
2096. This item would amend subsection 170CBA(7) by deleting a reference
to Subdivision D of Part VIA. This item is consequential upon item
144, which would repeal Subdivision D of Division 3 of Part VIA.
Item 98 - Subsection 170CBA(7) (note 1)
2097. This item would amend one of the notes to subsection 170CBA(7) and
is consequential upon item 9, which would insert section 7C to
exclude certain State and Territory laws in respect of employees
within the meaning of proposed subsection 4AA(1).
Item 99 - After section 170CCA
New section 170CCB - Extraterritorial extension
2098. Proposed subsection 170CCB(1) would extend the application of this
Division (and rest of the WR Act in so far as it relates to this
Division) to the termination or proposed termination of an
Australian-based employee, even if the employee was employed outside
Australia at the time of the termination, the proposed time of
termination or the time of the termination proposal, or the act
causing the termination or proposal to terminate occurred outside
Australia. The termination provisions would therefore be given
application to Australian-based employees whatever the geographical
circumstances of the termination or termination related conduct (at
least outside Australia's exclusive economic zone and continental
shelf - see proposed subsection 170CCB(2)).
2099. The legislative note to subsection 170CCB(1) would note that, in
this context, Australia includes the Territory of Christmas Island,
the Territory of Cocos (Keeling) Islands and the coastal sea.
2100. Proposed subsection 170CCB(2) would restrict the extension in
subsection 170CCB(1) where, at the time of the termination, proposed
termination or termination proposal, the employee was employed by a
non-Australian employer and the employee's primary place of work was
in Australia's exclusive economic zone or in, on or over Australia's
continental shelf beyond that zone. However, regulations could be
made either to exclude an employee from this restriction (and thus
to apply the extraterritorial extension in subsection 170CCB(1)) or
to dis-apply the extension in subsection 170CCB(1) in relation to an
employee who is not covered by the restriction (see proposed
subparagraph 170CCB(2)(a)(iii) and paragraph 170CCB(2)(b)). In
making regulations, account would be taken of Australia's
international law obligations in relation to foreign-flagged ships
and foreign-registered aircraft and its obligations in relation to
matters in, on or over the continental shelf (including under
agreements with other countries in relation to particular areas of
the continental shelf).
2101. The definitions of Australian-based employee and Australian employer
in proposed subsection 170CCB(3) would ensure that the
extraterritorial extension made by subsection 170CCB(1) (read with
subsection 170CCB(2)) would apply to the employees and employers to
whom the termination provisions applied (see section 170CAA) and not
only to those who are employees and employers within the meaning of
subsections 4AA(1) and 4AB(1) respectively (the employees and
employers who would fall within the general constitutional coverage
of the amended WR Act).
2102. Proposed subsection 170CCB(3) would also provide a specific
definition of this Act for the purposes of section 170CCB. This is
because the definition of this Act in subsection 4(1) (which would
otherwise apply) does not include the Registration and
Accountability of Organisations Schedule and regulations made under
it. The specific definition would ensure that the extraterritorial
extension under subsection 170CCB(1) would apply to that Schedule
and those regulations so far as they relate to Division 3 of Part
VIA.
Item 100 - Subsection 170CD(1) (definition of Commonwealth public
sector employee)
2103. This item would repeal the definition of Commonwealth public sector
employee in subsection 170CD(1) which is consequential upon items 83
and 87 which would repeal the reference to 'Commonwealth public
sector employee' in section 170CB.
Item 101 - Subsection 170CD(1)
2104. This item would add a definition to subsection 170CD(1) by providing
that any reference to the Court in Division 3 of Part VIA of the WR
Act means either the Federal Court of Australia or the Federal
Magistrates Court.
Item 102 - Subsection 170CD(1) (paragraph (a) of the definition of
daily hire employee)
2105. This item would repeal and replace paragraph (a) of the definition
of daily hire employee in subsection 170CD(1).
2106. This item would remove references to pre-reform certified
agreements, pre-reform AWAs, State awards, State employment
agreements and old IR agreements from paragraph (a) of the
definition of 'daily hire employee' in subsection 170CD(1) as this
part of the definition would be dealt with in item 10 of Schedule 4
to the Bill.
Item 103 - Subsection 170CD(1) (definition of Federal award
employee)
2107. This item would repeal the definition of Federal award employee in
subsection 170CD(1) and is consequential upon item 83 which would
repeal the reference to 'Federal award employee' in subsection
170CB(1).
Item 104 - Subsection 170CD(1) (definition of State or Territory
training authority)
2108. This item would repeal the definition of State or Territory training
authority in subsection 170CD(1) as the definition of 'State or
Territory training authority' provided by proposed section 4 would
apply.
Item 105 - After subsection 170CD(1)
2109. This item would insert subsection 170CD(1A)
2110. Proposed subsection 170CD(1A) would provide that, for the purposes
of paragraph (b) of the definition of daily hire employee in
subsection 170CD(1), the terms award, old IR agreement, State award
and State employment agreement would retain the meanings that
applied to those terms under subsection 4(1) of the WR Act
immediately before the reform commencement.
Item 106 - Subsection 170CD(2)
2111. This item would amend subsection 170CD(2) by deleting a reference to
Subdivision D of Part VIA. This item is consequential upon item
144, which would repeal Subdivision D of Division 3 of Part VIA.
Item 107 - Subsection 170CD(3)
2112. This item would amend subsection 170CD(3) by replacing the term
award conditions with the term award-derived conditions, and by
defining the term award-derived conditions.
2113. The need for changing this term arises from the fact that, after the
reform commencement, awards within the meaning of subsection 4(1)
would no longer regulate wages. For award covered employees, wages
would be regulated by an APCS.
2114. The term 'employed under award-derived conditions' is intended to
have a meaning similar to the meaning of 'employed under award
conditions' considered by the AIRC in Deane v Paper Australia Pty
Ltd [Print PR929820].
2115. It is intended that an employee would be employed under award-
derived conditions if the employer was bound:
. in relation to the employee's wages and conditions of employment -
by an award (as defined by subitem 10(2) of Schedule 4 to the
Bill), collective agreement or AWA; or
. in relation to the employee's wages by an APCS, and in relation to
the employee's conditions of employment, by an award, a collective
agreement or an AWA.
2116. After the reform commencement, an award within the meaning of
proposed subsection 4(1) cannot regulate wages. However, subitem
10(2) of Schedule 4 to the Bill provides that, for the purposes of
subsection 170CD(3), 'award' shall be taken to be a reference to the
following instruments, within the meaning of the WR Act:
. a Division 2 certified agreement;
. a Division 3 certified agreement;
. a notional agreement preserving State awards;
. a preserved State agreement;
. a transitional award;
. an old IR Act agreement;
. a pre-reform AWA; and
. a common rule continued in effect by clause 82 of Schedule 13.
Item 108 - Subsection 170CE(1)
2117. This item would amend subsection 170CE(1) by inserting references to
proposed subsections 170CE(5C) and (5E) which would contain new
limitations on making applications alleging harsh, unjust or
unreasonable termination.
Item 109 - Paragraph 170CE(1)(b)
2118. This item would amend subsection 170CE(1)(b) by deleting a reference
to section 170CN. This item is consequential upon items 132 and
144, which would repeal subsection 170CN and Subdivision D of
Division 3 of Part VIA respectively.
Item 110 - Subsection 170CE(3)
2119. This item would amend subsection 170CE(3) by deleting a reference to
section 170CN. This item is consequential upon items 132 and 144,
which would repeal subsection 170CN and Subdivision D of Division 3
of Part VIA respectively.
Item 111 - Paragraph 170CE(5B)(a)
2120. This item would amend paragraph 170CE(5B)(a) by extending the
default qualifying period for making an application alleging that a
termination was harsh, unjust or unreasonable from three months to
six months.
2121. The changed qualifying period in paragraph 170CE(5B)(a) would not
affect the period of probation in paragraph 170CBA(1)(c).
2122. The qualifying period under paragraph 170CE(5B)(a) stipulates the
length of an employee's employment with an employer before being
able to lodge an unfair dismissal application. Probation is
different as it refers to a period set by the employer to assess
suitability for employment.
2123. This item will only apply to employees whose employment commenced
after the commencement of this item. Item 4 of Schedule for to the
Bill provides that that any employee who has already commenced or
completed a qualifying period of employment will not be affected by
this item.
Item 112 - After subsection 170CE(5B)
2124. This item would insert new subsections 170CE(5C) and 170CE(5D).
2125. Proposed subsections 170CE(5C) and 170CE(5D) would create a new
exclusion in relation to applications alleging that a termination
was harsh, unjust or unreasonable ('unfair dismissal').
2126. The exclusion created by subsections 170CE(5C) and (5D) would not
apply to an application alleging a contravention of:
. section 170CK ( employee's employment may not be terminated on
certain grounds);
. section 170CL (in certain redundancy situations Centrelink must be
informed before terminations occur); or
. section 170CM (in certain circumstances, employer must provide
notice, or payment in lieu of notice, of termination of
employment).
2127. The exclusion would provide that an application alleging unfair
dismissal, or grounds including unfair dismissal, must not be made
if the employee's employment was terminated for genuine operational
reasons or reasons that included genuine operational reasons.
2128. Subsection 170CE(5D) would provide that operational reasons are
reasons of an economic, technological, structural or similar nature
relating to the employer's undertaking, establishment, service or
business or part thereof. For example, a termination by reason of
redundancy because a machine will do a job that was previously done
by an employee would be a genuine operational reason.
2129. A mere assertion by an employer that a termination was for
operational reasons will not be sufficient to render an unfair
dismissal application invalid. Proposed section 170CEE would
provide that the AIRC must be satisfied that the operational reasons
relied upon by the employer were genuine, before making an order
that the application is not a valid application to the extent that
it alleges an unfair dismissal.
2130. The following two pages provide three illustrative examples.
Illustrative Example (Termination that is for a genuine operational reason,
and not for a reason prohibited by section 170CK)
Jan is the General Manager of Great Stockings Pty Ltd, an employer with
more than 100 employees. Great Stockings Pty Ltd employs 20 employees in
its logistics division, which is responsible for the receipt, storage and
dispatch of all goods purchased and sold by Great Stockings Pty Ltd.
As a result of the purchase of newer and more efficient equipment, it is
now possible for Great Stockings Pty Ltd to process the same volume of
goods with only 15 employees in the logistics division. Accordingly, five
of the 20 positions in the Great Stockings Pty Ltd logistics division are
no longer required.
Jan decides that, because five positions are redundant in the logistics
division, the company should terminate the employment of five employees in
the Great Stockings Pty Ltd logistics division. She directs that the human
resources manager of Great Stockings Pty Ltd should provide notice of
termination, and all other amounts owing upon termination, to five of the
employees who are employed in the logistics division.
Among the employees whose employment is terminated as a result of this
decision is Todd. Although disappointed that his employment is terminated,
Todd does not believe that the decision to terminate his employment was
made on the basis of any of the grounds prohibited under section 170CK of
the WR Act. He suspects, however, that he was selected for termination
because he had been involved in a fight at the workplace a few weeks
earlier.
Todd is unable to make an application to the AIRC alleging that the
termination of his employment was harsh, unjust or unreasonable, because
the reasons for his termination included genuine operational reasons.
Illustrative Example (Termination that is for a genuine operational reason,
but also for a reason prohibited by section 170CK)
Another employee amongst the five logistics division employees whose
employment was terminated at the same time as Todd is Hamish. Hamish has
recently moved to Australia from Scotland, and he has a thick Glaswegian
accent that Jan finds very difficult to understand. When he is informed by
the human resources manager at Great Stockings Pty Ltd that his employment
is going to be terminated by reason of redundancy, Hamish asks why he was
selected to be dismissed. The human resources manager answers that one of
the reasons is because Jan, and other managers at Great Stockings Pty Ltd,
can never understand what Hamish says on the phone.
Like Todd, Hamish is unable to make an application to the AIRC alleging
that the termination of his employment was harsh, unjust or unreasonable,
because the reasons for his termination included genuine operational
reasons.
However, Hamish believes that the reasons for the termination of his
employment also included his race and national origin, in contravention of
paragraph 170CK(2)(f).
Hamish is able to make an application under subsection 170CE(1)(b), on the
ground that the reasons for the termination of his employment included a
reason prohibited by paragraph 170CK(2)(f): his race and his national
origin.
Notwithstanding that the reasons for the termination of his employment
included genuine operational reasons, Hamish is not excluded from making an
application alleging a contravention of section 170CK.
Illustrative Example ('Sham' redundancy)
Paula is employed by Holistic Approach Pty Ltd, a manufacturer that employs
more than 100 employees. Paula works as a quality control supervisor at
Holistic Approach Pty Ltd, and David is the general manager. David
observes that Paula spends too much time talking to colleagues about non
work-related matters during working hours, when she should be performing
other duties.
Rather than counsel Paula about her behaviour, David decides that it would
be easier to terminate her employment. David approaches Paula and tells
her that her position is redundant, and that therefore her employment will
be terminated. Holistic Approach Pty Ltd pays to Paula all amounts owing
to her as a result of the termination of her employment on the basis of
redundancy. A few days after Paula finishes work, a new quality control
supervisor (Jenny) is employed. Jenny's duties are exactly the same as
those which were performed by Paula before Paula's employment was
terminated.
Paula makes an application to the AIRC on the ground that the termination
of her employment was harsh, unjust or unreasonable. It would be open to
her to argue that her termination was not for genuine operational reasons
as although she was given redundancy pay, it appears that her position was
still required.
2131. The definition of operational reasons in subsection 170CE(5D) is not
intended to apply or affect the use of the term operational
requirements in Part VA.
Item 113 - Before subsection 170CE(6)
2132. This item would insert new subsections 170CE(5E) and 170CE(5F).
2133. Proposed subsection 170CE(5E) would provide that an application
alleging that a termination was harsh, unjust or unreasonable, or
grounds including unfair dismissal, must not be made under
subsection 170CE(1) where, at the relevant time, the respondent
employer employed 100 employees or fewer than 100 employees.
2134. The calculation of employees would include full-time employees, part-
time employees, the employee who has been terminated
(paragraph 170CE(5E)(a)) and casual employees who have been engaged
by the employer on a regular and systematic basis for at least 12
months (paragraph 170CE(5E)(b)), but would not include any other
casual employee.
2135. All employees must be counted when calculating the number of
employees employed. Part-time employees would be counted as one
employee for the purposes of this calculation, regardless of the
proportion of full-time hours that they work. Each casual employee
that is to be included in the calculation will also count for one
employee, regardless of whether the casual employee is at work on
the day that the applicant's employment was terminated.
2136. Paragraph 170CE(5F)(a) would provide that, for the purposes of
calculating the number of employees, the relevant time would be the
earlier of the time when the employer gave the employee notice of
termination, or the time when the employer terminated the employee's
employment.
2137. Paragraph 170CE(5F)(b) would provide that, for the purposes of
calculating the number of employees, employee shall have its
ordinary meaning. This is intended to be subject to the exclusion
of short-term casuals by subsection 170CE(5E).
Item 114 - At the end of section 170CEA
2138. This item would give the AIRC the power to dismiss applications by
employees in respect of a 'harsh, unjust or unreasonable'
termination of employment (ie on grounds referred to in paragraph
170CE(1)(a) or grounds including that ground) without being required
to hold a hearing.
2139. Section 170CEA allows an employer respondent to an application, in
respect of a termination of employment, to move for dismissal of an
application at any stage of the proceedings based on a
jurisdictional objection. A respondent can make a jurisdictional
objection where it is of the view that the AIRC has no jurisdiction
to hear an application because the employee is excluded from making
an application under section 170CE.
2140. Proposed subsection 170CEA(4) would ensure that only motions to
dismiss an application made with respect to a termination that was
harsh, unjust or unreasonable or on grounds that include that
ground, may be determined without holding a hearing. Therefore, an
application purporting that a termination was unlawful for a breach
of sections 170CL, 170CK and 170CM would not be able to have a
jurisdictional objection determined by the AIRC without a hearing.
2141. Proposed subsection 170CEA(5) would establish that where the AIRC is
satisfied that an unfair dismissal application cannot be made
because of a lack of jurisdiction, the AIRC must order that the
application is not valid. A lack of jurisdiction would be limited
for the purposes of this subsection to mean that:
. the employee is excluded from making an application under section
170CE because the employee is part of an excluded class of
employee under section 170CBA;
. the employee is excluded from making an application under section
170CE because of the qualifying period exemption (subsection
170CE(5A)); or
. the employee is excluded from making an application under section
170CE because of the '100 employees or fewer' exemption
(subsection 170CE(5E)).
2142. Proposed section 170CEA(6) would enable the AIRC to make an order
under section 170CEA(5) without holding a hearing.
2143. Where an application includes a ground referred to in subsection
170CE(1)(a) and another ground, the AIRC can determine the
jurisdictional objection with respect to the section 170CE(1)(a)
ground without a hearing. However with respect to any other grounds
(ie the unlawful termination grounds), the AIRC must hold a hearing.
Item 115 - After section 170CEA
2144. This item would insert new sections 170CEB, 170CEC, 170CED and
170CEE, which would allow the AIRC to decide further matters without
a hearing.
New section 170CEB - Applications that are frivolous, vexatious or
lacking in substance
2145. Proposed section 170CEB would provide that the AIRC may dismiss an
application by an employee on the ground that the termination was
harsh, unjust or unreasonable, or on grounds that include that
ground, on the basis that the application is 'frivolous, vexatious
or lacking in substance'.
2146. Subsection 170CEB(1) would allow the AIRC to make an order that an
application is frivolous, vexatious or lacking in substance where
the respondent moves for the dismissal of the application on that
ground. Where the AIRC is satisfied that the application is
frivolous, vexatious or lacking in substance, it must make an order
dismissing the application, or dismissing the application to the
extent that it is made on the ground that the termination is harsh,
unjust or unreasonable.
2147. Subsection 170CEB(2) would provide that the AIRC is not required to
hold a hearing to determine whether an application is frivolous,
vexatious or lacking in substance.
2148. Proposed section 170CEB would not define 'frivolous, vexatious or
lacking in substance'. For the purposes of section 170CEB the terms
should be attributed their ordinary meanings.
New section 170CEC - Extension of time applications may be decided
without a hearing
2149. Subsection 170CE(7) of the WR Act, provides, among other things,
that an application under subsection 170CE(1) must be lodged within
21 days after the day on which the termination took effect or within
such period as the AIRC allows on an application made during or
after those 21 days.
2150. Proposed section 170CEC would provide that where an application is
made requesting the AIRC to allow an application to be lodged after
the period of 21 days, the AIRC is not required to hold a hearing to
determine the extension of time application.
2151. Proposed section 170CEC would only enable the AIRC to determine an
application for an extension of time with respect to an application,
or that part of an application, made on the ground that the
termination was harsh, unjust or unreasonable.
New section 170CED - Matters that do not require a hearing
2152. Proposed section 170CED would provide further guidance for the AIRC
with respect to dismissing an application without holding a hearing
under sections 170CEA, 170CEB and 170CEC.
2153. Subsection 170CED(1) would provide that the AIRC must take into
account the cost that would be caused to the business of the
respondent employer if the employer had to attend a hearing to
determine the matter.
2154. Subsection 170CED(2) would provide that where the AIRC decides not
to hold a hearing, it must, before making an order or deciding
whether to grant an extension of time, allow the employee and
respondent employer to provide further information that relates to
the issue that the AIRC wishes to decide without a hearing. The
subsection would also direct the AIRC to take account of any
information that is provided.
2155. Subsection 170CED(3) would make it clear that if as a result of the
information before it, the AIRC considers it necessary to hold a
hearing with respect to the issue that it had proposed to decide 'on
the papers', it will not be precluded from doing so at any time
before it makes an order under proposed sections 170CEA, 170CEB or
170CEC.
2156. Proposed subsection 170CED(4) would ensure that an invitation under
proposed paragraph 170CED(2)(a) must be given by the AIRC in writing
to the applicant employee and respondent employer and make clear by
which time the information is required in order for it to be
considered by the AIRC.
New section 170CEE - Dismissal of application relating to
termination for operational reasons
2157. Proposed section 170CEE would provide how the AIRC is to consider
jurisdictional issues in an application alleging that a termination
was harsh, unjust or unreasonable, which relates to a termination
that was for genuine operational reasons or reasons that include
genuine operational reasons. Under proposed subsection 170CEE(4),
the definition of operational reasons in subsection 170CE(5D) would
apply( see item 112).
2158. If an application under section 170CE alleges unfair dismissal, or
grounds that include unfair dismissal and the respondent has, under
section 170CEA, moved for dismissal of the application on the
grounds that the termination was for genuine operational reasons or
reasons that include genuine operational reasons, subparagraph
170CEE(1)(b)(i) would provide that the AIRC must hold a hearing to
determine whether the 'operational reasons' exclusion applies before
taking any further action in relation to the application.
2159. Furthermore, even if the respondent does not move for dismissal of
the application, if it appears to the AIRC on the face of the
material before it that the termination may have been for genuine
operational reasons or reasons that include genuine operational
reasons, subparagraph 170CEE(1)(b)(ii) would provide that the AIRC
must hold a hearing to determine whether the 'operational reasons'
exclusion applies before taking any further action in relation to
the application. This would be, for example, where the applicant
employee has indicated in the application that the respondent gave
operational reasons as a reason for dismissal.
2160. The procedure for the hearing and determination of the 'operational
reasons' exclusion is unlike any other grounds for jurisdictional
objection to an unfair dismissal application. One difference is
that in respect of the 'operational reasons' exclusion the AIRC may
conduct a jurisdictional hearing on its own motion, without a motion
to dismiss being lodged by the respondent. Another difference is
that, unlike other jurisdictional grounds for exclusion, the
'operational reasons' exclusion cannot be determined 'on the papers'
(see item 114) by the AIRC.
2161. In subparagraph 170CEE(1)(b)(ii), the term 'all the materials
before' the AIRC might consist only of the employee's unfair
dismissal application, any documents attached to that application,
and any documents that the respondent might have provided to the
AIRC in response to the employee's application.
2162. Proposed subsection 170CEE(2) would provide that, if as a result of
the hearing conducted under subsection 170CEE(1), the AIRC is
satisfied that the employee's employment was terminated for genuine
operational reasons:
. if the application alleges unfair dismissal and no other grounds,
the AIRC must make an order that the application is invalid; and
. if the application alleges unfair dismissal and other grounds
under section 170CE, the AIRC must make an order that the
application is invalid to the extent that it alleges unfair
dismissal.
2163. Subject to the requirements of sections 45 and 170JF, an application
for leave to appeal to a Full Bench of the AIRC may be instituted in
relation to a decision of a single member of the AIRC to make an
order, or not to make an order, under subsection 170CE(2).
2164. Proposed subsection 170CEE(3) would provide that, subject to any
right of appeal to a Full Bench of the AIRC, a finding of the AIRC
that it is not satisfied that the termination was for genuine
operational reasons would be final and binding between the parties
in any proceedings before the AIRC. Therefore, a finding made by
the AIRC that the termination was not for genuine operational
reasons shall be binding upon the parties in an arbitration
conducted under section 170CG and, if applicable, in the
determination of remedies under section 170CH. It is not intended
that, because of subsection 170CEE, a finding that the termination
was not for genuine operational reasons shall be binding in respect
of any court proceedings.
Item 116 - Paragraph 170CFA(3)(b)
2165. This item would amend paragraph 170CFA(3)(b) by deleting a reference
to section 170CN. This item is consequential upon items 132 and
144, which would repeal subsection 170CN and Subdivision D of
Division 3 of Part VIA respectively.
Item 117 - Subsection 170CFA(4)
2166. This item would amend subsection 170CFA(4) by deleting a reference
to section 170CN. This item is consequential upon items 132 and
144, which would repeal subsection 170CN and Subdivision D of
Division 3 of Part VIA respectively.
Item 118 - Paragraph 170CFA(5)(c)
2167. This item would amend paragraph 170CFA(5)(c) by deleting a reference
to section 170CN. This item is consequential upon items 132 and
144, which repeal subsection 170CN and Subdivision D of Division 3
of Part VIA respectively.
Item 119 - Subsection 170CFA(7)
2168. This item would amend subsection 170CFA(7) to remove the words 'for
all purposes other than the making of an election out of time in
accordance with subsection (8)'. This is a consequential amendment
upon item 120 which would repeal and replace subsection 170CFA(8)
and add a new subsection 170CFA(9).
2169. Proposed subsection 170CFA(7) would therefore provide that where an
applicant fails to lodge an election under subsections 170CFA(1),
(2), (3), (4) or (5) within 7 days after the day of issue of a
subsection 170CF(2) conciliation certificate, then the application
is taken to have been discontinued by the applicant.
Item 120 - Subsection 170CFA(8)
2170. This item would repeal and replace subsection 170CFA(8) and add a
new subsection 170CFA(9).
2171. Proposed subsection 170CFA(8) would prohibit the AIRC from extending
the period in which an applicant can make an election to proceed to
arbitration. This means that an election to proceed to arbitration
in respect of an application alleging unlawful termination and/or
unfair dismissal must be made strictly within 7 days of a
conciliation certificate being issued by the AIRC. There would be
no power for the AIRC to accept an election after the 7 day period.
2172. Proposed subsection 170CFA(9) would ensure that where an application
is discontinued after the applicant fails to elect to proceed to
arbitration under subsection 170CFA(7), an applicant is not entitled
to appeal to the Full Bench of the AIRC under section 45.
Item 121 - Paragraph 170CG(3)(a)
2173. This item would amend paragraph 170CG(3)(a) by inserting a reference
to the effect of the employee's capacity or conduct on the safety
and welfare of other employees.
2174. Accordingly, in assessing whether an employee's dismissal was harsh,
unjust or unreasonable, the AIRC would need to have regard to,
amongst other things:
. whether the employee's capacity may have put at risk the safety or
welfare of other employees; and
. any conduct of the employee that may have put at risk the safety
or welfare of other employees.
Item 122 - Paragraph 170CG(3)(a)
2175. This item would amend paragraph 170CG(3)(a) and is consequential
upon proposed subsections 170CE(5C) and 170CE(5D) that would provide
that an application alleging unfair dismissal, or grounds including
unfair dismissal, must not be made if the employee's employment was
terminated for genuine operational reasons or reasons that included
genuine operational reasons.
2176. Proposed paragraph 170CG(3)(a) would provide that when conducting an
arbitration under section 170CG, the AIRC would not be required to
take into account the operational requirements of the business.
Item 123 - After section 170CG
2177. This item would insert a new section.
New section 170CGA - Exercise of arbitration powers by member who
has exercised conciliation powers
2178. Proposed section 170CGA would provide that if a member of the AIRC
has exercised conciliation powers under Division 3 of Part VIA, the
member must not exercise arbitration powers, or take part in the
exercise of arbitration powers, if a party to the arbitration
objects. Proposed section 170CGA would apply to:
. an arbitration under section 170CG in relation to an application
to the AIRC on the ground that a termination was harsh, unjust or
unreasonable, where the member of the AIRC has conducted a
conciliation under section 170CF; and
. the hearing and determination of an application for orders under
proposed section 170GA, where the member of the AIRC has conducted
a conciliation under proposed section 170GBA.
Item 124 - Paragraph 170CH(4)(b)
2179. This item would propose a technical amendment that is consequential
upon item 124 which would insert a new subsection 170CH(4A).
Item 125 - After subsection 170CH(4)
2180. This item would insert a new subsection 170CH(4A).
2181. Proposed subsection 170CH(4A) would ensure that employees do not
receive windfall gains through termination of employment remedies,
by requiring the AIRC to have regard to additional matters in making
an order for lost remuneration where a reinstatement order has been
made. These additional matters are:
. income earned by the employee from employment or other work during
the period between dismissal and reinstatement; and
. the amount of any income reasonably likely to be earned by the
employee during the period between the making of an order of
reinstatement and actual reinstatement.
2182. Proposed subsection 170CH(4A) is consistent with the principle that
an employee should be put back into the position that they would
have been in, but for the unfair dismissal. An employee who is
unfairly dismissed should not, however, profit from the termination.
Item 126 - Subsection 170CH(7)
2183. This item would propose a technical amendment that is consequential
on item 128 which would insert a new subsection 170CH(7A).
Item 127 - After paragraph 170CH(7)(d)
2184. Subsection 170CH(7) requires the AIRC to have regard to all the
circumstances of a matter in assessing an appropriate amount to be
paid to an employee in lieu of reinstatement (ie in cases where the
AIRC determines that reinstatement is not appropriate).
2185. The provision sets out an inclusive list of factors to be
considered, including the effect of any order on the employer's
viability, the amount of remuneration the employee would have earned
but for the termination, and any efforts made by the employee to
mitigate the loss suffered as a result of the termination of their
employment.
2186. Proposed paragraph 170CH(7)(da) would add to that list by requiring
the AIRC to also consider any misconduct of the employee that
contributed to the employer's decision to terminate the employee's
employment.
Item 128 - After subsection 170CH(7)
2187. This item would insert a new subsection 170CH(7A).
2188. Proposed subsection 170CH(7A) would preclude the AIRC from including
in an amount to be paid to an employee in lieu of reinstatement, a
component by way of compensation for shock, humiliation, distress or
other analogous hurt, caused by the manner in which the employee's
employment was terminated.
2189. At common law, the established view is that distress or humiliation
inflicted upon an employee related to a termination of employment is
not as a general rule compensable, no matter how obvious a
consequence of the dismissal (Addis v Gramophone Co Ltd [1909] AC
488 and Baltic Shipping Co v Dillon (1993) 176 CLR 344). The
proposed amendment would therefore be consistent with principles
established at common law.
Item 129 - Before subsection 170CH(8)
2190. This item would insert a new subsection 170CH(7B).
2191. Proposed 170CH(7B) would require the AIRC to reduce the amount paid
to an employee in lieu of reinstatement by an appropriate amount
where it finds that the employee's misconduct contributed to the
dismissal.
Illustrative Example
Shauna is employed by M Sparkles Pty Ltd. M Sparkles Pty Ltd has a written
policy that allows employees to take home any of the company's products
that do not pass the company's manufacturing standards. However, the
policy creates procedures that must be followed when removing any of the
products. In particular, employees must record in a designated book what,
and how much product they have removed. The employee must then receive the
supervisor's endorsement that the record is true and correct.
Shauna decides to take home some inferior lollipops and fills out the
record book accordingly but she fails to get her supervisor Peter's
signature in the book.
The following day her employer terminates her employment for failing to
follow company procedures and policy.
The AIRC finds that the dismissal was harsh, unjust or unreasonable because
Shauna was a model employee and other employees frequently failed to follow
company policy and had not been dismissed. However in ordering the payment
of an amount in lieu of reinstatement, the AIRC takes account of the fact
that Shauna's failure to follow company policy contributed to her
dismissal. The AIRC accordingly reduces the amount of money that it would
have ordered Shauna be paid but for her misconduct.
Item 130 - Subsections 170CH(8) and (9)
2192. This item would amend subsections 170CH(8) and (9), by replacing the
term 'award conditions' with the term 'award-derived conditions', as
defined by subsection 170CD(3). This item is consequential upon
item 107.
Item 131 - After subsection 170CJ(3)
2193. Subsection 170CJ(3) provides that where a party to a proceeding
relating to an application made under section 170CE with respect to
a termination of employment causes costs to be incurred by the other
party to the proceeding because of the party's unreasonable act or
omission, the AIRC can make an order for costs against that party.
The AIRC may only make an order for costs on application by the
other party.
2194. Proposed subsection 170CJ(3A) would extend the 170CJ(3) costs
provision, so that costs may be ordered not only against a party to
a proceeding, but also directly against a representative of a party
to the proceedings. The same test would apply to representatives as
for costs orders against a party generally.
Item 132 - Section 170CN
2195. This item would repeal section 170CN. Section 170CN currently
provides that an employer must not terminate an employee's
employment in contravention of an order in force under section
170FA. This amendment is consequential on item 143, which would
repeal Subdivision D of Division 3 of Part VIA, including section
170FA.
Item 133 - Section 170CO
2196. This item would amend section 170CO by deleting a reference to
section 170CN. This item is consequential upon items 132 and 144,
which would repeal subsection 170CN and Subdivision D of Division 3
of Part VIA respectively.
Item 134 - Subsection 170CP(1)
2197. This item would amend subsection 170CP(1) by deleting a reference to
section 170CN. This item is consequential upon items 132 and 144,
which would repeal subsection 170CN and Subdivision D of Division 3
of Part VIA respectively.
Item 135 - Subsection 170CP(2)
2198. This item would amend subsection 170CP(2) by replacing the term a
court of competent jurisdiction with the term an eligible court.
This item is consequential upon item 170 which would repeal and
replace section 177A.
Item 136 - Subsection 170CP(3)
2199. This item would amend subsection 170CP(3) by deleting a reference to
section 170CN. This item is consequential upon items 132 and 144,
which would repeal subsection 170CN and Subdivision D of Division 3
of Part VIA respectively.
Item 137 - Subsection 170CP(5)
2200. This item would amend subsection 170CP(5) by deleting a reference to
section 170CN. This item is consequential upon items 132 and 144,
which would repeal subsection 170CN and Subdivision D of Division 3
of Part VIA respectively.
Item 138 - Subsection 170CR(1)
2201. This item would amend subsection 170CR(1) by deleting a reference to
section 170CN. This item is consequential upon items 132 and 144,
which would repeal subsection 170CN and Subdivision D of Division 3
of Part VIA respectively.
Item 139 - Paragraph 170CR(1)(c)
2202. This item would propose a technical amendment that is consequential
upon items 140 and 141, which would insert subsections 170CR(1A) -
(2B).
Item 140 - After subsection 170CR(1)
2203. This item would insert a new subsection 170CR(1A).
2204. Proposed subsection 170CR(1A) would provide that an amount of
compensation ordered by the Federal Court of Australia or the
Federal Magistrates Court under paragraph 170CR(1)(c) or (d) must
not include a component by way of compensation for shock, distress
or humiliation, or other analogous hurt, caused to the employee by
the manner in which their employment was terminated.
2205. Proposed subsection 170CR(1A) would ensure that orders for
compensation made by the Federal Court of Australia or the Federal
Magistrates Court for unlawful termination of employment are
consistent with orders for compensation made by the AIRC with
respect to unfair dismissal under the proposed provisions outlined
at item 128.
Item 141 - Subsection 170CR(2)
2206. This item would repeal and replace subsection 170CR(2) and add new
subsections 170CR(2A) and 170CR(2B).
2207. Proposed subsection 170CR(2) would provide that where the Federal
Court of Australia or the Federal Magistrates Court is fixing an
amount under paragraph 170CR(1)(c) for an employee who was employed
under award-derived conditions before the termination, the amount
must not exceed:
. the total amount of remuneration received by the employee or that
the employee was entitled to (whichever is the highest) for any
period of employment with the employer for 6 months immediately
before the termination (other than any period of leave without
full pay); and
. if the employee was on leave without pay or full pay, the amount
of remuneration taken to have been received by the employee in
accordance with the regulations.
2208. Proposed subsection 170CR(2) would ensure that an amount of
compensation ordered by the Federal Court of Australia or the
Federal Magistrates Court with respect to an employee employed under
award-derived conditions is consistent with an order by the AIRC in
unfair dismissal matters under subsection 170CH(8).
2209. Proposed subsection 170CR(2A) would provide that where the Federal
Court of Australia or the Federal Magistrates Court is fixing an
amount under paragraph 170CR(1)(c) for an employee who was not
employed under award-derived conditions before the termination, the
amount must not exceed:
. a total of the amounts determined under subsection 170CR(2) if the
employee were covered by the subsection; or
. the amount of $32 000 as indexed in accordance with a formula
prescribed by the regulations,
whichever is the lowest amount.
2210. The amount established by the regulations is set by reference to a
formula that draws upon average weekly full time earnings. The
amount is adjusted each financial year - as at 1 July 2005 it was
set at $47 500.
2211. Proposed subsection 170CR(2A) would ensure that an amount of
compensation ordered by the Federal Court of Australia or the
Federal Magistrates Court with respect to an employee not employed
under award-derived conditions is consistent with an order by the
AIRC under subsection 170CH(9) in relation to unfair dismissal
remedies.
2212. Proposed subsection 170CR(2B) would ensure that an order made by the
Federal Court of Australia or the Federal Magistrates Court under
paragraphs 170CR(1)(c) or (d) can allow the employer to pay the
amount in instalments as specified by the relevant court.
2213. Proposed subsection 170CR(2B) would be consistent with subsection
170CH(10), which enables the AIRC to make orders allowing an
employer to pay an amount in instalments under paragraph 170CH(4)(b)
or subsection 170CH(6).
Item 142 - Subsection 170CR(6)
2214. This item would amend subsection 170CR(6) by deleting a reference to
section 170CN. This item is consequential upon items 132 and 144,
which would repeal subsection 170CN and Subdivision D of Division 3
of Part VIA respectively.
Item 143 - Section 170CR (note)
2215. This item would amend the legislative note to section 170CR by
deleting a reference to section 170CN. This item is consequential
upon items 132 and 144, which would repeal subsection 170CN and
Subdivision D of Division 3 of Part VIA respectively.
Item 144 - Subdivision D of Division 3 of Part VIA
2216. This item would repeal Subdivision D of Division 3 of Part VIA.
Item 145 - Subsection 170GA(2)
2217. This item would amend subsection 170GA(2) by adding a reference to
subsection 170GA(2A). This item is consequential upon item 146,
which would limit the powers of the AIRC to make orders under
section 170GA.
Item 146 - After subsection 170GA(2)
2218. This item would insert a new subsection.
New subsection 170GA(2A)
2219. Proposed subsection 170GA(2A) would limit the orders that the AIRC
may make under subsection 170GA(2). The AIRC's powers under
subsection 170GA would not include the power to make orders for the
following matters referred to in proposed paragraphs 170GA(2A)(a) -
(f):
. reinstatement of an employee;
. withdrawal of a notice of termination if the notice period has not
expired;
. payment of an amount in lieu of reinstatement;
. payment of severance pay;
. disclosure of confidential information or commercially sensitive
information relating to the employer, unless the recipient of such
information gives an enforceable undertaking not to disclose the
information to any other person;
. disclosure of personal information relating to a particular
employee, unless the employee has given written consent to the
disclosure of the information and the disclosure is in accordance
with that consent.
2220. Therefore, the AIRC would be restricted to making orders under
section 170GA that put the parties in the position that they would
have been in had consultations occurred, and had information been
provided, in accordance with section 170GA. Examples of what AIRC
orders under subsection 170GA might include are:
. that the employer meet with affected employees and their unions,
to provide information about the matters set out in paragraph
170GA(1)(a), subject to provision of an enforceable undertaking
not to disclose confidential information or commercially sensitive
information to any other person;
. the employer consult with the employees and their unions, about
the matters set out in paragraph 170GA(1)(b); or
. in circumstances where the employment of employees is terminated
prior to such provision of information and consultation, the
employer pay to each affected employee an amount reflecting the
remuneration which the employee would have earned during the
information and consultation period, had consultations occurred
and information been provided, in accordance with section 170GA.
2221. Paragraphs 170GA(2A)(e) and (f) would also protect the interests of
the employer and affected employees against unauthorised disclosure
by people to whom information is provided or with whom consultations
occur.
Item 147 - At the end of section 170GA
2222. This item would insert a new subsection.
2223. Proposed subsection 170GA(4) would provide that, for the purposes of
subsection 170GA(2A), commercially sensitive information,
confidential information and personal information would have their
ordinary meanings, unless the regulations provided other meanings
for those terms.
Item 148 - After section 170GB
2224. This item would insert a new section.
New section 170GBA - Powers and procedures of Commission for dealing
with applications
2225. Proposed section 170GBA would provide that the AIRC may attempt to
settle an application for orders under section 170GA by
conciliation. However, the AIRC would not be required to attempt
conciliation before hearing and determining a matter and/or making
orders under section 170GA.
Item 149 - Section 170GD
2226. This item would repeal section 170GD and is consequential upon item
71, which would repeal (amongst other things) Division 2 of Part VI.
Provisions relating to the powers of the AIRC would be contained
within Division 3A of Part II (item 20).
Item 150 - Subdivision F of Division 3 of Part VIA (heading)
2227. This item would repeal and replace the heading of Subdivision F with
'Rights relating to termination of employment'. This change
reflects the amendments proposed by items 9, 152 and 153, which deal
with the interaction of the WR Act with other laws.
2228. Subdivision F would contain sections 170HB, 170HBA and 170HC. These
provisions outline the way the Commonwealth termination of
employment laws interact with other relevant laws and prevent
'double-dipping'.
Item 151 - Section 170HA
2229. This item would repeal section 170HA and is consequential upon item
9, which would insert section 7C to exclude certain State and
Territory laws in respect of employees within the meaning of
proposed subsection 4AA(1).
Item 152 - Section 170HB
2230. This item would repeal and replace pre-reform section 170HB.
2231. Proposed section 170HB would stop 'double-dipping' in cases where an
employee can choose to commence unfair dismissal proceedings under
Subdivision B of Division 3 of Part VIA in respect of a termination
of employment, and under another law, including:
. other provisions of the WR Act;
. other laws of the Commonwealth; and
. State and Territory laws that are not excluded by the operation of
the WR Act (eg State and Territory anti-discrimination
legislation).
2232. Subsection 170HB(1) would ensure that proceedings cannot be
commenced under the WR Act where an application has already been
commenced in respect of that termination of employment under another
law, unless the proceeding has been discontinued by the employee or
has failed for lack of jurisdiction.
2233. Subsection 170HB(2) would similarly ensure that where proceedings
have been initiated in the federal unfair dismissal jurisdiction, no
other proceeding can be commenced in respect of that termination
under another law, unless the proceedings have been discontinued by
the employee or failed for lack of jurisdiction.
2234. Subsections 170HB(3) and 170HB(4) would provide that those other
termination proceedings apart from a federal termination of
employment application under section 170CE(1) which are referred to
in subsections 170HB(1) and 170HB(2) would include any other
application alleging the termination was unlawful, but would not
include action to recover amounts payable upon termination that the
employer failed to provide (for example, an amount in lieu of notice
of termination).
Item 153 - Section 170HC
2235. This item would repeal and replace pre-reform section 170HC.
2236. Proposed section 170HC would stop 'double dipping' in cases where an
employee may be able to commence an unlawful termination application
on the ground that the termination constitutes a contravention of
section 170CK and another law, including:
. other provisions of the WR Act;
. other laws of the Commonwealth; and
. State and Territory laws not excluded by the operation of the WR
Act (eg State and Territory anti-discrimination legislation).
2237. Subsection 170HC(1) would provide that an application alleging
unlawful termination of employment must not be made under the WR
Act, where the employee has commenced other proceedings in respect
of the termination of employment, unless the other termination
proceedings have been discontinued by the employee or have failed
for lack of jurisdiction. Under subsection 170HC(3), other
termination proceedings include those that allege that the
termination was unlawful or harsh, unjust or unreasonable.
2238. The reason that 'harsh, unjust or unreasonable' is included in this
definition of other termination proceedings is because employees
that fall outside proposed subsection 4AA(1) (ie State covered
employees) can bring an unlawful termination application and so may
have to choose between a State unfair dismissal remedy and a federal
unlawful termination remedy. However, State unfair dismissal
remedies are excluded for employees as defined in subsection 4AA(1),
so a similar provision is not required for those employees under
proposed section 170HB.
2239. Subsection 170HC(2) would similarly ensure that where proceedings
have been initiated in the federal unlawful termination
jurisdiction, no other proceeding can be commenced in respect of
that termination under another law, unless the proceeding has been
discontinued by the employee or failed for lack of jurisdiction.
2240. Subsections 170HC(3) and 170HC(4) would provide that those other
termination proceedings apart from a federal termination of
employment application under section 170CE(1) which are referred to
in subsections 170HC(1) and 170HC(2) would include any other
application alleging the termination was unlawful or harsh, unjust
or unreasonable, but would not include action to recover amounts
payable upon termination that the employer failed to provide (for
example, payment in lieu of notice of termination).
Item 154 - Subsection 170JC(1)
2241. This item would repeal subsection 170JC(1). Enforcement of orders
of the AIRC made under Part VIA would be dealt with in Part VIII,
because of the definition of applicable provision in section 177A
[item 170].
Item 155 - Subsection 170JC(2)
2242. This item would amend subsection 170JC(2) by removing the words 'For
the purposes of applying Part VIII in that way'.
2243. This item is consequential upon the repeal of subsection 170JC(1) by
item 154.
Item 156 - Subsection 170JC(3)
2244. This item would amend subsection 170JC(3) by removing the words '(as
it applies in accordance with this section)'.
2245. This item is consequential upon the repeal of subsection 170JC(1) by
item 154.
Item 157 - Paragraph 170JC(3)(a)
2246. This item would amend paragraph 170JC(3)(a), replacing the term 'the
Court' with the term 'the Court or the Federal Magistrates Court'.
2247. This item would provide that enforcement proceedings under paragraph
170JC(3)(a) can be initiated in either the Federal Court of
Australia or the Federal Magistrates Court.
Item 158 - Paragraph 170JC(3)(b)
2248. This item would amend paragraph 170JC(3)(b), replacing the term 'a
court of competent jurisdiction' with the term 'an eligible court'.
This item is consequential upon item 170 which would repeal and
replace section 177A.
Item 159 - At the end of section 170JD
2249. This item would add a new subsection 170JD(4).
2250. Section 170JD of the WR Act provides that the AIRC can vary or
revoke an order under Part VIA, on application by a person (or their
representative) that is covered by the order or to whom the order
relates.
2251. Proposed subsection 170JD(4) would make it clear that where an
application is dismissed without a hearing, either by an order made
under proposed subsection 170CEA(5) or proposed section 170CEB, or a
decision made under proposed section 170CEC, a party may not apply
to have the order or decision varied or revoked.
Item 160 - Section 170JE
2252. This item would repeal section 170JE and is consequential on item
71, which would repeal (amongst other things) Divisions 2 and 3 of
Part VI of the WR Act. Provisions relating to the powers of the
AIRC would be contained within Division 3A of Part II.
Item 161 - Section 170JEA
2253. This item would amend section 170JEA, replacing the term 'or the
Court' with the term ', the Court or the Federal Magistrates Court'.
2254. In proceedings for a remedy under Subdivision C of Division 3 of
Part VIA, or enforcement proceedings under section 170JC(3), an
employer that is a party to a proceeding has the same representation
rights in the Federal Magistrates Court as it would have in the
Federal Court of Australia where proceedings can be brought in
either forum.
Item 162 - Sections 170JEB and 170JEC
2255. This item would repeal sections 170JEB and 170JEC and is
consequential on item 71, which would repeal (amongst other things)
Divisions 2 and 3 of Part VI of the WR Act. Provisions relating to
the powers of the AIRC would be contained within Division 3A of Part
II.
Item 163 - At the end of section 170JF
2256. This item would create a new subsection 170JF(3).
2257. Section 170JF provides that a person who is entitled to apply to
vary or revoke an order under section 170JD is also entitled to
appeal to a Full Bench of the AIRC under section 45 against an order
made under Part VIA.
2258. Proposed subsection 170JF(3) would make it clear that the right to
appeal to a Full Bench does not apply in relation to an order under
section 170CEA(5) or section 170CEB, or in relation to a decision
under section 170CEC.
Item 164 - Section 170JG
2259. This item would make a consequential amendment to section 170JG by
replacing the term ', or certified agreement or AWA' with the term
'or workplace agreement'. This reflects changes to how agreements
are referred to in proposed Part VB and throughout the WR Act.
2260. Note also that item 10(2) of Schedule 4 to the Bill would provide
that, for the purposes of subsection 170JG, 'award' shall be taken
to be a reference to the following instruments, within the meaning
of the WR Act:
. a pre-reform certified agreement ;
. a Division 3 certified agreement;
. a notional agreement preserving State awards;
. a preserved State agreement;
. a transitional award;
. an old IR agreement;
. a pre-reform AWA; and
. a common rule continued in effect by clause 82 of Schedule 13 to
the WR Act.
Item 165 - Section 170JH
2261. This item would repeal section 170JH as interaction with State and
Territory laws and awards would be dealt with in proposed sections
7C and 7D.
Item 166 - At the end of Division 4 of Part VIA
2262. This item would add a new section.
Section 170JI - Meaning of employee and employer
2263. This item would provide that, throughout Division 4 of Part VIA of
the WR Act, the terms employee and employer are taken to have the
same meaning as in the provision of Part VIA to which the provision
in Division 4 of Part VIA relates.
2264. That is:
. to the extent that a provision in Division 4 of Part VIA relates
to an application to the AIRC on the ground that a termination was
harsh, unjust or unreasonable, the terms employee and employer
have the meanings provided by proposed subsections 4AA(1), 4AB(1)
and 4AC(1); and
. to the extent that a provision in Division 4 of Part VIA relates
to an application alleging a contravention of section 170CK, 170CL
or 170CM, or seeking orders under section 170GA, the terms
employee and employer have the meanings provided by paragraph (b)
of the definition of each term in section 170CAA.
Item 167 - Division 5 of Part VIA
2265. This item would repeal and replace Division 5 of Part VIA.
Division 5 - Parental leave
2266. Proposed Division 5 of Part VIA would extend the parental leave
entitlements contained in proposed Division 6 of Part VA to those
employees in Australia who are not covered by the Standard, subject
to some limitations. Employees who are entitled to parental leave
under the Standard are not entitled to parental leave under this
Division.
2267. As a result of this extension, the parental leave standards
prescribed by Division 6 of Part VA would have universal application
for employees in Australia, regardless of the identity of their
employer. This is in keeping with the purpose of Division 5 of Part
VIA to give effect, or further effect, to the international
conventions referred to in proposed section 170KA.
2268. The model dispute resolution process set out in Part VIIA would be
available to deal with disputes under Division 5 of Part VIA.
2269. Enforcement of and compliance with the entitlements provided under
Division 5 of Part VIA would be addressed in Part VIII of the WR
Act.
New section 170KA - Object and application of Division
2270. Proposed section 170KA would provide that the object of Division 5
of Part VIA is to give effect, or further effect, to the:
. Workers with Family Responsibilities Convention, 1981, referred to
in subsection 4(1) as the Family Responsibilities Convention (a
copy of this Convention is at Schedule 12 to the WR Act); and
. Workers with Family Responsibilities Recommendation, 1981, which
the General Conference of the International Labour Organisation
adopted on 23 June 1981 and is also known as Recommendation No.
165:
- by providing universal access for employees in Australia to a
system of unpaid parental leave, and a system of unpaid adoption
leave, that will help men and women workers who have
responsibilities in relation to their dependant children:
- to prepare for, enter, participate in or advance in economic
activity; and
- to reconcile their employment and family responsibilities.
2271. The legislative note to section 170KA would indicate that the terms
employer, employee and employment have their ordinary meaning for
the purposes of Division 5 of Part VIA. This is provided for in
sections 4AA, 4AB and 4AC and Schedule 1.
New section 170KB - Entitlement to parental leave
2272. Proposed section 170KB would provide that the provisions of proposed
Division 6 of Part VA are taken to apply in relation to an employee
who is not an employee within the meaning of proposed subsection
4AA(1) of the WR Act as if the employee were an employee to whom
Division 6 of Part VA applied. Note 1 to proposed section 170KB
would make it clear that employees who are within the meaning
provided by proposed subsection 4AA(1) have parental leave
entitlements under Division 6 of Part VA.
2273. Paragraph 170KB(b) would further provide that the entitlement under
Division 5 of Part VIA does not extend to a casual employee, unless
the employee is an eligible casual employee. The meaning of those
terms is the same as in Division 6 of Part VA, except that the term
employee is to be read as an employee for the purposes of Division 5
of Part VIA.
2274. Note 2 would refer to the location of compliance provisions for
proposed section 170KB.
New section 170KC - Division supplements other laws
2275. Proposed section 170KC would provide that Division 5 of Part VIA is
intended to supplement, and not to override, entitlements under
other Commonwealth, State and Territory legislation and awards.
2276. The provisions of proposed section 7C, which would state that the WR
Act is intended to override certain laws in relation to the
employment of employees as defined by proposed subsection 4AA(1),
will not apply to Division 5 of Part VIA as this Division only
applies to employees who fall outside proposed subsection 4AA(1).
New section 170KD - Model dispute resolution process
2277. Proposed section 170KD would provide that the model dispute
resolution process, set out in proposed Part VIIA, would be capable
of applying to disputes under proposed Division 5 of Part VIA,
including disputes about whether this Division applies to a
particular employee.
Item 168 - Parts VIB, VID, VIE and VII
2278. This item would repeal pre-reform Parts VIB, VID, VIE and VII of the
WR Act and insert new Part VIIA.
New Part VIIA - Dispute resolution processes
2279. Proposed Part VIIA would introduce new dispute resolution processes
to be used for particular disputes between employers and employees
at the workplace level. It would:
. provide a model dispute resolution process to be used in relation
to disputes arising under awards, workplace agreements (where the
agreement does not contain its own dispute settlement process),
the Standard and other instruments;
. change the role of the AIRC in dealing with disputes arising under
an agreement that provides for the AIRC to settle disputes about
the application of the agreement; and
. set out rules for Dispute Resolution Providers other than the
AIRC.
2280. The focus of the new provisions is encouraging parties to a dispute
to attempt to resolve the dispute between themselves, either at the
workplace level or with the assistance of a third party of their
choice.
New Division 1 - Preliminary
New section 171 - Object
2281. Proposed section 171 would insert objects for the new Part VIIA.
The objects of the Part would be to:
. encourage employers and employees to take responsibility for
solving any dispute that may arise between them at the workplace
level (paragraph (a)); and
. introduce greater flexibility for dispute resolution by allowing
the parties to a dispute to choose the best forum in which to
attempt to solve the dispute (paragraph (b)).
New section 172 - Court process
2282. Proposed section 172 would provide that the dispute resolution
processes described in this Part do not interfere with a person's
right to take court action to resolve a dispute, such as court
action to enforce a term of an award, workplace agreement, or a
statutory entitlement (eg, parental leave as provided by Division 5,
Part VIA).
New Division 2 - Model dispute resolution process
2283. Proposed Division 2 would provide a model dispute resolution process
to be used by employers and employees in the attempted resolution of
particular types of disputes at the workplace level.
New section 173 - Model dispute resolution process
2284. Proposed section 173 would set out the purpose of the Division,
which is to prescribe the model dispute resolution process.
2285. A note would identify some of the types of disputes that the model
dispute resolution process may be used for, such as disputes about:
. the application of the Standard (section 89E);
. the application of awards (section 116A);
. the terms of a workplace agreement, where the agreement itself
does not include a dispute resolution process (section 101A);
. the application of a workplace determination (section 113D);
. meal breaks for the purpose of Division 1 of Part VIA
(section 170AC); and
. parental leave for the purpose of Division 5 of Part VIA
(section 170KD).
2286. The note is not an exhaustive list of the types of disputes that
must be dealt with under the model dispute resolution process. For
instance, Schedule 15 of the Bill would also provide that the model
dispute resolution process is deemed to apply to a dispute about the
application of a preserved State agreement (clause 14), or a
notional State agreement (clause 37).
New section 174 - Resolving dispute at workplace level
2287. Proposed section 174 would provide the first step for the model
dispute resolution process, which is that the parties must genuinely
attempt to resolve the dispute at the workplace level. This
requirement is intended to encourage employers and employees to take
responsibility for resolving disputes that arise between them. The
'genuineness' of dispute resolution attempts would be demonstrated
by the parties engaging with each other in a cooperative and timely
way to attempt to resolve the dispute. The objective is to try and
resolve issues through consensus at an early stage, which will
reduce costs, increase productivity and build better working
relationships.
2288. A note would indicate that the first step may involve the employee
(or employees) first discussing the matter in dispute with their
supervisor and, if the dispute is still not resolved, with more
senior management. This reflects existing common practice for
dispute settling at the workplace level. The process described in
the note is only an example. As under the current system, employers
and employees remain free to choose the most appropriate
arrangements for attempting to settle disputes at the workplace
level.
New section 175 - Where dispute cannot be resolved at workplace
level
2289. Proposed section 175 would provide the next step in the process if
workplace level discussions have not succeeded in settling the
dispute.
2290. Subsection 175(1) would allow any party to the dispute to elect to
refer the matter to an alternative dispute resolution process. An
alternative dispute resolution process involves the parties seeking
expert outside assistance to try to resolve their dispute.
2291. Subsection 175(2) would provide that the alternative dispute
resolution process is to be conducted by a person agreed between the
parties in dispute. Subsection 175(6) would provide that where an
alternative dispute resolution process is used, the parties to the
dispute must genuinely attempt to resolve the dispute using that
process. This would include making genuine attempts to agree on who
should conduct the alternative dispute resolution process if the
parties are unable to resolve the dispute at the workplace level.
2292. The requirement to make genuine attempts to resolve the dispute is
intended to prevent a party or parties acting in a manner designed
to frustrate settlement of the dispute. For instance, a party could
request a dispute resolution process and then not participate or
refuse to participate in meaningful negotiations with the person
that they are in dispute with. Taking such an approach would cause
delay, impose extra costs on the other party or simply discourage
attempts at meaningful discussions.
2293. Subsection 175(3) would provide that if the employer and the
employee cannot agree on who would provide the assistance under the
alternative dispute resolution process, either party may notify the
Industrial Registrar of this fact.
2294. Subsection 175(4) would require the Industrial Registrar to provide
all parties to the dispute with information that will be prescribed
in the regulations. It is anticipated that the prescribed
information would include information about the types of alternative
dispute resolution services that are available for the purposes of
this Part.
2295. After the Industrial Registrar has provided the prescribed
information, there would be a consideration period of 14 days
(defined in subsection 175(7)) to provide the parties with another
opportunity to reach agreement about using an alternative dispute
resolution process, including who should conduct that process. If
at the expiry of the consideration period no agreement has been
reached, either party to the dispute may lodge an application with
the AIRC for the AIRC to conduct the alternative dispute resolution
process (subsection 175(5)).
2296. The appointment of the AIRC to conduct the dispute resolution
process in these circumstances would help to ensure that the
settlement of disputes provided for in this Division is not
frustrated by the parties being unable to agree on who will conduct
the process.
2297. The fact that the AIRC would conduct the alternative dispute
resolution process if the parties are unable to agree on a provider
does not prevent the parties from agreeing at an earlier stage under
subsection 175(1) to refer their dispute to the AIRC for assistance.
In these circumstances, the consideration period and other
requirements would not apply.
New section 176 - Conduct during dispute
2298. Proposed section 176 would outline certain responsibilities of the
employer and employee(s) who are in dispute.
2299. Subsection 176(1) would require an employee who is a party to a
dispute resolution process (including when that process is at the
stage of workplace level discussions) to:
. continue to work in accordance with his or her contract of
employment, unless the employee has a reasonable concern about an
imminent risk to his or her health or safety; and
. comply with any reasonable direction given by his or her employer
to perform other available work, either at the same workplace or
at another workplace.
2300. Subsection 176(2) would provide that an employer's direction to
perform other available work must have regard to:
. the provisions of any Commonwealth, State, or Territory
occupational health and safety legislation that applies; and
. whether the proposed work is appropriate for the employee to
perform.
New Division 3 - Alternative dispute resolution process conducted by
Commission under model dispute resolution process
2301. Proposed Division 3 would deal with the AIRC's processes and powers
where it conducts a dispute resolution process as part of the model
dispute resolution process prescribed in Division 2. The AIRC may
conduct a dispute resolution process either because:
. the parties to the dispute agree to give the AIRC such a role; or
. the AIRC is appointed to such a role in accordance with this
Division.
New section 176A - Alternative dispute resolution process
2302. Proposed section 176A would provide a non-exhaustive list of
procedures able to be used for the resolution of disputes under the
model dispute resolution process.
2303. Conferencing (paragraph 176A(a)) is a general term that refers to
meetings in which the parties and/or their representatives discuss
the issues in dispute with or without the assistance of a dispute
resolution specialist. Conferencing may combine facilitative and
advisory dispute resolution processes depending on the outcome that
is sought by the parties.
2304. Mediation (paragraph 176A(b)) is a process in which the parties to a
dispute, with the assistance of a mediator, identify the disputed
issues, develop options, consider alternatives and try to reach an
agreement. The mediator has no advisory role regarding the issues
in dispute or the possible outcomes, but may advise on the mediation
process.
2305. Assisted negotiation (paragraph 176A(c)) is a process in which the
parties to a dispute, who have identified the issues to be
negotiated, use the assistance of a dispute resolution practitioner
to negotiate an outcome. The person who is assisting the
negotiations has no advisory role on the content of the matters
discussed or the outcome of the process, but may provide advice to
the parties about processes the parties may use to aid their dispute
resolution.
2306. Neutral evaluation (paragraph 176A(d)) is a process in which the
person who provides assistance in the dispute resolution process
considers and appraises the dispute and provides advice on the facts
of the dispute, the law and, in some cases, possible or desirable
outcomes and how these may be achieved.
2307. Case appraisal (paragraph 176A(e)) is a process in which a dispute
resolution practitioner (the case appraiser) investigates the
dispute and provides advice on possible and desirable outcomes and
the means by which these may be achieved.
2308. Conciliation (paragraph 176A(f)) is a process in which the parties
to a dispute, with the assistance of a conciliator, identify the
issues in dispute, develop options, consider alternatives and
attempt to reach an agreed outcome. The conciliator may have an
advisory role on the content of the dispute or its resolution, but
not a determinative role. The conciliator may advise on or
determine the process of conciliation, make suggestions for terms of
settlement, give expert advice on likely settlement terms, and
actively encourage the participants to reach an agreement.
Conciliation covers a broad spectrum of processes used to resolve
complaints and disputes including:
. informal discussions held between the parties and an external
person or body in an attempt to avoid, resolve or manage a
dispute; and
. combined processes in which, for example, an impartial party
facilitates discussion between the parties, provides advice on the
substance of the dispute, makes proposals for settlement or
actively contributes to the terms of any agreement.
2309. Arbitration (paragraph 176A(g)) is a process in which the parties to
a dispute present arguments and evidence to the arbitrator who makes
a determination.
2310. Paragraph 176A(h) would allow regulations to be made to specify
other types of procedures or services as being an alternative
dispute resolution process for the purposes of the Division.
New section 176B - Application
2311. Proposed section 176B would provide a process for making an
application to the AIRC when the process outlined in section 175 has
been completed.
2312. Subsection 176B(1) would limit the circumstances in which an
application may be made to the AIRC. An application may only be
made if the dispute is one that may be resolved using the model
dispute resolution process, and the parties to the dispute have been
unable to resolve the matter(s) in dispute at the workplace level.
2313. Subsection 176B(2) would prescribe the details that must be included
in an application to the AIRC under this Division. The required
information will assist the AIRC to determine whether it has
jurisdiction to deal with the matter. The application must describe
the matter or matters in dispute and specify that the application to
the AIRC is made under the model dispute resolution process (as
distinct from a different process that may be included in a
workplace agreement). The person who is seeking the AIRC's
assistance must also sign the application.
2314. The AIRC may allow amendments to the application and correct, amend
or waive any error, defect or irregularity in the application
(subsection 176B(4)).
2315. Subsection 176B(3) would allow the AIRC to request additional
information from the applicant about the matter(s) in dispute and
the attempts made at the workplace level to resolve the dispute.
This ensures that the AIRC has sufficient information upon which to
make a decision about whether it has jurisdiction to deal with the
matter.
New section 176C - Refusing application
2316. Proposed section 176C would provide grounds upon which the AIRC
could refuse an application for its assistance made under this
Division.
2317. Subsection 176C(1) would require the AIRC to refuse to provide
dispute resolution assistance if the dispute is not one to which the
model dispute resolution process applies (section 173).
2318. Subsection 176C(2) would provide that the AIRC may refuse to provide
dispute resolution assistance if the parties have not made a genuine
attempt to either:
. resolve the dispute at the workplace level (section 174); or
. reach agreement about who should conduct the alternative dispute
resolution process (section 175).
2319. It is intended that the AIRC would have discretion to refuse an
application where none of the parties have entered into reasonable
discussions about the matter(s) in dispute or the process through
which the dispute is to be resolved. In particular, the party who
elects to use the dispute resolution process in this Division should
not be able to bring a matter before the AIRC by unreasonably
refusing to discuss alternatives to the AIRC providing the dispute
resolution process. However, the AIRC may accept an application
under this Division if the refusal of one or more parties to engage
in discussions would deny the other party or parties a reasonable
opportunity to pursue resolution of the dispute.
Illustrative Example
Maire works as a steel processor for a can company in regional Queensland.
She is covered by the Metals Industry Award 1998. She thinks her employer
has been underpaying her shift loadings. Workplace level discussions
involving Maire's shift supervisor, the payroll clerk, the plant manager
and the union delegate fail to resolve the issue. Maire suggests to the
plant manager that they could get someone from the community legal centre
to conciliate the dispute, but the plant manager says 'there's nothing more
to talk about'.
Maire notifies a dispute with the Industrial Registrar. The Registrar
provides Maire and her employer with some extra information, including that
if they still haven't made progress after 14 days the AIRC may be able to
provide assistance. Maire again approaches the plant manager about
agreeing to conciliate. He refuses to discuss the matter anymore. Three
weeks later Maire applies to the AIRC for assistance with dispute
resolution.
The AIRC considers that Maire's employer has not made a genuine attempt to
settle the dispute with Maire. However, as Maire has done all that she can
to attempt to resolve the dispute, the AIRC could agree to conduct an
alternative dispute resolution process, as to not do so would be unfair to
Maire.
New section 176D - Commission's powers
2320. Proposed section 176D would prescribe the AIRC's powers and
processes for conducting alternative dispute resolution under the
model dispute resolution process.
2321. Subsection 176D(2) would allow the AIRC to schedule conferences
between the parties and/or their representatives. These conferences
could involve a Commissioner being present, or only involve the
parties and/or their representatives (paragraph 176A(a)).
2322. Subsection 176D(3) would require the AIRC to act quickly, relatively
informally, and in accordance with any agreement between the
employer and employee concerned about how the alternative dispute
resolution process should be conducted. It is intended that the
AIRC would proceed in accordance with the wishes of the parties,
rather than the AIRC being primarily responsible for choosing the
ways in which dispute resolution should be attempted or guiding the
parties to what the AIRC considers being the most appropriate
outcome.
2323. Subsection 176D(4) would provide that the AIRC cannot use any of the
following powers when it is conducting alternative dispute
resolution under the model dispute resolution process:
. compel a person to do anything;
. make an award or order in relation to any matter that is in
dispute; or
. appoint a board of reference (section 116K).
2324. The combined effect of paragraphs 176D(4)(b) - (c) and subsection
176D(5) is that the AIRC may only arbitrate or determine a matter
under the model dispute resolution process if all of the parties to
the dispute agree to it doing so. In all other cases, the AIRC
would be prohibited from doing so.
2325. Subsection 176D(6) would allow the parties to a dispute under the
model dispute resolution process to be represented. The AIRC may
impose reasonable limitations on the use or role of representatives.
2326. Subsection 176D(7) would allow the AIRC to make recommendations
about the best ways in which to resolve an aspect or aspects of the
dispute, but only in circumstances where all parties have requested
that it make such a recommendation.
2327. Subsection 176D(8) would make clear that the powers of the AIRC
which would be prescribed in Subdivision B , Division 3A of Part II
do not apply where the AIRC is conducting an alternative dispute
resolution process under the model dispute resolution process.
New section 176E - Privacy
2328. Proposed section 176E would set down privacy and confidentiality
requirements for an alternative dispute resolution process conducted
by the AIRC under this Division.
2329. Subsection 176E(1) would require the AIRC to conduct an alternative
dispute resolution process in private. This means that the AIRC may
not publish transcripts or decisions with respect to a dispute that
is conducted under this Division.
2330. Subsection 176E(2) would prohibit the AIRC from disclosing or using
any information or document that is produced before the AIRC during
an alternative dispute resolution process. There are four
exceptions to this prohibition, being where the disclosure or use
is:
. needed for the purpose of conducting the alternative dispute
resolution process (paragraph 176E(2)(a));
. consented to by the parties to the alternative dispute resolution
process (paragraph 176E(2)(b));
. authorised by regulations made for the purpose of this section
(paragraph 176E(2)(c)); or
. required or permitted by law (paragraph 176E(2)(d)).
2331. Subsection 176E(3) would make anything said or done in the course of
an alternative dispute resolution process inadmissible evidence in
any court, arbitration, or other proceeding that is related to the
dispute, unless the parties agree to the admission of such evidence
or the evidence is admitted in circumstances prescribed by
regulations made for the purposes of paragraph 176E(3)(e). This is
consistent with the general law position that verbal and written
communications made 'without prejudice' during settlement
negotiations for a dispute are inadmissible in subsequent
proceedings relating to the subject matter of the negotiations.
2332. The inclusion of a regulation making power in subsections 176E(2) -
(3) is designed to retain some flexibility to add further categories
where it would be appropriate to allow the disclose or use of
information, documents, or evidence in any future proceedings. In
the event that regulations are proposed to be made, the Attorney-
General will be consulted with regard to any policy implications for
the administration of civil or criminal justice, or alternative
dispute resolution.
New section 176F - When alternative dispute resolution process
complete
2333. Proposed section 176F would provide for when a dispute resolution
process conducted under this Division is completed. This would be
when the parties agree that the matters in dispute are resolved
(paragraph 176F(a)), or when the person who initiated the use of the
dispute resolution process does not wish to continue with it
(paragraph 176F(b)).
New Division 4 - Alternative dispute resolution process used to
resolve other disputes
2334. Proposed Division 4 would provide a process by which the AIRC may
provide assistance to parties to attempt to resolve disputes that
arise during collective bargaining negotiations.
New section 176G - Application
2335. Proposed section 176G would allow negotiating parties for a
collective agreement (as defined for the purposes of proposed Part
VB - Workplace Agreements) to apply to the AIRC for assistance in
relation to a matter in dispute that has arisen in the course of
bargaining.
2336. The AIRC will only be able to assist negotiating parties during
collective bargaining when both parties agree to seek its
assistance. This is consistent with genuine agreement making, where
the focus in on the parties reaching agreement between themselves.
Negotiating parties are not limited to using the AIRC in these
circumstances. They would be able to agree to refer the outstanding
issue(s) to a private dispute resolution specialist for assistance,
rather than the AIRC.
2337. Subsection 176G(2) sets out the procedural requirements for making
an application under this Division.
2338. Subsection 176G(3) would allow the AIRC to seek more information
from the parties on the matter(s) in dispute.
New section 176H - Grounds on which Commission must refuse
application
2339. Proposed section 176H would require the AIRC to refuse an
application for its assistance made under this Division if the
matters in dispute do not arise in the course of collective
bargaining, or because all of the negotiating parties have not
agreed to seek the AIRC's assistance (ie the requirements in
paragraphs 176G(a) - (b) have not been met).
New section 176I - Powers of the Commission
2340. Proposed section 176I would specify that, with one exception, the
AIRC has the same powers when conducting a dispute resolution
process under this Division as it does when conducting a dispute
resolution process under Division 3 of this Part. The exception is
that the AIRC may not be conferred arbitral or determinative powers
by the parties to the dispute (contrast proposed section 176D).
This is consistent with the existing position in the WR Act where
the AIRC's role during collective bargaining negotiations is
confined to exercising conciliation powers (pre-reform section
170NA).
New section 176J - Privacy
2341. Proposed section 176J would set down privacy and confidentiality
requirements for an alternative dispute resolution process conducted
by the AIRC under this Division. These requirements are the same as
those contained in proposed section 176E.
2342. Subsection 176J(1) would require the AIRC to conduct an alternative
dispute resolution process in private. This means that the AIRC may
not publish transcripts or decisions with respect to a dispute that
it conducts under this Division.
2343. Subsection 176J(2) would prohibit the AIRC from disclosing or using
any information or document that is produced before the AIRC during
an alternative dispute resolution process. There are four
exceptions to this prohibition, being where the disclosure or use
is:
. needed for the purpose of conducting the alternative dispute
resolution process (paragraph 176J(2)(a));
. consented to by the parties to the alternative dispute resolution
process (paragraph 176J(2)(b));
. authorised by regulations made for the purpose of this section
(paragraph 176J(2)(c)); or
. required or permitted by law (paragraph 176J(2)(d)).
2344. Subsection 176J(3) would make anything said or done in the course of
an alternative dispute resolution process inadmissible evidence in
any court, arbitration, or other proceeding that is related to the
dispute, unless the parties agree to the admission of such evidence,
or the evidence is admitted in circumstances prescribed by
regulations made for the purposes of paragraph 176J(3)(e).
2345. The inclusion of a regulation making power in subsections 176J(2) -
(3) is designed to retain some flexibility to allow the disclosure
or use of information, or the admission of evidence in future
proceedings. In the event that regulations are proposed to be made,
the Attorney-General will be consulted with regard to any policy
implications for the administration of civil or criminal justice, or
alternative dispute resolution.
New section 176K - When alternative dispute resolution process
complete
2346. Proposed section 176K would provide that a dispute resolution
process conducted under this Division is completed when the parties
agree that the matters in dispute are resolved. It is not necessary
for the settlement of the parties' dispute to be reflected in the
terms of a workplace agreement - the parties may agree that a matter
is not one they wish to include in the proposed workplace agreement.
New Division 5 - Dispute resolution process conducted by the
Commission under workplace agreement
2347. Proposed Division 5 would enable the AIRC to provide assistance to
parties who are in dispute about the application of a workplace
agreement. This Division only applies where the terms of the
workplace agreement confer the AIRC with jurisdiction under that
agreement's dispute resolution process (proposed
subsection 101A(1)).
New section 176L - Application
2348. Proposed section 176L would set out the process for making an
application to the AIRC under a dispute resolution process contained
in a workplace agreement.
2349. Subsection 176L(1) would limit the circumstances in which an
application may be made to the AIRC. An application may only be
made if the dispute is one that is able to be resolved in accordance
with the terms of the workplace agreement's dispute resolution
process, and the parties to the dispute have complied with any terms
of the workplace agreement requiring them to take particular steps
(eg to try to resolve the dispute at the workplace level) before the
application is made to the AIRC.
2350. Subsection 176L(2) would set out the details that must be included
in an application to the AIRC under this Division. The required
information will assist the AIRC to determine whether it has
jurisdiction to deal with the matter. The application must describe
the matter(s) that the employer and employee(s) are in dispute
about, and specify that the application to the AIRC is made under
the dispute resolution process in a workplace agreement (as distinct
from the model dispute resolution process described in Divisions 2
and 3). The person who is seeking the AIRC's assistance must also
sign the application.
2351. Subsection 176L(3) would allow the AIRC to request additional
information from the applicant about the matter(s) in dispute and
the steps taken by the parties in an attempt to resolve the dispute.
It is intended that the AIRC may also request further information
about the terms of the workplace agreement in order to properly
assess the matters in dispute and the steps taken by the parties.
This ensures that the AIRC has sufficient information upon which to
make a decision about whether it has jurisdiction to deal with the
matter.
New section 176M - Grounds on which Commission must refuse
application
2352. Proposed section 176M would provide grounds upon which the AIRC must
refuse an application for its assistance made under this Division.
The AIRC would not be able to provide dispute resolution assistance
if the dispute is not one that, under the terms of the workplace
agreement, is able to be dealt with using a dispute resolution
process conducted by the AIRC or if the parties have not followed
the steps that are required by the terms of the workplace agreement.
Illustrative Example
Gavan is an electrician employed by Country Power Pty Ltd. Country Power
has installed global positioning systems (GPS) in all company vehicles
(including Gavan's van) so that the closest electrician to a power supply
problem can be easily identified, thus improving customer service. The
company has suspended Gavan without pay under the company's disciplinary
code in the Country Power Agreement (the agreement). The company says the
GPS indicated that Gavan had been at the pub during working hours. Gavan
disputes the company's decision to suspend him, telling his manager that he
was at the pub for a counter lunch and that he wasn't drinking. Gavan's
manager doesn't believe his version of events, saying that no-one goes into
a pub without wanting to drink. Gavan notifies a dispute with the AIRC
about the application of the agreement. The agreement contains a dispute
resolution process:
I. Where a dispute arises about the application of this Agreement, in
the first instance, the aggrieved employee shall discuss the dispute with
their manager and attempt to settle the issue in dispute by a written
agreement.
2. Where a dispute is not resolved under step 1, either party may
(within a reasonable time) request the setting up of a Disputes Committee.
The Disputes Committee shall comprise two employees (other than the
aggrieved employee), and two managers (other than the manager referred to
in step 1). The Disputes Committee shall attempt to resolve the disputed
matter within five working days of its first meeting. Any resolution shall
be documented in writing, subject to ratification by the employee concerned
and the employer.
3. Should a dispute not be resolved by using the processes in steps 1
or 2, the dispute may be referred by either party to the Australian
Industrial Relations Commission for conciliation and, if conciliation
fails, by arbitration.
The AIRC refuses to hear Gavan's application because he has not followed
step two in the agreement's dispute resolution process. The AIRC tells
Gavan he may apply to the AIRC later if the Disputes Committee is unable to
resolve the dispute.
New section 176N - Commission's powers
2353. Proposed section 176N would confine the AIRC's powers with respect
to a dispute resolution process in a workplace agreement.
2354. Subsection 176N(1) would specify that the AIRC only has those powers
that are given to it either under the terms of the workplace
agreement, or agreed between the parties to the dispute.
2355. Subsection 176N(2) would explicitly prohibit the AIRC from making
orders (defined in section 4 of the WR Act) when it is conducting a
dispute resolution process under a workplace agreement. This would
have the consequence that an appeal under section 45 of the WR Act
may not be instituted in reliance on the AIRC having made an order
in relation to a dispute resolution process in a workplace
agreement.
2356. Subsection 176N(3) would require the AIRC to act quickly, relatively
informally, and in accordance with any agreement between the
employer and employee concerned about how the alternative dispute
resolution process should be conducted. It is intended that the
AIRC would proceed in accordance with the wishes of the parties,
rather than the AIRC being primarily responsible for choosing the
ways in which dispute resolution should be attempted or guiding the
parties to what the AIRC considers being the most appropriate
outcome.
2357. Subsection 176N(4) would clarify that the powers of the AIRC which
would be prescribed in Subdivision B, Division 3A of Part II do not
apply where the AIRC is conducting the model dispute resolution
process. In Re: Telstra Ltd & Communications, Electrical and
Plumbing Union [Print PR940569], a full bench of the AIRC decided
that where the dispute settlement process in an agreement was
silent, there was a statutory presumption that the AIRC possessed
all of its general dispute settling powers contained in Part VI of
the WR Act, unless any power was inconsistent with the other terms
of the agreement. The AIRC made this finding based on the fact that
Part VI of the WR Act was expressed to apply to any other proceeding
before the AIRC 'unless the context otherwise requires'. As a
result of subsection 176N(4), the parties to a workplace agreement,
in any dispute about that agreement's application, would be free to
specify the role they want the AIRC to play in their dispute
resolution process. For example, the parties may expressly agree to
give the AIRC particular powers by reference to other Parts of the
Act (ie, the power to compel the production of relevant evidence).
2358. If no powers are expressly conferred in a workplace agreement's
dispute resolution process, the AIRC would only have whatever powers
that may be conferred by the agreement of the parties (as explained
with respect to paragraph 176N(3)(c)).
New section 176O - Privacy
2359. Proposed section 176O would set down privacy and confidentiality
requirements for an alternative dispute resolution process conducted
by the AIRC in accordance with the terms of a workplace agreement.
These requirements are the same as those explained with respect to
proposed section 176D.
Division 6 - Dispute resolution process conducted by another
provider
New section 176P - Application of this Division
2360. Proposed section 176P would provide that this Division applies to a
dispute resolution process that is conducted by a person or party
other than the AIRC. This reflects the fact that the AIRC would not
have exclusive jurisdiction to deal with disputes, but that parties
are free to choose the dispute settlement arrangement that best
meets their mutual needs.
New section 176Q - Representation
2361. Proposed section 176Q would provide that the person or body who is
conducting a dispute resolution process under this Division may
allow the parties to be represented and control the conduct of any
such representative.
2362. Subsection 176Q(1) would make representation subject to the approval
of the person or body who is conducting the dispute resolution
process. This is consistent with processes before the AIRC, in
which representation is subject to leave being granted (section 42
of the WR Act).
2363. Subsection 176Q(2) would allow the person conducting the dispute
resolution process to set reasonable limits on the representative's
conduct.
2364. Subsection 176Q(3) would deal with disputes about the application of
a workplace agreement. This subsection would make any limits
imposed on a party's representative by the person conducting the
dispute resolution process subject to the terms of the workplace
agreement. This means that if the agreement provides a party with a
right to be represented, that right cannot be removed by the person
conducting the dispute resolution process.
New section 176R - Privacy
2365. Proposed section 176R would set down privacy and confidentiality
requirements for a dispute resolution process that is conducted by a
person or body that is not the AIRC.
2366. These requirements are substantially the same as those which would
apply with respect to the AIRC (as explained for proposed
section 176E).
2367. Subsection 176R(3) would make contraventions of subsections 176R(1)
- (2) a civil remedy provision. Subsections 176R(5) - (6) would
provide for pecuniary penalties to be ordered by a Court against a
person who has contravened subsections 176R(1) - (2).
2368. Subsection 176R(7) would identify who may apply to a Court for a
pecuniary penalty under subsection 176R(5).
Item 169 - Division 1 of Part VIII (heading)
2369. This item would repeal and change the heading of this Division from
'Division 1 - Penalties and other remedies for contravention of
awards and orders' to 'Division 1 - Definitions'.
Item 170 - Subsection 177A
2370. This item would repeal section 177A and substitute a new section
177A that defines the terms to be used in Part VIII.
2371. Under proposed section 177A, an applicable provision, in relation to
a person (this term is defined in subsection 4(1)), would mean a
term of one of the following that applies to that person:
. an AWA;
. the Standard;
. an award;
. a collective agreement; or
. an order of the AIRC (except an order made under Division 4 of
Part VC).
2372. An applicable provision would also include an entitlement of a
person under either
section 170AA (meal breaks) or section 170KB (extended entitlement
to parental leave).
2373. A note would be inserted after the proposed definition of applicable
provision to make it clear that a workplace determination and an
undertaking are to be treated as though they were collective
agreements. This means that they are to be enforced as though they
were collective agreements (for example, the standing rules in
proposed section 177AA for collective agreements will apply to
proceedings for breach of an undertaking).
2374. A second note would be inserted after the proposed definition of
applicable provision to indicate that orders of the AIRC made under
Division 4 of Part VC would be enforceable under section 109V.
2375. Proposed section 177A would also define eligible court to mean:
. the Court (this term is defined in subsection 4(1));
. the Federal Magistrates Court;
. a District, County or Local Court;
. a magistrate's court;
. the Industrial Relations Court of South Australia; or
. any other State or Territory court that is prescribed by the
regulations.
Item 171 - Before section 178
2376. This item would insert a new section and Division heading.
Division 2 - Penalties and other remedies for contravention of
applicable provisions
New section 177AA - Standing to apply for penalties or remedies
under this Division
2377. Proposed section 177AA would establish who may apply for a penalty
or other remedy under this Division for a breach of an applicable
provision. The table in subsection 177AA(1) would set out who may
apply for such a penalty or remedy in relation to each applicable
provision.
2378. A note would be inserted after subsection 177AA(1) to clarify that a
workplace determination and an undertaking are to be treated as
though they were collective agreements.
2379. Subsection 177AA(2) would set out the circumstances in which an
organisation of employees that represents an employee who is bound
by an AWA may apply for a penalty or other remedy under this
Division. This subsection would provide that an organisation of
employees would only be able to commence such proceedings where:
. the employee has requested, in writing, the organisation to make
an application on his or her behalf;
. a member of the organisation (not necessarily the employee on
whose behalf the organisation is applying) is employed by the
employee's employer; and
. the organisation is entitled, under its eligibility rules, to
represent the industrial interests of the employee who has
requested representation in relation to work carried on by that
employee for his or her employer.
2380. This subsection would ensure that an employee does not unwittingly
become the subject of a dispute between their employer and a union.
It is designed to protect the employee who chooses to be party to an
AWA, while retaining the ability of unions to represent their
members, and others who elect to appoint unions as their agents.
2381. Subsection 177AA(3) would set out the circumstances in which an
organisation of employees could apply for a penalty or other remedy
in relation to a breach of an applicable provision that is:
. a term of the Standard;
. a term of a collective agreement;
. section 170AA; or
. section 170KB.
2382. Under this subsection, an organisation of employees would not be
able to make an application for a penalty or other remedy unless a
member of that organisation is employed by the respondent employer
and the breach relates to, or affects, that member of the
organisation or work carried on by that member for the employer.
This subsection would allow an organisation of employees to seek
penalties or other remedies where that organisation has a member at
the relevant workplace who is affected by a breach of an applicable
provision.
Item 172 - Subsection 178(1)
2383. This item would repeal subsection 178(1) which sets out which courts
may impose penalties for a breach of an award, order of the AIRC or
a certified agreement.
2384. Proposed subsection 178(1) would establish that an eligible court
may impose a penalty, in accordance with this Division, for a breach
of an applicable term. The maximum penalties for contravening this
subsection would be dealt with in subsection 178(4).
Item 173 - Paragraph 178(2)(a)
Item 174 - Paragraph 178(2)(b)
2385. These items would repeal and replace paragraph 178(2)(a) and amend
paragraph 178(2)(b).
2386. Under these proposed amendments, a person who commits two or more
breaches of an applicable provision in the same course of conduct
would be deemed by these proposed amendments to have only breached
subsection 178(2) once. This would prevent a person being punished
multiple times for the same breach of an applicable provision.
Illustrative Example
Daniel and Julia are employed by Hill Water Haulage Pty Ltd (Hill Water).
Both Daniel and Julia have been working a lot of overtime at the request of
their employer. Under their collective agreement, they are entitled to be
paid penalty rates for this overtime work. However, when the next pay
period comes around, both Daniel and Julia find that they have not been
paid for any overtime they have worked and Hill Water is refusing to make
any additional payments. If Daniel and Julia were to bring proceedings
under subsection 178(1) seeking a penalty against Hill Water for breach of
an applicable provision (ie a term in their collective agreement) an
eligible court could only impose one penalty on the company. This is
because the wrongful conduct arose out of the same course of conduct by
Hill Water.
Item 175 - Subsection 178(3)
2387. This item would repeal and replace subsection 178(3) which sets out
the circumstances in which subsection 178(2) does not apply.
2388. As noted above, subsection 178(2), as amended, would provide that
two or more breaches of an applicable provision are to constitute
the same breach where they arise out of the same course of conduct.
However, proposed subsection 178(3) would provide that subsection
178(2) would not apply after an eligible court had imposed a penalty
on a person for the original two or more breaches. In effect, an
order made by an eligible court would 'reset the counter' allowing a
fresh penalty to be imposed for any new breaches of an applicable
provision.
Illustrative Example (continued)
Continuing the previous example, if Daniel and Julia obtained orders from
an eligible court which imposed a penalty under subsection 178(1) on Hill
Water for breach of the overtime clause of their collective agreement, then
any subsequent breaches of that same clause would make Hill Water liable
for an additional penalty. For instance, if, after the order was made,
Daniel and Julia worked more overtime and were again not paid for that
work, they could seek another penalty against Hill Water for breach of an
applicable provision.
Item 176 - Subsections 178(4) to (5A)
2389. This item would repeal subsections 178(4) - (5A) which establish
maximum penalty amounts and standing arrangements for the recovery
of penalties in respect of various industrial instruments.
2390. Proposed subsection 178(4) would set the maximum penalties to be
imposed under
subsection 178(1) for a breach of an applicable provision. The
proposed maximum penalty would be 60 penalty units for an individual
and 300 penalty units for a body corporate.
2391. Proposed subsection 178(5) would allow an eligible court to order
the payment of an amount for loss or damages where it considers that
a party to an AWA has suffered injury at the hands of the other
party to the AWA as a result of that person breaching an applicable
provision in that AWA.
Item 177 - Subsection 178(6)
Item 178 - Subsection 178(6)
Item 179 - Subsection 178(6A)
Item 180 - Subsection 178(6A)
Item 181 - Subsection 178(6B)
Item 183 - Subsection 178(8)
2392. These items would make consequential amendments to reflect the
inclusion in the Bill of the new concepts of eligible court and/or
applicable provision.
2393. The proposed amendments to subsections 178(6) and (6A) would exclude
an applicable provision which is a term of an AWA because subsection
178(5) provides an equivalent remedy for employees who are parties
to an AWA.
Item 182 - Subsection 178(7)
2394. This item would make a technical amendment reflecting current
drafting practice.
Item 184 - Subsection 178(9)
2395. This item would repeal subsection 178(9) which defines employee to
include an independent contractor for the purposes of section 178,
as it applies to orders of the AIRC made under pre-reform section
127B. This subsection has no application under pre-reform section
178 as no court of competent jurisdiction has power to make orders
under pre-reform section 127B.
Item 185 - Section 179
2396. This item would repeal section 179 and replace it with the following
sections.
New section 179 - Recovery of wages etc.
2397. This proposed section would provide that where an employer is
required by an applicable provision (except a term of an AWA) to pay
an amount to an employee, or an amount into an employee's
superannuation fund, that employee (or a workplace inspector on that
employee's behalf) can lodge an application in an eligible court to
recover that amount but that application must be made within six
years of the time the employer was required to make the payment.
New section 179AA - Damages for breach of AWA
2398. This proposed section would provide that a party to an AWA may
recover an amount for loss or damage as a result of a breach of an
AWA by the other party. An action for loss or damages must be
brought in an eligible court within six years of the date on which
the cause of action arose.
Item 186 - Subsection 179A(1)
2399. This item would amend subsection 179A(1) to allow an eligible court
to order interest for the period until judgement on an amount
ordered to be paid under subsections 178(5) or (6) or under sections
179 or 179AA.
Item 187 - Subsection 179A(1)(a)
2400. This item would make consequential amendments to reflect the
inclusion in the Bill of the new concepts of eligible court by
replacing the term 'Court or a court of competent jurisdiction, as
the case may be' with the term 'an eligible court'.
Item 188 - Section 179B
2401. This item would repeal section 179B which allows a court of
competent jurisdiction to impose interest on judgements. Under
proposed section 179B, interest would apply from the date on which
judgement is entered to any judgement or order made by an eligible
court under subsections 178(5) and (6), section 179 or 179AA.
Item 189 - Paragraph 179C(a)
2402. This item would allow a person seeking to recover loss or damages as
a result of a breach of an AWA to utilise the small claims
procedures in a magistrate's court. The small clams procedure is
set out at section 179D.
Item 190 - Paragraph 180(1)(a)
2403. This item would make consequential amendments to reflect the
inclusion in the Bill of the new concept applicable provision.
Item 191 - Division 3 of Part VIII
2404. This item would repeal Division 3 of Part VIII which allows a Full
Bench of the AIRC to suspend or cancel awards or orders where
certain conditions are met. The power of the AIRC to deal with
awards and orders in this manner will be dealt with in proposed
section 44Q.
Item 192 - At the end of Part VIII
2405. This item would insert a new Division at the end of Part VIII.
Division 4 - General provisions relating to civil remedies
New section 188 - Operation of this Division
2406. This proposed section would define what is meant by the term civil
remedy provisions. It would provide that civil remedy provisions
means:
. section 178;
. another provision of this Act declared to be a civil remedy
provision; and
. another provision of the WR Act that provides a remedy for a
contravention of a civil remedy provision.
New section 189 - Involvement in contravention treated in same way
as actual contravention
2407. This proposed section would establish that a person involved in a
contravention of a civil remedy provision is to be treated as having
contravened that provision personally. The term involved in would
be defined for the purposes of this section by subsection 189(2).
New section 190 - Civil evidence and procedure rules for civil
remedy orders
2408. This proposed section would provide that a court hearing a matter
under a civil remedy provision must apply the rules of evidence and
procedure for civil matters.
New section 191 - Recovery of pecuniary penalties
2409. This proposed section would provide that a pecuniary penalty payable
under a civil remedy provision may be recovered as a debt due to the
person to whom that penalty is payable. A pecuniary penalty would
be payable to a person where an order to this effect is made under
paragraph 356(b).
New section 192 - Civil proceedings after criminal proceedings
2410. Under this proposed section, a court must not make an order under a
civil remedy provision that requires a person to pay a pecuniary
penalty if that person has been convicted of an offence which
relates to substantially the same conduct to which the order could
otherwise be made. This proposed section would ensure that a person
who is convicted of a criminal offence would not also face a
pecuniary penalty in relation to the same conduct.
Illustrative Example
Benita operates a bakery which employs Sam. Sam and some of her fellow
employees have been engaging in industrial action, in contravention of an
order of the AIRC to stop that action under section 111. Contravening an
order of the AIRC would be an offence under proposed subsection 299(3) of
the WR Act. If Sam is convicted of an offence under this provision, this
proposed section would operate to prevent a court from subsequently
ordering Sam to pay a pecuniary penalty under subsection 178(1) for breach
of an applicable provision (namely an order of the AIRC).
New section 193 - Criminal proceedings during civil proceedings
2411. This proposed section would set out the interrelationship between
criminal and civil proceedings that relate to conduct of a person
which may be a breach of a civil remedy provision. Under subsection
193(1), proceedings for a order under a civil remedy provision which
would require that person to pay a pecuniary penalty would be stayed
where:
. criminal proceedings are started, or have already been started,
against the person for an offence; and
. the offence is constituted by conduct that is substantially the
same as the conduct in relation to which an order under a civil
remedy provision is proposed to be made.
2412. Under subsection 193(2), proceedings for an order under a civil
remedy provision would be able to be resumed if the person was not
convicted of an offence relating to that conduct. Alternatively, if
the person is convicted of an offence, proceedings for an order
under a civil remedy provision would be dismissed.
Illustrative Example (continued)
Based on the previous example, if criminal proceedings in relation to the
breach of the section 111 order were commenced while the action under
subsection 178(1) for a civil penalty against Sam for breach of an
applicable provision were still on foot, this section would operate to stay
the civil action pending the outcome of the criminal proceedings. Benita's
proceedings for a pecuniary penalty would be dismissed if Sam were
convicted of the offence for failing to comply with an order of the AIRC.
However, if she were found not guilty, the civil proceedings could be
resumed.
New section 194 - Criminal proceedings after civil proceedings
2413. This proposed section would provide that criminal proceedings may be
commenced against a person for conduct that is substantially the
same as that for which a pecuniary penalty has been imposed.
New section 195 - Evidence given in proceedings for pecuniary
penalty not admissible in criminal proceedings
2414. This proposed section would provide that evidence given in
proceedings for a pecuniary penalty is inadmissible in subsequent
criminal proceedings which relate to substantially the same conduct.
This proposed section would not, however, apply in respect of a
criminal proceeding for false evidence given by the individual in
proceedings under a civil remedy provision.
New section 196 - Civil double jeopardy
2415. This proposed section would apply the double jeopardy principle to
civil remedy provisions under the WR Act. Under this proposed
section, a person would not be liable to pay a pecuniary penalty
under another law of the Commonwealth relating to conduct that was
substantially the same as that for which they have already been
ordered to pay a pecuniary penalty under a civil remedy provision.
Item 193 - Parts VIIIA, IX and XA
2416. This item would repeal Parts VIIIA, IX and XA and substitute new
Parts IX and XA.
Part IX - Right of Entry
2417. The proposed right of entry provisions would enhance the right of
entry system to clearly spell out parties' rights and
responsibilities. The right of entry provisions would:
. strengthen the provisions for dealing with the issue, suspension
and revocation of right of entry permits;
. impose a 'fit and proper person' requirement for organisation
officials seeking a right of entry permit;
. more clearly set out the rights and obligations of organisation
officials, employers and occupiers of premises; and
. empower the AIRC to deal with abuses of the right of entry system.
2418. The proposed right of entry regime would impose additional
conditions upon the exercise of certain rights of entry provided
under occupational health and safety legislation, within
constitutional limitations.
2419. The proposed right of entry provisions would expand the grounds for
suspension and revocation of permits and would require a Registrar
to suspend or revoke a permit in certain circumstances, including
where the permit holder's right of entry under State law has been
cancelled or suspended. The AIRC would also be explicitly empowered
to make orders to address abuse of the right of entry system.
Division 1 - Preliminary
New section 197 - Objects of this Part
2420. Proposed section 197 would set out the objects of this Part, in
addition to the principal object in section 3 of the WR Act. These
objects are to:
. establish a framework that balances the right of organisations to
represent their members in the workplace and the right of
occupiers and employers to conduct their business without undue
interference or harassment;
. ensure that permit holders are fit and proper persons and
understand their rights and obligations under this Part;
. ensure that occupiers and employers understand their rights and
obligations under this Part; and
. ensure that permits are suspended or revoked where rights granted
under this Part are misused.
New section 198 - Definitions
2421. Proposed section 198 would define a number of terms used in this
Part, including:
. OHS law, which would be defined as a law of a State or Territory
prescribed by the regulations; and
. authority documents, which are relevant to the exercise of a right
of entry onto premises by a permit holder, would be defined as the
permit holder's permit together with one of an entry notice, an
exemption certificate or an order of the AIRC.
New section 199 - Form of entry notice
2422. Proposed section 199 would require the Registrar to approve a form
of entry notice in writing (subsection 199(1)).
2423. Subsection 199(2) would set out the particulars that the form must
include. These are:
. the premises that are proposed to be entered;
. the organisation in respect of which the relevant permit was
issued;
. any other matters or information prescribed by the regulations.
2424. However, subsection 199(2) would not limit the matters which may be
required by, or contained in, the form of entry notice (subsection
199(3)).
New section 200 - Extraterritorial extension
2425. Subsection 200(1) would extend the application of the Part (and
related provisions of the WR Act) to premises in Australia's
exclusive economic zone owned or occupied by an Australian employer
(as defined in subsection 4(1)). The subsection would have effect
subject to Australia's international law obligations in relation to
foreign-flagged ships and foreign-registered aircraft so that
consideration would need to be given to those obligations in any
case where it was intended to seek to board a foreign-flagged ship
or foreign-registered aircraft.
2426. Subsection 200(2) would extend the application of the Part (and
related provisions of the WR Act) to premises in, on or over a
prescribed part of Australia's continental shelf beyond the
exclusive economic zone. The extension would operate only if the
premises were connected with the exploration of the continental
shelf or the exploitation of its resources and the requirements
prescribed in the regulations were met. In making regulations,
account would be taken of Australia's international law obligations
in relation to foreign-flagged ships and foreign-registered aircraft
and its obligations in relation to matters in, on or over the
continental shelf (including under agreements with other countries
in relation to particular areas of the continental shelf). The
legislative note to subsection 200(3) would make clear that the
regulations could prescribe different requirements for different
parts of the continental shelf, including for reasons connected with
Australia's international obligations.
2427. Subsection 200(3) would provide a specific definition of this Act
for the purposes of section 200. This is because the definition of
this Act in subsection 4(1) (which would otherwise apply) does not
include the Registration and Accountability of Organisations
Schedule and regulations made under it. The specific definition
would ensure that the extraterritorial extension under subsection
200(1) would apply to that Schedule and those regulations so far as
they relate to Part IX.
Division 2 - Issue of permits
New section 201 - Issue of permit
2428. Proposed section 201 would provide for the issuing of a permit by
the Registrar to an official of an organisation who is named in an
application by the organisation (subsections 201(1) and (2)). The
term official would be defined in proposed section 198 to include
both an officer and employee of an organisation.
2429. Subsection 201(3) would provide that the permit must include any
conditions imposed by the Registrar (under proposed section 202),
and any conditions imposed by the AIRC on the permit for abuse of
the permit system (under proposed section 231).
2430. Subsection 201(4) would provide that regulations may be made on a
number of matters relating to the application for, and issue of,
permits under proposed section 201. For instance, the regulations
may specify the documents that must accompany an application for a
permit and the form of the permit (subsection 201(4)).
New section 202 - Imposition of permit conditions at time of issue
2431. Proposed section 202 would provide that at the time a permit is
issued a Registrar may impose conditions on that permit that limit
its effect. In deciding whether to impose any conditions, the
Registrar must have regard to the list of matters specified in
proposed subsection 203(2), which relate to whether the applicant
for a permit is a fit and proper person.
2432. A legislative note would indicate that the conditions that might be
imposed could include a limit on the range of premises to which a
permit applies, or the time of day when entry may be made.
New section 203 - Permit not to be issued in certain cases
2433. Proposed section 203 would set out the circumstances where an
application for a permit must be refused.
2434. Subsection 203(1) would provide that a Registrar must not issue a
permit to an official unless the Registrar is satisfied that the
official is a fit and proper person to hold the permit having regard
to the matters referred to in subsection 203(2). These include
whether:
. the official has received appropriate training about the rights
and responsibilities of a permit holder;
. the official has ever been convicted of a certain type of offence;
. the official or any other person (such as the official's
organisation) has ever been ordered to pay a penalty under any
Commonwealth, State or Territory industrial law in respect of the
official's conduct (a penalty may be imposed for a contravention
of a civil remedy provision as defined in the Bill or for a breach
of a State or Territory industrial law);
. a previous permit issued to the official under the proposed Part
IX, or under the repealed right of entry provisions, has been
revoked, suspended or made subject to conditions; or
. the official's right of entry for industrial purposes under a
State or Territory industrial law or an OHS law has ever been
suspended, cancelled, or had conditions imposed on it, or the
official has been disqualified under a State or Territory
industrial law or an OHS law from exercising or applying for a
right of entry for industrial purposes.
2435. A legislative note would be inserted beneath proposed subsection
203(2) to make clear that Part VIIC of the Crimes Act 1914, which
deals with spent convictions, would apply to these provisions,
meaning that persons applying for a permit would not be required to
disclose a spent conviction.
2436. Subsections 203(3) and (4) would prohibit the Registrar from issuing
a permit in the following circumstances:
. where the issue is prevented by an order of the AIRC under
proposed section 231 (which would provide that the AIRC may revoke
a permit because an organisation or official for an organisation
has abused the rights conferred on a permit holder) or under
proposed section 233 (which would provide the AIRC with power to
make orders to settle disputes about right of entry);
. during a disqualification period specified by a Registrar under
proposed section 205, which would provide for the revocation and
suspension of a permit by a Registrar; or
. where an official's right of entry has been suspended under a
State industrial law or an OHS law, or that person has been
disqualified from exercising or applying for a right of entry
under State industrial law or an OHS law.
Division 3 - Expiry, revocation, suspension etc. of entry permits
New section 204 - Expiry of permit
2437. Proposed section 204 would provide that a permit remains in force
for three years from the date of issue unless it is revoked or the
permit holder ceases to be an official of the organisation before
that date, whichever happens first.
New section 205 - Revocation, suspension etc. by Industrial
Registrar
2438. Proposed section 205 would provide for the revocation or suspension
of permits or the imposition of conditions on permits, by a
Registrar. An application would be able to be made by a workplace
inspector or a prescribed person. Any application would be required
to be in accordance with the regulations.
2439. The Registrar may revoke, suspend or impose conditions on one or
more permits held by the permit holder, having regard to the matters
specified in subsection 203(2) (subsections 205(2) and (3)).
2440. Subsections 205(4) and (5) would provide that the Registrar must
revoke or suspend a permit where:
. the permit holder was found to have contravened proposed section
229, which would prohibit misrepresentations about right of entry;
. the permit holder was ordered to pay a penalty under the WR Act in
respect of a contravention of the right of entry provisions;
. the permit holder's right of entry for industrial purposes under a
State industrial law was cancelled or suspended or the permit
holder has been disqualified under a State industrial law from
exercising or applying for a right of entry for industrial
purposes; or
. the permit holder has, in exercising right of entry under an OHS
law, engaged in conduct that was not authorised by the OHS law.
2441. Subsection 205(7) would provide that a period of suspension or
revocation under subsection 205(4) must be for at least the minimum
disqualification period. This means:
. three months on the first occasion a Registrar takes action under
subsection 205(7);
. 12 months on the second occasion; or
. five years on the third and any subsequent occasion.
2442. The Registrar's decision would be appealable under section 81 of the
WR Act.
2443. Subsection 205(6) would provide that the AIRC may quash or vary a
mandatory revocation or suspension of a permit (pursuant to
paragraphs 205(5)(b) or (e)) where the AIRC is satisfied that the
revocation or suspension was harsh or unreasonable in the
circumstances. For example, if a permit was revoked due to conduct
not being authorised by a State OHS law, the AIRC may quash the
revocation of the federal permit if it is satisfied that the conduct
was of such a minor or petty nature that revocation was unduly harsh
or unreasonable in the circumstances.
New section 206 - Revoked etc. permit must be returned to Registrar
2444. Proposed section 206 would require a permit holder to return his or
her permit to a Registrar within seven days of its revocation,
expiration, suspension or when conditions are imposed on the permit
after is issued (subsection 206(1)).
2445. Subsection 206(1) would be a civil remedy provision.
2446. In the case of a suspended permit, subsection 206(3) would require a
Registrar to return the permit if the permit holder or the permit
holder's organisation requests its return and the Registrar is
satisfied that the permit is still in force.
New section 207 - Extra conditions to be endorsed on permit
2447. Proposed section 207 would provide that where conditions are imposed
on a permit by a Registrar (under proposed section 205) or by the
AIRC (under proposed section 231), the permit ceases to have effect
until the Registrar has endorsed the conditions on the permit.
Division 4 - Right of entry to investigate suspected breaches
2448. Division 4 would set out the circumstances in which a permit holder
for an organisation may seek entry to investigate suspected breaches
of the WR Act or relevant industrial instruments. The general rule
would be set out in proposed section 208. Proposed sections 210 and
212 - 214 would impose limitations on the right of entry.
2449. The proposed provisions in Division 4 would not apply to entry by
consent. In such a case, it is the consent that authorises entry,
not the provisions of Division 4.
New section 208 - Right of entry to investigate breach
2450. Proposed section 208 would set out the circumstances in which a
permit holder for an organisation may enter premises to investigate
a suspected breach of the WR Act or a relevant industrial
instrument.
2451. Subsection 208(1) would authorise a permit holder for an
organisation to enter premises for the purpose of investigating a
suspected breach of:
. the WR Act; or
. an award, collective agreement or order under the WR Act binding
on the permit holder's organisation.
2452. Subsection 208(1) would provide that a right of entry must only be
exercised:
. during working hours;
. to enter premises where work is being carried out by one or more
employees who are members of the permit holder's organisation; and
. where the suspected breach relates to or affects that work of any
of those employees.
2453. Proposed paragraph 208(1)(b) would provide that a permit holder may
enter premises to investigate the suspected breach of an AWA.
However, this is qualified by proposed subsection 208(2) which would
provide that right of entry to premises to investigate a suspected
breach of an AWA may only be exercised where the employee who is a
party to the AWA makes a written request to the organisation to
investigate the breach.
2454. A permit holder must have reasonable grounds for believing there is
a suspected breach for the entry to be valid.
New section 209 - Rights of permit holder after entering premises
2455. Proposed section 209 would specify what permit holders may do after
entering premises for the purpose of investigating a suspected
breach.
2456. Subsections 209(2) and (4) would provide that while on premises,
permit holders can, in order to investigate a suspected breach,
exercise a number of rights during working hours including:
. inspecting machinery or materials;
. interviewing employees who are members or are eligible to be
members of the permit holder's organisation; and/or
. requiring an affected employer to produce or allow access to any
records relevant to the suspected breach other than non-member
records - the term non-member record would be defined in
subsection (12).
2457. Subsection 209(3) would make it clear, for the avoidance of doubt,
that a refusal or failure by a person to participate in an interview
under subsection 209(2) would not constitute conduct covered by
section 149.1 of the Criminal Code (which relates to obstruction of
Commonwealth officials).
2458. Subsection 209(5) would authorise a permit holder to issue a notice
to require an affected employer to, on a later day or days specified
in the notice:
. produce or allow access to records (other than non-member records)
relevant to the suspected breach at the premises or at another
agreed place; and/or
. allow the permit holder to inspect and make copies of any of these
records during working hours.
2459. The day or days specified in the notice would have to be at least 14
days after the day on which the notice is given (subsection 209(6)).
2460. Subsection 209(7) would provide that before exercising rights under
subsections 209(4) or (5), the permit holder must show the employer
specified documents (authority documents as defined in proposed
section 198) evidencing the authority to exercise right of entry.
2461. Subsection 209(8) would entitle a permit holder to enter premises
during working hours for the purpose of inspecting and copying the
records under a notice in subsection 209(5). A legislative note
would be inserted under proposed subsection 209(8) to highlight that
the Privacy Act 1988 has rules about the disclosure of personal
information which may be applicable to personal information acquired
through exercise of powers under proposed section 209.
2462. Upon application by a permit holder (subsection 209(9)) in
accordance with the regulations and setting out the grounds upon
which the application is made (subsection 209(11)), the AIRC would
have discretion to order access to non-member records if it is
satisfied that access is necessary to investigate the suspected
breach. Before making such an order, the AIRC would be required to
have regard to any conditions that apply to the permit holder's
permit (subsection 209(10)).
2463. If the permit holder obtains an order under subsection 209(10) then
the entry would be authorised by the order and will be subject to
any conditions in the order.
2464. Subsection 209(12) would define the terms non-member record and
record relevant to the suspected breach.
New section 210 - Limitation on rights - entry notice or exemption
certificate
2465. Proposed section 210 would provide that entry to premises under
proposed section 208 is not authorised unless the notice
requirements in either subsection 210(2) or (3) are complied with.
2466. Subsection 210(2) would provide that a permit holder is not
authorised to enter premises pursuant to an entry notice under
proposed section 210 unless:
. the permit holder has given an entry notice to the occupier of the
premises during working hours at least 24 hours, but not more than
14 days, before the entry;
. the notice specifies entry is authorised under proposed section
208 and identifies the particulars of the suspected breach or
breaches. The requirement to specify particulars means that
specific details of the alleged breach must be provided beyond
merely identifying what instrument or areas of the Bill are
alleged to have been breached. The details should be sufficiently
specific to enable the employer to identify which particular parts
of the business or categories of employees are affected by the
alleged breach; and
. entry is on the day specified in the notice.
2467. Subsection 210(3) would provide that a permit holder is not
authorised to enter premises under proposed section 208 pursuant to
an exemption certificate unless:
. a copy of the exemption certificate issued under proposed section
211 is given to the occupier of the premises not more than 14 days
before the entry.
. entry is on the day specified in the certificate; and
. the premises are those specified in the certificate.
2468. Subsection 210(4) would provide that conduct after entry under
proposed section 209 is not authorised unless the conduct is for the
purpose of investigating a suspected breach identified in the entry
notice.
2469. Proposed section 210 would relate to entry authorised by proposed
section 208, not entry in other circumstances. Accordingly,
proposed section 210 would not be applicable to entry to inspect
records at a later agreed time (under subsection 209(8)) or entry
under an AIRC order to enter premises to inspect non-member records
(under subsection 209(10)).
New section 211 - Exemption from requirement to provide entry notice
2470. Proposed section 211 would allow an organisation to apply for a
certificate exempting it from the notice requirements for entry onto
premises under proposed section 209 (subsection 211(1)).
2471. A Registrar would be required to issue such a certificate if
satisfied that there are reasonable grounds for believing that
advance notice of entry might result in relevant evidence being
destroyed, altered or concealed (subsection 211(2)).
2472. The exemption certificate would be required to specify certain
matters, including the premises and the organisation to which it
applies, the particulars of the suspected breach or breaches, the
day or days on which it operates and that proposed section 208 is
the section that authorises entry (subsection 211(3)).
2473. Subsection 211(4) would provide that regulations may be made in
relation to the form of application and of the exemption
certificate.
New section 212 - Limitation on rights - failure to comply with
requests of occupier or affected employer
2474. Proposed section 212 would provide that entry is not authorised
under proposed Division 4 unless a permit holder complies with
specific requests of an occupier or affected employer. A permit
holder would not be authorised to enter or remain on premises if the
permit holder fails to comply with a request by an occupier or
affected employer to:
. produce documents evidencing authority to enter premises
(subsection 212(1));
. observe occupational health and safety requirements that apply to
the premises, provided the request is reasonable (subsection
212(2)); and/or
. conduct interviews in a particular room or area of the premises or
to take a particular route to reach a particular room or area of
the premises to conduct an interview, provided the request is
reasonable (subsection 212(3)).
2475. Subsection 212(4) would make it clear that a request to conduct
interviews in a particular room or take a particular route to reach
a particular room or area of the premises is not unreasonable merely
because it is not the room, area or route that the permit holder
would have chosen.
2476. Proposed section 232 would allow the AIRC to make whatever orders it
considers appropriate if it is satisfied that a request by an
employer or occupier of premises is not a reasonable request.
New section 213 - Limitation on rights - residential premises
2477. Proposed section 213 would provide that proposed Division 4 does not
authorise a person to enter any part of premises that is used for
residential purposes.
New section 214 - Limitation on rights - permit conditions
2478. Proposed section 214 would provide that, other than in relation to
entry authorised by the AIRC under subsection 209(10), a permit
holder's rights under proposed Division 4 are subject to any
conditions that apply to his or her permit.
New section 215 - Burden of proving reasonable grounds for
suspecting breach
2479. Proposed section 215 would provide that the burden of proving the
existence of reasonable grounds for suspecting a breach, as
mentioned in proposed section 208, is on the person asserting the
existence of those grounds. This is designed to ensure that a
permit holder's suspicion of a breach is objectively reasonable
having regard to the information in the possession of the permit
holder at the time of the purported exercise of the right of entry.
Division 5 -Entry for OHS purposes
2480. Division 5 would impose additional conditions on right of entry
pursuant to State or Territory OHS legislation. No additional
rights of entry would be conferred by Division 5.
2481. State and Territory OHS laws contain their own limitations and
obligations for permit holders for when they seek to exercise OHS
right of entry. These limitations would continue to apply.
New section 216 - OHS entries to which this Division applies
2482. Proposed section 216 would set out the types of entry to premises to
which the provisions in proposed Division 5 would apply, including
where:
. the premises are occupied or otherwise controlled by a
constitutional corporation or the Commonwealth; or
. the premises are located in a Territory; or
. the premises are, or are located in, a Commonwealth place; or
. the right relates to requirements to be met by a constitutional
corporation or the Commonwealth in its capacity as an employer, an
employee of a constitutional corporation or the Commonwealth, or a
contractor providing services for a constitutional corporation or
the Commonwealth; or
. the right relates to conduct engaged in, or activity undertaken or
controlled, by a constitutional corporation or the Commonwealth in
its capacity as an employer, an employee of a constitutional
corporation or the Commonwealth, or a contractor providing
services for a constitutional corporation or the Commonwealth; or
. the exercise of the right will have a direct effect on a
constitutional corporation or the Commonwealth in its capacity as
an employer, an employee of a constitutional corporation or the
Commonwealth, or a contractor providing services for a
constitutional corporation or the Commonwealth.
New section 217 - Permit required for OHS entry
2483. Proposed section 217 would require that an official of an
organisation who seeks to exercise any right of entry under a State
or Territory OHS law to premises covered by proposed section 216
must hold a right of entry permit under the proposed right of entry
provisions and exercise that right during working hours (subsection
217(1)).
2484. Subsection 217(1) would be a civil remedy provision.
New section 218 - Rights to inspect employment records after
entering premises
2485. Proposed section 218 would impose conditions on any rights that a
permit holder may have under an OHS law to inspect employment
records. The conditions are that the permit holder would need to:
. enter the premises in accordance with proposed section 217;
. provide 24 hours notice; and
. provide the reasons for seeking to exercise such right(s). The
permit holder would need to provide reasons why the inspection of
the employment records is relevant to the performance of the
permit holder's function under the State OHS law.
2486. Proposed section 218 would not impose any limitation as to when the
required 24 hours notice to inspect employment records could be
provided. Accordingly, the 24 hours notice could be provided
before, during or after the permit holder has entered premises in
accordance with proposed section 217.
2487. Proposed section 218 would not confer any additional rights to
inspect documents. The right to inspect documents (including
employment records) would remain subject to the provisions of the
relevant State OHS law.
New section 219 - Limitation on OHS entry - failure to comply with
requests of occupier
2488. Subsection 219(1) would provide that a person seeking to exercise,
or exercising, a right of entry under a State or Territory OHS law,
must not enter or remain on the premises unless that person produces
his or her permit for inspection if requested to do so by the
occupier of the premises.
2489. Subsection 219(3) would provide that if a permit holder fails to
comply with a reasonable request (by the occupier of a premises) to
comply with an OHS requirement that applies to the premises, the
permit holder must not enter, or remain on, the premises.
2490. Subsections 219(2) and (4) would provide that subsections 219(1) and
(3) are civil remedy provisions.
2491. Proposed section 232 would allow the AIRC to make whatever orders it
considers appropriate if it is satisfied that a request by an
occupier of premises is not a reasonable request.
New section 220 - Limitation on OHS entry - permit conditions
2492. Proposed section 220 would provide that a permit holder's right to
enter premises under an OHS law in accordance with proposed section
217 is subject to any conditions that apply to the permit.
Division 6 - Right of entry to hold discussions with employees
2493. Proposed Division 6 would set out the circumstances in which a
permit holder for an organisation may enter premises to hold
discussions with employees. The general rule would be set out in
proposed section 221. Proposed sections 222 - 227 would impose
limitations on the right of entry.
2494. The rules in proposed Division 6 would not apply to entry by
consent. In such a case, it is the consent that authorises entry,
not the provisions of proposed Division 6.
New section 221 - Right of entry to hold discussions with employees
2495. Proposed section 221 would authorise a permit holder for an
organisation to enter premises for the purpose of holding
discussions with any employee who wishes to participate in those
discussions, provided the employee:
. carries out work on the premises which is covered by an award or
collective agreement that binds the permit holder's organisation;
and
. is a member or eligible to be a member of the permit holder's
organisation.
New section 222 - Limitation on rights - times of entry and
discussions
2496. Proposed section 222 would provide that a permit holder may only
enter premises in accordance with proposed section 221 during
working hours and may only hold discussions during the employees'
meal-time or other breaks.
New section 223 - Limitation on rights - conscientious objection
certificates
2497. Proposed section 223 would provide that a permit holder is not
authorised to enter premises if an employer:
. employs all the employees at the premises and holds a
conscientious objection certificate in force under section 180 of
Schedule 1B to the WR Act which has been endorsed under subsection
223(2), or under section 285C of the repealed Part IX; and
. employs 20 or fewer employees at the premises, none of whom are
members of an organisation.
2498. A Registrar may only endorse a certificate if satisfied that the
employer is a practising member of a religious society or order
whose beliefs preclude membership of any other body.
New section 224 - Limitation on rights - entry notice
2499. Proposed section 224 would provide that proposed Division 6 does not
authorise entry to premises or subsequent conduct on the premises
unless:
. a permit holder gave an entry notice to the occupier at least 24
hours but not more than 14 days before the entry;
. the notice specifies proposed section 221 as authorising the
entry; and
. the entry is on a day specified in the notice.
New section 225 - Limitation on rights - residential premises
2500. Proposed section 225 would provide that proposed Division 6 does not
authorise entry onto any part of premises that is used for
residential purposes.
New section 226 - Limitation on rights - failure to comply with
requests of the occupier or affected employer
2501. Proposed section 226 would provide that unless a permit holder
complies with specified requests of occupiers or affected employers,
entry is not authorised under proposed Division 6 to hold
discussions. Specifically, a permit holder would have to comply
with a request to:
. produce documents evidencing authority to enter premises
(subsection 226(1));
. observe occupational health and safety requirements that apply to
the premises, provided the request is reasonable (subsection
226(2)); and/or
. hold discussions in a particular room or area of the premises or
to take a particular route to reach a particular room or area of
the premises to hold discussions, provided the request is
reasonable (subsection 226(3)).
2502. Subsection 226(4) would make it clear that a request to hold
discussions in a particular room or take a particular route to reach
a particular room or area of the premises is not unreasonable merely
because it is not the room, area or route that the permit holder
would have chosen.
2503. Proposed section 232 would allow the AIRC to make whatever orders it
considers appropriate if it is satisfied that a request by an
employer or occupier of premises is not a reasonable request.
New section 227 - Limitation on rights - permit conditions
2504. Proposed section 227 would provide that a permit holder's rights
under proposed Division 6 are subject to any conditions that apply
to the permit (eg. conditions imposed by the AIRC or the
Registrar).
Division 7 - Prohibitions
New section 228 - Hindering, obstruction etc. in relation to this
Part
2505. Proposed section 228 would prohibit certain conduct in relation to
the exercise of powers under proposed Part IX or under a State or
Territory OHS law in accordance with proposed section 217,
including:
. a permit holder intentionally hindering or obstructing any person,
or otherwise acting in an improper manner (subsection 228(1));
. a person intentionally hindering or obstructing a permit holder
exercising rights under this Part or refusing or unduly delaying
entry to premises by a permit holder who is entitled to enter the
premises (subsections 228(3) and 228(7)); and
. an employer refusing or failing to comply with a requirement to
produce documents under subsections 209(4) or (5) (subsection
228(5)) .
2506. Subsection 228(9) would make it clear that a failure by a permit
holder and an affected employer to agree on a place to provide
access to documents for inspection under paragraph 209(5)(a) does
not constitute hindering or obstructing a permit holder.
2507. Subsection 228(10) would provide that a person could be found to
have hindered or obstructed a permit holder by engaging in conduct
after an entry notice has been given but before a permit holder
enters the premises. A legislative note provides an example that a
person may contravene the provisions by destroying, concealing or
manufacturing evidence relevant to a suspected breach prior to the
entry.
2508. Subsections 228(1), (3), (5) and (7) would be civil remedy
provisions.
New section 229 - Misrepresentations about right of entry
2509. Proposed section 229 would prohibit a person (the first person)
intentionally or recklessly giving an impression to a second person
that the first person, or another person, is authorised under
proposed Part IX to exercise particular rights.
2510. Examples of behaviour which this section would cover are:
. where a person seeks to enter premises pursuant to proposed Part
IX without a valid permit; or
. a permit holder does not comply with a condition attached to a
permit.
2511. Misrepresentations about being authorised to enter premises would
also include misrepresentations about a right to enter premises
under an order by the AIRC in subsection 209(10).
2512. Proposed subsection 229(1) would be a civil remedy provision
(subsection 229(3)).
Division 8 - Enforcement
New section 230 - Penalties etc. for contravention of civil remedy
provisions
2513. Proposed section 230 would provide that an eligible person would be
able to apply to the Federal Court of Australia or the Federal
Magistrates Court in respect of a contravention of a civil remedy
provision. An eligible person would be a workplace inspector, a
person affected by the contravention, or a person prescribed by the
regulations (subsection 230(5)).
2514. Subsection 230(1) would set out the orders that these courts could
make against a person who contravenes a civil remedy provision:
. a pecuniary penalty on the defendant;
. damages payable to a specified person; and
. any other order the Court thinks appropriate (including an
injunction pursuant to subsection 230(3)).
2515. Subsection 230(2) would provide that the maximum pecuniary penalty
that the courts could impose is 300 penalty units in the case of a
body corporate, or 60 penalty units in other cases (by operation of
section 4AA of the Crimes Act 1914, the value of a penalty unit is
currently $110).
2516. Subsection 230(5) would allow regulations prescribing a person as an
eligible person (ie a person able to bring proceedings for breach of
a civil remedy provision) to limit the circumstances in which the
person may make an application.
Division 9 - Powers of the Commission
2517. Proposed Division 9 would set out the specific powers available to
the AIRC to deal with matters under proposed Part IX. These
specific powers would be in addition to the general powers of the
AIRC contained in proposed Subdivision B of Division 3A of Part II.
Some of the right of entry powers would be based on the existing
powers provided for in the WR Act.
New section 231 - Orders by Commission for abuse of system
2518. Proposed section 231 would allow the AIRC to make orders restricting
the rights of an organisation which, or an official of an
organisation who, has abused rights conferred by this Part
(subsection 231(1)). The AIRC would be able to make an order on its
own motion or on application by a workplace inspector (subsection
231(2)).
2519. The AIRC may:
. revoke or suspend some or all of the permits that have been issued
in respect of the organisation. This would enable the AIRC to
revoke permits issued to sections of an organisation, for example
a particular branch of an organisation;
. impose conditions on some or all of the permits that have been
issued in respect of an organisation or might in the future be
issued in respect of the organisation; and/or
. ban the issue of permits for a specified period in relation to a
specified person or in respect of the organisation generally
(subsection 231(3)).
2520. An organisation, or official of an organisation who is subject to an
order would be required to comply with the order (subsection
231(4)).
2521. Subsection 231(5) would state that subsection 231(4) is a civil
remedy provision.
2522. Subsection 231(6) would provide that the AIRC's powers to make
orders under this section may only be exercised by the President or,
if the President directs, another Presidential member or a Full
Bench.
2523. Subsection 231(7) would, without limiting subsection 231(1), provide
that engaging in recruitment conduct that is unduly disruptive
either because it is excessive in the circumstances or for some
other reason would constitute the abuse of rights conferred by
proposed Part IX. Recruitment conduct is defined in proposed
subsection 231(8) to mean encouraging employees to become members of
an organisation.
New section 232 - Unreasonable requests by occupier or affected
employer
2524. Proposed section 232 would allow the AIRC to make whatever orders it
considers appropriate in respect of the rights of a permit holder to
enter premises to investigate breaches, hold discussions, or for OHS
purposes if it is satisfied that the occupier of the premises has
made a request to a permit holder under proposed section 212, 219 or
226 that is not a reasonable request (subsection 232(1)).
2525. For example, a request would not be unreasonable merely because the
employer did not provide the room or area chosen by the permit
holder. However, a request would be unreasonable if it involved
specifying a room or particular area of premises for interviews or
discussions that was patently inadequate for the purpose.
2526. Subsection 232(2) would empower the AIRC to make a range of orders,
including an order authorising access to premises for specified
purposes.
2527. Subsection 232(3) would provide for the AIRC's powers to make orders
under this section to be exercised only by the President or, if the
President directs, another Presidential member or a Full Bench.
2528. Subsection 232(4) would empower the AIRC to act on application or on
its own motion.
New section 233 - Disputes about the operation of this Part
2529. Proposed section 233 would permit the AIRC to settle disputes about
the operation of proposed Part IX.
2530. Subsection 233(2) would provide for an application to be made by a
permit holder, a permit holder's organisation, an affected employer,
an occupier of OHS premises or a person who employs employees who
carry out work on OHS premises.
2531. Subsection 233(3) would provide that in making any order, the AIRC
must have regard to fairness between the parties concerned and must
not confer rights that are additional to, or inconsistent with,
rights exercisable under proposed Part IX.
2532. Subsection 233(4) would make it clear that the AIRC has the power,
for the purpose of settling a dispute, to revoke, suspend or impose
limiting conditions on a right of entry permit issued under this
Part.
2533. Subsection 233(5) would define limiting condition and OHS premises.
New section 234 - Powers of inspection
2534. Proposed section 234 would provide the AIRC with powers to conduct
inspections where relevant to a proceeding under Part IX.
2535. Subsection 234(1) would provide that a member of the AIRC may at any
time during working hours:
. enter prescribed premises;
. inspect or view, among other things, any work, machinery or
document on the premises;
. interview on the premises any employee who is usually engaged in
work on the premises.
2536. Subsection 234(2) would provide a definition of prescribed premises.
New section 235 - Parties to proceedings
2537. Proposed section 235 would provide the AIRC with the power to direct
parties to be joined or struck out as parties to proceedings under
proposed Part IX.
New section 236 - Kinds of orders
2538. Proposed 236 would provide the AIRC with the power to make certain
types of orders relevant to right of entry matters, including:
. consent orders;
. provisional or interim orders; and
. orders that engaging in conduct in breach of a specified term of
an order is taken to be a separate breach of the term on each day
the conduct continues.
New section 237 - Relief not limited to claim
2539. Proposed section 237 would provide that in making an order in
proceedings under proposed Part IX, the AIRC is not restricted to
the specific relief claimed by the parties concerned, but may
include anything in the order which the AIRC considers necessary or
expedient for the purposes of dealing with the proceeding.
New section 238 - Publishing orders
2540. Proposed section 238 would impose a number of obligations on the
AIRC and the Registrar in relation to orders made by the AIRC,
including that:
. the AIRC must express an order in plain English and must promptly
put the order in writing and provide it to a Registrar;
. a Registrar must promptly provide the order and any written
reasons to the relevant parties and arrange for the order and
written reasons to be published as soon as practicable.
Part XA - Freedom of Association
2541. The proposed provisions would replicate and build on the pre-reform
freedom of association provisions and add specific measures to
improve freedom of association protection.
2542. Proposed Part XA would apply broadly to employers, employees,
independent contractors and industrial associations to the extent
possible having regard to the constitutional powers relied upon.
2543. The proposed freedom of association provisions would enhance freedom
of association protection by introducing a small number of general
prohibitions dealing with the most common forms of inappropriate
conduct that are contrary to rights to freedom of association.
2544. The general prohibitions would deal with matters including coercion
in relation to joining and resigning from an industrial association,
industrial action because of a person's membership status and
misrepresentations about requirements to become a member of an
industrial association.
2545. The proposed freedom of association provisions would ensure that
independent contractors are better protected in relation to freedom
of association, including by prohibiting discrimination and coercion
in relation to whether or not a person has a particular type of
workplace agreement covering their employees.
2546. Civil remedies would be available where there is a breach of the
proposed freedom of association provisions.
Division 1 - Preliminary
New section 239 - Objects of Part
2547. Proposed section 239 would set out the objects of proposed Part XA,
which are in addition to the principal object set out in proposed
section 3, particularly:
. that employers, employees and independent contractors are free to
join or not join an industrial association as they may choose;
. that employers, employees and independent contractors are not
discriminated against or victimised by virtue of that choice;
. to provide effective relief to employers, employees and
independent contractors who are prevented or inhibited from
exercising their rights to freedom of association; and
. ensuring there are effective remedies to address conduct which
infringes the rights to freedom of association.
New section 240 - Definitions
2548. Subsection 240(1) would contain definitions relevant to the
operation of proposed Part XA, including:
. bargaining services would be defined to mean services provided by
or on behalf of an industrial association in relation to an
agreement, or proposed agreement, under proposed Part VB
(including the negotiation, making, approval, lodgment, operation,
extension, variation or termination of the agreement);
. bargaining services fee would be defined to mean a fee, other than
membership dues, payable to an industrial association or to
someone else in lieu of an industrial association, wholly or
partly for the provision, or purported provision of bargaining
services; and
. threat would mean a threat of any kind, whether direct or indirect
and whether express or implied.
New section 241 - Meaning of industrial action
2549. Proposed section 241 would provide that, for the purposes of
proposed Part XA, the definition of industrial action has effect as
if the words employer, employee and employment had their ordinary
meaning, rather than any expanded or limited meaning otherwise given
to them by the WR Act.
New section 242 - Meaning of office
2550. Proposed section 242 would provide for a meaning of office, in
relation to an association, as relevant to proposed Part XA.
Division 2 - Conduct to which this Part applies
2551. Proposed Division 2 would set out the constitutional basis for the
provisions of proposed Part XA.
2552. It is intended that proposed Part XA would apply broadly to
employers, employees, independent contractors and industrial
associations to the extent possible having regard to the
constitutional powers relied upon. It is intended that a range of
constitutional powers would be relied upon, including the
corporations power, the powers to deal with conduct by or affecting
the Commonwealth and Commonwealth authorities, the Territories power
and the Commonwealth places power.
New section 249 - Extraterritorial extension
2553. Proposed section 249 would extend the application of proposed Part
XA (and related provisions of the WR Act) to conduct outside
Australia. For this purpose, Australia extends to the Territory of
Christmas Island and the Territory of Cocos (Keeling) Islands and
the coastal sea (see section 15B and paragraph 17(a) of the Acts
Interpretation Act 1901).
2554. Proposed subsections 249(1), (2) and (3) would extend Part XA (and
related provisions of the WR Act) to conduct in Australia's
exclusive economic zone and continental shelf and to conduct outside
Australia and the exclusive economic zone and continental shelf
that:
. is by a registered organisation or an Australian-based employee
(or a group of persons including either of these), and affects
adversely, or is intended to affect adversely, an Australian
employer;
. is by an Australian employer or a group including an Australian
employer and affects adversely, or is intended to affect
adversely, an Australian-based employee; and
. affects adversely, or is intended to affect adversely, an
independent contractor who has a prescribed connection with
Australia or a group including such a contractor.
2555. Australian-based employee, Australian employer and organisation
would be defined for these purposes in subsection 4(1).
2556. The extension to Australia's continental shelf beyond the exclusive
economic zone would apply only if the employee was in a prescribed
part of that area and met the requirements prescribed by the
regulations for that part of the area. The legislative note to
subsection 249(2) would make it clear that the regulations could
prescribe different requirements for different parts of the
continental shelf, including for reasons connected with Australia's
international obligations.
2557. Subsection 249(4) would provide a specific definition of this Act
for the purposes of proposed section 249. This is because the
definition of this Act in subsection 4(1) (which would otherwise
apply) does not include the Registration and Accountability of
Organisations Schedule and regulations made under it. The specific
definition would ensure that the extraterritorial extension under
subsection 249(1) would apply to that Schedule and those regulations
so far as they relate to Part XA.
Division 3 - General prohibitions relating to freedom of association
2558. Proposed Division 3 would provide for a small number of general
prohibitions dealing with the most common forms of inappropriate
conduct that are contrary to rights to freedom of association.
2559. All of the proposed sections in proposed Division 3 would be civil
remedy provisions.
New section 250 - Coercion
2560. Proposed section 250 would prohibit a person from organising or
taking, or threatening to organise or take, action against another
person with intent to coerce the other person or a third person to:
. become, or not become, an officer or member of an industrial
association; or
. remain, or cease to be, an officer or member of an industrial
association.
New section 251 - False or misleading statements about membership
2561. Proposed section 251 would prohibit a person from making a false or
misleading representation about another person's:
. obligation to be or not to be, or to become or not to become or to
cease to be, an officer or member of an industrial association; or
. obligation to disclose whether he or she is, or has been, a member
of an industrial association or a particular industrial
association; or
. need to be, or not to be, an officer or member of an industrial
association or a particular industrial association, to obtain the
benefit of an industrial instrument.
2562. An example of a false or misleading statement about membership would
be a representation that describes a building site as a 'no ticket,
no start' site or as a 'union site' in a way that suggests or
implies that a person must be a member of an organisation to enter
or work on that site.
New section 252 - Industrial action for reasons relating to
membership
2563. Proposed section 252 would prohibit a person from organising or
taking, or threatening to organise or take, industrial action
against another person on the basis of whether or not that person
is, has been or proposes to be or not to be, or proposes to cease to
be, a member or officer of an industrial association.
Division 4 - Conduct by employers etc.
New section 253 - Dismissal etc. of members of industrial
associations etc.
2564. Proposed section 253 would prohibit an employer or other person from
doing, or threatening to do, for a prohibited reason as described in
proposed section 254, or for reasons that include a prohibited
reason, any of the matters set out in subsections 253(1) and (4).
These are, broadly, matters which harm persons who are employees in
relation to their employment, or independent contractors in relation
to their contract or proposed contract.
2565. A mistaken belief as to the existence of a prohibited reason would
be irrelevant as to whether an employer or other person contravenes
proposed section 253.
2566. Subsections 253(2) and (5) would provide that subsections 253(1) and
(4) respectively are civil remedy provisions.
2567. Subsections 253(3) and (6) would provide that if there is no
intention to employ or engage another person, then there cannot be a
refusal to employ or engage for the purposes of paragraphs 253(1)(d)
and (4)(d) respectively.
New section 254 - Prohibited reasons
2568. Subsection 254(1) would list matters, each of which would constitute
a prohibited reason if it motivates conduct referred to in
subsections 253(1) or (4). The list of prohibited reasons is
substantially based on the existing prohibitions in pre-reform
section 298L of the WR Act. The paragraphs detailing the prohibited
reasons would be alternative.
2569. Subsection 254(2) would deal with threats to engage in conduct
referred to in subsections 253(1) and (4). If the threat to engage
in that conduct is intended to dissuade or prevent a person from
doing something referred to in subsection 254(1) or to coerce the
person to do it, the threat is taken to have been made for that
prohibited reason. Threat would be defined in subsection 240(1) as
a threat of any kind, whether direct or indirect, express or
implied.
New section 255 - Inducements to cease membership etc. of
industrial associations etc.
2570. Proposed section 255 would prohibit an employer, or a person who has
engaged an independent contractor, from inducing an employee or the
independent contractor to:
. become, or not become, an officer or member of an industrial
association; or
. remain or cease to be, an officer or member of an industrial
association.
2571. Subsection 255(2) would provide for subsection 255(1) to be a civil
remedy provision.
Division 5 - Conduct by employees etc.
2572. Proposed Division 5 would concern conduct by employees or
independent contractors against certain persons for proscribed
reasons.
New section 256 - Cessation of work
2573. Subsection 256(1) would prohibit the cessation of work by an
employee or an independent contractor for the reasons set out in
proposed section 256. Those reasons are based on the prohibited
grounds in proposed section 254, to the extent that they are
applicable in this context.
2574. Subsection 256(1) would be a civil remedy provision.
Division 6 - Conduct by industrial associations etc.
2575. Proposed Division 6 would prohibit various types of conduct by
industrial associations, for proscribed reasons, against employers,
employees, members of industrial associations and independent
contractors.
New section 257 - Industrial associations acting against employers
2576. Proposed section 257 would safeguard employers from industrial
action taken or threatened by an industrial association for various
reasons, including:
. whether the employer is or is not an officer or member of an
industrial association; or
. to coerce the employer to or not to become, remain or cease to be
an officer or member of an industrial association; or
. to encourage the employer to take action which, if taken, would
contravene subsection 253(1); or
. to encourage an employer to harm an employee who has failed to
abide by a direction from the industrial association.
2577. Subsections 257(1), 257(3), 257(5) and 257(7) would be civil remedy
provisions.
New section 258 - Industrial associations acting against employees
etc.
2578. Subsection 258(1) is intended to protect the freedom of employees to
choose whether or not they wish to take part in industrial action,
and of their right to seek a secret ballot under an industrial law.
This would be done by prohibiting an industrial association from
taking, or threatening to take, action which has the effect of
prejudicing a person's employment or prospective employment to
coerce the person to participate in industrial action or to dissuade
or prevent them from seeking a secret ballot.
2579. Subsection 258(3) would prohibit an industrial association, or a
member or officer of an industrial association, from taking, or
threatening to take, action that has the effect of prejudicing a
person in his or her employment or prospective employment, and from
advising, encouraging or inciting another person to take such
action, if the reason for the action or conduct includes that the
person:
. does not propose to, has not agreed to pay, or has not paid, a
bargaining services fee;
. is, has been, proposes to become or has at any time proposed to
become an officer or member of an industrial association;
. is not, does not propose to be or proposes to cease to be a member
of an industrial association;
. has not paid, has not agreed to pay or does not propose to pay a
fee (however described) to an industrial association;
. has refused or failed to join in industrial action; or
. has made or proposes to make an inquiry or complaint to a person
or body having the capacity under an industrial law to seek
compliance with that law or the observance of a person's rights
under an industrial instrument.
2580. Subsections 258(1) and (3) would be civil remedy provisions.
New section 259 - Industrial associations acting against members
2581. Proposed section 259 would be similar to proposed section 258 in
many respects, but applies specifically to members of an industrial
association and intends to protect them from adverse action by the
industrial association, or by an officer or member of the industrial
association.
2582. Proposed section 259 would be a civil remedy provision.
New section 260 - Industrial associations acting against independent
contractors etc.
2583. Proposed section 260 is intended to provide protections for
independent contractors from victimisation by industrial
associations.
2584. Proposed section 260 would extend the existing equivalent provision
in the WR Act (section 298S) by an expanded range of prohibitions on
discriminatory action, including such action against an eligible
person:
. because of that person's membership of an industrial association
or non-membership;
. for the person's refusal or failure to comply with a direction
given by an industrial association;
. because the person did not, or proposes not to, pay a fee (however
described) to an industrial association; or
. because the person makes, or proposes to make, an inquiry or
complaint to a person or body having the capacity under an
industrial law to seek compliance with that law or the observance
of the person's rights under an industrial instrument.
2585. Subsection 260(2) would prohibit not only discriminatory conduct
against a person, but also conduct against any person employed or
engaged by that person.
2586. Subsection 260(4) would make it clear that the prohibitions in
subsection 260(2) do not prevent an industrial association from
entering into an agreement with another person for the supply of
goods or services to members of the industrial association (eg. by
offering discounted services to a member of the industrial
association).
2587. Subsection 260(5) would prohibit the taking of discriminatory action
for a prohibited reason, as defined in subsection 260(7).
2588. Subsection 260(7) would provide that conduct is for a prohibited
reason if it concerns the non payment of a bargaining services fee
as defined in subsection 240(1).
2589. Subsections 260(2) and (5) would be civil remedy provisions.
New section 261 - Industrial associations acting against independent
contractors etc. to encourage contraventions
2590. Subsection 261(1) would be similar to subsection 257(5), which would
apply in relation to employers. Subsection 261(1) would apply to
prohibit certain action against persons, including independent
contractors, which, if taken, would contravene subsection 253(4).
2591. Subsection 261(1) would be a civil remedy provision.
New section 262 - Industrial associations not to demand bargaining
services fee
2592. Subsection 262(1) would prohibit an industrial association, or an
officer or member of an industrial association, from demanding
payment of a bargaining services fee.
2593. Subsection 262(1) would be a civil remedy provision.
2594. Subsection 262(3) would provide an exception to 262(1) where a
bargaining services fee is payable to an industrial association
under a contract for the provision of bargaining services.
2595. Subsection 262(4) would provide a definition of demand for the
purposes of proposed section 262.
New section 263 - Action to coerce person to pay bargaining services
fee
2596. Subsection 263(1) would prohibit an industrial association from
taking, or threatening to take, action against a person with intent
to coerce the person, or another person, to pay a bargaining
services fee. Subsection 263(1) would capture third-party conduct
where, for example, an industrial association takes industrial
action against an employer to force an employee who is not a member
of the industrial association to pay a bargaining services fee.
2597. Subsection 263(1) would be a civil remedy provision.
New section 264 - Industrial associations not prevented from
entering contracts
2598. Proposed section 264 would make it clear that nothing in the freedom
of association provisions prevents an industrial association from
entering into a contract for the provision of bargaining services
with a person who is not a member of the industrial association.
Division 7 - Conduct in relation to industrial instruments
New section 265 - Discrimination against employer in relation to
industrial instruments
2599. Subsection 265(1) would prohibit a person from discriminating
against an employer on the basis that the employment of its
employees is covered by or proposed to be covered by a particular
type of industrial instrument, the Standard or an industrial
instrument made with a particular person. This section would only
apply to discrimination on the basis of the particular type of
industrial instrument (for instance, that the instrument is an AWA
or a collective agreement) or who the agreement is made with, rather
than anything contained in the agreement.
2600. For example, proposed section 265 would prohibit:
. a head contractor refusing to engage a subcontractor because the
subcontractor's employees are covered by a certified agreement to
which an organisation is not a party;
. a head contractor refusing to engage a subcontractor on the basis
that a particular organisation is not a party to the
subcontractor's certified agreement;
. an organisation disrupting the operations of an employer (other
than through protected action) on the basis that the employer's
employees are not covered by a collective agreement.
2601. Subsection 265(1) would be a civil remedy provision.
2602. Subsection 265(3) would make it clear that that the prohibition
under subsection 265(1) would not apply to any industrial action
that is protected action.
Division 8 - False or misleading representations about bargaining
services fees etc.
New section 266 - False or misleading representations about
bargaining services fees etc.
2603. Proposed section 266 would prohibit a person from making a false or
misleading representation about another person's:
. liability to pay a bargaining services fee;
. obligation to enter into an agreement to pay a bargaining services
fee; or
. obligation to become a member of an industrial association.
2604. Proposed section 266 would be a civil remedy provision.
Division 9 - Enforcement
New section 267 - Definition
2605. Proposed section 267 would contain a definition of person, for the
purposes of proposed Division 9, to include an industrial
association.
2606. A legislative note would be inserted to highlight that proposed
section 189 would provide that a person involved in a contravention
of a civil remedy provision is taken to have contravened the civil
remedy provision.
New section 268 - Penalties etc. for contravention of civil penalty
provisions
2607. Proposed section 268 would allow an eligible person to apply to the
Court in respect of a contravention of a civil penalty provision.
An eligible person would be a workplace inspector, a person affected
by the contravention, or a person prescribed by the regulations
(subsection 268(4)).
2608. Subsection 268(1) would set out the orders that the Court can, on
application, make in relation to a person who contravenes a civil
penalty provision in preposed Part XA.
2609. Subsection 268(2) would provide for the Court to be able to order a
maximum pecuniary penalty of 300 penalty units in the case of a body
corporate, or 60 penalty units in other cases (by operation of
section 4AA of the Crimes Act 1914, the value of a penalty unit is
currently $110).
2610. The Court would also be able to order:
. damages payable to a specified person; and/or
. any other order the Court thinks appropriate including an
injunction.
2611. Subsection 268(5) would allow regulations to prescribe a person as
an eligible person (ie a person able to bring proceedings for breach
of a civil penalty provision) and would allow regulations to limit
the circumstances in which the person may make an application.
New section 269 - Conduct that contravenes Division 3 and another
Division of this Part
2612. Proposed section 269 would apply where the same conduct constituted
both a contravention of proposed Division 3 and another Division.
In such circumstances, the Court would only be able to make orders
under proposed section 268 in relation to only one of those
contraventions. This reflects the fact that certain conduct could
breach both one of the general prohibitions in Division 3 and a
specific prohibition in another Division.
New section 270 - Proof not required of the reason for, or the
intention of, conduct
2613. Subsection 270(1) would reverse the onus of proof applicable to
civil proceedings for a contravention of a civil remedy provision in
proposed Part XA. It is based upon pre-reform section 298V of the
WR Act.
2614. Typically, in a civil action, the onus would fall on the complainant
to establish, on the balance of probabilities that the conduct
complained of was carried out for a particular reason or with a
particular intent, in contravention of the relevant provision.
2615. However, subsection 270(1) would provide that, once a complainant
has alleged that a person's actual or threatened conduct is
motivated by a reason or intent that would contravene the relevant
provision(s) of proposed Part XA, the person would have to
establish, on the balance of probabilities, that the conduct was not
carried out unlawfully.
2616. The reverse onus would not apply to the granting of interim
injunctions. This differs from pre-reform section 298V of the WR
Act, and is intended to address the problems that can arise from the
interaction of the reverse onus with the 'balance of convenience'
test that applies to interim injunctions.
Division 10 - Objectionable provisions
New section 271 - Meaning of objectionable provision
2617. Subsection 271(1) would contain a definition of objectionable
provision for the purposes of proposed Division 9. An objectionable
provision would be a provision that:
. requires or permits any conduct that would breach proposed Part
XA;
. directly or indirectly requires a person to encourage another
person to join or remain a member of an industrial association or
not to join or not to remain a member of an industrial
association;
. indicates support for or opposition to persons being members of an
industrial association; or
. requires or permits payment of a bargaining service fee.
New section 272 - Objectionable provisions etc. in industrial
instruments etc.
2618. Subsection 272(1) would provide that a provision in an award is void
to the extent it is an objectionable provision.
2619. In relation to a workplace agreement, proposed section 101D would
provide that the regulations may specify matters that are prohibited
content for the purposes of the Bill. It is intended that the
regulations would provide a non-exhaustive list of matters which are
prohibited from being included in a workplace agreement. The list
would include matters such as objectionable provisions. Proposed
section 101F would provide that a term of a workplace agreement is
void to the extent that it contains prohibited content.
New section 273 - Removal of objectionable provisions from awards
2620. Proposed subsection 273(1) would provide that, on application, the
AIRC must remove objectionable provisions from awards. Similar
provisions in proposed Part VB would provide for the removal of
objectionable provisions from agreements by the Employment Advocate
(see proposed section 101K).
Division 11 - Miscellaneous
New section 274 - Freedom of association not dependent on
certificate
2621. Proposed subsection 274(1) would confirm that a person's right to
freedom of association does not depend on whether the person holds a
conscientious objection certificate (which can be issued by a
Registrar under section 180 of Schedule 1B of the WR Act).
Item 194 - Paragraph 299(1)(d)
2622. This item would make an amendment consequential on that item 195
which would repeal paragraph 299(1)(e).
Item 195 - Paragraph 299(1)(e)
2623. This item would repeal paragraph 299(1)(e) which makes it an offence
to do any other act or thing that would, if the AIRC were a court of
record, be a contempt of that court.
2624. This proposed amendment would implement the recommendations of a
report of the Australian Law Reform Commission (ALRC) on the law of
contempt in Australia (1987) which identified difficulties with
contempt provisions of the kind in paragraph 299(1)(e). The report
recommended that such provisions be repealed and replaced by
specific statutory offences that identify contemptuous conduct.
Item 196 - At the end of section 299
2625. This item would insert new offences that codify certain forms of
contempt. It would also insert two notes at the end of subsection
299(1) identifying other offences relating to improper influence of
the AIRC and interference with its proceedings.
2626. At common law, conduct which interferes with a court's proceedings,
through improperly influencing judges or witnesses, is contempt.
Paragraphs 299(1)(a) - (d) make it an offence to engage in such
conduct.
Contravening an order of the Commission
2627. Proposed subsection 299(3) would establish an offence of
contravening an order of the AIRC. The fault elements that operate
with respect to a failure to comply with an order of the AIRC are
recklessness and intention. These fault elements are defined in
Chapter 2 of the Criminal Code. The maximum penalty that would
apply to this offence is imprisonment for 12 months.
2628. Subsection 4B(2) of the Crimes Act 1914 would allow a term of
imprisonment to be converted into a pecuniary penalty. Under the
formula in that subsection, the maximum penalty would be 60 penalty
units for an individual and 300 penalty units for a body corporate.
Publishing false allegation of misconduct affecting the Commission
2629. Proposed subsection 299(5) would establish an offence of publishing
a false allegation of misconduct affecting the AIRC. To commit the
offence, the publication must be likely to have a significant
adverse effect on the public confidence in the AIRC is properly
performing its functions and exercising its powers. The effect must
be on the institution of the AIRC rather than merely having caused
harm to an individual member of the AIRC. The offence will not be
committed where there was misconduct as alleged by the published
allegation, that is, where the allegation was true. The person
engaging in the conduct of intentionally publishing the statement
would need to be reckless as to whether the alleged misconduct is
true or not. The person would also need to be reckless as to the
likelihood of the statement having a significant adverse effect.
2630. The maximum penalty for this offence is 12 months imprisonment.
This offence could be converted into a pecuniary penalty under the
subsection 4B(2) of the Crimes Act 1914.
2631. A note at the end of subsection 299(5) would provide that the
heading 'General offences' is inserted in relation to subsection
299(1).
Item 197 - Section 300
2632. This item would make a technical amendment to replace a the
reference in section 300 to subsection 119(1) with proposed
subsection 44M(1).
Item 198 - Section 305A
2633. This item would repeal section 305A which makes it an offence for a
person to not comply with a requirement made by an authorised
officer under pre-reform paragraph 83BH(4)(d) or subsection 83BH(5).
This item is consequential to the repeal of Division 2 of Part IVA
by item 45.
2634. Equivalent offence provisions will exist under section 305 (failure
to comply with a requirement made by a workplace inspector).
Item 199 - Section 307
2635. This item would repeal pre-reform section 307 and substitute a new
section 307.
New section 307 - False statement in application for protected
action ballot order
2636. The proposed subsection would provide that a person commits an
offence if he or she makes or joins in an application for a
protected action ballot order under Division 4 of Part VC and that
application contains a false or misleading statement which is
material to the application.
2637. The penalty for this offence us 30 penalty units.
Item 200 - Section 308
Item 201 - Subsections 317(1) and (1A)
Item 202 - Subsections 317(2), (3) and (4)
Item 203 - Subsection 317(5)
2638. These items make amendments consequential to the repeal of
provisions in Division 4 of Part IV of the pre-reform Act which
allows the AIRC to order secret ballots in relation to industrial
disputes and industrial action. New Division 4 of Part VC would
provide for protected action ballots.
Item 204 - Section 338
2639. This item would make a consequential amendment to section 338 to
reflect the introduction of workplace agreements.
Item 205 - Subsection 347(1)
2640. This item would make a technical amendment to subsection 347(1)
reflecting current drafting practice.
Item 206 - After subsection 347(1)
2641. This item would insert a new subsection.
2642. Pre-reform subsection 347(1) provides that a party to proceedings
under the WR Act shall not be ordered to pay the costs of another
party unless the first party instituted the proceedings vexatiously
or without reasonable cause.
2643. Proposed subsection 347(1A) would serve as an exception to
subsection 347(1). It would enable a court hearing proceedings in a
matter arising under the WR Act to order one party to pay the costs
of another party where that first party has, by unreasonable act of
omission, caused the second party to incur otherwise unnecessary
costs. A costs order under this subsection could be made
irrespective of the outcome of the proceedings.
2644. This subsection would not apply to proceedings under section 170CP
(unlawful termination) because costs orders in relation to
applications under that section are dealt with separately by section
170CS.
2645. The meaning of costs in this subsection is dealt with in pre-reform
subsection 347(2).
Illustrative Example
Willy and Charlie are opposing parties to proceedings under the WR Act
(other than proceedings under section 170CP). They are both represented by
lawyers. Charlie's lawyers have been prompt in filing their documents with
the court and have complied with all directions that have been issued.
Willy's lawyers have not been so cooperative. They continually disregarded
the court's directions by filing documents late, and continually raised
frivolous arguments during proceedings. This conduct by Willy's lawyers
caused additional costs to Charlie. In this situation, a court could,
under subsection 347(1A), require Willy to pay some or all of the
additional costs incurred by Charlie. Such an order could be made
irrespective of whether Charlie's arguments were successful.
Item 207 - Subsection 347(2)
2646. This item would make a consequential amendment to subsection 347(2)
to ensure that the definition of costs applies to both subsections
347(1) and (1A).
Item 208 - After section 349
2647. This item would insert a new section 349A
New Section 349A - Signature on behalf of body corporate
2648. Proposed section 349A would provide that a document signed on behalf
of a body corporate does not require a corporate seal. Instead such
documents may be signed by an authorised officer of the body
corporate.
Item 209 - After section 352
2649. This item would include a new section to deal with the power of the
AIRC to vary workplace agreements. It would also include three new
sections dealing with the power of the Court to vary or set aside
(in whole or in part) contracts for services binding upon
independent contractors which are harsh or unfair.
New section 352A - Variation of workplace agreements on grounds of
sex discrimination
2650. Proposed section 352A would provide that subsections 119B(2), (3),
(4) and (7) of the WR Act apply in relation to a workplace agreement
made under Part VB, as if a reference in those subsections to an
award or a term of an award were a reference to a workplace
agreement or a term of a workplace agreement. This would provide
for the variation of a workplace agreement to remove discrimination,
if a workplace agreement is referred to the AIRC under section 46PW
of the HREOC Act 1986.
2651. Subsection 352A(2) would provide that, before varying a workplace
agreement that has been referred to it by HREOC, the AIRC must give
the persons bound by the agreement, and the employees covered by the
agreement, an opportunity to amend the agreement (under the terms of
Part VB) to remove the relevant discrimination.
New section 352B - Court's power in relation to unfair contracts
with independent contractors
2652. This proposed section would set out the powers of the Federal Court
of Australia regarding unfair contracts. Pre-reform section 127A
which is in Part VI would be repealed by item 71.
2653. Subsection 352B(1) would define contract for the purposes of this
section and section 352C. Under this definition, a contract must be
a contract for services which is:
. binding on an independent contractor (this term is defined in
subsection 4(1A) to be confined to natural persons); and
. relates to the performance of work, other than work for the
private and domestic purposes of the other party to the contract.
2654. Subsection 352B(2) would establish the grounds on which an
application could be made to the Court to review a contract. These
grounds would be that the contract was unfair or harsh. The Court
would be able to have regard to the matters listed in subsection
352B(4) when determining whether a contract is in fact harsh or
unfair.
2655. The Court would be entitled to conclude that a contract was harsh or
unfair on any ground, irrespective of whether that ground was
canvassed in an application made under
subsection 352B(2) (subsection 352B(6)). However, once the Court
has come to the conclusion that a contract is harsh or unfair, it
must record its opinion and state whether that opinion relates to
the whole, or just a specified part, of the contract (subsection
352B(5)).
2656. Subsection 352B(3) would establish who may make an application under
subsection 352B(2) for an order under section 352C. An organisation
or association would only have standing to make an application under
these provisions where they were authorised in writing by the party
to the contract whom they are representing.
2657. Subsection 352B(7) would require the Court to exercise its powers
under this section in a way which furthers the principal object of
the WR Act (contained in section 3).
New section 352C - Court may make orders about unfair contracts
2658. Proposed section 352C would establish the orders that the Court may
make in relation to a finding that a contract is harsh or unfair
under subsection 352B(2). It would allow the Court to make orders
varying the contract or setting it aside, in whole or in part
(subsection 352C(1)).
2659. The proposed section would specify the purpose for which orders
could be made (subsection 352C(2)), the time from which that order
takes effect (subsection 352C(4)) and who may enforce any orders
made (subsection 352C(5)). This proposed section would also empower
the Court to make interim orders where it is desirable to do so in
order to preserve the positions of parties to the contract
(subsection 352C(3)). Subsection 352C(6) would provide that
section 352C does not limit any other rights of parties to the
contract.
New section 352D - Application of sections 352B and 352C
2660. Proposed section 352D would limit the kinds of contracts to which
sections 352B and 352C apply for constitutional reasons. This
section would confine the operation of the unfair contracts
provisions to contracts which relate to the corporations power, the
trade and commerce power and the Territories power in the
Constitution. It would be in similar terms to pre-reform
section 127C.
2661. This section would remove the application of pre-reform section 127C
to contracts 'relating to the business of a constitutional
corporation' (pre-reform paragraph 127C(1)(b)). This paragraph was
found to be unconstitutional by the High Court in Re Dingjan; Ex
parte Wagner (1995) 183 CLR 323.
2662. Subsection 352D(2) would define contract for the purposes of this
section to have the same meaning as in proposed section 352B.
Item 210 - Subsections 353A(1) and (2)
2663. This item would make a consequential amendment to subsections
353A(1) and (2) to reflect the introduction of workplace agreements.
Item 211 - After section 354
2664. This item would insert a new section.
New section 354A - Interim injunctions
2665. Proposed section 354A would provide that if a court has, under any
provision of the WR Act, the power to grant an injunction, that
power will include the ability of the court to grant interim
injunctions pending its final decision in relation to the matter
before it.
Item 212 - After section 355
2666. This item would inset a new section.
New section 355A - Powers of courts
2667. Proposed section 355A would provide that a provision of the WR Act
which confers power on a court does not affect any other power that
the court may otherwise have.
Item 213 - Section 356
Item 214 - Paragraph 357(1)(a)
2668. These items would make minor amendments to the language of these
provisions to ensure that pecuniary penalties are referred to
consistently throughout the WR Act.
Item 215 - Paragraph 357(1)(b)
2669. This item would make technical amendments to insert additional
references to proposed subsection 178(5) in paragraph 357(1)(b). It
would allow a Registrar to issue a certificate with respect to an
order of an eligible court under subsection 178(5) specifying the
amount payable, to whom payment must be made and by whom payment
must be made. This certificate could then be lodged by a person as
a proof of debt in any court of competent jurisdiction.
Item 216 - Paragraphs 358A(1)(a) and (b)
2670. This item would amend paragraphs 358A(1)(a) and (b) and insert a new
paragraph 358A(1)(ba) altering the frequency with which the Minister
must cause a person to report about agreement making.
Item 217 - Paragraph 358A(1)(c)
2671. This item would make consequential amendment to pre-reform paragraph
358A(1)(c) to reflect the introduction of workplace agreements.
Item 218 - Paragraph 358A(1)(d)
2672. This item would make a consequential amendment to pre-reform
paragraph 385A(1)(d) by expanding the class of potentially
disadvantaged persons to which the report to the Minister must have
particular regard.
Item 219 - After section 358A
2673. This item would inset a new section.
New section 358B - Acquisition of property
2674. It is not anticipated that the Bill (or instruments made under it),
or the Act as amended (or instruments made under it) would effect
any acquisition of property on other than just terms contrary to
paragraph 51(xxxi) of the Constitution. Proposed section 358B would
be included in the amended Act out of an abundance of caution to
ensure that an acquisition contrary to paragraph 51(xxxi) could not
take place. In any circumstance where an acquisition contrary to
paragraph 51(xxxi) would otherwise be effected, the relevant law or
instrument would not apply.
Item 220 - Paragraph 359(2)(f)
2675. This item would make a consequential amendment to paragraph
359(2)(f) to reflect introduction of workplace agreements.
Item 221- Paragraph 359(2)(fa)
2676. This item would repeal paragraph 359(2)(fa) which permits the making
of regulations delegating any functions or powers under pre-reform
Part VIE (no-disadvantage test). This is consequential on the
repeal of Part VIE by item 168.
Item 222 - At the end of section 359
2677. This item would include five new subsections at the end of section
359. Section 359 relates to the regulation making powers of the
Governor-General under the WR Act.
2678. Proposed subsection 359(4) would provide that jurisdiction for
certain provisions of the WR Act could be conferred on State or
Territory courts by regulations. Under this subsection, such a
conferral on a State or Territory court could only be made where the
provision is a civil remedy provision and that provision would
normally be enforceable in the Court or the Federal Magistrates
Court.
2679. The remaining subsections would allow for the establishment of an
'infringement notice scheme' for offences and civil remedy
provisions in the regulations. In relation to offences against the
regulations, subsection 359(5) would provide that regulations may
allow for a person alleged to have committed such an offence to pay
a pecuniary penalty to the Commonwealth as an alternative to
prosecution. Such a pecuniary penalty would not exceed one-fifth of
the maximum penalty able to be imposed by a court in relation to
that offence (subsection 359(6)).
2680. Subsection 359(7) would provide that the regulations may include
provisions enabling a person alleged to have contravened a civil
remedy provision, the remedy for which includes payment of a
pecuniary penalty, to pay to the Commonwealth a pecuniary penalty as
an alternative to facing proceedings (subsection 359(8)). The
pecuniary penalty prescribed by the regulations would not be more
than one-tenth of the maximum penalty able to be imposed by a court
for a contravention of that civil remedy provision.
Item 223 - Part XIV (heading)
2681. This item would repeal the existing heading of Part XIV and
substitute a new heading 'Part XIV - Jurisdiction of the Federal
Court of Australia and Federal Magistrates Court'. The effect of
this amendment is to indicate the conferring of similar
jurisdiction, with necessary amendments, to the Federal Magistrates
Court. This is necessary because currently, Part XIV deals only
with the Federal Court of Australia's jurisdiction.
Item 224 - At the end of section 412
2682. This item would insert a new subsection to confer jurisdiction on
the Federal Magistrates Court that is similar to that of the Federal
Court of Australia.
2683. Proposed subsection 412(4) would provide the Federal Magistrates
Court with jurisdiction over the matters currently arising under the
WR Act and set out in subsections 412(1)(a), (1)(b), (1)(c), (1)(e)
and (1)(f). They are matters arising under the WR Act in relation
to which:
a) applications may be made to it under this Act; or
b) actions may be brought in it under this Act; or
c) questions may be referred to it under this Act; or
d) penalties may be sued for and recovered under this Act; or
e) prosecutions may be instituted for offences against this Act.
2684. The effect of this amendment would be that the Federal Magistrates
Court would have the jurisdiction to deal with the wide range of
matters that arise under the Bill. For example, the Federal
Magistrates Court would have jurisdiction to deal with
contraventions of the pre-lodgment procedures in relation to
workplace agreements. It could also hear applications relating to
duress or coercion in relation to agreement making. However, the
Federal Magistrates Court would not have jurisdiction in relation to
prerogative writs or appeals.
Item 225 - Subsection 413(1)
2685. This item would amend subsection 413(1) by inserting a reference to
the Federal Magistrates Court. This item is consequential upon item
222 which provides the Federal Magistrates Court with jurisdiction
to interpret awards.
Item 226 - Subsection 413(2)
2686. This item would amend subsection 413(2) by inserting a reference to
the Federal Magistrates Court. This item is consequential upon item
222.
Item 227 - Subsection 413A(1)
2687. This item would amend subsection 413A(1) by inserting a reference to
provide the Federal Magistrates Court with the same jurisdiction as
the Federal Court of Australia currently exercises, and to
substitute any reference to 'certified agreement' with 'collective
agreement'.
2688. The change from certified agreements to collective agreements would
be consequential to the implementation of the new lodgment-only
system for all agreements under the Bill.
Item 228 - Paragraph 413A(1)(b)
2689. This item would amend paragraph 413A(1)(b) by omitting the word
'certified' to reflect the introduction of the term 'workplace
agreement'.
Item 229 - Subsection 413A(2)
2690. This item would amend subsection 413A(2) by inserting a reference to
the Federal Magistrates Court. This item is consequential upon item
225.
Item 230 - Subsection 414(1)
2691. This item would amend subsection 414(1) by inserting a reference to
the Federal Magistrates Court. This would give the Federal
Magistrates Court exclusive jurisdiction, along with the Federal
Court of Australia, to hear a matter where an organisation or member
of an organisation is sued, or against whom a pecuniary penalty is
brought.
Item 231 - At the end of subsection 414(1)
2692. This item would amend subsection 414(1) by inserting a note at the
end of the subsection. It is intended that the note would provide
for regulations to confer jurisdiction on a specified State or
Territory court in relation to a civil penalty provision.
Item 232 - After subsection 469(1)
2693. This item would amend subsection 469 by inserting a new subsection
469(1A) allowing a party to a proceeding before the Federal
Magistrates Court in a matter arising under the WR Act or the
Building and Construction Industry Improvement Act 2005 (the BCII
Act 2005) to appear in person. This would provide for the same
representation rights to parties before the Federal Magistrates
Court as those that currently apply to proceedings before the
Federal Court of Australia.
Item 233 - Subsections 469(2) and (2B)
2694. This item would amend subsection 469(2) and subsection 469(2B) by
inserting a reference to the Federal Magistrates Court. This item
is consequential upon item 222.
Item 234 - Subsection 469(9)
2695. This item would amend subsection 469(9) by inserting a reference to
the Federal Magistrates Court. This item is consequential upon item
222.
Item 235 - Section 470
2696. This item would amend section 470 to renumber the subsections as a
result of the insertion of a new subsection by item 236 below.
Item 236 - At the end of section 470
2697. This item would amend section 470 by inserting a new subsection
470(2) to enable the Federal Magistrates Court to grant
organisations, persons or bodies the ability to intervene in
proceedings before it where it is of the opinion that the
organisation, person or body should be heard. This would mirror the
existing provision currently applying to proceedings before the
Federal Court of Australia.
Item 237 - After subsection 471(1)
2698. This item would amend section 471 by inserting new subsection
471(1A) to provide the Minister with the ability to intervene in a
proceeding before the Federal Magistrates Court in a matter arising
under the WR Act or the BCII Act 2005. This would mirror the
existing provision which currently enables the Minister to intervene
in the public interest in a proceeding before the Federal Court of
Australia.
Item 238 - Subsection 471(2)
2699. This item would amend subsection 471(2) by inserting a reference to
the Federal Magistrates Court. This item is consequential upon item
222 and item 235.
Item 239 - Subsection 471(3)
2700. This item would amend subsection 471(3) by inserting a reference to
the Federal Magistrates Court. This item is consequential upon item
222 and item 235.
Item 240 - Part XV
2701. This item would repeal Part XV, and substitute a new Part XV.
Part XV - Matters referred by Victoria
2702. Proposed Part XV would contain provisions relating to the employment
of employees in Victoria (within the meaning of section 3 of the
Commonwealth Powers (Industrial Relations) Act 1996 (Vic)) who are
not otherwise within the scope of the WR Act (see proposed section
489 for discussion of the scope of Part XV).
2703. Proposed Part XV would comprise 12 Divisions:
. Division 1 - Introduction (sections 488 - 490)
. Division 2 - Pay and conditions (sections 491 - 499)
. Division 3 - Workplace agreements (sections 500 - 502)
. Division 4 - Industrial action (sections 503 - 505)
. Division 5 - Meal breaks (sections 506 - 507)
. Division 6 - Termination of employment (sections 508 - 509)
. Division 7 - Freedom of Association (section 510)
. Division 8 - Right of entry (sections 511 - 512)
. Division 9 - Transmission of business (sections 513 - 514)
. Division 10 - Employment agreements (sections 515 - 526)
. Division 11 - Exclusion of Victorian laws (section 527)
. Division 12 - Additional effect of other provisions of this Act
(section 528)
New section 488 - Object
2704. Proposed section 488 would provide that the main object of Part XV
is to extend various provisions of the WR Act, so that they apply to
employees in Victoria who are covered by the referral of legislative
power from the Parliament of Victoria to the Parliament of the
Commonwealth in the Commonwealth Powers (Industrial Relations) Act
1996 (Vic) ('CP(IR) Act'). Therefore, the employees affected by
Part XV (other than Division 10) are those employees in Victoria who
are brought within the scope of the WR Act by the referral of power
in the CP(IR) Act and who are not otherwise within the general
constitutional coverage of the amended WR Act.
2705. The new object also relates to the creation of Victoria-specific
provisions that are required because of Victoria's particular
position within the federal workplace relations jurisdiction.
New section 489 - Definitions
2706. Proposed section 489 would provide definitions of employer, employee
and employment to apply throughout Part XV of the WR Act, other than
proposed Division 10 (see proposed section 515 for the Division 10
definition of these terms).
2707. Section 489 would establish a contrary intention for the purposes of
the generally applicable definitions of the terms employer, employee
and employment in subsections 4AA(1), 4AB(1) and 4AC(1) (which apply
to all uses of those terms unless a contrary intention appears).
This is required because proposed Part XV (other than Division 10)
would apply only to employees in Victoria who are covered by the
CP(IR) Act and who not are otherwise within the general
constitutional coverage of the amended WR Act.
Illustrative Example - person who is employed by a constitutional
corporation in Victoria
Richard is employed by Spinning Deliveries Pty Ltd. Richard works in
Victoria. Richard wants to know if the provisions of Part XV apply to his
employment.
The provisions of Part XV, except for Division 10 (employment agreements)
do not apply to Richard's employment. This is because Spinning Deliveries
Pty Ltd is an employer within the meaning of subsection 4AB(1), and
therefore excluded by the definition of employer in section 489.
Illustrative Example - person who is employed by a sole trader in Victoria
Vivienne is employed by Wilma, to work in Wilma's corner store in Geelong.
Wilma owns her corner store herself - she has not registered a corporation
under the Corporations Act 2001 or any other law. Vivienne and Wilma want
to know if their employment relationship is covered by Part XV of the WR
Act.
The provisions of Part XV will apply to the employment of Vivienne by
Wilma. This is because Wilma is an employer within the meaning of section
3 of the CP(IR) Act and she is not an employer within the meaning of
subsection 4AB(1) of the WR Act.
New section 490 - Part only has force if supported by reference
2708. Proposed section 490 would make it clear that each section of Part
XV, other than paragraph 493(b) and Divisions 9 and 10 (for which
separate provision is made), only operates for as long as, and in so
far as, a relevant referral of a matter to the Parliament of the
Commonwealth under the CP(IR) Act is in effect and provides
sufficient legislative power for the provision to have effect. This
reflects the constitutional position.
2709. Divisions 9 and 10 of Part XV would each have their own provisions
relating to the extent to which the Divisions are supported by the
CP(IR) Act (see proposed subsections 513(2), 513(3) and 516(2)).
2710. Paragraph 493(b), which would refer to provisions of Division 6 of
Part VA as they apply to an employee because of section 170KB, is
supported by the constitutional head of power which supports
Division 6 of Part VA. Accordingly, paragraph 493(b) does not rely
upon a power referred by the Parliament of Victoria to the
Parliament of the Commonwealth in the CP(IR) Act.
New Division 2 - Pay and conditions
2711. Proposed Division 2 of Part XV would provide that employees within
the meaning of proposed section 489 are covered by the Standard,
subject to certain modifications to ensure that the provisions are
clearly supported by the CP(IR) Act.
New section 491 - Additional effect of Act - AFPC's powers
2712. Proposed section 491 would extend the wage-setting powers of the
AFPC to the employment of an employee in Victoria (as those terms
are defined in proposed section 489), subject to certain
modifications that flow from the terms of the CP(IR) Act.
2713. Proposed Part IA would contain provisions relating to the
establishment and functions of the AFPC.
2714. Subject to the limitations in sections 495, 496, 497, 498 and 525
and clause 30 of Schedule 14, the AFPC would be able to exercise the
same powers in respect of employees within the meaning of
section 489 as it does in respect of employees within the meaning of
subsection 4AA(1).
2715. For the purposes of this extended application, each reference in
paragraph 7J(2)(d) to an employee, within the meaning of paragraph
7J(2)(d), is to be read as a reference to an employee within the
meaning of section 489 in Victoria (that is, an employee covered by
Part XV of the WR Act because of the CP(IR) Act and not otherwise
within the general constitutional coverage of the amended WR Act.
New section 492 - Additional effect of Act - Australian Fair Pay and
Conditions Standard
2716. Proposed section 492 would provide that, without affecting its
general operation, Part VA of the WR Act also has effect in relation
to the employment of an employee in Victoria (as those terms are
defined in proposed section 489). Proposed Part VA contains
provisions relating to the Standard.
2717. It is intended that, subject to the limitations in sections 495,
496, 497, 498 and 525, paragraph 492(1)(d) and clause 30 of Schedule
14, all employees in Victoria will have access to the Standard that
is provided by Part VA of the WR Act.
2718. For the purposes of this extended application, each reference in
Part VA to an employee, an employer or employment (within the
meaning of Part VA) is to be read as a reference to an employee, an
employer or employment (within the meaning of section 489) in
Victoria.
2719. Paragraph 492(1)(d) would provide that, for the purposes of this
extended application, Division 2 of Part VA has effect as if certain
provisions had not been enacted.
2720. These modifications flow from the terms of the referral of power,
which permit adjustment of wage rates only within the framework of
the industry sectors and classifications that existed at the time of
the referral. This means that the AFPC's powers to adjust
classifications within an APCS will not apply to those employees in
Victoria who are in the federal system solely because of the
referral of power. It also means that the guarantee of the FMW for
those employees not covered by an APCS cannot apply to these
employees.
2721. As a result, the wage-setting provisions will operate in relation to
employees (within the meaning of section 489) as if the following
provisions had not been enacted:
. Subdivision D of Division 2 of Part VA - this Subdivision, which
would provide a guarantee against reductions below pre-reform
commencement rates of pay; a specific wages guarantee is provided
for Victorian referral employees by section 497;
. Subdivision E of Division 2 of Part VA - this Subdivision, which
would provide a guarantee against reductions below standard or a
special FMW to employees within the meaning of Part VA, cannot be
applied to employees (within the meaning of section 489) in
Victoria, because of the terms of the referral of power in the
CP(IR) Act;
. Subdivision F of Division 2 of Part VA - this Subdivision, which
would provide for setting and adjusting standard and special FMW,
cannot be applied to employees (within the meaning of section 489)
in Victoria, because of the terms of the referral of power in the
CP(IR) Act;
. Subdivision I of Division 2 of Part VA - this Subdivision, which
would enable the AFPC to determine new APCSs for employees covered
by Part VA, cannot be applied to employees (within the meaning of
section 489) in Victoria, because of the terms of the referral of
power in the CP(IR) Act;
. Subdivision K of Division 2 of Part VA - this Subdivision, which
would provide for adjustments by the AFPC to accommodate the
AIRC's 2005 Safety Net Review decision, has no application to the
APCSs derived from each minimum wage order made by the AIRC prior
to reform commencement under section 501, because each of those
minimum wage orders has been varied by the AIRC to accommodate the
AIRC's 2005 Safety Net Review (see Shop, Distributive and Allied
Employees Association and others [PR960817]);
. Subdivision L of Division 2 of Part VA - this Subdivision, which
would provide that the AFPC may set a new APCS to apply to all, or
a class of, employees with a disability if they are covered by
Part VA, cannot be applied to employees (within the meaning of
section 489) in Victoria, because of the terms of the referral of
power in the CP(IR) Act;
. section 90ZA - this section, which would provide for what happens
if two or more APCSs would otherwise cover an employee who is
covered by Part VA, would not apply to an employee (within the
meaning of section 489) in Victoria, because the 'work
classifications' referred to in subsection 496(3) would apply;
. section 90ZB - this section, which would require the AFPC to
remove coverage rules described by reference to State or Territory
boundaries, is not relevant to APCSs supported by the referral of
power (because the terms of the referral of power in the CP(IR)
Act necessarily support only minimum wage-setting for employees in
Victoria);
. section 90ZC - this section, which would deem APCS rates of
employees who are covered by Part VA to at least equal the FMW
rates after the first exercise of the AFPC's powers takes effect,
cannot be applied to employees (within the meaning of section 489)
in Victoria, because of the terms of the referral of power in the
CP(IR) Act;
. section 90ZL - this section, which provides that the AFPC may
adjust the APCSs which apply to employees who are covered by Part
VA, would not apply to employees (within the meaning of section
489) in Victoria; the AFPC's powers to adjust the APCSs which
apply to employees (within the meaning of section 489) in Victoria
would be provided (and limited) by section 495;
. section 90ZM - this section, which would enable the AFPC to revoke
an APCS, does not apply to the framework of industry sectors and
classifications referred by the Victorian Parliament (as the
referral does not permit these to be altered or revoked);
. subsection 90F(3) - this subsection, which would provide a
guaranteed basic periodic rate of pay for an employee covered by
Part VA who is not covered by an APCS and who is not a junior
employee, an employee with a disability, or an employee to whom a
training arrangement applies, cannot be applied to employees
(within the meaning of section 489) in Victoria, because of the
terms of the referral of power in the CP(IR) Act;
. subsection 90F(4) - this subsection, which would provide a
guaranteed basic periodic rate of pay for an employee covered by
Part VA who is not covered by an APCS and who is a junior
employee, an employee with a disability, or an employee to whom a
training arrangement applies, cannot be applied to employees
(within the meaning of section 489) in Victoria, because of the
terms of the referral of power in the CP(IR) Act;
. paragraph 90H(3)(b) - this paragraph, which would provide a
default casual loading percentage for employees covered by Part VA
who are subject to a collective agreement or AWA, cannot be
applied to employees (within the meaning of section 489) in
Victoria, because of the terms of the referral of power in the
CP(IR) Act; and
. paragraph 90W(2)(b) - this paragraph, which would provide that the
APCS of an employee covered by Part VA may be a preserved or a new
APCS, cannot be applied to employees (within the meaning of
section 489) in Victoria, because of the terms of the referral of
power in the CP(IR) Act.
2722. Paragraph 492(1)(e) would provide that, for the purposes of this
extended application, a minimum wage order made by the AIRC prior to
reform commencement under section 501 would be a pre-reform federal
wage instrument within the meaning provided by proposed section 90B
(and would be subject to the jurisdiction of the AFPC on reform
commencement as a preserved APCS).
2723. Paragraph 492(1)(f) would provide that, for the purposes of the
extended application of the Standard in Victoria, section 89E (which
applies the model dispute resolution process to a dispute about
entitlements under Divisions 3 to 6 of Part VA) has effect as if
Part VIIA (which contains the model dispute resolution process) had
been modified by applying the definitions of employee, employer and
employment which are provided in section 489.
2724. Paragraph 492(1)(g) would provide that, for the purposes of its
extended application in Victoria, the Standard applies as if
Division 6 (which relates to parental leave) had not been enacted.
Division 6 of Part VA applies to this group of employees separately,
relying on the constitutional head of power which supports Division
5 of Part VIA of the WR Act. Because employees in Victoria (within
the meaning of section 489) are already covered by Division 5 of
Part VIA, Part XV would not itself provide parental leave
entitlements to these employees.
2725. Subsection 492(2) would provide that subsection 492(1) has effect
subject to each of:
. section 495, which would provide for the adjustment of APCSs that
cover employees (within the meaning of section 489) in Victoria;
. section 496, which would limit the application of minimum wage
standards for employees (within the meaning of section 489) in
Victoria;
. section 497, which would provide a guarantee to employees (within
the meaning of section 489) in Victoria against reductions below
pre-reform basic periodic rates of pay;
. section 498, which would provide a guarantee to employees (within
the meaning of section 489) in Victoria against reductions below
pre-reform casual loadings that apply to basic periodic rates of
pay;
. section 525, which would provide for the relationship between the
Standard and employment agreements which apply under Division 10
of Part XV; and
. clause 30 of Schedule 14, which would provide that the Standard
does not apply to an employee whose employment is regulated by a
pre-reform certified agreement or pre-reform AWA (in keeping with
the interaction of pre-reform agreements and the Standard
generally).
2726. Subsection 492(3) would provide that the repeal of sections 501 and
501A does not affect the continuity of an APCS-derived from a
minimum wage order made under those sections.
2727. Section 86, which sets out powers of workplace inspectors, would
also have effect in relation to the Standard that applies to an
employee (within the meaning of section 489) in Victoria because of
section 492.
New section 493 - Application of the Australian Fair Pay and
Conditions Standard to employees in Victoria
2728. Proposed section 493 would provide that, for the purposes of the
application of Divisions 1, 10, 11 and 12 of Part XV of the WR Act
to an employee (within the meaning of section 489) in Victoria, a
reference to a provision of the Standard is to be read as:
. a reference to that Standard as it applies to the employee because
of section 492 (this does not include Division 6 of Part VA,
because of paragraph 492(1)(g)); and
. a reference to Division 6 of Part VA as that Division applies to
the employee because of section 170KB.
2729. Because employees in Victoria (within the meaning of section 489)
are already covered by Division 5 of Part VIA, Part XV would not
itself provide parental leave entitlements to these employees.
However, section 493 would provide that references elsewhere in Part
XV to the Standard would include a reference to the parental leave
provisions of Division 6 of Part VA as that Division applies to the
employee because of Division 5 of Part VIA.
New section 494 - Additional provisions of the Australian Fair Pay
and Conditions Standard
2730. Proposed section 494 would provide that, for the purposes of the WR
Act, the following provisions will apply as part of the Standard as
it applies to an employee (within the meaning of section 489) in
Victoria:
. section 495;
. section 496;
. section 497
. section 498.
2731. These provisions are all discussed below.
New section 495 - Adjustment of APCSs
2732. Proposed section 495 would provide that the AFPC may adjust the rate
and casual loading provisions of an APCS which applies to employees
(within the meaning of section 489) in Victoria. This adjustment
power would be subject to the provisions of Part VA listed in
subsection 495(2) - these limitations reflect limitations that would
apply generally to the adjustment of an APCS.
New section 496 - Limitation on application of minimum wage
standards
2733. Proposed section 496 would limit the wage-setting powers of the AFPC
in relation to minimum wage for employees (within the meaning of
section 489) in Victoria, so that the powers exercised by the AFPC
in relation to employees (within the meaning of section 489) in
Victoria do not go further than the powers referred to the
Parliament of the Commonwealth by the CP(IR) Act.
2734. Paragraph 496(1)(a) would provide that the AFPC must not exercise
its wage-setting powers so as to set or adjust a minimum wage for
employees (within the meaning of section 489) in Victoria if the
employees are not within a work classification, within the meaning
of subsection 4(7) of the CP(IR) Act. The effect of this would be
that the only wage-setting power that the AFPC can exercise in
relation to employees (within the meaning of section 489) in
Victoria is to set and adjust wages for the work classifications
referred to in subsection 4(7) of the CP(IR) Act.
2735. The work classifications referred to in section 496 are the work
classifications created by the Employee Relations Commission of
Victoria under repealed provisions of the former Employee Relations
Act 1992 (Vic). These are the same work classifications as
contained in the minimum wage orders made by the AIRC prior to
reform commencement under sections 501 and 501A of the WR Act.
2736. Paragraph 496(1)(b) would provide that any exercise by the AFPC of
its wage-setting powers to set or adjust a minimum wage for
employees (within the meaning of section 489) in Victoria has no
effect while the employees are subject to an award or agreement made
under the WR Act.
. The meaning of award for the purposes of this section is extended
by clauses 89, 95 and 102 of Schedule 13.
. An employee whose employment is regulated by a pre-reform
certified agreement or pre-reform AWA (within the meaning of
Schedule 14), would not be affected by an exercise of the AIRC's
wage-setting powers, because of clause 30 of Schedule 14.
2737. The effect of paragraph 496(1)(b) is that any minimum wages set by
the AFPC for employees (within the meaning of section 489) in
Victoria will not apply while an employee is subject to an award or
agreement made under the WR Act. If an employee (within the meaning
of section 489) in Victoria ceases to be covered by an award or
agreement, the wage most recently set by the AFPC for the employee's
work classification will apply to the employee.
2738. Subsection 496(2) extends the effect of subsection 496(1) to cover
provisions of the Standard that set or adjust a minimum wage in
Victoria (such as 90Q, which sets the FMW at $12.75 per hour).
2739. As a result of this section, minimum wages that would otherwise be
applicable to employees (within the meaning of section 489) in
Victoria, will not apply to an employee who is subject to an award
(including a transitional award, Victorian reference transitional
award or common rule declaration under proposed Schedule 13), or
agreement (including a pre-reform agreement).
2740. The limitations in section 496 are necessary because of the terms of
the referral of power in the CP(IR) Act, which enables the
Commonwealth to legislate for the setting and adjusting of minimum
wages for employees who are subject to an award or agreement under
the WR Act.
2741. The limitation would not apply to employees who are covered by an
employment agreement continued in existence by Division 10 of Part
XV. This is because such an employment agreement was originally
made under repealed provisions of the Employee Relations Act 1992
(Vic), and not the WR Act.
New section 497 - Guarantee against reductions below pre-reform
basic periodic rates of pay
2742. Proposed section 497 would provide a minimum wage guarantee to
employees (within the meaning of section 489) in Victoria who are
covered by an APCS adjusted by the AFPC, that the basic periodic
rate for each work classification shall not be less than the pre-
reform basic periodic rate for that work classification.
2743. This guarantee is in different terms to the guarantee provided by
Subdivision D of Division 2 of Part VA because, in the case of
employees (within the meaning of section 489) in Victoria, the AFPC
will not be able to adjust the classification provisions of an APCS
or set new APCSs.
New section 498 - Guarantee against reductions below pre-reform
casual loadings that apply to basic periodic rates of pay
2744. Proposed section 498 would provide a guarantee to employees (within
the meaning of section 489) in Victoria who are covered by an APCS
set or adjusted by the AFPC, that the casual loading that applies to
the basic periodic rate for each work classification shall not be
less than the pre-reform casual loading that applied to the basic
periodic rate for that work classification.
2745. This guarantee is in different terms to the guarantee provided by
Subdivision D of Division 2 of Part VA because, in the case of
employees (within the meaning of section 489) in Victoria, the AFPC
will not be able to adjust the classification provisions of an APCS
or set new APCSs.
New section 499 - Additional effect of Act - enforcement of, and
compliance with, the Australian Fair Pay and Conditions Standard
2746. Proposed section 499 would provide for the extension of the
compliance and enforcement provisions of Part VIII to the Standard
as it applies (because of section 492) to an employee (within the
meaning of section 489) in Victoria.
2747. For the purposes of this extended application, each reference in
Part VIII to an employee, an employer or employment (within the
meaning of Part VIII) is to be read as a reference to an employee,
an employer or employment (within the meaning of section 489) in
Victoria. This means that an employee (within the meaning of
section 489) in Victoria can enforce the Standard (as it applies
because of section 492) in the same way as an employee within the
meaning of subsection 4AA(1).
New Division 3 - Workplace agreements
2748. Proposed Division 3 of Part XV would provide employees and employers
(within the meaning of section 489) with the ability to make
workplace agreements in accordance with Part VB, subject to certain
modifications to ensure that the provisions are clearly supported by
the CP(IR) Act.
New section 500 - Additional effect of Act - Workplace agreements
2749. Proposed section 500 would provide that, without affecting its
general operation, Part VB of the WR Act also has effect (subject to
the requirements in sections 501 and 502) in relation to agreements
about matters pertaining to the relationship between:
. an employer or employers (within the meaning of section 489) in
Victoria; and
. an employee or employees (within the meaning of section 489) in
Victoria.
2750. For the purposes of this extended application, each reference in
Part VB to an employee, an employer or employment (within the
meaning of Part VB) is to be read as a reference to an employee, an
employer or employment (within the meaning of section 489) in
Victoria.
2751. Subsection 500(1) also provides that provisions of the WR Act which
are related provisions to Part VB of the WR Act (other than Part
VIAA - transmission of business) have the same extended effect.
Related provisions would include the proposed provisions about the
model dispute resolution procedure (Part VIIA), compliance (Part
VIII) and industrial action (Part VC) as well as proposed section
352A, in so far as they relate to workplace agreements.
2752. Subsections 500(3) and 500(4) would allow the making of regulations
to specify what is, and is not, a related provision for the purposes
of section 500.
New section 501 - Workplace agreements - mandatory term about basic
periodic rate of pay
2753. Proposed section 501 would provide that a collective agreement or
AWA which covers employees (within the meaning of section 489) in
Victoria must contain an express term to the effect that, for so
long as the employee is covered by the agreement, the employer will
provide a basic periodic rate of pay that is at least equal to:
. if the employee is within a work classification within the meaning
of section 496, the basic periodic rate of pay that would be
payable to the employee if the employee's wage were as provided
under the Standard (as it applies under section 492), ie the basic
periodic rate of pay attaching to the employee's work
classification;
. if the employee is not within a work classification within the
meaning of section 496, and is a junior employee, an employee with
a disability or an employee to whom a training arrangement
applies, the rate of pay specified in, or worked out in accordance
with a method specified in, the regulations; or
. if the employee is not within a work classification within the
meaning of section 496, and is not a junior employee, an employee
with a disability or an employee to whom a training arrangement
applies, the standard FMW provided under sections 90Q and 90R.
2754. This section is intended to provide a wages guarantee to employees
(within the meaning of section 489) in Victoria who are subject to a
collective agreement or AWA, that is similar to the wages guarantee
which would apply to employees within the meaning of subsection
4AA(1). The wages guarantee provided by the Standard, as extended
by Division 2 of Part XV, cannot be applied to employees (within the
meaning of section 489) in Victoria who are subject to a collective
agreement or AWA, because of the terms of the referral of power in
the CP(IR) Act.
2755. Subsection 501(3) would provide that a collective agreement or AWA
which covers an employee (within the meaning of section 489) in
Victoria is void if it does not contain the mandatory term provided
by subsection 501.
New section 502 - Workplace agreements - mandatory term about casual
loading
2756. Proposed section 502 would provide that a collective agreement or
AWA which covers employees (within the meaning of section 489) in
Victoria, who are casual employees, must contain an express term to
the effect that, for so long as a casual employee is covered by the
agreement, the casual loading that is payable to a casual employee
will not be less than the default casual loading percentage provided
by Division 2 of Part VA. (The default casual loading percentage is
the benchmark for agreement making, irrespective of the casual
loading that would otherwise apply to the employee.)
2757. This section is intended to provide a casual loading guarantee to
employees (within the meaning of section 489) in Victoria who are
subject to a collective agreement or AWA, that is similar to the
casual loading guarantee which would apply to employees within the
meaning of subsection 4AA(1). The casual loading guarantee provided
by the Standard, as extended by Division 2 of Part XV, cannot be
applied to employees (within the meaning of section 489) in Victoria
who are subject to a collective agreement or AWA, because of the
terms of the referral of power in the CP(IR) Act.
2758. Subsection 502(2) would provide that a collective agreement or AWA
which covers a casual employee who is an employee (within the
meaning of section 489) in Victoria is void if it does not contain
the mandatory term provided by subsection 502.
Division 4 - Industrial action
2759. Proposed Division 4 of Part XV would provide that the provisions
relating to the taking of industrial action in proposed Part VC
would apply to employees and employers within the meaning of section
489, subject to certain modifications to ensure that the provisions
are clearly supported by the CP(IR) Act.
New section 503 - Additional effect of Act - industrial action
2760. Proposed section 503 would provide that, without affecting its
general operation, Part VC of the WR Act (other than proposed
Division 8 of Part VC - see paragraph 503(d)) also has effect in
relation to industrial action engaged in by employers (within the
meaning of section 489) in Victoria or employees (within the meaning
of section 489) in Victoria, subject to an altered definition of the
term industrial action.
2761. Paragraph 503(e) and subsections 503(1) - (6) set out a replacement
definition of industrial action. The key difference between this
definition, and the definition in proposed section 106A is the
requirement in paragraph 503(1)(e) that, to attract the extended
application, the industrial action must be 'agreement-related'.
This requirement has been adopted to ensure that the industrial
action provisions fall within the terms of the referral of power in
the CP(IR) Act.
2762. The term agreement-related would be defined by subsection 503(3).
Action would be agreement-related if it:
. relates to the negotiation or proposed negotiation of an agreement
under Part VB (as that Part has effect because of section 500); or
. affects or relates to work that is regulated by an agreement under
Part VB (as that Part has effect because of section 500).
2763. For the purposes of this extended application, each reference in
Part VC and in 503(1) - (6) to an employee, an employer or
employment (within the meaning of Part VC) is to be read as a
reference to an employee, an employer or employment (within the
meaning of section 489) in Victoria.
2764. Because section 500 would extend Part VB and related provisions, a
reference in section 503 to a collective agreement or AWA would
include a collective agreement or AWA which has been made or is
proposed to be made under Part VB, as that Part has effect because
of 500.
New section 504 - Intervention in proceedings under Part VC
2765. Proposed section 504 would provide that the AIRC must, on
application, grant to a Minister of Victoria, on behalf of the
Government of Victoria, leave to intervene in proceedings under
Division 2 of Part VC (which relates to suspension and termination
of bargaining periods), or an appeal against a decision of the AIRC
made under Division 2 of Part VC, if one or more of the relevant
employees are employees (within the meaning of section 489) in
Victoria.
2766. Section 504 is not intended to grant a Minister of Victoria a right
to intervene in proceedings concerning Division 2 of Part VC in
circumstances where the proceedings do not relate to employees
(within the meaning of section 489) in Victoria. If the proceedings
relate only to employees within the meaning of subsection 4AA(1), a
Minister of Victoria has no automatic right, under section 504, to
be granted leave to intervene, although he or she might still be
entitled to seek leave to intervene in the usual way.
New section 505 - Additional effect of Act - enforcement of, and
compliance with, orders under Part VC
2767. Proposed section 505 would extend the application of the compliance
provisions in proposed Part VIII of the WR Act to an order of the
AIRC under proposed Part VC (which relates to industrial action) as
it applies because of section 503.
2768. For the purposes of this extended application, each reference in
Part VIII to an employee, an employer or employment (within the
meaning of Part VIII) is to be read as a reference to an employee,
an employer or employment (within the meaning of section 489) in
Victoria. This means that an employee or employer (within the
meaning of section 489) in Victoria can enforce the orders under
Part VC (as it applies because of section 503) in the same way as an
employee or employer within the meaning of subsection 4AA(1) or
4AB(1).
New Division 5 - Meal breaks
New section 506 - Additional effect of Act-meal breaks
2769. Proposed section 506 would provide employees (within the meaning of
section 489) in Victoria the same meal break entitlement as
employees (within the meaning of subsection 4AA(1)) would be
provided by proposed Division 1 of Part VIA, subject to certain
modifications as a result of the terms of the CP(IR) Act.
2770. The model dispute resolution process would also apply to disputes
about this entitlement.
New section 507 - Additional effect of Act - enforcement of, and
compliance with, section 170AA
2771. Proposed section 507 would extend the application of the compliance
provisions in proposed Part VIII to the meal break entitlement (as
it applies because of section 506) to an employee (within the
meaning of section 489) in Victoria.
2772. For the purposes of this extended application, each reference in
Part VIII to an employee, an employer or employment (within the
meaning of Part VIII) is to be read as a reference to an employee,
an employer or employment (within the meaning of section 489) in
Victoria. This means that an employee (within the meaning of
section 489) in Victoria can enforce the meal break entitlement (as
it applies because of section 507) in the same way as an employee
within the meaning of subsection 4AA(1) or 4AB(1).
New Division 6 - Termination of employment
2773. Proposed Division 6 of Part XV would provide that an employee
(within the meaning of section 489) whose employment is terminated
shall have the same rights to make an application to the AIRC
alleging that the termination was harsh, unjust or unreasonable, as
the employee would have if he or she were an employee within the
meaning of subsection 4AA(1).
New section 508 - Additional effect of Act-termination of employment
2774. Proposed section 508 would ensure that the provisions of Division 3
of Part VIA which enable certain dismissed employees to make an
application to the AIRC alleging that the termination of his or her
employment was harsh, unjust or unreasonable will apply to employees
(within the meaning of subsection 489) in Victoria in the same way
as they would apply to employees within the meaning of subsection
4AA(1). The exclusions from the unfair dismissal jurisdiction
contained in sections 170CE and 170CBA would also apply to employees
(within the meaning of subsection 489) in Victoria in the same way
as they would apply to employees within the meaning of subsection
4AA(1).
2775. Proposed section 508 is not intended to affect the meaning of
employee and employer provided by subparagraph (b) of the definition
of those two terms in subsection 170CAA(1), as they relate to the
'unlawful termination' provisions which cover employees within the
(wider) meaning provided by subsection 4AA(2).
New section 509 - Additional effect of Act - enforcement of, and
compliance with, orders under Division 3 of Part VIA
2776. Proposed section 509 would extend the application of the compliance
provisions in proposed Part VIII to orders of the AIRC under
Division 3 of Part VIA (as it applies because of section 508) to an
employee (within the meaning of section 489) in Victoria.
2777. For the purposes of this extended application, each reference in
Part VIII to an employee, an employer or employment (within the
meaning of Part VIII) is to be read as a reference to an employee,
an employer or employment (within the meaning of section 489) in
Victoria. This means that an employee or employer (within the
meaning of section 489) in Victoria can enforce an order of the AIRC
under Division 3 of Part VIA (as it applies because of section 508)
in the same way as an employee or employer within the meaning of
subsection 4AA(1) or 4AB(1).
New Division 7 - Freedom of Association
2778. Proposed Division 7 of Part XV would provide that, in addition to
its general constitutional coverage, Part XA also has effect in
relation to conduct in Victoria.
New section 510 - Additional effect of Act - freedom of association
2779. Proposed section 510 would provide that, without affecting its
general operation, Part XA of the WR Act also has effect in relation
to conduct in Victoria.
2780. For the purposes of this extended application, the meanings of
employee, employer and employment which are contained in Part XA
will continue to apply - that is, those meanings would not be
replaced by the meanings contained in section 489.
2781. Subsection 510(2) would provide that the extended application
provided by subsection 510(1) shall apply despite proposed
subsection 243(3) which would, if subsection 510(2) were not
enacted, prevent the extension of Part XA in this context.
New Division 8 - Right of entry
2782. Proposed Division 8 of Part XV would modify the operation of Part IX
of the WR Act, to the extent that it relates to entry onto premises
of an employer (within the meaning of section 489) in Victoria. The
modifications are made to ensure that the provisions fall with the
terms of the referral of power in the CP(IR) Act.
New section 511 - Right of entry
2783. Proposed section 511 would provide that Part IX of the WR Act has
effect in relation to premises of an employer (within the meaning of
section 489) in Victoria subject to paragraphs 511(a) and (b).
2784. The modifications made by paragraphs 511(a) and (b) to the
application of Part IX to premises of an employer (within the
meaning of section 489) in Victoria give effect to the terms of the
referral of power from the Victorian Parliament to the Commonwealth
Parliament in the CP(IR) Act.
2785. Paragraph 511(a) would provide that Part IX has effect in relation
to premises of an employer (within the meaning of section 489) in
Victoria as if Division 4 of Part IX did not authorise entering the
premises of an employer (within the meaning of section 489) in
Victoria for the purposes of investigating a suspected breach unless
the suspected breach relates to:
. a provision of the WR Act (as that provision has effect because of
Part XV); or
. an agreement under Part VB (as Part VB has effect because of
section 500).
2786. A right of entry to premises in Victoria to investigate a suspected
breach of a transitional award or a Victorian reference transitional
award, or a common rule which applies to an industry in Victoria,
would be provided by proposed clauses 105 and 91 of Schedule 13 to
the WR Act.
2787. Paragraph 511(b) would provide that Part IX has effect in relation
to premises of an employer (within the meaning of section 489) in
Victoria as if Division 6 of Part IX did not authorise entering the
premises of an employer (within the meaning of section 489) in
Victoria for the purposes of holding discussions unless the
discussions relate to:
. an agreement under Part VB (as Part VB has effect because of
proposed section 500); or
. a proposed agreement under Part VB (as Part VB has effect because
of proposed section 500).
2788. In the event that the proposed discussions do not relate to an
agreement or proposed agreement, Division 6 of Part IX cannot be
applied to employees (within the meaning of section 489) in
Victoria.
New section 512 - Additional effect of Act - enforcement of, and
compliance with, orders under Part IX
2789. Proposed section 512 would extend the application of the compliance
provisions in proposed Part VIII to an order of the AIRC under Part
IX in relation to premises of an employer (within the meaning of
section 489) in Victoria.
2790. This means that an employee or employer (within the meaning of
section 489) in Victoria can enforce orders under Part IX (as it
applies because of proposed Division 8 of Part XV) in the same way
as an employee or employer within the meaning of subsection 4AA(1)
or 4AB(1).
New Division 9 - Transmission of business
2791. Proposed Division 8 of Part XV would provide that Part VIAA has
effect in relation to transmissions of business involving one or
more employers that are employers (within the meaning of section
489) in Victoria or involving a workplace agreement made under Part
VB as that Part would apply because of section 500.
New section 513 - Additional effect of Act - Transmission of
business
2792. Proposed section 513 would provide that, without affecting its
general operation, Part VIAA of the WR Act also has effect as if:
. each reference in Part VIAA to an employee, an employer or
employment (within the meaning of Part XA) included a reference to
an employee, an employer or employment (within the meaning of
section 489) in Victoria;
. Division 5 of Part VIAA had not been enacted;
. each reference in Part VIAA to an AWA included a reference to an
AWA made under Part VB as that Part has effect because of section
500;
. each reference in Part VIAA to a collective agreement included a
reference to a collective agreement made under Part VB as that
Part has effect because of section 500;
. each reference in Part VIAA to a workplace agreement included a
reference to a workplace agreement made under Part VB as that Part
has effect because of section 500; and
. each reference in Part VIAA to the Standard included a reference
to the Standard as that Standard has effect because of section
492.
2793. As a result of proposed section 513, the transmission of business
provisions in Part VIAA would also apply to an AWA, a collective
agreement and the Standard in relation to a transmission of
business:
. from an employer within the meaning of subsection 4AB(1) to an
employer within the meaning of section 489;
. from an employer within the meaning of section 489 to an employer
within the meaning of subsection 4AB(1); and
. from an employer within the meaning of section 489 to an employer
within the meaning of section 489;
regardless of whether the AWA or collective agreement was made under Part
VB or under Part VB as that Part has effect because of section 492, or
whether the Standard has effect under Part VA or because of section 492.
2794. Subsections 513(2) and 513(3) would provide that Part VIAA as it
applies to an employer in Victoria under Division 9 only has effect
while supported by the CP(IR) Act.
New section 514 - Additional effect of Act - enforcement of, and
compliance with, orders under Part VIAA
2795. Proposed section 514 would extend the application of the compliance
provisions in proposed Part VIII to an order of the AIRC under Part
VIAA (as it applies because of section 513) to an employee (within
the meaning of section 489) in Victoria.
2796. For the purposes of this extended application, each reference in
Part VIII to an employee, an employer or employment (within the
meaning of Part VIII) is to be read as a reference to an employee,
an employer or employment (within the meaning of section 489) in
Victoria. This means that an employee or employer (within the
meaning of section 489) in Victoria can enforce an order of the AIRC
under Part VIAA (as it applies because of section 513) in the same
way as an employee or employer within the meaning of subsection
4AA(1) or 4AB(1).
New Division 10 - Employment agreements
2797. Proposed Division 10 of Part XV would contain arrangements for the
continued application of employment agreements which were originally
made under the Employee Relations Act 1992 (Vic) (now known as the
Long Service Leave Act 1996 (Vic)).
2798. While the Employee Relations Act 1992 (Vic) originally provided for
the making of both collective and individual employment agreements,
all employment agreements which currently continue to exist under
Subdivision E of Part XV of the pre-reform WR Act are, because of
the terms of the Employee Relations Act 1992 (Vic) and Subdivision E
of Part XV of the pre-reform WR Act, individual employment
agreements.
New section 515 - Definitions
2799. Proposed section 515 would provide that Division 10 would apply to
any employee within the meaning of the CP(IR) Act, but not a person
who is undertaking a vocational placement.
2800. This definition would apply only to Division 10 of Part XV - meaning
that the definitions of the terms employee, employer and employment
which are contained in each of subsections 4AA(1), 4AB(1) and 4AC(1)
of the WR Act and 489 do not apply to Division 10 of Part XV of the
WR Act.
2801. Section 515 would define employment agreement for the purposes of
Division 10 of Part XV to mean an agreement that, immediately before
the reform commencement, was continued in force by Subdivision E of
Division 3 of Part XV of the WR Act. These employment agreements
were originally made under repealed provisions of the Employee
Relations Act 1992 (Vic).
New section 516 - Application of this Division
2802. Proposed section 516 provides for the application of Division 10 of
Part XV.
2803. Subsection 516(1) would provide that Division 10 of Part XV applies
to an employment agreement if:
. the employer and employee bound by the employment agreement are an
employer and employee within the meaning of section 489; or
. the employer and employee bound by the employment agreement are an
employer and employee within the meaning of subsections 4AA(1),
4AB(1) and 4AC(1).
2804. Subsection 516(2) would provide that, to the extent that the
employer and employee bound by the employment agreement are an
employer and employee within the meaning of section 489, Division 10
of Part XV only operates for as long as, and in so far as, the
relevant referral of a matter to the Parliament of the Commonwealth
is in effect and provides sufficient legislative power for the
section to have effect. This reflects the constitutional position.
New section 517 - Inconsistency with other Commonwealth laws
2805. Proposed section 517 would establish the relationship between
Division 10 of Part XV of the WR Act and any other Commonwealth law.
Where there is any inconsistency, the other Commonwealth law
prevails. This is subject to clause 39 of Schedule 14, which would
provide that a designated old IR agreement (within the meaning of
subclause 39(1) of Schedule 14) prevails to the extent of any
inconsistency with an employment agreement.
New section 518 - Continued operation of employment agreements
2806. Proposed section 518 would provide that an employment agreement,
within the meaning of section 515, will continue in effect until the
employee covered by the employment agreement becomes covered by an
AWA, collective agreement or a workplace determination made under
Part VB of the WR Act.
New section 519 - Stand down provisions
2807. Proposed section 519 would provide that if an employment agreement,
within the meaning of section 515, does not contain a stand-down
provision, it will be deemed to include the stand-down provision
contained in subsection 519(2). This is in line with equivalent
repealed provisions (section 14 and Schedule 5) of the Employee
Relations Act 1992 (Vic).
2808. Proposed section 519 does not apply more generally to contracts of
employment in Victoria.
New section 520 - Model dispute resolution process
2809. Proposed section 520 would provide that an employment agreement
(within the meaning of section 515) is taken to include a term
requiring that disputes about the application of the employment
agreement are to be resolved using the model dispute resolution
process contained in Part VIIA of the WR Act.
2810. Subsection 520(2) would render void a term of an employment
agreement (within the meaning of section 515) that would deal with a
dispute about the application of the employment agreement in any way
other than that contained in the model dispute resolution process
contained in Part VIIA of the WR Act.
New section 521 - Additional effect of Act - enforcing employment
agreements
2811. Proposed section 521 would extend the application of the compliance
provisions in proposed Part VIII to an employment agreement, within
the meaning of section 515.
2812. For the purposes of this extended application, each reference in
Part VIII to an employee, employer or employment (within the meaning
of Part VIII) is to be read as a reference to an employee, employer
or employment (within the meaning of section 515) in Victoria.
2813. Furthermore, for the purposes of this extended application, each
reference in Part VIII to an AWA is to be read as a reference to an
employment agreement within the meaning of section 515. An
employment agreement would be enforceable under Part VIII as if it
were an AWA, and eligible persons who could apply to enforce an
employment agreement would the same as who could apply to enforce an
AWA.
New section 522 - Employer to give copy of employment agreement
2814. Proposed section 522 would provide that an employer bound by an
employment agreement (within the meaning of section 515) must, on
being requested to do so by the employee bound by the employment
agreement, provide a copy of the employment agreement to the
employee as soon as possible. This maintains a requirement of a
repealed provision (section 10(2)) of the Employee Relations Act
1992 (Vic).
New section 523 - Additional effect of Act - employee records and
pay slips
2815. Proposed section 523 would provide that, without affecting its
general operation, section 353A also has effect in relation to the
employment of a person under an employment agreement (within the
meaning of section 515).
2816. For the purposes of this extended application, each reference in
section 353A to an employer or employment (within the meaning of
section 353A) is to be read as a reference to an employer or
employment (within the meaning of section 515) in Victoria.
2817. Furthermore, for the purposes of this extended application, each
reference in section 353A to an 'AWA' is to be read as a reference
to an employment agreement within the meaning of section 515.
New section 524 - Registrar not to divulge information in employment
agreements
2818. Proposed section 524 would provide that the contents of employment
agreements (within the meaning of section 515) held by the
Australian Industrial Registrar are confidential to the parties or a
person who may enforce the employment agreement. This is consistent
with a repealed provision (subsection 13(3)) of the Employee
Relations Act 1992 (Vic).
New section 525 - Relationship between employment agreements and
Australian Fair Pay and Conditions Standard
New section 525 - Relationship between employment agreements and Australian
Fair Pay and Conditions Standard
Proposed section 525 would provide that where an entitlement under a term
of an employment agreement is more favourable to the employee than a
similar entitlement which is part of the Standard, the employee will be
entitled to the entitlement under the employment agreement, and that where
the Standard is more favourable the Standard will prevail.
As a result of section 525, the terms of an employment agreement within the
meaning of section 515 would be underpinned by the terms and conditions
contained in the Standard as contained in:
. Part VA - for an employee within the meaning of subsection 4AA(1);
or
. Part VA (except for Division 6) as extended by section 492 and
Division 6 of Part VA as extended by section 170KB - for an
employee within the meaning of section 489 (see section 493).
The effect of section 525 is similar to that of a repealed provision (see
subsections 25(2) and 26(2)) of the Employee Relations Act 1992 (Vic) which
provided that employment agreements were underpinned by Schedule 1 of that
Act, and with section 504 of the pre-reform WR Act, which provides that
employment agreements are underpinned by Schedule 1A of the WR Act. Post-
reform, Schedule 1A would be replaced by the Standard.
New section 526 - Relationship between employment agreements and
awards
2819. Proposed section 526 would provide that an award (under Part VI of
the WR Act) prevails to the extent of any inconsistency with an
employment agreement within the meaning of section 515.
2820. The meaning of award for the purposes of this section is extended by
clauses 89, 95 and 102 of Schedule 13.
New Division 11 - Exclusion of Victorian laws99
2821. Proposed Division 11 would provide that the WR Act is intended to
override certain State and Territory laws, to the extent that they
relate to an employee, an employer or employment (within the meaning
of section 489) in Victoria.
New section 527 - Additional effect of Act - exclusion of Victorian
laws
2822. Proposed section 527 would provide that, without affecting their
general operation, sections 7C (other than paragraphs 7C(3)(f) and
(m)), 7D and 7E also have effect as if each reference in those
provisions to an employee, an employer or employment (within the
meaning of those sections) were a reference to an employee, an
employer or employment (within the meaning of section 489) in
Victoria.
2823. The effect of section 527 would be that the provisions of sections
7C, 7D and 7E would apply to exclude State and Territory laws to the
extent that they would otherwise apply in relation to an employee
(within the meaning of section 489) in Victoria or an employer
(within the meaning of section 489) in Victoria.
2824. Proposed section 527 would not affect the operation of proposed
clause 87 of Schedule 13, which would provide that a common rule
that applies under Schedule 13 to an industry in Victoria is not
intended to exclude or limit the operation of a law of Victoria that
is capable of operating concurrently with the common rule.
New Division 12 - Other provisions of this Act
New section 528 - Additional effect of other provisions of this Act
2825. Proposed section 528 would enable regulations to be made modifying
the effect of various provisions of the WR Act, to give effect or
further effect to the CP(IR) Act.
2826. This regulation-making power would be used to give extended effect
to provisions of the WR Act not already dealt with in Part XV, to
make laws as provided for in (and subject to the provisions of) the
CP(IR) Act.
Item 241 - Section 538 (definition of employee)
2827. This item would repeal and replace the definition of employee in
section 538 so that the definition of employee for the purposes of
Part XVI is different to the definition in Part XV. An employee for
the purposes of Part XVI is an employee employed by a constitutional
corporation.
Item 242 - Subsection 541(1)
2828. This item would amend subsection 541(1) by deleting the reference to
subsection 541(5).
2829. This item is consequential upon item 246, which would repeal
subsection 541(5).
Item 243 - Subsection 541(3)
2830. This item would amend subsection 541(3) by deleting the reference to
Schedule 1A of the WR Act and replacing it with a reference to the
Standard in proposed Part VA.
2831. This item would be consequential upon item 264, which would repeal
Schedule 1A of the WR Act.
Item 244 - Subsection 541(3)
2832. This item would amend subsection 541(3) by deleting the reference to
subsection 541(5).
2833. This item is consequential upon item 246, which would repeal
subsection 541(5).
Item 245 - Subsection 541(4)
2834. This item would amend subsection 541(4) by deleting the reference to
Schedule 1A of the WR Act and replacing it with a reference to the
Standard in proposed Part VA.
2835. This item would be consequential upon item 264, which would repeal
Schedule 1A of the WR Act.
Item 246 - Subsection 541(5)
2836. This item would repeal subsection 541(5). The statutory amount owed
to a person under Part XVI would be calculated in accordance with
subsection 541(3), without reference to any award made under the WR
Act.
Item 247 - Paragraph 548(1)(a)
2837. This item would make a minor amendment affecting the use of
terminology.
Items 248 - 263
2838. These items would amend provisions inserted by Schedule 3 of the
Bill, which inserts new Part XVII. This new Part would commence
ahead of other provisions in the Bill to ensure that provisions that
provide for minimum wages and conditions for school-based
apprentices and trainees would commence at the start of the 2006
school year.
Item 248 - Section 550 (definition of additional condition)
2839. This item would omit 'a wage instrument other than a rate of pay'
from the definition of additional condition in section 550, and
substitute instead 'an award or notional agreement preserving State
awards'. This is a technical amendment, consequent on the repeal of
the definition of wage instrument by item 254.
Item 249 - Section 550 (definition of employee)
2840. This item would repeal the definition of employee, consequent on
insertion of that definition in section 4(1) of the WR Act by item
2.
Item 250 - Section 550 (definition of employer)
2841. This item would repeal the definition of employer, consequent on
insertion of that definition in section 4(1) of the WR Act by item
2.
Item 251 - Section 550 (definition of full-time apprentice)
2842. This item would omit 'wage instrument' from the definition of full-
time apprentice in section 550, and substitute instead 'award or
notional agreement preserving State awards'. This is a technical
amendment, consequent on the operation of proposed section 90ZD and
the repeal of the definition of wage instrument by item 254.
Item 252 - Section 550 (definition of State or Territory training
authority)
2843. This item would repeal the definition of State or Territory training
authority from Part XVII, consequent on insertion of that definition
in section 4(1) of the WR Act by item 2.
Item 253 - Section 550 (definition of training arrangement)
2844. This item would repeal the definition of training arrangement from
Part XVII, consequent on insertion of that definition in section
4(1) of the WR Act by item 2.
Item 254 - Section 550 (definition of wage instrument)
2845. This item would repeal the definition of wage instrument. This is a
technical amendment to reflect the fact that the relevant wage and
classification provisions in awards will be translated into a
preserved APCS under proposed section 90ZD.
Item 255 - Section 551
2846. This item would repeal section 551, consequent on new section 7C
that would exclude the application of particular laws of a State or
Territory.
Item 256 - Section 552
2847. This item would repeal section 552, consequent on the translation of
the rates of pay for school-based apprentices into a preserved APCS
under proposed section 90ZD.
Item 257 - Section 553(5)
2848. This item would repeal subsection 553(5) and substitute an
alternative subsection, consequent on the operation of proposed
section 90ZD and the repeal of the definition of wage instrument by
item 254.
Item 258 - Subsection 554(1)
2849. This item would omit the words 'a wage instrument' in subsection
554(1) and substitute 'an APCS', consequent on the operation of
proposed section 90ZD and the repeal of the definition of wage
instrument by item 254.
Item 259 - Section 555
2850. This item would repeal section 555, consequent on the translation of
the rates of pay for school-based apprentices into a preserved APCS
under proposed section 90ZD.
Item 260 - Subsection 556(6)
2851. This item would repeal subsection 556(6) and substitute an
alternative subsection, consequent on the operation of proposed
section 90ZD and the repeal of the definition of wage instrument in
section 550.
Item 261 - At the end of section 557
2852. This item would add a new subsection 557(3) to provide that section
557, which provides a 20% loading in lieu of certain conditions, has
effect as if it were a provision of the Standard.
Item 262 - Section 558
2853. This item would make a minor technical amendment, consequent on the
translation of the rates of pay for school-based apprentices into a
preserved Australian Pay and Classification Scale under proposed
section 90ZD.
Item 263 - Section 558
2854. This item would made minor amendments, consequent on the repeal of
sections 552 and 555 made by this Schedule.
Item 264 - Schedule 1A
2855. This item would repeal Schedule 1A of the WR Act.
2856. Schedule 1A would be replaced by the Standard in proposed Part VA
(see item 238).
Items 265 - 355
2857. These items would make a number of amendments to Schedule 1B
including:
. changing the constitutional underpinnings for the registration of
organisations under Schedule 1B;
. reducing the minimum number of members required for the formation
of an enterprise association from fifty members to twenty;
. providing additional grounds upon which an organisation may be
deregistered;
. allowing for applications for withdrawal from amalgamation to be
made in relation to amalgamations that occurred prior to 31
December 1996 and expanding the class of persons who can apply for
a ballot for withdrawal; and
. providing particular powers for the AIRC in addition to the powers
set out in proposed Part II.
2858. A number of minor and consequential amendments would also be made to
Schedule 1B.
Item 265 - Section 1 of Schedule 1B
2859. Item 265 would replace the words 'the objects of the Schedule' with
'Parliament's intention in enacting this Schedule' in Section 1,
which provides an outline of Chapter 1 of Schedule 1B. This
amendment is consequential to the amendment to section 5 made by
Item 266.
Item 266 - Section 5 of Schedule 1B
2860. Item 266 would repeal pre-reform section 5 of Schedule 1B and
replace it with a new section 5. Proposed section 5 would provide
that Parliament's intention in enacting Schedule 1B is to:
. enhance relations between employees and employers and reduce the
adverse effect of industrial disputation (subsection 5(1)); and
. assist employers and employees to promote and protect their
economic and social interests by facilitating the formation of
employer and employee organisations equipped with rights and
privileges (subsection 5(4)).
2861. Subsection 5(2)) would provide that the Parliament considers that
the relations between employers and employees would be enhanced, and
the adverse effects of industrial disputation would be reduced, if
associations of employers and employees are required to meet the
standards set out in Schedule 1B.
2862. Subsection 5(3) would state that those standards:
. ensure that employee and employer organisations registered under
this Schedule are representative of and accountable to their
members, and are able to operate effectively (paragraph 5(3)(a));
. encourage members to participate in the affairs of organisations
to which they belong (paragraph 5(3)(b));
. encourage the efficient management of organisations and high
standards of accountability of organisations to their members
(paragraph 5(3)(c)); and
. provide for the democratic functioning and control of
organisations (paragraph 5(3)(d)).
2863. These four paragraphs are the same as the present objects of
Schedule 1B. Paragraph 5(3)(e) would be a new provision that
provides that the standards set out in Schedule 1B will facilitate
the registration of a diverse range of employer and employee
associations.
Item 267 - Section 6 of Schedule 1B
Item 268 - Section 6 of Schedule 1B
Item 269 - Section 6 of Schedule 1B (definition of AWA)
Item 270 - Section 6 of Schedule 1B (definition of award)
Item 271 - Section 6 of Schedule 1B (definition of certified
agreement)
Item 272 - Section 6 of Schedule 1B
Item 273 - Section 6 of Schedule 1B (definition of enterprise)
Item 274 - Section 6 of Schedule 1B (definition of enterprise
association)
Item 275 - Section 6 of Schedule 1B (definition of enterprise
organisation)
Item 276 - Section 6 of Schedule 1B
Item 277 - Section 6 of Schedule 1B
Item 278 - Section 6 of Schedule 1B
Item 279 - Section 6 of Schedule 1B (definition of industrial
dispute)
Item 280 - Section 6 of Schedule 1B (definition of old IR agreement)
Item 281 - Section 6 of Schedule 1B
Item 282 - Section 6 of Schedule 1B
Item 283 - Section 6 of Schedule 1B
Item 284 - Section 6 of Schedule 1B
Item 285 - Section 6 of Schedule 1B
Item 286 - Section 6 of Schedule 1B
2864. These items would repeal, replace or insert a number of definitions
in section 6 of Schedule 1B to reflect amendments made by this
Schedule or by the Bill.
2865. Item 270 would repeal the pre-reform definition of award and insert
a new definition providing that an award means an award within the
meaning of the WR Act and a transitional award within the meaning of
proposed Schedule 13 of the WR Act.
Item 287 - Section 7 of Schedule 1B
This item repeals the pre-reform definition of industrial action in section
7 and replaces it with a new definition. The new definition would
replicate the definition of industrial action that will apply for the
purposes of the WR Act (as contained in proposed Part VC, proposed section
106A). This will ensure that the definitions of industrial action in the
WR Act and in Schedule 1B are consistent.
Item 288 - Section 8 of Schedule 1B
This item would repeal section 8, which defines the term industrial
dispute. This definition is no longer necessary as Schedule 1B will not be
underpinned by the conciliation and arbitration power.
Item 289 - Section 18 of Schedule 1B
2866. This item would repeal pre-reform section 18 and insert new sections
18, 18A, 18B, 18C and 18D.
2867. Pre-reform section 18 provides that the associations which may apply
for registration under Schedule 1B are employer associations,
employee associations and enterprise associations. Proposed section
18 would provide for the registration of the same classes of
associations, but these would now be called:
. federally registrable associations of employers;
. federally registrable associations of employees; and
. federally registrable enterprise associations.
Federally registrable associations of employers
2868. Proposed section 18A would set out the requirements an association
of employers would need to meet to be registered as an organisation
under Schedule 1B.
2869. Subsection 18A(1) would provide that an association of employers is
federally registrable if it is either a constitutional corporation
or the majority of its members are federal system employers.
2870. Subsection 18A(2) would define a federal system employer, as being:
. a constitutional corporation;
. an employer in relation to an enterprise that is within other
Constitutional heads of power; or
. an employer in Victoria, provided that the provisions of Schedule
1B that would apply to the employer or to the association of which
the employer is a member would fall within the legislative power
referred to the Commonwealth under the CP(IP) Act 1996 ('the
Victorian referral').
2871. Subsection 18A(3) would provide that an associations of employers is
not federally registrable if it has a member who is not either:
. an employer (paragraph 18A(3)(a));
. a person (other than an employee) who carries on a business
(paragraph 18A(3)(b)); or
. an officer of the association (paragraph 18A(3)(c)).
2872. The restrictions on who may be a member of an association for it to
be registered under Schedule 1B are consistent with similar
restrictions in pre-reform paragraph 18(1)(a).
Illustrative Example
The West Australian Arts and Commerce Society is an employer association.
It has ten members, nine of which are federal system employers. The tenth
member, Todd, is an art teacher.
The Society applied for registration under Schedule 1 B but its application
was rejected because the application disclosed that Todd:
. was not an employer;
. did not carry on a business; and
. was not an officer of the association
2873. Subsection 18A(4) would provide that an association of employers
which is only a body corporate by virtue of being registered as an
organisation under Schedule 1B and does not have a majority of
members who are federal system employers is not federally
registrable. However, if the association is otherwise a
constitutional corporation or does have a majority of federal system
employer members it would be federally registrable as it would meet
the criteria in subsection 18A(1).
Federally registrable associations of employees
2874. Proposed section 18B would set out the requirements an association
of employees would need to meet to be registered as an organisation
under Schedule 1B.
2875. Subsection 18B(1) would provide that an association of employees is
federally registrable if it is either a constitutional corporation
or the majority of its members are federal system employees.
2876. Subsection 18B(2) would define a federal system employee, as being a
person:
. employed by a constitutional corporation;
. employed in an enterprise that is within other constitutional
heads of power;
. employed in Victoria provided that the provisions of Schedule 1B
that would apply to the employee or to the association of which
the employee is a member would fall within the Victorian referral;
or
. who is an independent contractor who if he or she was an employee
would fall within one of the categories above.
2877. Subsection 18B(3) would provide that an associations of employees is
not federally registrable if it has a member who is not either:
. an employee (paragraph 18B(3)(a));
. a person deemed to be an employee or eligible for membership of an
industrial organisation under specified State industrial laws
(paragraph 18B(3)(b) and subsection 18B(4));
. an independent contractor who if he or she was an employee would
be eligible for membership (paragraph 18B(3)(c)); or
. an officer of the association (paragraph 18B(3)(d)).
2878. The restrictions on who may be a member of an association for it to
be registered under Schedule 1B are the same as current restrictions
in pre-reform paragraph 18(1)(b).
2879. Subsection 18B(4) would provide that an association of employees
which is only a body corporate by virtue of being registered as an
organisation under Schedule 1B and does not have a majority of
federal system employee members is not federally registrable.
However, if the association is otherwise a constitutional
corporation or does have a majority of federal system employee
members it would be federally registrable as it would meet the
criteria in subsection 18B(1).
Federally registrable enterprise associations
2880. Subsection 18C(1) would provide that an enterprise association is an
association with a majority of members who are employees performing
work in the same enterprise.
2881. Subsection 18C(2) would provide that an enterprise association is
federally registrable if it meets any of the following criteria:
. it is a constitutional corporation;
. the majority of its members are federal system employees;
. the employer or employers in relation to the relevant enterprise
are constitutional corporations;
. the relevant enterprise is within other Constitutional heads of
power; or
. the relevant enterprise is in Victoria provided that the
provisions of Schedule 1B that would apply to the association fall
within the Victorian referral.
2882. Subsection 18C(3) would provide that an enterprise association is
not federally registrable if it has a member who is not either:
. an employee performing work in the relevant enterprise (paragraph
18C(3)(a));
. a person deemed to be an employee or eligible for membership of an
industrial organisation under specified State industrial laws
(paragraph 18C(3)(b) and subsection18C(4));
. an independent contractor who if he or she was an employee would
be eligible for membership or could be characterised as an
employee falling within the scope of paragraph 18B(2)(a)-(d)
(paragraph 18C(3)(c)); or
. an officer of the association (paragraph 18C(3)(d)).
2883. These restrictions on who may be a member of an association for it
to be registered under Schedule 1B are consistent with the current
restrictions in pre-reform paragraph 18(1)(c).
2884. Subsection 18C(5) would provide that an association of employees
which is only a body corporate by virtue of being registered as an
organisation under Schedule 1B and does not satisfy paragraphs (b)
to (k) of subsection 18C(2) is not federally registrable. However,
if the association is otherwise a constitutional corporation or does
satisfy paragraphs (b) to (k) of subsection 18C(2) it would be
federally registrable.
Constitutional validity
2885. Proposed section 18D would provide, in essence, for the reading down
of aspects of proposed sections 18A to 18C if it was found that the
Parliament did not have sufficient legislative power to provide for
the registration of associations of employers, associations of
employees and enterprise associations under particular heads of
constitutional power relied upon in those sections.
Item 290 - Subparagraph 19(1)(a)(i) of Schedule 1B
Item 291 - Paragraph 19(1)(i) of Schedule 1B
Item 292 - Subsection 19(3) of Schedule 1B
Item 293 - Subparagraph 20(1)(a)(i) of Schedule 1B
2886. These items would make consequential amendments to section 19 of
Schedule 1B.
2887. Item 290 would replace a reference to repealed section 18 of
Schedule 1B with a reference to proposed paragraphs 18(a) or (b).
2888. Items 291 and 292 would replace the words 'the objects of the
Schedule' with 'Parliament's intention in enacting this Schedule' to
reflect amendments to section 5 made by Item 265.
2889. Items 293 would replace a reference to repealed section 18 with a
reference to proposed paragraph 18(c).
Item 294 - Paragraph 20(1)(c) of Schedule 1B
2890. This item would amend paragraph 20(1)(c) to reduce the number of
members an enterprise association must have to be eligible for
registration from fifty members to twenty.
Item 295 - Paragraph 20(1)(i) of Schedule 1B
2891. This item would make a technical amendment consequential to reflect
amendments to section 5 made by Item 266.
Item 296 - Subsection 20(1B) of Schedule 1B
2892. Paragraph 20(1)(b) of Schedule 1B provides that the AIRC cannot
grant an application for registration by an enterprise association
unless it is satisfied that the association is free from control by,
or improper influence from, any employer, whether at the enterprise
in question or otherwise.
2893. This item would repeal pre-reform subsection 20(1B) that requires
the AIRC to take into account the fact than an employer meets or
will meet costs and expenses of an enterprise association (or
provides or will provide services to the association) when
considering whether the association is free from control or improper
influence.
2894. The AIRC will still be required to satisfy itself according to
paragraph 20(1)(b) that the enterprise association is free from
control or improper influence.
Item 297 - Paragraphs 21(3)(a), 21(4)(a) and 22(3)(a) of Schedule 1B
2895. This item would replace references to repealed paragraph 18(1)(b) or
(c) with references to proposed paragraphs 18(b) or (c).
Item 298 - Paragraph 28(1)(a) of Schedule 1B
Item 299 - Paragraph 28(1)(b) of Schedule 1B
Item 300 - Paragraphs 28(1)(d) and (e) of Schedule 1B
Item 301 - After subsection 28(1) of Schedule 1B
Item 302 - Subsection 28(2) of Schedule 1B
Item 303 - Subsection 28(7) of Schedule 1B
Item 304 - Subsection 29(1) of Schedule 1B
Item 305 - Paragraph 29(2)(a) of Schedule 1B
2896. These items will make a number of amendments to section 28, which
deals with the cancellation of an organisation's registration.
2897. Item 298 would repeal paragraph 28(1)(a), which deals with specified
types of conduct by an organisation that may form the basis of an
application for deregistration and replace it with a new paragraph
28(1)(a). Proposed paragraph 28(1)(a) would replicate the pre-
reform paragraph, but would:
. replace references to 'a certified agreement or an old IR
agreement' with references to 'collective agreement' to reflect
changes in the terminology in the agreement making provisions; and
. include a reference to 'Parliament's intention in enacting this
Schedule' to reflect amendments to section 5 made by Item 266.
2898. Item 299 would repeal paragraph 28(1)(b), which provides that an
application for deregistration may be made on the ground that the
organisation has engaged in industrial action that has prevented,
hindered or interfered with trade or commerce or the provision of
any public service by a Commonwealth, State or Territory Government
or an authority of such a Government. It would insert a new
paragraph 28(1)(b), which would be in similar terms but would
replace the grounds dealing with trade or commerce with a single
reference to preventing, hindering or interfering with the
activities of a federal system employer (subparagraph 28(b)(i)).
This would cover the existing references to trade and commerce plus
the additional areas covered by the definition of federal system
employer in proposed subsection 18A(2), for example it would cover
an employer engaged in the supply of postal, telegraphic or
telephonic services.
2899. Item 300 would repeal pre-reform subsections 28(1)(d) and (e) which
provide that a ground for an application for deregistration is a
failure by the organisation (or a substantial number of its members
or a section or class of its members) to comply with an injunction
to stop or prevent industrial action under pre-reform subsection
127(6) or (7) of the WR Act or an order granted in connection with a
contravention of the strike pay provisions under pre-reform section
187AD of the WR Act. It would retain these two grounds (amended to
reflect the changed numbering of these provisions in the WR Act) and
add four additional grounds that the organisation (or a substantial
number of its members or a section or class of its members) has
failed to comply with:
. an order made under the WR Act's freedom of association provisions
(subparagraph 28(1)(d)(iii));
. an interim injunction granted under section 354A of the WR Act
where the interim injunction relates to a breach of section 111 of
the WR Act, the strike pay or freedom of association provisions
(subparagraph 28(1)(d)(iv));
. an order made under section 23 of Schedule 1B, which deals with
contraventions of prohibitions in relation to the formation or
registration of employee association provisions contained in
sections 21 and 22 (subparagraph 28(1)(d)(v)); or
. an order made under subsection 131(2), which deals with
contraventions of the withdrawal from amalgamation provisions
(subparagraph 28(1)(d)(vi))
2900. Item 301 would insert a new subsection 28(1A) which would provide
that the Industrial Registrar may apply for the cancellation of the
registration of an organisation on the ground that the organisation
has failed to comply with an order of the Federal Court under
subsection 336(5). A legislative note would be inserted to explain
that section 336 deals with the situation where a Registrar is
satisfied, after conducting an investigation, that a reporting unit
of an organisation has contravened the financial records, accounting
and auditing provisions or guidelines or rules relating to financial
matters.
2901. Item 302 would amend subsection 28(2), which requires that an
organisation in relation to which an application for deregistration
has been made must be given the opportunity to be heard, to include
a reference to proposed subsection 28(1A). This will ensure that an
organisation is entitled to be heard when the application for
deregistration is made under proposed subsection 28(1A).
2902. Item 303 would repeal subsection 28(7) and replace it with a new
subsection. Proposed subsection 28(7) would be in similar terms to
the existing provision, but would include references to the expanded
range of Court orders and injunctions that may give rise to an
application for deregistration proposed by Item 295. It would also
replace the reference to section 127 of the WR Act with a reference
to section 111 of the WR Act to reflect the changed numbering of
that provision by other proposed amendments to the WR Act.
2903. Item 304 would make a consequential amendment to subsection 29(1) to
include a reference to proposed subsection 28(1A).
2904. Item 305 would make a consequential amendment to paragraph 29(2)(a)
by replacing the reference to 'a certified agreement or an old IR
agreement' with 'collective agreement' to reflect changes in the
terminology in the agreement making provisions.
Item 306 - Subparagraph 30(1)(c)(ii) of Schedule 1B
2905. This item would repeal pre-reform subparagraph 30(1)(c)(ii), which
sets out a ground upon which the AIRC, on its motion, may cancel
the registration of an organisation and insert new subparagraphs
30(1)(c)(ii)-(v) as grounds for the cancellation of registration by
the AIRC.
2906. Subparagraph 30(1)(c)(ii) would retain the existing ground that an
organisation of employees has fewer than 50 employee members, but
make clear that it does not apply to enterprise associations.
2907. Subparagraph 30(1)(c)(iii) would provide that the registration of an
enterprise association may be cancelled if it has fewer than 20
employee members. This reflects the amendment to the minimum number
of members required to form an enterprise association made by Item
289.
2908. Subparagraph 30(1)(c)(iv) would provide a new ground for
deregistration of an organisation of employers, being that the
employer members, in aggregate over the previous six month period,
have employed less than 50 employees on an average taken per month.
2909. Subparagraph 30(1)(c)(v) would provide that the AIRC may cancel the
registration of an organisation if the organisation is not, or is no
longer, federally registrable.
Item 307 - Subsection 32(c) of Schedule 1B
Item 308 - Subsection 38(6) of Schedule 1B
Item 310 - Paragraph 55(1)(d) of Schedule 1B
Item 311 - Paragraph 57(1)(b) of Schedule 1B
Item 312 - Sub-subparagraph 73(2)(c)(ii)(A) of Schedule 1B
Item 313 - Paragraph 76(a) of Schedule 1B
2910. These items would make a number of consequential amendments to
replace references to 'a certified agreement or an old IR agreement'
with references to 'collective agreement' to reflect changes in the
terminology in the agreement making provisions.
Item 309 - Paragraph 38(8)(c) of Schedule 1B
2911. This item would replace a reference to 'the Object of Schedule 1B'
with a reference to 'Parliament's intention in enacting this
Schedule' to reflect amendments to section 5 made by Item 266.
Item 314 - Paragraphs 94(1)(b) and (c) of Schedule 1B
Item 315 - After paragraph 94(3)(a) of Schedule 1B
Item 316 - At the end of subsection 94(3) of Schedule 1B
Item 317 - At the end of section 94 of Schedule 1B
Item 318 - Paragraph 106(2)(c) of Schedule 1B
Item 319 - Paragraph 107(1)(c) of Schedule 1B
2912. These items would make a number of amendments to the provisions
concerning ballots for the withdrawal from amalgamated organisations
by a constituent part of an amalgamated organisation.
2913. Item 314 would extend the period in which an application for a
ballot to approve a withdrawal from amalgamation may be made. Pre-
reform paragraphs 94(1)(b) and (c) have the effect that a withdrawal
from amalgamation may only occur if the amalgamation occurred after
31 December 1996. They require the application to be made within
five years of the amalgamation, but not within two years of the date
the amalgamation occurred. These paragraphs would be repealed and
replaced with new Paragraphs 94(1)(b) and (c). Proposed paragraphs
94(1)(b) and (c) would retain the requirements in relation to
amalgamations that occurred after 31 December 1996 but would also
allow applications to be made in relation to amalgamations that
occurred prior to 31 December 1996. An application for withdrawal
from an amalgamation that occurred before 31 December 1996 could be
made within 3 years of the commencement of the proposed subparagraph
or any longer period that may be prescribed by regulations
(subparagraph 94(1)(c)(ii)).
2914. Items 315 to 316 would expand the range of persons who may make an
application for a ballot for withdrawal from amalgamation. The new
categories of persons who could make an application are:
. a person authorised to make the application by the prescribed
number of constituent members (Item 310, proposed paragraph
94(3)(aa)). Regulations would be made to prescribe this number;
. a person who is either a constituent member or a member of a
committee of management referred to in pre-reform paragraphs
94(3)(b) and (c) and authorised to make the application by a
committee of management referred to in pre-reform paragraphs
94(3)(b) and (c) (Item 311, paragraph 94(3)(d)).
2915. Item 317 would insert a new subsection 94(6), which would provide
that the regulations may prescribe the manner in which the
prescribed number of constituent members or the committee of
management may authorise an application that may be made under
proposed paragraph 94(3)(a) or subparagraph 94(3)(d)(ii).
2916. Items 318 and 319 would make consequential amendments to sections
106 and 107 respectively to provide that the new categories of
applicants created by proposed 94(3)(aa) and (d) are entitled to
receive copies of the certificate showing particulars of the ballot
issued under section 106 and the post-ballot report by the AEC in
relation to any ballots taken as a result of an application he or
she has made.
Item 320 - Subsection 113(1) of Schedule 1B
Item 321 - Subsection 113(2) of Schedule 1B
2917. These items would make consequential amendments to replace
references to 'a certified agreement or an old IR agreement' with
references to 'collective agreement' to reflect changes in the
terminology in the agreement making provisions.
Item 322 - After section 113 of Schedule 1B
2918. This item would insert a new section 113A into Schedule 1B.
2919. Where a withdrawal from amalgamation has occurred, the Industrial
Registrar must register the part of the organisation that has
withdrawn from amalgamation as an organisation in its own right
(section 110). The part of the organisation that has withdrawn is
known as a newly registered organisation and the organisation from
which it has withdrawn is known as the amalgamated organisation
(section 93(1)).
2920. Proposed section 113A would provide that any collective agreement
made on or after the day on which the registration of the newly
registered organisation takes effect and which is binding on the
amalgamated organisation will also be binding on the newly
registered organisation if the agreement covers employees who are
eligible to be members of the newly registered organisation. Any
such agreement will have effect for all purposes as though
references to the amalgamated organisation included references to
the newly registered organisation.
2921. Subsection 113A(3) has the effect that this automatic binding of
newly registered organisations to collective agreements binding the
amalgamated organisation will only occur in relation to collective
agreements made within five years of the registration of the newly
registered organisation taking effect.
2922. Section 113A will supplement pre-reform subsection 113, which
applies to orders, awards or collective agreements that were made
prior to the withdrawal from amalgamation.
Item 323 - Subsection 134(1) of Schedule 1B
Item 324 - Subsection 134(2) of Schedule 1B
2923. Item 323 would repeal subsection 134(1), as it refers to provisions
of the pre-reform WR Act that would be repealed by the Bill.
2924. Item 324 would amend subsection 134(2) consequential to the
amendment to subsection 134(1) made by item Mfro22.
Item 325 - Subsection 135 of Schedule 1B
2925. This item would repeal the note at the end of section 135, which
refers to the AIRC being able to order a secret ballot under section
135 of the WR Act as section 135 of the WR Act will be repealed by
amendments made by another item in the Bill.
Item 326 - At the end of Chapter 4 of Schedule 1B
2926. This item would insert a new section 138A into Schedule 1B.
2927. Proposed section 138A would provide that regulations may be made
modifying the way that Chapter 4, which deals with the ability of
the AIRC to make orders concerning the representation rights of
organisations, applies in relation to an organisation that before
being registered was a State registered association or a
transitionally registered association under Schedule 17.
2928. Subsection 138A(2) would provide that such regulations may specify
the weight to be given by the AIRC to existing State demarcation
orders.
2929. It is intended that the regulations made under this section would
require the AIRC to take appropriate account of any State
demarcation orders and whether those demarcations should be
maintained in the federal system. This will assist parties in
retaining existing demarcation arrangements that have developed as a
result of state demarcation orders which will no longer be
applicable to the parties when they move into the federal system.
Item 327 - Paragraph 142(1)(a) of Schedule 1B
Item 328 - Subparagraphs 142(1)(b)(i) and (ii) of Schedule 1B
2930. These items would make consequential amendments to replace
references to 'a certified agreement or an old IR agreement' with
references to 'collective agreement' to reflect changes in the
terminology in the agreement making provisions.
Item 329 - Paragraph 142(1)(c) of Schedule 1B
Item 330 - Subparagraph 144(3)(a)(i) of Schedule 1B
Item 331 - Before subparagraph 151(5)(a)(i) of Schedule 1B
Item 332 - Paragraph 152(6)(a) of Schedule 1B
Item 333 - Paragraph 159(1)(a) of Schedule 1B
Item 334 - Subsection 177(3) of Schedule 1B
Item 335 - Subparagraph 180(1)(a)(i) of Schedule 1B
Item 336 - Subparagraph 180(1)(a)(ii) of Schedule 1B
Item 337 - Subsection 180(5) of Schedule 1B
Item 338 - Subparagraph 246(2)(b)(i) of Schedule 1B
Item 339 - Subparagraph 249(5)(b)(i) of Schedule 1B
2931. These items will make amendments consequential to amendments made by
other items in this Schedule or items in Schedule Amendments to the
WR Act.
2932. Items 329, 331 and 322 would make amendments consequential to
amendments to section 5 made by Item 265 to refer to 'Parliament's
intention in enacting this Schedule'.
2933. Items 330, 333, 334, 338 and 339 would make consequential amendments
to replace references to 'a certified agreement or an old IR
agreement' with references to 'collective agreement' to reflect
changes in the terminology in the agreement making provisions.
2934. Items 335 and 336 would make amendments consequential to the repeal
of pre-reform section 18 by Item 289.
2935. Item 337 would delete subsection 180(5) which provides that the fact
that an employer holds a conscientious objection certificate does
not prevent the employer being a party to an industrial dispute.
This provision is no longer necessary as the system will not be
underpinned by the conciliation and arbitration power.
Item 340 - At the end of section 281 of Schedule 1B
Item 341 - At the end of Chapter 9 of Schedule 1B
2936. Item 341 would insert a new Part 3 of Chapter 9 (which lays down
general duties of officers and employees in relation to orders and
directions) into Schedule 1B to the WR Act.
2937. Item 340 would insert an outline of proposed Part 3 of Chapter 9 of
Schedule 1B into the pre-reform outline of Chapter 9.
Part 3 - General duties in relation to orders and directions
Division 1 - Preliminary
Section 294 - Simplified outline
2938. Proposed section 294 would provide a simplified outline of the Part.
Section 295 - Meaning of involved
2939. Proposed section 295 would provide a definition of the term
'involved', which would be relevant to the operation of the duties
to be established within the Part.
Section 296 - Application to officers and employees of branches
2940. Proposed section 296 would ensure that any references within the
Part to officers or employees of organisations applies equally to
officers and employees of the branches of such organisations.
Division 2 - General duties in relation to orders and directions
Section 297 - Order or direction applying to organisation - civil
obligation
2941. Proposed section 297 would set out the civil obligation of officers
and employees of an organisation with respect to orders or
directions of the Federal Court or the AIRC that apply to that
organisation.
2942. Subsection 297(2) would establish a duty on officers and employees
of the relevant organisation and its branches not to act in a manner
that would result in their organisation contravening any such order
or direction. To contravene this section the officer or employee
must know, or be reckless as to whether, that act would result in
the organisation contravening the order.
2943. Subsection 297(3) would extend contravention of the duty to any
officer or employee involved in a contravention of an order or
direction made against their organisation or involved in a
contravention of subsection (2). What constitutes being 'involved'
is set out in proposed section 295.
2944. Both subsection 297(2) and subsection 297 (3) would be civil penalty
provisions.
Section 298 - Prohibition order or direction applying to
organisation - civil obligation
2945. Proposed section 298 would set out the civil obligation of officers
and employees of an organisation with respect to orders or
directions of the Federal Court or the AIRC that apply to that
organisation and which prohibit the organisation from engaging in
certain behaviour. That is, an officer or employee must not do what
his or her organisation has been ordered or directed not to do.
2946. Subsection 298(2) would establish a duty on officers and employees
of the relevant organisation and its branches to not do anything
that would contravene the order. This obligation would apply when
the order has been expressed to apply to the organisation, as
opposed to the individual officer or employee. That is, an officer
or employee must not do what his or her organisation has been
ordered or directed not to do. To contravene this section the
officer or employee must know, or be reckless as to whether, that
act would result in a contravention.
2947. Subsection (3) would extend contravention of the duty to any officer
or employee involved in a contravention of subsection (2). What
constitutes being 'involved' is set out in proposed section 295.
2948. Both subsection (2) and subsection (3) would be civil penalty
provisions.
Section 299 - Order or direction applying to officer - civil
obligation
2949. Proposed section 299 would set out the civil obligation of an
officer of an organisation with respect to orders or directions of
the Federal Court or the AIRC that apply to that officer.
2950. Subsection 299(2) would require an officer not to knowingly or
recklessly contravene any order or direction that applies to him or
her.
2951. Subsection 299(3) would extend contravention of the duty to any
officer or employee of the organisation involved in a contravention
of subsection (2). What constitutes being 'involved' is set out in
proposed section 295.
2952. Both subsection 299(2) and subsection 299(3) would be civil penalty
provisions.
Section 300 - Prohibition order or direction applying to officer -
civil obligation
2953. Proposed section 300 would set out the civil obligation of officers
and employees of an organisation with respect to orders or
directions of the Federal Court or the AIRC that apply to an officer
of that organisation and which prohibit the officer from doing
something.
2954. Section 300 would apply where the Federal Court or the AIRC has made
an order that applies to an officer of an organisation. Subsection
300(2) would establish a duty on all employees and officers of the
relevant organisations and its branches, requiring them not to act
in a manner that would result in a contravention of the order or
direction. That is, an officer or employee of an organisation must
not do what any officer of that organisation has been ordered or
directed not to do. To contravene this section the employee or
officer must know, or be reckless as to whether, that act would
result in a contravention.
2955. Subsection 300(3) would extend contravention of the duty to any
officer or employee involved in the contravention of subsection
300(2). What constitutes being 'involved' is set out in proposed
section 295.
Both subsection 300(2) and subsection 300(3) would be civil penalty
provisions.
Section 301 - Order or direction applying to employee - civil
obligation
2956. Proposed section 301 would set out the civil obligation of an
employee of an organisation with respect to orders or directions of
the Federal Court or the AIRC that apply to the employee.
2957. Subsection 301(2) would provide that the employee to whom the order
or direction applies must not knowingly or recklessly contravene the
order or direction.
2958. Subsection 301(3) would extend contravention of the duty to any
officer or employee of the organisation who is involved in a
contravention of subsection (2). What constitutes being 'involved'
would be set out in proposed section 295.
2959. Both subsection 301(2) and subsection 301(3) would be civil penalty
provisions.
Section 302 - Prohibition order or direction applying to employee -
civil obligation
2960. Proposed section 302 would set out the civil obligation of officers
and employees of an organisation with respect to orders or
directions of the Federal Court or the AIRC that apply to an
employee of that organisation and which prohibit the employee from
doing something.
2961. Subsection 302(2) would establish a duty on all officers and
employees of the relevant organisation and its branches not to act
in a manner that would result in a contravention of the order or
direction. That is, an officer or employee of an organisation must
not do what any officer or employee of that organisation has been
ordered or directed not to do. To contravene this section the
employee or officer must know, or be reckless as to whether, that
act would result in a contravention.
2962. Subsection 302(3) would extend contravention of the duty to any
officer or employee involved in the contravention of subsection
302(2). What constitutes being 'involved' would be set out in
proposed section 295.
2963. Both subsection 302(2) and subsection 302(3) would be civil penalty
provisions.
Section 303 - Order or direction applying to member of organisation-
civil obligation
2964. Proposed section 303 would set out the civil obligation of officers
and employees of an organisation with respect to orders or
directions of the Federal Court or the AIRC that apply to a member
of that organisation.
2965. Subsection 303(2) would establish a duty on officers and employees
of the organisation and its branches not to be involved in a
contravention of such an order. What constitutes being 'involved'
is set out in proposed section 295.
2966. Subsection 303(2) is a civil penalty provision.
Section 303A - Application of Division
2967. Proposed section 303A would provide that proposed Division 2 of Part
3 would apply to orders and directions made before, on or after the
commencement of the Division, but would only apply to acts and
omissions occurring on or the commencement of the Division.
Item 342 - After paragraph 305(2)(zj) of Schedule 1B
2968. Section 305 lists the civil penalty provisions contained in Schedule
1B to the WR Act, and provides that application may be made to the
Federal Court for orders in relation to contravention of a civil
penalty provision.
2969. Item 342 would insert new paragraph (zk) into subsection 305(2), to
make reference to the civil penalty provisions that will be inserted
by item paulm4 (ie new Part 3 of Chapter 9).
Item 343 - After subsection 307(1) of Schedule 1B
2970. Section 307 enables the Federal Court to order that a person who has
contravened a civil penalty provision relating to the duties of
officers and employees of registered organisations must compensate
the organisation for damage it has suffered as a result of the
contravention.
2971. New subsection 307(1A) would be inserted in section 307. The new
provision would allow the Court to order a person to pay
compensation to an organisation if the person contravened a civil
penalty provision in new Part 3 of Chapter 9, if the organisation
took reasonable steps to prevent the contravention, and the
contravention resulted in the organisation suffering damage.
2972. A note at the bottom of this item would refer to the heading of
subsection 307(1) being amended to take into account changes made by
this item and ensure it would more accurately describe the operation
of that provision.
Item 344 - At the end of subsection 310(1) of Schedule 1B
2973. Section 310 sets out who may make an application for an order
relating to a contravention of a civil penalty provision.
Currently, the section states that the Industrial Registrar, or a
person authorised in writing by the Industrial Registrar, may apply
for an order under Part 2 of Chapter 10.
2974. This item would amend subsection 310(1) to provide that the
Industrial Registrar (or the person authorised by the Industrial
Registrar under the subsection) cannot make an application in
relation to a contravention of a provision covered by proposed
paragraph 305(2)(zk), which would be inserted by item 337 of the
Bill. That is, the Industrial Registrar (or the person authorised
by the Industrial Registrar under the subsection) cannot make an
application in relation to a contravention of the general duties in
relation to orders and directions of the Federal Court and the AIRC.
Applications in relation to the contravention of those general
duties would be dealt with in item 340.
Item 345 - After subsection 310(1) of Schedule 1B
2975. This item would also amend section 310. It would insert proposed
subsection 310(2) to make it clear that only the Minister, or some
other person authorised in writing by the Minister, may apply for an
order under this Part in relation to a contravention of a provision
covered by paragraph 305(2)(zk). All other applications may
continue to be made by the Industrial Registrar, or a person
authorised by the Industrial Registrar.
Item 346 - Section 317 of Schedule 1B (after the paragraph relating
to Part 4A)
2976. This item would insert words into the simplified outline of Chapter
11 in section 317 to refer to the particular powers of the AIRC that
would be included in this Chapter by Item 343.
Item 347 - Subparagraphs 337A(b)(iii), (iv) and (v) of Schedule 1B.
2977. Pre-reform section 337A sets out the disclosures made by
whistleblowers which qualify for protection under the Schedule. In
order to qualify, disclosures must be made to certain persons.
These are listed at pre-reform subsection 337A(b) and include the
director of the Building Industry Taskforce, inspectors and
authorised officers. With the passage of the BCII Act 2005, the
Building Industry Taskforce has ceased to exist and has been
replaced by the Office of Australian Building and Construction
Commissioner. Changes that would be made by other items in the Bill
would provide that rather than inspectors and authorised officers,
there will only be workplace inspectors.
2978. This item repeals references to the director of the Building
Industry Taskforce, inspectors and authorised officers and replaces
them with references to:
. the Australian Building and Construction Commissioner
(subparagraph 337A(b)(iii));
. an Australian Building and Construction Inspector ( subparagraph
337A(b)(iv)); and
. workplace inspectors (337A(b)(iv)).
Item 348 - After Part 4A of Chapter 11 of Schedule 1B
2979. This item would insert a new Part 4B into Schedule 1B.
2980. Proposed Part 4B would set out the specific powers available to the
AIRC to deal with matters under Schedule 1B. These powers would be
in addition to the general powers of the AIRC contained in
Subdivision B of Division 3A of Part II of the WR Act. Some of the
powers would be based on the existing powers provided for in the WR
Act.
2981. Proposed section 337F would provide the AIRC with powers to conduct
inspections and enter premises where relevant to a proceeding under
Schedule 1B.
2982. Subsection 337F (1) would provide that a member of the AIRC may at
any time during working hours:
. enter prescribed premises;
. inspect or view, among other things, any work, machinery or
document on the premises (proposed paragraph 337F(1)(b)); and
. interview on the premises any employee who is usually engaged in
work on the premises.
2983. Subsection 337F(2) would provide a definition of prescribed
premises.
2984. Proposed section 337G would provide the AIRC with the power to
direct parties to be joined or struck out as parties to proceedings
under Schedule 1B.
2985. Proposed 337H would provide the AIRC with the power to make certain
types of orders relevant to right of entry matters, including:
. consent orders;
. provisional or interim orders; and
. orders that engaging in conduct in breach of a specified term of
an order is taken to be a separate breach of the term on each day
the conduct continues.
2986. Proposed section 337J would provide that in making an order in
proceedings under Schedule 1B, the AIRC is not restricted to the
specific relief claimed by the parties concerned, but may include
anything in the order which the AIRC considers necessary or
expedient for the purposes of dealing with the proceeding.
2987. Proposed section 337K would impose a number of obligations on the
AIRC and the Registrar in relation to orders made by the AIRC,
including that:
. the AIRC must express an order in plain English and must promptly
put the order in writing and provide it to a Registrar;
. a Registrar must promptly provide the order and any written
reasons to the relevant parties and arrange for the order and
written reasons to be published as soon as practicable.
Item 349 - Section 345 of Schedule 1B
Item 350 - At the end of section 345 of Schedule 1B
Item 351 - Section 346 of Schedule 1B
Item 352 - At the end of section 346 of Schedule 1B
2988. These items would make amendments consequential to amendments to the
WR Act in relation to protected action ballots.
2989. Items 349 and 350 would provide that the right of every financial
member of an organisation to participate in particular ballots
provided in section 345 does not apply to protected action ballots.
The proposed provisions dealing with protected action ballots will
include provisions on who is entitled to vote in such ballots.
2990. Items 351 and 352 would provide that the right of financial members
to request details from the returning officer in relation to ballots
contained in section 346 does not apply to protected action ballots.
Item 353 - Section 357 in Schedule 1B
Item 354 - Paragraph 358(1)(a) in Schedule 1B
2991. These items would make minor amendments to the language of these
provisions to ensure that penalties involving the payment of a
monetary fine are referred to consistently throughout the WR Act.
Item 355 - Schedule 1 (heading)
2992. This item would repeal the heading and substitute 'Schedule 1 -
Extra provisions relating to definitions'.
Item 356 - Clause 1 of Schedule 1 (definition of flight crew
officer's employer)
2993. This item would repeal the definition of flight crew officer's
employer.
Item 357- Clause 1 of Schedule 1 (definition of waterside employer)
2994. This item would repeal the definition of waterside employer.
Item 358- Clause 2 of Schedule 1
2995. This item would repeal clause 2 of Schedule 1 and substitute the
following clauses
Clause 2 - References to employee with its ordinary meaning
2996. Proposed clause 2 would, for the purposes of proposed subsection
4AA(2), list references in the amended WR Act to the word employee
which use its ordinary meaning. (See the explanatory notes to
proposed subsection 4AA(2) in relation to the use of this list.)
Clause 3 - References to employer with its ordinary meaning
2997. Proposed clause 3 would, for the purposes of proposed subsection
4AB(2), list references in the amended WR Act to the word employer
which use its ordinary meaning. (See the explanatory notes to
proposed subsection 4AB(2) in relation to the use of this list.)
Clause 4 - References to employment with its ordinary meaning
2998. Proposed clause 4 would, for the purposes of proposed subsection
4AC(2), list references in the amended WR Act to the word employment
which use its ordinary meaning. (See the explanatory notes to
proposed subsection 4AC(2) in relation to the use of this list.)
Clause 5 - Regulations may amend clauses 2, 3 and 4
2999. Proposed clause 5 would provide for regulations to amend clause 2,
3, and 4 and ensure that any amendments may be incorporated into the
WR Act.
Item 359- After Schedule 12
3000. This item would insert new Schedule 13.
Schedule 13 - Transitional arrangements for parties bound by federal
awards
3001. Proposed Schedule 13 would provide transitional arrangements
underpinned by the conciliation and arbitration power set out in
subsection 51(xxxv) of the Constitution for a transitional period of
five years.
3002. The Schedule would provide for the continued operation of existing
awards for employers (to be defined as transitional employers) bound
by the award immediately before reform commencement that are not
covered by the definition of employer in subsection 4AB(1).
3003. It will remain possible for parties to notify alleged industrial
disputes, and the AIRC will continue to prevent and settle disputes.
However, the manner in which the AIRC will be permitted to deal
with those disputes will be amended to reflect the transitional
nature of the system provided for by the Schedule.
3004. The transitional system will afford transitional employers the
opportunity and time to decide whether or not they want to remain in
the federal system.
3005. During the transitional period, transitional employers may decide to
incorporate (or take other action to bring themselves within the
definition of employer in subsection 4AB(1)) and, as a result,
remain in the federal system. Alternatively, transitional employers
and employees may decide to revert to their respective State
industrial relations systems by entering into agreements under State
legislation. In some circumstances, it will be open to apply to the
AIRC to opt out of the transitional system.
3006. At the end of the five year transitional period, the awards that
apply in the transitional system will cease to operate, and those
employers and employees remaining in the transitional system revert
to their respective State industrial relations system.
3007. In respect of transitional employers and their employees in
Victoria, a similar transitional system will apply, but with some
differences flowing from the fact that the Parliament of Victoria
has referred legislative power for certain workplace relations
matters to the Parliament of the Commonwealth in the CP(IP) Act and
the terms of the referral legislation.
3008. The differences include that:
. because of the operation of proposed section 492, transitional
employers and their employees in Victoria will, with some limited
exceptions, be covered by the Standard and their transitional
awards will be underpinned by the Standard;
. common rule declarations made by the AIRC in respect of industries
in Victoria will continue to apply to transitional employers and
their employees in Victoria;
. because of the operation of proposed section 500, transitional
employers and employees in Victoria may enter into workplace
agreements under Part VB, that will displace transitional awards;
and
. at the end of the five year transitional period, transitional
employers and their employees in Victoria that are still covered
by a transitional award or common rule award will cease to be
covered by those instruments, and they will revert to the
Standard.
New Part 1 - Preliminary
New Division 1 - Objects of Schedule
New clause 1 - Objects of the Schedule
3009. Proposed clause 1 would set out the objects of the Schedule. The
proposed objects make it clear that the Schedule is to establish
transitional arrangements for the ongoing operation of awards (to be
defined as transitional awards) in respect of those employers that
were bound to those awards immediately before reform commencement
and their employees (to be defined as transitional employees).
3010. The proposed objects of the Schedule are to ensure that:
. transitional awards continue to operate and are to be maintained
by the AIRC within certain limits specified in the Schedule
(paragraph 1(2)(a));
. transitional employers and their employees are able to cease to be
bound by a transitional award in appropriate circumstances,
including through agreement-making under State legislation (thus
effectively opting out of the transitional system)
(paragraph 1(2)(b));
. the AIRC's functions and powers to vary transitional awards -
which remain available in specified circumstances (to enable the
ongoing variation of awards in relation to wages and other
monetary entitlements) - are exercised so as not to be
inconsistent with wage-setting decisions of the AFPC
(paragraph 1(2)(c)) and
. appropriate compliance and enforcement mechanisms remain available
(paragraph 1(2)(d)).
New Division 2 - Interpretation
New clause 2 - Interpretation
3011. Proposed clause 2 would set out the definitions of certain terms as
they apply in the Schedule. In addition, a number of the
definitions in subsection 4(1) would also apply to the Schedule.
Key definitions include:
. excluded employer - which would mean an employer that is not
covered by the definition of employer in subsection 4AB(1) (which
relies on a range of constitutional powers including the
corporations power);
. industrial dispute - this definition reflects the existing
definition in most respects, but removes reference to demarcation
disputes (as there will no longer be a direct connection between
the existence of an industrial dispute and the power of the AIRC
to make a representation order under Schedule 1B); the definition
also makes explicit that a dispute about the relationship between
a transitional employer and a transitional employee cannot
encompass matters that pertain to the relationship between the
employer and a third party (such as an independent contractor).
The powers and procedures available to the AIRC to deal with an
industrial dispute are set out in Part 3 of the Schedule;
. transitional award would be defined to have the meaning on and
from reform commencement set out in subclause 4(2) and will
include any variations made to these awards under the Schedule -
the effect of Part 7 is that Victorian reference awards (that is,
awards supported by the Victorian Parliament's reference of
powers) will be transitional awards;
. transitional employee would be defined to mean an employee of a
transitional employer;
. transitional employer would be defined to mean an excluded
employer that is bound by a transitional award.
New clause 3 - Meaning of industrial action
3012. Proposed clause 3 would provide a definition of industrial action.
The definition would specifically identify the conduct of
transitional employees and transitional employers in relation to an
industrial dispute or work covered by an award that constitutes
industrial action. It would also specifically identify conduct by
transitional employers and transitional employees that does not
amount to industrial action.
New Division 3 - Continuing operation of awards
3013. Proposed Division 3 would provide for the continuing operation of
awards in the transitional system. Transitional awards would cease
to operate at the end of a five year transitional period.
New clause 4 - Continuing operation of awards in force before reform
commencement
3014. Proposed clause 4 would provide for the continuing operation of
awards in the transitional system.
3015. The Schedule would not create a new instrument in the same terms as
the existing award (as with awards under Part VI), but rather
provide that existing awards made to prevent or settle industrial
disputes continue to operate and continue to bind those employers
and employees (as well as registered organisations) that are in the
transitional system.
3016. Subclause 4(2) would provide that, to the extent that the award
regulates excluded employers in respect of the employment of their
employees, the award continues in force and binds:
. all excluded employers that were bound by the award immediately
before reform commencement - this includes employers who were
bound by the award because of a transmission of business or
through membership of an employer organisation, as well as
employers bound directly by respondency (paragraph 4(2)(a));
. a successor, assignee or transmittee (whether immediate or not) to
or of the business or part of the business of an excluded employer
identified in paragraph (a) on the proviso that the successor,
assignee or transmittee is a transitional employer at the time of
acquiring or taking over the business or part of the business
(paragraph 4(2)(b)) - this paragraph applies only to transitional
employers, and would not operate to transmit a transitional award
to an employer as defined in subsection 4AB(1) or an excluded
employer that is not bound by a transitional award;
. all organisations that were bound by the award immediately before
reform commencement (paragraph 4(2)(c)); and
. all employees of transitional employers who, immediately before
reform commencement, were members of organisations that were bound
by the award (paragraph 4(2)(d)).
3017. Subclause 4(3) would provide further clarification as to the
excluded employers that will be bound by a transitional award in the
transitional system.
3018. Subclause 4(4) would confirm that an award that is continued in
force by this clause is called a transitional award.
3019. The intention of this clause is to set out those parties that are to
be bound by transitional awards and that are, therefore, in the
transitional system on reform commencement. The Schedule does not
provide for new employers, employees or organisations to enter the
transitional system by becoming bound by a transitional award during
the transitional period. Once in the transitional system, the
transitional employers and their employees may leave the
transitional system in the manner provided for in proposed Part 5 of
the Schedule or by the transitional employer deciding to incorporate
or otherwise taking action to bring themselves within the definition
of employer in subsection 4AB(1)).
New clause 5 - Particular rules about transitional awards
3020. Proposed clause 5 would provide additional rules to clarify the
parties bound by a transitional award.
3021. Subclause 5(1) would provide that if an excluded employer was,
immediately before reform commencement, regulated by a State
employment agreement in respect of the employment of an employee,
the employer is not bound by a transitional award in respect of the
employment of that employee at any time after reform commencement.
Such an employer will remain in its respective State workplace
relations system in relation to that employment, and may not enter
the transitional federal system. (However, an employer may remain
covered by the transitional federal system in respect of some
employees, but have State employment agreements with others.)
3022. Subclause 5(2) would provide that a transitional employer that is
bound by a transitional award as a result of its membership of an
organisation that is bound by the award, will cease to be bound by a
transitional award when it ceases to be a member of that
organisation, unless it is otherwise bound by a transitional award.
3023. Subclause 5(3) would make similar provision in respect of an
employee who ceases to be a member of an organisation that is bound
by the transitional award.
. Proposed clause 69 would set out details of those parties to be
bound by an order of the AIRC varying, revoking or suspending a
transitional award under the Schedule. Parties bound by these
orders cannot extend beyond those bound to the transitional award
under subclause 4(2).
New clause 6 - Cessation of transitional award
3024. Proposed clause 6 would provide for the cessation of any continuing
transitional awards at the end of the five year transitional period.
(An award may be revoked during the transitional period in limited
circumstances - see proposed clause 31.)
3025. Subclause 6(2) would make clear that that transitional employees
will not lose any rights that accrued under a transitional award
prior to it ceasing to operate - such as to leave and payment for
work performed before the end of the transitional period.
New Part 2 - Performance of Commission's functions
New clause 7 - General functions of Commission
3026. Proposed clause 7 would specify the functions to be performed by the
AIRC under the Schedule.
3027. Subclause 7(1) would provide that the functions of the AIRC under
the Schedule are to prevent and settle industrial disputes:
. so far as possible, by conciliation (paragraph 7(1)(a)); and
. as a last resort and within the limits of the AIRC's powers under
the Schedule, by arbitration (paragraph 7(1)(b)).
3028. Subclause 7(2) would provide that when settling an industrial
dispute by arbitration, the AIRC may vary a transitional award in
the manner permitted by clause 29. (This clause sets out the
matters in transitional awards that the AIRC may deal with by
arbitration.)
3029. Subclause 7(3) would make it clear that the AIRC does not have the
ability to make new awards when it exercises its dispute settling
powers under the Schedule.
New clause 8 - Performance of Commission's functions under this
Schedule
3030. Proposed clause 8 would provide for the manner in which the AIRC is
to perform its functions under the Schedule.
3031. Subclause 8(1) would require the AIRC to perform its functions under
the Schedule in a way that furthers the objects of the Schedule.
Due to the specific nature of the transitional system, it is not
proposed that the principal object of the Act set out in proposed
section 3 would apply to the performance of the AIRC's functions
under the Schedule.
3032. Subclause 8(2) would provide that when performing its functions
under the Schedule, the AIRC must ensure that minimum safety net
entitlements are maintained for wages and other specified monetary
entitlements (listed in subclause 29(2)) and in doing so, must have
regard to:
. the desirability of high levels of productivity, low inflation,
creation of jobs and high levels of employment
(paragraph 8(2)(a));
. the principle that the wages and other monetary entitlements of
transitional employees should not place them at a disadvantage
compared with entitlements of employees within the 'mainstream'
federal system (paragraph 8(2)(b)); and
. the principle that the costs to transitional employers of wages
and other monetary entitlements should not place them at a
competitive disadvantage in relation to employers within the
'mainstream' federal system (paragraph 8(2)(c)).
3033. In having regard to the economic factors specified in
paragraph 8(2)(a), subclause 8(3) would require the AIRC to have
regard to:
. wage setting decisions of the AFPC (paragraph 8(3)(a)); and
. in particular, any statements by the AFPC about the effect of wage
increases on productivity, inflation and levels of employment
(paragraph 8(3)(b)).
3034. Subclause 8(4) would set out further matters to which the AIRC is to
have regard when performing its functions. These are:
. the desirability of its decisions being consistent with wage
setting decisions of the AFPC (paragraph 8(4)(a)); and
. the importance of providing minimum safety net entitlements that
act as an incentive to bargaining at the workplace level
(paragraph 8(4)(b)).
New clause 9 - Anti-discrimination considerations
3035. Proposed clause 9 would set out anti-discrimination matters which
the AIRC must take into account when exercising its functions under
the Schedule.
3036. Subsection 9(1) would detail these matters, which are that the AIRC
must:
. apply the principle that men and women should receive equal
remuneration for work of equal value (paragraph 9(1)(a));
. have regard to the need to provide pro-rata disability pay methods
for transitional employees with disabilities (paragraph 9(1)(b));
. take account of the principles embodied in Commonwealth anti-
discrimination legislation (paragraph 9(1)(c));
. take account of the principles embodied in the Family
Responsibilities Convention, in particular, those relating to
preventing discrimination against workers who have family
responsibilities and helping workers reconcile work and family
responsibilities (paragraph 9(1)(d)); and
. ensure that decisions do not contain provisions that discriminate
on specified grounds (paragraph 9(1)(e)).
3037. Subclause 9(2) would clarify that the AIRC does not discriminate
against transitional employees by determining a rate of pay for
junior transitional employees, transitional employees with a
disability or transitional employees to whom training arrangements
apply.
New clause 10 - Commission to have regard to operation of
Superannuation Guarantee legislation
3038. Proposed clause 10 would require the AIRC to have regard to
Commonwealth superannuation legislation when exercising its power to
vary pay rates in transitional awards. This proposed clause is in
similar terms to the pre-reform section 90A.
New clause 11 - Commission to encourage agreement on procedures for
preventing and settling disputes
3039. Proposed clause 11 would require the AIRC, if appropriate, to
encourage the parties to a dispute to agree on procedures for
settling further disputes between them. This provides guidance to
the AIRC that is similar to that provided by pre-reform section 91.
3040. However, unlike the pre-reform provision, any agreed procedures will
not be able to be included in a transitional award, as this will be
beyond the arbitral powers of the AIRC (see subclause 29(2) that
sets out the allowable transitional award matters that may be varied
by the AIRC).
New clause 12 - Commission to have regard to compliance with
disputes procedures
3041. Proposed clause 12 would provide that the AIRC must, when exercising
its powers, have regard to the extent to which dispute resolution
procedures have been complied with by parties. Apart from plain
English amendments, this clause is identical to pre-reform
section 92.
New clause 13 - No automatic flow-on of terms of certain agreements
3042. Proposed clause 13 would ensure that the AIRC does not vary a
transitional award to include terms based on the terms of a
workplace agreement, a pre-reform certified agreement or a section
170MX award unless it is satisfied that including the terms in the
award:
. would not be inconsistent with the objects of the Schedule
(paragraph 13(1)(a));
. would not be inconsistent with wage-setting decisions of the AFPC
(paragraph 13(1)(b)); and
. would not be otherwise contrary to the public interest
(paragraph 13(1)(c)).
3043. Subclause 13(2) would define the terms pre-reform certified
agreement and section 170MX award used in subclause (1).
New clause 14 - Commission to act quickly
3044. Proposed clause 14 would require the AIRC to act as quickly as
possible in performing its functions under the Schedule. However,
it would nonetheless be required to give higher priority to the
performance of its other functions under the Act.
New clause 15 - Commission not required to have regard to certain
matters
3045. Proposed clause 15 would provide that the AIRC is not to have regard
to the general public interest consideration in proposed section 44A
when it performs its functions under the Schedule. The specific
matters that the AIRC is to consider in exercising its functions are
contained in the Schedule.
New Part 3 - Powers and procedures of Commission for dealing with
industrial disputes
New Division 1 - Settlement of industrial disputes
New Subdivision A - Scope of industrial disputes
New clause 16 - Scope of industrial disputes
3046. Proposed clause 16 would establish that an industrial dispute under
the Schedule may only relate to an allowable transitional award
matter, and set out the extent to which the AIRC may deal with such
a dispute by conciliation and/or arbitration.
3047. Subclause 16(1) would provide that an industrial dispute dealt with
by conciliation may be about any of the allowable transitional award
matters.
3048. Subclause 16(2) would limit the scope of 'industrial dispute' for
the purposes of:
. dealing with the dispute by arbitration,
. preventing or settling an industrial dispute, and maintaining the
settlement of an industrial dispute, by varying a transitional
award.
3049. In such cases, the dispute may relate only to the subclass of
allowable transitional award matters listed in subclause 29(2).
New Subdivision B - Allowable transitional award matters
3050. This Subdivision would set out what matters are allowable
transitional award matters, and list some specific matters that
would not be considered allowable. (Proposed Subdivision C would
also specify other matters that are permitted to be included in a
transitional award.)
New clause 17 - Allowable transitional award matters
3051. Proposed clause 17 would provide the list of allowable transitional
award matters and establish the limits of some of the allowable
transitional award matters.
3052. Proposed subclause 17(1) would set out the list of allowable
transitional award matters.
. The scope of these matters is affected by proposed clause 18,
which identifies specific matters that are not allowable
transitional award matters.
. The scope of the allowable transitional award matters is also
affected by the fact that entitlements about certain matters (long
service leave, notice of termination, jury service and
superannuation) that were allowable immediately before the reform
commencement are preserved under proposed clause 22.
3053. Paragraph 17(1)(a) would provide that classifications of
transitional employees and skill-based career paths are allowable.
3054. Paragraph 17(1)(b) would make ordinary time hours of work and the
times within which they are performed, rest breaks, notice periods
and variations to working hours an allowable transitional award
matter.
Ordinary time hours of work
3055. Ordinary time hours of work is the time within which hours are
worked in an ordinary working week or day.
The time within which ordinary time hours of work are performed
3056. This aspect of the allowable matter would encompass award terms
about, for example, the span of ordinary time hours of work or
flexible hours arrangements.
Rest breaks
3057. The reference to 'rest breaks' would mean that award terms
specifying rest breaks, including meal breaks, crib breaks and
breaks between shifts, are allowable transitional award matters.
Notice periods and variations to working hours
3058. The reference to 'notice periods and variations to working hours'
would mean that award terms that regulate the amount of notice
required to a change to a roster of working hours, variations to
working hour rosters, and make up time arrangements would be
allowable.
3059. Paragraph 17(1)(c) would make allowable terms in transitional awards
about rates of pay generally (such as hourly rates and annual
salaries), rates of pay for juniors and transitional employees to
whom training arrangements apply, and rates of pay for transitional
employees under the supported wage system.
3060. Paragraph 17(1)(d) would make allowable terms in transitional awards
about incentive based payments, piece rates and bonuses and the
derivation or alteration of such payments. An incentive based
payment or bonus is a payment that is a direct or indirect
inducement, reward or benefit which aims to motivate an employee to
achieve a particular goal or target. Payments can be ongoing or
made on a periodic or one-off basis. Piece rates are a system of
payment by results where pay is calculated by reference to
quantifiable outputs of the employee, such as articles produced,
delivered or sold, or kilometres travelled.
3061. Paragraph 17(1)(e) would make annual leave and annual leave loadings
an allowable transitional award matter.
3062. Paragraph 17(1)(f) would make personal/carer's leave an allowable
transitional award matter. Paragraph 17(1)(g) would make ceremonial
leave an allowable transitional award matter. This would encompass,
for example, a clause which provides an entitlement for an
Aboriginal or Torres Strait Islander employee to attend a culturally
significant ceremonial event.
3063. Paragraph 17(1)(h) would make parental leave, including maternity
leave and adoption leave an allowable transitional award matter.
3064. Paragraph 17(1)(i) would make allowable the observance of certain
days as public holidays, and entitlements of employees to payment in
respect of those days.
3065. The scope of this allowable transitional award matter would be
limited to days declared by or under a law of a State or Territory
as days to be observed generally within that State or Territory, or
a region of that State or Territory, as public holidays by employees
who work in that State, Territory or region.
3066. This allowable transitional award matter would include days such as
New Year's Day, Australia Day, Good Friday, Easter Saturday, Easter
Monday, ANZAC Day, Queen's Birthday, Labour Day, Christmas Day and
Boxing Day, plus Adelaide Cup Day and Proclamation Day in South
Australia, Foundation Day in Western Australia, Canberra Day in the
ACT and Picnic Day in the Northern Territory as these days are
observed generally within the State or Territory. It would also
include declared regional holidays such as Melbourne Cup Day,
Brisbane Show Day, Regatta Day in southern Tasmania and Recreation
Day in northern Tasmania as these days are observed generally within
a region of a State or Territory.
3067. The allowable transitional award matter would exclude other days not
declared under a law of a State or Territory to be observed
generally throughout a State or Territory or a region of a State or
Territory. For example, the observance of a public holiday within a
particular industry (such as bank holidays) would not be an
allowable transitional award matter if that day would only be
observed by some sections of the population within a State or
Territory or a region of that State or Territory.
3068. Paragraph 17(1)(i) would not preclude a transitional award from
providing for the substitution of different days to be observed as
public holidays or from providing for arrangements to be made at the
workplace or enterprise level for the substitution of different days
to be observed as public holidays.
3069. Paragraph 17(1)(j) would make allowable in transitional awards
monetary allowances for:
. expenses incurred in the course of employment - for example,
travel, accommodation, uniform, motor vehicle, meal or telephone
expenses incurred in the course of employment;
. responsibilities or skills that are not taken into account in
rates of pay for employees - for example, a monetary allowance for
the performance of additional duties at a higher level or for
holding a particular qualification;
. disabilities associated with the performance of particular tasks
(for example, handling hazardous materials) or work in particular
conditions (for example, work in cold rooms) or locations (for
example, work in remote locations).
3070. Paragraph 17(1)(k) would make allowable loadings for working
overtime or for casual or shift work. This would allow transitional
awards to contain terms about, for example: the definition of
overtime, time off in lieu of payment for overtime, and a rate of
pay that is higher than a minimum rate for working overtime, casual
or shift work.
3071. Paragraph 17(1)(l) would make penalty rates an allowable
transitional award matter. This means that a rate of pay higher
than the rate for ordinary pay, and payable in specified
circumstances, may be set in an award - for example, transitional
award terms providing for overtime, weekend and public holiday
rates.
3072. Paragraph 17(1)(m) would make redundancy pay within the meaning of
subclause (3) an allowable transitional award matter. This would
limit redundancy pay to redundancy pay in relation to a termination
of employment by an employer of 15 or more employees; and which is
either, at the initiative of the employer and on the grounds of
operational requirements, or, because the employer is insolvent.
3073. Paragraph 17(1)(n) would make stand-down provisions an allowable
transitional award matter. This means that a term of a transitional
award may contain, for example, for a temporary suspension of
transitional employees where they cannot be usefully employed
because of a breakdown of machinery at the transitional employer's
business premises for which the transitional employer cannot
reasonably be held responsible. A transitional award term that
provides for the deduction of wages in circumstances of a stand down
would be allowable under this paragraph.
3074. Paragraph 17(1)(o) would make dispute settling procedures an
allowable transitional award matter. This means a transitional
award may contain a term providing a mechanism for the settlement of
industrial disputes.
3075. Paragraph 17(1)(p) would make allowable terms in a transitional
award about type of employment, such as full-time employment, casual
employment, regular part time employment and shift work. A 'type of
employment' is the category of employment which identifies the basis
upon which a particular employee is employed. This allowable matter
would also encompass terms in a transitional award providing for,
for example, fixed term employees, daily hire employees, apprentices
and trainees.
3076. Paragraph 17(1)(q) would make allowable pay and conditions for
outworkers, including chain of contract arrangements, registration
of employers, employer record keeping and inspection.
3077. This allowable award matter would require outworkers' overall pay
and conditions of employment to be fair and reasonable in comparison
with the pay and conditions of employment specified in a relevant
transitional award or transitional awards for employees who perform
the same kind of work at an employer's business or commercial
premises. This means that what is allowable under this paragraph is
affected by a comparison with the transitional award pay and
conditions of employment for transitional employees who perform the
same kind of work at a transitional employer's business or
commercial premises as outworkers.
3078. Proposed subclause 17(2) would clarify that personal/carer's leave
(listed as allowable in paragraph 17(1)(f)) includes war service
sick leave, infectious diseases sick leave and other like forms of
sick leave.
3079. Subclause 17(3) would define redundancy pay for the purposes of
paragraph 17(1)(m) as redundancy pay in relation to a termination of
employment that is:
. by a transitional employer of 15 or more transitional employees;
. either at the initiative of the transitional employer and on the
grounds of operational requirements or because the transitional
employer is insolvent.
3080. Termination of employment would be at the initiative of the
transitional employer and on the grounds of operational requirements
where the transitional employer decides that for economic,
technological or other reasons the position or job occupied by an
employee has become superfluous, in excess of, or unnecessary for,
the requirements of that transitional employer's enterprise.
3081. Some current awards define redundancy as occurring when an employee
ceases to be employed by an employer in any situation, other than
for reasons of misconduct or refusal of duty. This broad definition
of redundancy may lead to redundancy payments being paid in some
circumstances where termination of employment was not at the
initiative of the employer and on the grounds of operational
requirements. This includes, for example, to the estate of a
transitional employee who has died while still employed. Award
terms providing for redundancy payments in ordinary resignation
situations are also not to be treated as dealing with redundancy
pay.
3082. Redundancy would also arise in circumstances where a transitional
employer is insolvent and the termination arises from the
insolvency, whether the transitional employer actively terminates
the employment relationship or not.
3083. Subclause 17(4) would set out how to determine whether a
transitional employer has 15 or more transitional employees at the
relevant time, for the purposes of paragraph 17(3)(a). The
provision makes clear that this calculation is to include any
transitional employee who becomes redundant, and any casual
transitional employee engaged by the transitional employer on a
regular and systematic basis for at least 12 months. The relevant
time is when notice of the redundancy is given or when the
redundancy occurs, whichever happens first.
New clause 18 - Matters that are not allowable transitional award
matters
3084. Proposed clause 18 would affect the scope of the allowable
transitional award matters in subclause 17(1), by specifying
particular matters that are not allowable transitional award
matters.
3085. Paragraph 18(1)(a) would specify as not allowable terms in a
transitional award about the rights of an organisation to
participate in, or represent a transitional employer or transitional
employee in, the whole or part of a dispute settling procedure,
unless the organisation is a representative of the employer's or
employee's choice.
3086. This limitation is intended to ensure that a transitional award
provides employees and employers with choice as to representation,
and also to give transitional employees and transitional employers a
choice about whether or not they want a representative present at
all. It is intended to prevent transitional award terms that allow
an organisation to intervene using a dispute settling procedure if a
transitional employee or transitional employer has not requested its
assistance.
3087. Paragraph 18(1)(b) would provide that the matter of transfers from
one type of employment to another type of employment is not an
allowable award matter. This means a transitional award term that,
for example, provides for the conversion of an employee from casual
employment to part-time or full-time employment would not be an
allowable transitional award matter. However, a term of a
transitional award that permits access to a different type of
employment for a set period of time, for example, a full-time
employee who returns to work part-time after parental leave until
their child reaches school age, would not fall under paragraph
18(1)(b) and would therefore be allowable.
3088. Paragraph 18(1)(c) would provide that the number or proportion of
transitional employees that a transitional employer may employ in a
particular type of employment is not an allowable transitional award
matter. This means that an award would not be allowed to contain
terms that impose, or would have the effect of imposing, a limit on
the number of persons that may be employed in a particular type of
employment, whether by imposing a quota on that employment type or
requiring a minimum or maximum number of employees in a particular
type of employment.
3089. Paragraph 18(1)(d) would provide that a direct or indirect
prohibition on a transitional employer employing transitional
employees in a particular type of employment is not an allowable
transitional award matter. For example, a transitional award clause
limiting the employment of casual transitional employees only to
periods up to but not exceeding a specified number of weeks (say 6
or 12 weeks), would be an indirect prohibition on a transitional
employer employing transitional employees in a particular type of
employment and would not, therefore, be a clause about an allowable
transitional award matter.
3090. Paragraph 18(1)(e) would provide that the maximum or minimum hours
of work for regular part-time transitional employees is not an
allowable transitional award matter. This means a transitional
award term that prescribes the maximum or minimum hours for regular
part-time transitional employees would not be about an allowable
transitional award matter. Paragraph 18(1)(e) would operate subject
to the terms of subclause 18(2), which would permit a transitional
award term setting a minimum number of consecutive hours that a
transitional employer may require a regular part-time transitional
employee to work.
3091. Paragraph 18(1)(f) would provide that restrictions on the range or
duration of training arrangements are not allowable transitional
award matters. This means, for example, that a transitional award
term providing that apprenticeships will be for a specific duration
would not be a term about an allowable transitional award matter.
Equally, a transitional award term that limited the circumstances in
which the duration of a training arrangement could be varied (for
example, by requiring the agreement of a State or Territory training
authority) would not be a term about an allowable transitional award
matter.
3092. Paragraph 18(1)(g) would provide that restrictions on the engagement
of independent contractors and requirements relating to their
engagement are not allowable transitional award matters. This
means, for example, that a transitional award term that only allows
the use of independent contractors to top up the existing full-time
labour force (to cover seasonal or peak work loads, for instance)
would not be a term about an allowable transitional award matter -
such a cap on the use of independent contractors would amount to a
restriction on the engagement of independent contractors.
Similarly, a clause that required certain prerequisites (such as
consultation with transitional employees or a union) to be satisfied
before independent contractors could be engaged by a transitional
employer would not be allowable.
3093. Paragraph 18(1)(h) would make non-allowable restrictions on the
engagement of labour hire workers, and requirements relating to the
conditions of their engagement, imposed on an entity or person for
whom the labour hire worker performs work under a contract with a
labour hire agency. For example, a term of a transitional award
which prevented the use of labour hire workers except in cases where
those workers were paid at the same rate as transitional employees
of the business where the labour hire workers are also engaged would
not be a term about an allowable transitional award matter.
(Subclause (3) defines terms relevant to this paragraph.)
3094. Paragraph 18(1)(i) would provide that union picnic days is not an
allowable transitional award matter. This means a transitional
award term that provides for a union picnic day that would otherwise
be allowable under paragraph 17(1)(i) (which relates to public
holidays) is not an allowable transitional award matter.
3095. Paragraph 18(1)(j) would provide that tallies is not an allowable
transitional award matter. This means a transitional award term
that, for example, provides for a tally payment system in the meat
industry is not a term about an allowable transitional award matter.
3096. Paragraph 18(1)(k) would provide that dispute resolution training
leave is not an allowable transitional award matter. This means a
transitional award term providing leave to attend a training course
directed to the dispute resolution process is not a term about a
transitional allowable award matter.
3097. Paragraph 18(1)(l) would provide that trade union training leave is
not an allowable transitional award matter. This means that an
award term providing leave to attend a course directed to the
training of union delegates or workplace representatives is not a
term about an allowable award matter. Terms about other trade union
training courses dealing with workplace relations issues would also
not be terms about allowable transitional award matters.
3098. Paragraph 18(1)(m) would allow additional matters to be prescribed
by regulations as not allowable.
3099. Subclause 18(2) would ensure that paragraph 18(1)(e) (which would
render not allowable terms about the maximum or minimum hours for
regular part-time transitional employees) would not prevent a term
being included in a transitional award that:
. set a minimum number of consecutive hours that a transitional
employer may require a regular part-time transitional employee to
work - for example, a term that allowed a transitional employer to
require a regular part-time transitional employee to work at least
three consecutive hours; or
. facilitated a regular pattern in the hours worked by regular part
time transitional employees - for example, a transitional award
term may enable a regular part-time transitional employee to work
fifteen hours each week over the course of a four week period.
3100. Subclause 18(3) would provide a definition of labour hire agency and
labour hire worker for the purposes of proposed clause 18.
New clause 19 - Terms involving discrimination and preference not to
be included
3101. Proposed clause 19 would provide that a term of a transitional award
is not allowable to the extent that it requires or permits, or has
the effect of requiring or permitting, any conduct that would
contravene Part XA (Freedom of Association).
New clause 20 - Terms about rights of entry not to be included
3102. Proposed clause 20 would provide that a transitional award term is
not allowable to the extent that it would require or authorise an
officer or employee of an organisation to enter premises for the
purposes listed in the clause - which include inspecting or viewing
work performed on premises of a transitional employer bound by the
award.
New clause 21 Enterprise flexibility provisions not to be included
3103. Proposed clause 21 would provide that to the extent that a
transitional award term is an enterprise flexibility provision (as
defined immediately before reform commencement), it would not be
about an allowable transitional award matter.
New Subdivision C - Other terms that may be included in transitional
awards
New clause 22 - Preserved transitional award terms
3104. Proposed subclause 22(1) would provide that a transitional award may
contain preserved transitional award terms.
3105. Proposed subclause 22(2) would provide that a preserved transitional
award term is a term of a transitional award that is about a matter
listed in subclause 22(3) and that had effect under a transitional
award on reform commencement. Preserved transitional award terms do
not cease to operate on reform commencement - subclause 22(5) would
provide that a preserved transitional award term continues to have
effect for the purposes of the Schedule. However, such terms may
not be varied.
3106. The preserved transitional award matters are: long service leave,
notice of termination, jury service and superannuation (subclause
22(3)). A term in a transitional award is only a preserved
transitional award term to the extent that it is about one of these
matters (subclause 22(4)).
3107. A preserved award term about superannuation would cease to have
effect at the end of 30 June 2008 (subclause 22(6)). The Government
announced in 2004, with the passage of the Superannuation Laws
Amendment (2004 Measures No.2) Act 2004, that all employees would be
treated in a consistent manner for superannuation guarantee
purposes. The Government announced that from 1 July 2008 ordinary
time earnings (as defined by the Superannuation Guarantee
legislation) would be the earnings base for determining the
superannuation guarantee liability for all employees. Accordingly,
award-based earnings bases will cease to operate from this date.
New clause 23 - Facilitative provisions
3108. A facilitative provision is a term of an award (including a
transitional award) which permits an employer and employees to agree
on how specified terms of the award are to apply at the workplace
level.
3109. Subclause 23(1) would allow a facilitative provision in a
transitional award. This subclause would operate subject to the
requirements of the remainder of this clause.
3110. Subclause 23(2) would ensure that a facilitative provision not
require agreement between a majority of transitional employees and a
transitional employer on how a term in the transitional award is to
operate; rather a facilitative provision must permit agreement
between an individual transitional employee and his or her employer.
3111. Subclause 23(3) would provide that a facilitative provision may only
operate in respect of an allowable transitional award matter or a
preserved transitional award term.
3112. Subclause 23(4) would provide that a facilitative provision is of no
effect to the extent that it does not comply with subclauses 23(2)
and (3).
New clause 24 - Incidental and machinery terms
3113. Subclause 24(1) would permit a transitional award to contain terms
that are both:
. incidental to a term in the transitional award that is allowable;
and
. essential to enable a particular term to function in a practical
way.
3114. Subclause 24(2) would provide that a transitional award term that is
not an allowable transitional award matter because of other proposed
clauses (proposed clauses 18, 19, 20 or 21) cannot become allowable
because of the operation of proposed clause 24.
New clause 25 - Anti-discrimination clauses
3115. Proposed clause 25 would permit a transitional award to contain a
model anti-discrimination clause.
New clause 26 - Boards of reference
3116. Proposed clause 26 would provide for the ongoing operation of terms
in transitional awards that appoint, or permit the appointment of,
boards of reference, subject to specific operational limitations.
To the extent that an existing term would not comply with these
requirements, it would be of no effect (subclause 26(2)). The key
provision in this regard is subclause 26(3), which would provide
that a term of a transitional award that appoints, or gives power to
appoint, a board of reference may confer upon the board of reference
an administrative function (as defined), and must not confer upon
the board of reference a function of settling or determining
disputes about any matter arising under the transitional award. A
function conferred under subclause 26(3) may only relate to an
allowable transitional award matter or other terms that are
permitted to be contained in an award (subclause 26(4)).
3117. Subclause 26(5) would provide that a board of reference may consist
of or include a member of the AIRC.
3118. Subclause 26(6) would provide for regulations to be made in relation
to a particular board of reference or boards of reference in general
including, but not limited to, the functions and powers of the board
or boards. This would enable the operation of boards of reference
to be monitored and adjusted, if necessary.
New Subdivision D - Terms in transitional awards that cease to have
effect
New clause 27 - Terms in transitional awards that cease to have
effect after the reform commencement
3119. A transitional award term that is not permitted to be contained in a
transitional award - for example because it is not about a matter
within the list of allowable transitional award matters (subclause
17(1)), or because it is specifically made not allowable (subclause
18(1)) - would cease to have effect immediately after reform
commencement. For example, a transitional award term providing for
the circumstances in which casual employment may be transferred to
part time or full time employment (which would not be allowable
because of subclause 18(1)) would cease to apply after reform
commencement (subclause 27(1)). This would not affect preserved
award terms (subclause 27(2)).
New Division 2 - Variation and revocation of transitional awards
New clause 28 Variation of transitional awards - general
3120. Proposed clause 28 would list the circumstances in which the AIRC
may vary a transitional award.
3121. Subclause 28(1) would provide that the AIRC may only vary an award
where it is dealing with an industrial dispute (under proposed
clause 29); to remove ambiguity or uncertainty, or where an award is
a discriminatory award (under proposed clause 30).
3122. The AIRC must not vary a preserved transitional award term
(subclause 28(2)) or a facilitative provision within meaning of
clause 23 except on a ground set out in proposed clause 30
(subclause 28(3)).
New clause 29 Variation of transitional awards - dealing with
industrial dispute
3123. Proposed subclause 29(1) would provide that in preventing or
settling and industrial dispute, or maintaining the settlement of an
industrial dispute, the AIRC's power to vary a transitional award
extends only to varying the award:
. to provide minimum safety net entitlements about matters listed in
subclause 29(2);
. to do anything that the AIRC is permitted to do by regulations
under subclause 29(3);
. to include incidental and machinery terms relating to the matters
listed in subclause 29(2) (see proposed clause 24)
3124. Subclause 29(2) would provide that the matters that the AIRC may
deal with for the purposes of varying a transitional award are:
. rates of pay generally (such as hourly rates and annual salaries),
rates of pay for juniors and transitional employees to whom
training arrangements apply, and rates of pay for transitional
employees under the supported wage system;
. incentive-based payments, piece rates and bonuses;
. annual leave loadings;
. monetary allowances as described in paragraph 17(1)(j);
. loadings for working overtime or for casual or shift work;
. penalty rates;
. pay for outworkers;
. any other allowable transitional award matter prescribed by the
regulations.
3125. A note under proposed subclause 29(2) reminds readers that the AIRC
must have regard to the matters noted in clauses 8 and 9 in
exercising its power to vary an award.
3126. Subclauses 29(3) and (4) would enable regulations to be made to
extend the range of allowable matters that the AIRC may deal with in
circumstances where it considers it appropriate to vary a
transitional award in respect of rates of pay for part-time
transitional employees, junior transitional employees or
transitional employees to whom training arrangements apply. These
provisions are intended to enable regulations to be made that will
permit the AIRC to make necessary changes to an award consequential
on inserting wage rates for these categories of employee - such as
including relevant classifications, and providing pro-rata access to
leave entitlements.
New clause 30 - Variation of transitional awards-discrimination,
etc.
3127. Proposed section 30 would provide for other limited circumstances in
which the AIRC may vary awards.
3128. Subsection 30 (1) would enable the AIRC to make an order to vary a
term of a transitional award about a matter listed in subclause
29(2) to remove any ambiguity or uncertainty.
3129. Subsections 30(2), (3), (4) and (7) would provide for an order to be
made varying a transitional award to remove discrimination if the
award is referred to the AIRC under section 46PW of the HREOC Act
1986.
3130. Subsection 30(5) would enable the AIRC to make an order to vary a
transitional award:
. to reflect a name change by an employer or organisation;
. if an organisation's registration has been cancelled; or
. if the employer organisation has ceased to exist.
3131. The applicant would bear the onus of demonstrating that a variation
under subsection 30(5) should be made (subsection 30(6)).
3132. This clause reflects pre-reform section 111A and subsections 113(2),
(2A), (3) and (5).
New clause 31 - Revocation of transitional awards
3133. Proposed clause 31 would set out circumstances in which a
transitional award may be revoked.
. The use of the word 'revoke' and not the previous formulation,
'set aside or revoke', is not intended to change the scope of the
AIRC's power. Rather, the intention is to use a clearer style
consistent with section 15AC of the Acts Interpretation Act 1901.
3134. Subclause 31(1) would provide that the AIRC may only make an order
revoking a transitional award if:
. it is satisfied that the award is obsolete or no longer capable of
operating; and
. it would not be contrary to the public interest to revoke the
award.
3135. Subclause 31(2) would provide that if an application is made seeking
an order under proposed subclause 31(1), the AIRC must, as it
considers appropriate, ensure that each transitional employer and
organisation bound by the transitional award is made aware of the
application.
3136. Subclause 31(3) would ensure that the AIRC does not make an order
revoking a transitional award if one or more transitional employees
have an entitlement under a preserved transitional award term in the
transitional award.
New clause 32 - Applications for variation, suspension or revocation
of transitional awards
3137. Proposed clause 32 would provide that this Schedule applies with
respect to applications (including proceedings about applications)
for the variation, suspension or revocation of transitional awards
and applies in the same manner, as far as is possible, as it applies
with respect to industrial disputes and proceedings about industrial
disputes. An application for the variation, suspension or
revocation of transitional awards is to be treated as if it were the
notification of an industrial dispute. Proposed clause 32 reflects
pre-reform subsection 113(4).
New Division 3 - Procedure for dealing with industrial disputes
New clause 33 - Notification of industrial disputes
3138. Proposed clause 33 would provide for the notification of alleged
industrial disputes.
3139. New disputes will be able to be notified after reform commencement,
although the range of matters about which the AIRC will be empowered
to conciliate, or arbitrate by varying a transitional award, would
be altered.
3140. This clause is based on pre-reform section 99.
New clause 34 - Disputes to be dealt with by conciliation where
possible
3141. Proposed clause 34 would require an alleged industrial dispute to be
conciliated unless the relevant Presidential Member does not
consider that this would assist resolution of the dispute.
3142. Where an alleged dispute is not referred for conciliation, it must
be dealt with by arbitration. The relevant Presidential Member must
publish reasons for not referring a matter for initial conciliation.
3143. Proposed clause 34 is based on pre-reform section 100.
New clause 35 - Findings as to industrial disputes
3144. Proposed subclause 35(1) would provide for the AIRC to make a formal
finding that an industrial dispute exists.
3145. A finding that an industrial dispute exists may be relied upon by
the AIRC for the purposes of exercising powers in subsequent
proceedings about the same industrial dispute (other than powers on
an appeal about the finding) (subclause 35(2)).
3146. Proposed subclause 35(3) would provide that a determination or
finding of the AIRC about the existence of an industrial dispute is
binding and conclusive for all purposes.
3147. This clause is based on pre-reform section 101.
New clause 36 - Action to be taken where dispute referred for
conciliation
3148. Proposed clause 36 would require a member of the AIRC dealing with a
dispute by conciliation to take all appropriate steps to assist the
parties to agree on terms to prevent or settle the dispute,
including arranging conferences of parties and facilitating
discussion amongst the parties. This clause is based on pre-reform
section 102.
New clause 37 - Completion of conciliation proceeding
3149. Proposed subclause 37 would provide for the conclusion of
conciliation.
3150. This clause is based on pre-reform section 103.
New clause 38 - Arbitration
3151. When conciliation is complete, proposed clause 38 would require the
AIRC to deal with those matters still in dispute by arbitration.
Subclause 29(2) would list the matters in relation to which the AIRC
may arbitrate.
3152. Proposed clause 38 is based on pre-reform section 104.
New clause 39 - Exercise of arbitration powers by member who has
exercised conciliation powers
3153. Subclause 39(1) would provide that a member who conciliated a
dispute must not arbitrate, or take part in arbitration, if a party
to the arbitration proceeding objects. Certain procedural activity
listed in subclause 39(2) would not amount to exercising
conciliation powers about the industrial dispute - eg arranging for
a conference of the parties or their representatives that the member
did not attend (paragraph 39(2)(c)).
3154. Proposed clause 39 is based on pre-reform section 105.
New clause 40 - Allowable transitional award matters to be dealt
with by Full Bench
3155. Proposed clause 40 is based on pre-reform section 106 - which allows
a Full Bench of the AIRC to establish principles about each
allowable award matter.
3156. Under proposed clause 40, the Full Bench may establish principles
about those matters about which it may arbitrate (these are listed
in subclause 29(2)).
3157. The power of the AIRC to vary a transitional award about a matter
referred to in subclause 29(2) is exercisable only by a Full Bench
unless the variation gives effect to orders of a Full Bench made
after reform commencement or is consistent with principles
established by a Full Bench after reform commencement (subclause
40(2)).
New clause 41 - Reference of disputes to Full Bench
3158. Proposed clause 41 would enable an application to be made for the
President to refer a dispute or an alleged dispute, including a
question arising about an industrial dispute, to a Full Bench. The
basis on which such an application may be made is that the matter is
of such importance that it should, in the public interest, be dealt
with by a Full Bench.
3159. Proposed clause 41 is based on pre-reform section 107.
New clause 42 - President may deal with certain proceedings
3160. Proposed clause 42 would enable the President to decide, on his or
her own motion, to deal with, or refer to a Full Bench, a dispute or
an alleged dispute, including a question arising about an industrial
dispute.
3161. Proposed clause 42 is based on pre-reform section 108.
New clause 43 - Review on application by Minister
3162. Proposed clause 43 would enable the Minister to apply to the
President for a review by a Full Bench of an order made for the
purposes of the Schedule, or a decision about the making of such an
order, if it appears to the Minister that the order or decision is
contrary to the public interest. Proposed clause 43 also sets out
the procedure to be followed where the Minister seeks a review under
this clause.
3163. Proposed clause 43 is based on pre-reform section 109.
New clause 44 - Procedure of Commission
3164. Proposed clause 44 would provide general guidance about the
procedure of the AIRC.
3165. The proposed clause indicates that the procedure of the AIRC when
dealing with an industrial dispute is (subject to the Act and any
rules made by the President) within the discretion of the AIRC, that
it is not bound by the rules of evidence, and that it must act
according to equity, good conscience and the merits of the case.
3166. The AIRC may require evidence or argument to be presented in writing
and may decide the matters on which it will hear oral evidence or
argument. Proposed clause 44 reflects pre-reform section 110.
New clause 45 - Provisions in Part II that do not apply to
performance of Commission's functions under the Schedule
3167. Proposed clause 45 would provide that a number of the general powers
and procedures of the AIRC - to be contained in Part II of the Act -
do not apply to the performance of a function by the AIRC under the
Schedule. In large part this is because specific equivalent
provision is made in the Schedule.
New Division 4 - Powers of Commission for dealing with industrial
disputes
New clause 46 - Particular powers of Commission
3168. Proposed clause 46 is based on pre-reform section 111, although some
changes have been made to the AIRC's powers.
3169. The clause would set out particular powers the AIRC may exercise in
relation to an industrial dispute that arises under the Schedule.
3170. Subclause 46(1) would set out these powers, which include that the
AIRC may:
. inform itself in any manner it considers appropriate
(paragraph 46(1)(a));
. issue directions about procedural matters relating to the hearing
or determination of an industrial dispute (paragraph 46(1)(c));
. within limits imposed by the Schedule, vary or revoke a
transitional award, order, direction, recommendation or other
decision (paragraph 46(1)(d));
. dismiss trivial matters (subparagraph 46(1)(e)(i));
. refer a matter to an expert and accept the expert's report as
evidence (paragraph 46(1)(j); and
. correct, amend or waive errors, defects or irregularities, whether
in substance or form (paragraph 46(1)(m)).
3171. Some changes have been made to the AIRC's powers. It will, for
example, no longer have a general power to do anything it considers
necessary to deal with a matter (pre-reform paragraph 111(1)(t)), or
to extend legislative timeframes (pre-reform paragraph 111(1)(r)).
3172. Subclauses 46(2) and (3) would deal with related procedural matters.
New clause 47 - Recommendations by consent
3173. Proposed clause 47 would enable the AIRC, when it is exercising its
powers of conciliation in relation to a particular allowable award
matter, to conduct a hearing and make recommendations about those
matters. The AIRC may conduct a hearing and make recommendations
about particular aspects of the matter on which the parties are not
able to reach agreement:
. on the request of all the parties;
. where the AIRC is satisfied that genuine attempts have been made
to reach agreement about certain matters; and
. the parties have agreed to comply with the AIRC's recommendations
(subclause 47(1)).
3174. Subclause 47(2) would provide that the AIRC is not prevented by this
clause from making recommendations in other circumstances.
3175. This clause is based on pre-reform section 111AA.
New Division 5 - Other powers of the Commission
New clause 48 - Power to make further orders in settlement of
industrial dispute etc.
3176. Proposed clause 48 would enable orders to be made in settlement of
an industrial dispute, despite the fact that an award or order has
previously been made in relation to the dispute. This provision is
based on pre-reform section 114.
New clause 49 - Relief not limited to claim
3177. Proposed clause 49 would provide that, subject to the limits placed
on the AIRC's power to conciliate and/or arbitrate by other
provisions in the Schedule, the AIRC is not restricted to the relief
sought or demands made by the parties in the course of the dispute.
3178. This proposed clause is based on pre-reform section 120.
New clause 50 - Power to provide special rates of wages
3179. Proposed clause 50 would enable the AIRC to vary an award that
prescribes a minimum rate of pay to provide:
. for the payment of wages at a lower rate to transitional employees
who are unable to earn a wage at the minimum rate; and
. that the lower rate must not be paid to a transitional employee
unless a particular person or authority has certified that the
transitional employee is unable to earn a wage at the minimum
rate.
3180. This proposed clause is based on pre-reform section 123.
New clause 51 - Orders to stop or prevent industrial action
3181. Proposed clause 51 would set out the grounds upon which an order
that industrial action stop or not occur can be obtained and the
process to be followed to obtain and enforce such an order.
3182. Subclause 51(1) would enable the AIRC to make an order that
industrial action that is happening, or is threatened or probable,
in relation to an industrial dispute stop or not occur. The scope
of the AIRC's power to make such orders is limited by the range of
matters about which it can arbitrate - see subclause 29(2).
3183. Subclause 51(2) would identify those who may apply for such an order
The AIRC may also make such an order on its own initiative.
3184. Subclause 51(8) would enable the Federal Court to grant an
injunction on such terms as it considers appropriate if it is
satisfied that a person or organisation against whom an order is
made:
. has engaged in conduct in breach of an AIRC order
(paragraph 51(8)(a); or
. is proposing to engage in such conduct (paragraph 51(8)(b)).
3185. This proposed clause is based on pre-reform section 127.
New Part 4 - Ballots ordered by the Commission
New clause 52 - Commission may order secret ballot
3186. Proposed clause 52 would set out the circumstances in which the AIRC
may order a secret ballot. This clause is expressed in similar
terms to pre-reform subsection 135(1).
3187. Subclause 52(1) would provide that the AIRC may order a secret
ballot of members of an organisation to be conducted, and provide
directions as to the conduct of the ballot, if it considers that the
prevention or settlement of an industrial dispute might be helped by
finding out the attitudes of the members of an organisation involved
in an industrial dispute. In order to make such an order, the AIRC
must have the power to deal with the dispute under the Schedule.
3188. Subclause 52(2) would provide that the AIRC's powers to make and
revoke such an order may only be exercised by a Presidential Member
or a Full Bench.
New clause 53 - Scope of directions for secret ballots
3189. Proposed clause 53 would provide for the type of directions that are
to be given by the AIRC when ordering a secret ballot. This
proposed clause is expressed in similar terms to pre-reform
section 137.
3190. Subsection 53(1) would provide that the direction given must provide
for all matters relating to the ballot, including:
. the questions to be put to the vote (paragraph 53(1)(a));
. the eligibility of persons to vote (paragraph 53(1)(b)); and
. the conduct of the ballot generally (paragraph 53(1)(c)).
3191. Subsection 53(2) would require the AIRC to consult with the
Industrial Registrar or the Electoral Commissioner (the latter if
the ballot is to be conducted by the AEC) before giving directions.
New clause 54 - Conduct of ballot
3192. Proposed clause 54 would provide for the manner in which the ballot
is to be conducted. The provisions of this clause are based on pre-
reform subsections 138(1) - (5).
3193. Subclause 54(1) would provide details of the directions to be made
by the AIRC for the conduct of the secret ballot. Subclause 54(5)
would require the Industrial Registrar to conduct the ballot or make
arrangements for the conduct of the ballot in accordance with the
AIRC's directions.
3194. Subclause 54(2) would stipulate that a person to whom a direction is
given must comply. Failure to do so is an offence, with a maximum
penalty of 30 penalty units.
3195. Subclause 54(3) would provide that an offence under subclause (2) is
an offence of strict liability, meaning that it is not possible to
argue that there was an excuse for non-compliance.
3196. Where the AIRC orders that the ballot is to be conducted by a person
approved by the Industrial Registrar, the Commonwealth is liable to
pay the reasonable costs of the conduct of the ballot as assessed by
a Registrar (subclause 54(4))
3197. Subclause 54(6) would provide the manner in which the results of the
ballot are to be communicated.
New clause 55 - Commission to have regard to result of ballot
3198. Proposed clause 55 would require the AIRC to have regard to the
result of the ballot in any relevant conciliation or arbitration
proceeding. This clause is expressed in similar terms to pre-reform
section 139.
New clause 56 - Offences in relation to ballots
3199. Proposed clause 56 would ensure that pre-reform section 317 (which
creates offences in relation to ballots) will apply to a ballot
ordered under the Part in the same way as it applies to other
ballots ordered under the Act.
New Part 5 - Circumstances in which transitional awards cease to be
binding
3200. Proposed Part 5 would set out the means by which transitional
employers and their employees can cease to be bound by a
transitional award. They are:
. a transitional employer making a State employment agreement with
one or more of its employees (clause 57);
. an application to the AIRC for an order that the transitional
award cease to apply because the parties have been unable to make
a State employment agreement (clause 58); or
. an application to the AIRC for an order that the transitional
award cease to apply because the AIRC has been unable to resolve
an industrial dispute (clause 59) - for example, because of limits
on the AIRC's power to deal with certain issues by arbitration.
3201. The effect of ceasing to be bound by an award is that the employer
would revert to the relevant State workplace relations system.
3202. Proposed clauses 57 and 58 would not apply to employers and
employees in Victoria (as those terms are defined by proposed
section 489), as State employment agreements are not able to be made
in Victoria.
3203. If an order under subclause 59(3) is made by the AIRC in respect of
an employer and its employees in Victoria (as those terms are
defined by proposed section 489), then the employer and employee in
Victoria may become bound by a common rule (within the meaning of
clause 82 of Schedule 13) or by the Standard as it applies because
of proposed section 492 and proposed Division 5 of Part VIA.
New clause 57 - Ceasing to be bound by a transitional award - making
a State employment agreement
3204. Proposed clause 57 would provide that a transitional employer bound
by a transitional award will cease to be bound by that award in
respect of the employment of a transitional employee covered by that
award if the transitional employer makes a State employment
agreement with the transitional employee. Once the transitional
employer ceases to be bound by a transitional award in respect of
particular employment it cannot be subsequently bound by a
transitional award in respect of that employment
(paragraph 57(1)(b)).
3205. It will be possible for an employer to be bound by a transitional
award in respect of some employees, and State employment agreements
in respect of others.
New clause 58 - Ceasing to be bound by a transitional award -
inability to make a State employment agreement
3206. Proposed clause 58 would enable a transitional employer or one or
more of the transitional employer's employees to apply to the AIRC
for an order that the transitional employer cease to be bound by a
transitional award in respect of the employment of transitional
employees.
3207. Subclause 58(1) would provide the grounds for making such an
application - that a transitional employer has made genuine efforts
to make a State employment agreement with one or more of its
employees, but has been unable to do so.
3208. Subclause 58(2) would require the AIRC to make the order sought if
it is satisfied that genuine efforts have been made by the
transitional employer to make a State employment agreement with one
or more of the transitional employees, but has been unable to do so.
New clause 59 - Ceasing to be bound by transitional award -
inability to resolve industrial dispute under the Schedule
3209. Proposed clause 59 would provide a mechanism for a party to an
industrial dispute to apply for an order that a transitional award
cease to bind a transitional employer if a dispute has not been able
to be resolved under the Schedule. For example, an order might be
sought where parties have a genuine dispute about an allowable
transitional award matter that the AIRC cannot resolve by
arbitration as it is not one of the allowable transitional award
matters listed in subclause 29(2).
New clause 60 - Interaction between transitional awards and State
laws and State awards
3210. Proposed clause 60 would provide that if a State law or State award
is inconsistent with, or deals with a matter dealt with, in a
transitional award, the transitional award prevails and the State
law or State award, to the extent of the inconsistency or in
relation to the matter dealt with, is invalid.
3211. This proposed clause is expressed in similar terms to pre-reform
subsection 152(1).
New Part 6 - Technical matters relating to transitional awards
3212. Proposed Part 6 would set out a range of technical matters relating
to orders made by the AIRC for the purposes of the Schedule and
transitional awards.
New clause 61 - Making and publication of orders
3213. Proposed clause 61 would provide for the making and publication of
orders made by the AIRC for the purposes of the Schedule. This
would include transitional award-related orders and also other
orders the AIRC may make under the Schedule such as an order to stop
or prevent industrial action (see clause 51).
Subclause 61(1) would provide that an order be reduced to writing and be
signed and dated.
3214. The AIRC must provide written reasons for making the order
(subclause 61(2)), and the order and written reasons must be made
available to relevant parties and published (subclause 61(3)).
3215. This clause is based on the provisions of pre-reform section 143.
New clause 62 - Requirement for transitional award-related orders
3216. Proposed section 62 would set out other general matters to which the
AIRC must have regard when making a transitional award related
order. (A transitional award-related order is defined in
subclause 2(1) to mean an order varying, revoking or suspending a
transitional award under the Schedule.)
3217. Subsection 62 would provide that, when making a transitional award-
related order, the AIRC must ensure that the order:
. is expressed in plain English and is easy to understand in
structure and content;
. does not include terms that are obsolete or that need updating;
. if appropriate, contains terms for the Supported Wage System - to
provide for the employment of workers with disabilities; and
. include wage arrangements for the full range of apprenticeships,
traineeships and other training arrangements.
3218. Subsection 62(2) would set out the circumstances when a transitional
award related order would not discriminate against an employee.
3219. This clause is based on pre-reform section 143.
New clause 63 - Registrar's powers if member ceases to be a member
after making an order
3220. Proposed clause 63 is a technical provision that would enable
continuity in circumstances where a member of the AIRC ceases to be
a member after an order has been made for the purposes of the
Schedule, but before the order made by the member has been reduced
to writing. In these circumstances, the order will be deemed to
have effect as if it was signed by that member if the Registrar
reduces the order to writing, signs it and seals it with the seal of
the AIRC.
3221. This clause is based on pre-reform section 143.
New clause 64 - Form of orders
3222. Proposed clause 64 would provide that an order made for the purposes
of the Schedule must be framed so as best to express the decision of
the AIRC and must avoid any unnecessary technicalities.
3223. This clause is based on pre-reform section 144.
New clause 65 - Date of orders
3224. Proposed clause 65 would provide that the date of an order made by
the AIRC for the purposes of the Schedule is the date upon which it
is signed in the manner set out in proposed clause 61, that is, by
at least one member of a Full Bench in the case of an order made by
a Full Bench, or in the case of any other order, at least one member
of the AIRC.
3225. This clause is based on pre-reform section 145.
New clause 66 - Date of effect of orders
3226. Proposed clause 66 would provide that an order made by the AIRC for
the purposes of the Schedule must be expressed to come into force on
a specified day (subclause 66(1)). Other than in exceptional
circumstances, the order must not be retrospective
(subclause 66(2)).
3227. This clause is based on pre-reform section 146.
New clause 67 - Term of orders
3228. Proposed clause 67 would specify that an order made by the AIRC for
the purposes of the Schedule must specify the period for which the
order is to continue in force (subclause 67(1)) and in determining
this period, the AIRC must have regard to the wishes of the parties
to the industrial dispute and the desirability of stability in
workplace relations (subclause 67(2)).
3229. This clause is based on the provisions of pre-reform section 147.
New clause 68 - Continuation of transitional awards
3230. Proposed clause 68 would provide for the continuation of
transitional awards and orders varying transitional awards.
3231. This clause is based on pre-reform section 148.
New clause 69 - Persons bound by orders varying transitional awards
3232. Proposed clause 69 would set out the parties that are bound by an
order that varies a transitional award. This clause is based on pre-
reform section 149.
3233. The parties that can be bound by an order varying a transitional
award under this clause are listed in subclause 69(1). An order can
only bind those parties that are already bound by the transitional
award under clause 4. It is not the intention of this clause that
employers, employees and organisations that are not bound by a
transitional award and, therefore, are not in the transitional
system, can enter the transitional system by becoming bound by a
transitional award under this clause.
3234. An order varying a transitional award must not bind a transitional
employer, transitional employee or organisation that was not bound
by the transitional award on reform commencement (subclause 69(2)).
New clause 70 - Transitional awards and transitional award-related
orders of Commission are final
3235. Proposed clause 70 would protect the validity of transitional awards
and transitional award-related orders.
3236. Subclause 70(1) would provide that such instruments are final and
conclusive and that they may not be challenged or called into
question in a court.
3237. Subclause 70(2) would provide that a transitional award or
transitional award-related order is not invalid because it was made
by the AIRC constituted otherwise than as provided in the WR Act.
New clause 71 - Reprints of transitional awards as varied
3238. Proposed clause 71 would confirm that a copy of a document
purporting to be a copy of a transitional award as varied and
printed by the Government Printer is evidence of the transitional
award as varied in all courts.
New clause 72 - Expressions used in transitional award
3239. Proposed clause 72 would provide that, unless the contrary intention
appears in a transitional award, an expression used in the award has
the same meaning as it would have in an Act because of either the
Acts Interpretation Act 1901 or as it has in the WR Act.
New Part 7 - Matters relating to Victoria
3240. Proposed Part 7 would provide special provisions in respect of
transitional awards that cover employees in Victoria, who are within
the referral of power from the Parliament of Victoria to the
Parliament of the Commonwealth in the CP(IR) Act but are not
'employees' within the meaning of subsection 4AA(1). These special
provisions arise from the terms of the CP(IR) Act, and will only
apply only in so far as and as long as they are within the powers
referred by the CP(IR) Act. These special provisions for Victoria
include the continuation of a system of common rule awards, for the
transitional period.
New Division 1 - Matters referred by Victoria
3241. Proposed Division 1 would provide for additional coverage of
Victorian employees through the operation of the CP(IR) Act.
New Subdivision A - Introduction
New clause 73 - Definitions
3242. Proposed clause 73 would provide definitions to apply throughout
Division 1 of Part 7 of Schedule 13 to the WR Act.
3243. Under clause 73, the terms employee, employer and employment would
have the same meaning as provided by proposed section 489 of the WR
Act. Therefore, an employee for the purposes of Division 1 of Part
7 of Schedule 13 would mean an employee in Victoria who is an
employee within section 3 of the CP(IR) Act, and not an employee
within the meaning of proposed subsection 4AA(1). The terms
employer and employment would have a corresponding meaning. These
terms are narrower than equivalent terms in proposed clause 2,
because they are limited by section 3 of CP(IR) Act and they are
limited geographically to Victoria.
3244. A transitional employee would be an employee (within the meaning of
clause 73) of a transitional employer (within the meaning of clause
73). A transitional employer would be an employer (within the
meaning of clause 73) that is an excluded employer (within the
meaning of clause 2) that is bound by a transitional award (within
the meaning of clause 2). Again, these terms have a narrower
meaning than in clause 2.
3245. It is intended that, because of the definitions of employee,
employer, employment, transitional employee and transitional
employer contained in clause 73, the definitions of the same terms
in clause 2 of Schedule 13 would not apply to Division 1 of Part 7
of Schedule 13 to the WR Act. This means that the provisions of
Division 1 of Part 7 of Schedule 13 to the WR Act shall only apply
to employees, employers, employment, transitional employees and
transitional employers within the meanings provided by clause 73.
3246. A transitional Victorian reference award would mean a transitional
award (within the meaning of clause 2) that was, prior to reform
commencement, made in settlement or part settlement of an industrial
dispute within the limits of Victoria, relying upon the terms of the
CP(IR) Act.
3247. An underlying award would mean the award to which a common rule
declaration relates. As a result of subclause 82(2), an underlying
award will always be a transitional award within the meaning of
clause 2.
3248. Victorian public sector will have the same meaning as provided in
section 3 of the CP(IR) Act.
New clause 74 - Division only has effect if supported by reference
3249. Proposed clause 74 would make it clear that to the extent that it
relates to a Victorian reference award, any clause of Schedule 13
only operates for as long as, and in so far, as the relevant
referral of a matter to the Parliament of the Commonwealth is in
effect and provides sufficient legislative power for the clause to
have effect. This reflects the constitutional position.
3250. Subclause 74(2) would provide an exception to this general rule
insofar as Schedule 13 relates to the 'parental leave' part of the
Standard as it applies because of proposed section 170KB. Proposed
section 170KB does not rely upon a referral of matter by the
Parliament of Victoria to the Parliament of the Commonwealth. (The
constitutional underpinning of section 170KB would be dealt with by
subsection 170KA(1) (see item RC610).)
New Subdivision B - Industrial disputes
3251. Proposed Subdivision B would provide for the application of the
industrial disputes provisions in Schedule 13 to an industrial
dispute involving employees and employers (as defined in clause 73).
New clause 75 - Industrial disputes
3252. Proposed clause 75 would (subject to subclause 75(2)) extend the
operation of Schedule 13 as if the definition of 'industrial
dispute' in clause 2 also applied to an industrial dispute within
the limits of Victoria.
3253. Subclause 75(2) would allow regulations to be made to prescribe
Victorian laws so that they prevail to the extent of any
inconsistency over a transitional Victorian reference award in
respect of an industrial dispute concerning employment in the
Victorian public sector. This will not affect the general operation
of Schedule 13.
New Subdivision C - Allowable transitional award matters
3254. Proposed Subdivision C would extend the operation of the allowable
matters provisions to Victorian transitional reference awards.
New clause 76 - Allowable transitional award matters
3255. Proposed clause 76 would provide that clause 17 (allowable
transitional award matters) has effect, in relation to a
transitional Victorian reference award as if the allowable
transitional award matters did not include:
. annual leave;
. personal/carer's leave; and
. parental leave, including maternity and adoption leave.
3256. This clause is consequential upon proposed clause 77, which provides
that for transitional Victorian reference awards those entitlements
are treated as preserved transitional award entitlements under
subclause 22(3).
New Subdivision D - Preserved transitional award terms
New clause 77 - Preserved transitional award terms
New clause78 - When preserved transitional award entitlements have
effect
New clause 79 - Meaning of more generous
New clause 80 - Modifications that may be prescribed -
personal/carer's leave
New clause 81 - Modifications that may be prescribed - parental
leave
3257. Proposed clauses 77, 78, 79, 80 and 81 would provide that the
following matters are preserved award entitlements in relation to a
transitional Victorian reference award:
. annual leave;
. personal/carer's leave; and
. parental leave, including maternity and adoption leave.
3258. This proposed Subdivision would provide that an employee (within the
meaning of proposed section 489) in Victoria who is covered by a
transitional Victorian reference award shall receive the more
generous of each of the preserved transitional award terms, or the
relevant entitlement of the Standard, in relation to:
. annual leave;
. personal/carer's leave; and
. parental leave, including maternity and adoption leave.
3259. The 'more generous' test would apply in the same way, and with
similar regulation making powers, as under proposed sections 117C,
117D, 117E and 117F.
3260. These provisions apply to employees in Victoria in a different way
to employees in the other States because, as a result of the
referral of power by the Parliament of Victoria to the Parliament of
the Commonwealth in the CP(IR) Act, employees in Victoria will (in
accordance with, and subject to the limitations in, proposed section
492) be entitled to the Standard.
New Subdivision E - Common rules
3261. Subdivision E of Division 1 of Part 7 of Schedule 13 would provide
that a Victorian common rule award system will continue to apply, to
employers and employees in Victoria who are covered by Division 1 of
Part XV of the WR Act, until the end of the transitional period.
Existing common rule declarations would continue to apply, in
relation to transitional awards, but the AIRC would not be able to
make new common rule declarations.
New clause 82 - Common rules continue to have effect during
transitional period
3262. Proposed subclause 82(1) would provide that a common rule
declaration for an industry in Victoria that was in effect
immediately before the reform commencement, shall after the reform
commencement continue to have effect in relation to the employment
by employers of employees (within the meaning of those terms in
proposed section 489) in Victoria, until the earlier of:
. the revocation of the underlying award;
. the revocation of the common rule declaration; or
. the end of the transitional period.
3263. Subclause 82(2) would provide that the underlying award for a common
rule declaration shall be a transitional award within the meaning of
Schedule 13.
3264. This clause has effect subject to the power of the AIRC to vary a
transitional award that is declared to be a common rule (clause 85)
and the appeal provisions of section 45(7) (subclause 82(3)).
3265. Subclause 82(4) would provide that the AIRC may exercise its power
under paragraph 46(1)(d) to revoke a common rule declaration.
New clause 83 - Certain declarations continue to have effect during
transitional period
3266. Proposed clause 83 would provide that, subject to certain rights of
appeal and the AIRC's power to revoke a declaration, a declaration
made by the AIRC made under section 142(5) of the WR Act before the
reform commencement shall continue in effect in relation to a common
rule until the revocation of the common rule declaration, or the end
of the transitional period.
New clause 84 - Variation of common rules before the reform
commencement
3267. Proposed clause 84 would provide for the continuation of objection
processes associated with the making of common rule declarations.
New clause 85 - Variation of common rules during the transitional
period
3268. Proposed clause 85 would provide that if, during the transitional
period, the AIRC varies a transitional award that underlies a common
rule in Victoria, the variation will (subject to a declaration under
paragraph 85(4)(c)) be a common rule for the same industry in
Victoria, and will continue in effect from the date of effect of the
variation (paragraph 85(6)(a)) until the earlier of:
. the revocation of the underlying award;
. the revocation of the variation to the underlying award; or
. the end of the transitional period.
3269. Subclauses 85(2) -(5) provide a procedure for employers and
employees who are bound by a common rule to be given notice of a
proposed variation to an underlying award, to lodge a notice of
objection, and to seek to not be covered by the variation.
New clause 86 - Intervention by Minister of Victoria
3270. Proposed clause 86 would provide that the AIRC must, on application,
grant to a Minister of Victoria leave to intervene in proceedings in
relation to a declaration effecting a common rule.
New clause 87 - Concurrent operation of laws of Victoria
3271. Proposed clause 87 would provide that despite any other provision of
the WR Act, neither a common rule declaration nor Subdivision E of
Division 1 of Part 7 of Schedule 13 is intended to exclude or limit
the operation of a law of Victoria that is capable of operating
concurrently with the common rule declaration or the Subdivision.
This is consistent with the constitutional position as a result of
subsection 4A(1) of the CP(IR) Act.
New clause 88 - Pre-commencement applications for review
3272. Proposed clause 88 would provide that if an application for review
was made under section 109 before the reform commencement in
relation to a decision concerning a common rule in Victoria, the
review application and any such review would continue to be dealt
with in accordance with the terms of sections 142B and 493A as they
existed prior to the reform commencement.
New clause 89 - Common rule taken to be award
3273. Proposed subclause 89(1) would ensure that a common rule declaration
is taken to be an award for the purposes of certain provisions:
. section 100B - Effect of awards while workplace agreement is in
operation;
. section 496 - Limitation on application of minimum wage standards
to certain employees in Victoria;
. section 526 - Relationship between employment agreements and
awards; and
. clauses 5, 15 and 19 of Schedule 14 - interaction between awards
and Schedule 14 pre-reform agreements.
3274. Subclause 89(2) would provide that a common rule declaration would
be taken to be a transitional award for the purposes of subclause 60
(which relates to the interaction between transitional awards and
State laws and State awards).
3275. In the case of each of these sections, the section would apply as if
a reference to an award or a transitional award were a reference to
a common rule. In relation to clause 60, this would operate subject
to clause 87, which ensures concurrent operation of State and
federal laws.
New clause 90 - Meaning of industrial action
3276. Proposed clause 90 would provide that a common rule declaration
would be taken to be a transitional award for the purposes of the
definition of industrial action (proposed clause 3).
New clause 91 - Right of entry
3277. Proposed clause 91 would provide that a common rule would be taken
to be a transitional award for the purposes of the right of entry
provisions (which would apply to Schedule 13 by reason of proposed
clause 105).
New clause 92 - Application of provisions of Act relating to
workplace inspectors
3278. Proposed clause 92 would provide that a common rule declaration
would be taken to be a transitional award for the purposes of clause
106 (workplace inspectors).
New clause 93 - Application of provisions of Act relating to
workplace inspectors
3279. Proposed clause 93 would provide that a common rule declaration
would be taken to be a transitional award for the purposes of the
compliance provisions (which would apply to Schedule 13 by reason of
proposed clause 107).
New Subdivision F - Transmission of business
New clause 94 - Transmission of business
3280. Proposed clause 94 would extend the transmission of business
provisions in Schedule 13 to transitional Victorian reference
awards, provided that the transmission was between two employers
within the meaning of clause 73. This is to allow a Victorian
reference award to transmit in accordance with the terms of the
referral in the CP(IR) Act.
New Subdivision G - Modification of certain provisions of the Act
New clause 95 - Modification of certain provisions of the Act
3281. Proposed clause 95 would provide that a transitional Victorian
reference award is to be taken to be an award for certain purposes:
. section 100B - effect of awards while workplace agreement is in
operation;
. section 496 - limitation on application of minimum wage standards
to certain employees in Victoria;
. section 526 - relationship between employment agreements and
awards; and
. clauses 5, 15 and 19 of Schedule 14 - interaction between awards
and Schedule 14 pre-reform agreements.
3282. In the case of each of these sections, the section would apply as if
a reference to an award were a reference to a transitional Victorian
reference award.
New Division 2 - Other matters
3283. Proposed Division 2 would provide for the application of matters
covered by the Standard to awards (other than Victorian reference
awards) that bind excluded employers in respect of the employment of
employees in Victoria.
New Subdivision A - Allowable transitional award matters
New clause 96 - Allowable transitional award matters
New Subdivision B - Preserved transitional award terms
New clause 97 - Preserved transitional award terms
New clause 98 - When preserved transitional award entitlements have
effect
New clause 99 - Meaning of more generous
New clause 100 - Modifications that may be prescribed -
personal/carer's leave
New clause 101 - Modifications that may be prescribed - parental
leave
3284. These clauses provide for the preservation, and operation of,
certain terms in awards (other than Victorian reference awards) that
bind excluded employers in respect of the employment of employees in
Victoria. The provisions would operate in the same way as outlined
above in relation to proposed clauses 76, 77, 78, 79, 80 and 81.
3285. These provisions apply to employees in Victoria in a different way
to employees in the other States because, as a result of the
referral of power by the Parliament of Victoria to the Parliament of
the Commonwealth in the CP(IR) Act, employees in Victoria will (in
accordance with, and subject to the limitations in, proposed section
492) be entitled to the Standard.
Subdivision C - Modification of certain provisions of this Act
New clause 102 - Modification of certain provisions of the Act
3286. Proposed clause 102 would provide that a transitional award (within
the meaning of proposed clause 2), other than a transitional
Victorian reference award that applies to an employee (within the
meaning of proposed section 489) in Victoria is to be taken to be an
award for the purposes of:
. section 100B - effect of awards while workplace agreement is in
operation;
. section 496 - limitation on application of minimum wage standards
to certain employees in Victoria;
. section 526 - relationship between employment agreements and
awards; and
. clauses 5, 15 and 19 of Schedule 14 - interaction between awards
and Schedule 14 pre-reform agreements.
3287. In the case of each of these sections, the section would apply as if
a reference to an award were a reference to a transitional award
(within the meaning of clause 2), other than a transitional
Victorian reference award (within the meaning of clause 73) that
applies to an employee (within the meaning of section 489) in
Victoria.
New Part 8 - Miscellaneous
New clause 103 - Revocation and suspension of transitional awards
3288. Proposed clause 103 would provide for the application of proposed
section 44Q - which would enable the AIRC to revoke or suspend an
award in cases of misconduct by an organisation bound by the award,
or a substantial number of its members.
New clause 104 - Appeals to Full Bench
3289. Proposed clause 104 would provide for the application of proposed
section 45 (appeals to Full Bench) to the Schedule.
New clause 105 - Application of provisions of Act relating to right
of entry
3290. Proposed clause 105 would provide for the application of proposed
Part IX (Right of entry) to the Schedule.
New clause 106 - Application of provisions of Act relating to
workplace inspectors
3291. Proposed clause 106 would provide for the application of proposed
Part V (Workplace inspectors) to alleged breaches of transitional
awards and orders.
New clause 107 - Application of provisions of Act relating to
compliance
3292. Proposed clause 107 would provide for the application of proposed
Part VIII (Compliance) to alleged breaches of transitional awards
and orders.
New clause 108 - Application of other Parts of Act
3293. Proposed clause 108 would enable regulations to be made to apply
other provisions of the Act (with modifications if necessary) to
matters covered by the Schedule.
Item 360 - Schedule 14
3294. Proposed item 360 would repeal and replace Schedule 14 and
insert Schedule 15 and Schedule 16.
3295. The repeal of Schedule 14 is consequential upon the repeal and
replacement of Division 5 of Part VIA of the WR Act in item 166.
Parental leave standards would be set out in proposed Division 6 of
Part VA of the WR Act, as extended in its application by proposed
section 170KB.
3296. New Schedule 14 would set out transitional arrangements for existing
pre-reform industrial instruments, including pre-reform certified
agreements and pre-reform AWAs.
Schedule 14-Transitional arrangements for existing pre-reform
agreements etc
Part 1 - Preliminary
New clause 1 - Definitions
3297. Proposed clause 1 would set out certain defined terms that are used
in Schedule 14.
Part 2 - Pre-reform certified agreements
Division 1-General
New clause 2 - Continuing operation of pre-reform certified
agreements-under old provisions
3298. Proposed clause 2 would provide that certain provisions of the pre-
reform Act continue to apply to pre-reform certified agreements
(other than pre-reform certified agreements binding on an excluded
employer) as if the Act had not been amended. Only certain of the
pre-reform Act provisions are preserved. For example, a pre-reform
certified agreement would not be able to be varied following the
reform commencement, other than to remove an ambiguity or
uncertainty.
3299. Proposed subclause 2(2) would save regulations made under the pre-
reform Act which apply to the provisions set out in subclause 2(1)
so that those regulations could operate as relevant in relation to a
pre-reform certified agreement.
New clause 3 - Rules replacing subsections 170LX(2) and (3)
3300. Proposed subclause 3(1) would provide that a pre-reform certified
agreement ceases to be in operation in relation to an employee if a
collective agreement or workplace determination comes into operation
in relation to that employee. This would apply even if the pre-
reform certified agreement had not passed its nominal expiry date.
3301. Proposed subclause 3(2) would provide that a pre-reform certified
agreement has no effect while an AWA made under the Act following
the reform commencement operates in relation to the employee. This
would ensure that an employee's employment is only ever governed by
one agreement. The relationship between a pre-reform certified
agreement and a pre-reform AWA would be governed by subclause 17(1)
- pre-reform subsection 170VQ(6) would apply.
3302. Proposed subclause 3(3) would set out certain rules about the
operation of pre-reform certified agreements. A pre-reform
certified agreement would cease to be in operation if it is
terminated under the provisions governing termination in the pre-
reform Act that would be preserved by the operation of subclause
2(1). A pre-reform certified agreement would not operate if
subsection 170LY(2) of the pre-reform Act applies. Subsection
170LY(2) would provide for the interaction of pre-reform certified
agreements with one another.
3303. Proposed subclauses 3(4) and (5) would clarify that where a pre-
reform certified agreement has ceased operating it can never operate
again.
3304. Proposed subclause 3(6) would provide that a pre-reform certified
agreement may be set aside under pre-reform subsection 113(2A),
which permits the AIRC to set aside discriminatory agreements.
New clause 4 - Rules replacing section 170NC-coercion of persons to
terminate certified agreements etc.
3305. Proposed subclause 4(1) would provide that a person must not engage
in certain types of coercive behaviour in relation to the
termination of a pre-reform certified agreement. This subclause
would broadly replicate pre-reform subsection 170NC(1). However,
because it would no longer be possible for parties to make or vary
an agreement under the pre-reform Act (other than variations to
remove an ambiguity or uncertainty, which are made by the AIRC) the
provision would only extend to terminations.
3306. Subclause 4(2) would provide that the coercion provisions do not
apply where a person is engaged in protected industrial action.
3307. Subclause 4(3) would have the effect that the standing to bring a
claim and remedies would be those available in relation to the pre-
reform section 170NC. Remedies for breach would be an injunction
and/or a pecuniary penalty of $33 000 (300 penalty units) for a body
corporate or $6 600 (60 penalty units) for any other person.
New clause 5 - Interaction of agreement with other instruments
3308. Proposed subclause 5(1) would provide that a preserved State
agreement and a notional agreement preserving State awards that
would otherwise regulate an employee's employment are of no effect
while a pre-reform certified agreement also operates to regulate the
employee's employment. This would ensure that an employee's
employment is only ever governed by one agreement.
3309. Subclause 5(2) would provide that a pre-reform certified agreement
prevails over an award (whether a pre-reform or post-reform award)
to the extent of any inconsistency. This would preserve the rule in
pre-reform paragraph 170LY(1)(a) but extend it to post-reform
awards.
New clause 6 - Continuing operation of pre-reform certified
agreements-under new provisions
3310. Proposed clause 6 would provide that certain provisions under the
Act (as it applies after the reform commencement) would apply in
relation to pre-reform certified agreements as if they are
collective agreements under the Act. These provisions would apply:
. Part V - which would give certain enforcement and compliance
functions in relation to pre-reform certified agreements to
workplace inspectors;
. section 110 - which would prevent parties to a pre-reform
certified agreement which has not passed its nominal expiry date
from taking protected industrial action;
. section 109B(2) - which would prohibit parties to a pre-reform
certified agreement from applying for a secret ballot for
protected industrial action until after the nominal expiry date of
the agreement;
. Part VIII - which would allow pre-reform certified agreements to
be enforced under the Act; and
. Part IX - which would apply the right of entry provisions for
collective agreements to pre-reform certified agreements.
New clause 7 - Effect of pre-reform certified agreement if post-
reform AWA is terminated
3311. Proposed subclause 7(1) would provide that if an employee has made
an AWA under the Act following the reform commencement, and that AWA
is terminated, the employee would not fall back to any pre-reform
certified agreement that might otherwise regulate the employee's
employment. In such circumstances, the employee would be entitled
to the benefit of the Standard and any voluntary undertakings given
by the employee's employer.
3312. Proposed subclause 7(2) would provide that any pre-reform certified
agreement that might otherwise regulate the employee's employment
would not apply from the time when the AWA was terminated until
another workplace agreement comes into operation in relation to the
employee.
New clause 8 - Anti-AWA terms taken to be prohibited content
3313. Proposed clause 8 would provide that a term in a pre-reform
certified agreement that prevents the employer from making an AWA
with an employee bound by the agreement is void. The Employment
Advocate would be able to vary the agreement to remove the
prohibited term, after affording the parties to the agreement an
opportunity to make written submissions about the proposed
variation.
New clause 9 - Calling up contents of pre-reform certified agreement
in workplace agreement
3314. Proposed clause 9 would provide that a pre-reform certified
agreement is to be treated as if it were a workplace agreement for
the purposes of the provisions relating to calling up of industrial
instruments in proposed section 101C. This would mean that a
workplace agreement could incorporate by reference the terms of a
pre-reform certified agreement provided, just before the workplace
agreement is made, the pre-reform certified agreement regulated the
employment of at least one employee who would be covered by the
workplace agreement.
New clause 10 - Application of Division to certain Division 3 pre-
reform certified agreements
3315. Proposed clause 10 would set out how Division 1 of Part 2 of
Schedule 14 would apply to pre-reform certified agreements made
under Division 3 of Part VIB of the pre-reform Act. It would deem
such an agreement to be treated as if it has been made under pre-
reform section 170LJ if the employer in relation to the agreement is
either a constitutionally covered employer at the reform
commencement, or becomes such an employer during the five year
transitional period. This provision would reflect the changed
constitutional basis for the Act, which relies principally on the
corporations power in section 51(xx) of the Constitution and would
cause Division 3 pre-reform certified agreements (which were
supported by the conciliation and arbitration power in section
51(xxxv) of the Constitution) to be treated as if they were
supported by the corporations power to the extent possible.
Example
Rob is a farmer whose business is not incorporated at the reform
commencement. The business is covered by a Division 3 pre-reform certified
agreement, which regulates the employment of the workers on the farm. Rob
decides that he wants to remain in the federal workplace relations system,
and incorporates his business during the transitional period. From the
time when Rob's business becomes incorporated, the Division 3 pre-reform
certified agreement will be treated as if it had been made under pre-reform
section 170LJ and will continue to operate even after the transitional
period has ended. Rob now has the choice of making a new workplace
agreement with his employees, or allowing the pre-reform agreement to
continue to operate.
Division 2-Special rules for Division 3 pre-reform certified
agreements with excluded employers
New clause 11 - Application of Division
3316. Proposed clause 11 would provide that Division 2 of Part 2 of
Schedule 14 applies to pre-reform certified agreements binding on an
employer (an excluded employer) who is not a constitutionally
covered employer at the reform commencement. It would continue to
apply during the transitional period for so long as the employer is
not a constitutionally covered employer. If the employer becomes
constitutionally covered during the transitional period, Division 2
of Part 2 of this Schedule would cease to apply and proposed clause
10 would have the effect of applying Division 1 of Part 2 of this
Schedule to the employer.
New clause 12 - Cessation of Division 3 pre-reform certified
agreements
3317. Proposed subclause 12(1) would provide that an agreement covered by
Division 2 of Part 2 of Schedule 14 ceases to be in operation at the
earlier of, the end of the transitional period or, if the agreement
has passed its nominal expiry date, the time at which the agreement
is replaced by a State employment agreement. This would mean that
if an employer wanted to leave the federal workplace relations
system after the agreement has passed its nominal expiry date, the
employer could make a State employment agreement with employees -
and would exit the federal system at that time. If an employer made
a State employment agreement prior to the nominal expiry date of the
Division 3 pre-reform certified agreement, pre-reform subsection
170LZ(1) would operate to govern the interaction of these
instruments. The employer would exit the federal system once the
nominal expiry date of the Division 3 pre-reform certified agreement
had passed; it would cease to operate at this time.
3318. Proposed subclause 12(2) would set out, for the avoidance of doubt,
that rights accrued or liabilities incurred under an agreement prior
to it ceasing to operate are not affected by the operation of the
clause.
3319. Proposed subclause 12(3) would set out, for the avoidance of doubt,
that subclause 12(1) does not apply if an employer becomes a
constitutionally covered employer during the five year transitional
period. In such circumstances, Division 1 of Part 2 of Schedule 14
would apply.
3320. Proposed subclause 12(4) would clarify that where an agreement has
ceased operating it can never operate again.
New clause 13 - Continuing operation of pre-reform certified
agreements-under old provisions
3321. Proposed clause 13 would provide that certain provisions of the pre-
reform Act continue to apply to agreements covered by Division 2 of
Part 2 of this Schedule as if the Act had not been amended. Only
certain of the pre-reform Act provisions are preserved. For
example, an agreement would not be able to be varied following the
reform commencement, other than to remove an ambiguity or
uncertainty.
3322. Proposed subclause 13(2) would save regulations made under the pre-
reform Act which apply to the provisions set out in subclause 13(1)
so that those regulations could operate as relevant in relation to a
Division 3 pre-reform certified agreement.
New clause 14 - Rules replacing subsections 170LX(2) and (3)
3323. Proposed subclause 14(1) would provide that an agreement covered by
Division 2 of Part 2 of this Schedule would cease to be in operation
if it is terminated under the provisions governing termination in
the pre-reform Act that would be preserved by the operation of
subclause 13(1). An agreement would not operate if subsection
170LY(2) of the pre-reform Act applies. Subsection 170LY(2) would
provide for the interaction of pre-reform certified agreements with
one another.
3324. Proposed subclause 14(2) would clarify that where a pre-reform
certified agreement has ceased operating it can never operate again.
3325. Proposed subclause 14(3) would provide that an agreement may be set
aside under pre-reform subsection 113(2A), which permits the AIRC to
set aside discriminatory agreements.
New clause 15 - Interaction of agreement with awards
3326. Proposed clause 15 would provide that while an agreement covered by
Division 2 of Part 2 of Schedule 14 is in operation, it prevails
over an award to the extent of any inconsistency. This would
preserve the rule in pre-reform paragraph 170LY(1)(a) but extend it
to post-reform awards.
New clause 16 - Continuing operation of pre-reform certified
agreements-under new provisions
3327. Proposed clause 16 would provide that certain provisions under the
Act (as it applies after the reform commencement) would apply in
relation to agreements covered by Division 2 of Part 2 of Schedule
14 as if they are collective agreements under the Act. These
provisions would apply:
. Part V - which would give certain enforcement and compliance
functions in relation to pre-reform certified agreements to
workplace inspectors;
. section 110 - which would prevent parties to a pre-reform
certified agreement which has not passed its nominal expiry date
from taking protected industrial action;
. subsection 109B(2) - which would prohibit parties to a pre-reform
certified agreement from applying for a secret ballot for
protected industrial action until after the nominal expiry date of
the agreement;
. Part VIII - which would allow pre-reform certified agreements to
be enforced under the Act; and
. Part IX - which would apply the right of entry provisions for
collective agreements to pre-reform certified agreements.
Part 3 - Pre-reform AWAs
New clause 17 - Continuing operation of pre-reform AWAs-under old
provisions
3328. Proposed clause 17 would provide that certain provisions of the pre-
reform Act continue to apply to pre-reform AWAs as if the Act had
not been amended. Only certain of the pre-reform Act provisions are
preserved. For example, a pre-reform AWA would not be able to be
varied following the reform commencement.
3329. Proposed subclause 17(2) would save regulations made under the pre-
reform Act which apply to the provisions set out in subclause 17(1)
so that those regulations could operate as relevant in relation to
pre-reform AWAs.
New clause 18 - Rules replacing sections 170VJ-period of operation
of AWA
3330. Proposed subclause 18(1) would provide that a pre-reform AWA ceases
to be in operation when an employer and employee make an AWA under
the (post-reform) Act.
3331. Proposed subclause 18(2) would provide that a pre-reform AWA ceases
to be in operation if it is terminated under the provisions
governing termination in the pre-reform Act that would be preserved
by the operation of subclause 17(1).
3332. Proposed subclauses 18(3) and (4) would clarify that where a pre-
reform AWA has ceased operating it can never operate again.
New clause 19 - Interaction of pre-reform AWAs with other
instruments
3333. Proposed clause 19 would provide that while a pre-reform AWA
operates to regulate an employee's employment, any of the following
instruments which would otherwise operate to regulate the employee's
employment are of no effect:
. a collective agreement;
. a workplace determination;
. a preserved State agreement;
. a notional agreement preserving State awards; and
. an award.
3334. This would ensure that an employee's employment is only ever
governed by one agreement.
New clause 20 - Continuing operation of pre-reform AWAs-under new
provisions
3335. Proposed clause 20 would provide that certain provisions under the
Act (as it applies after the reform commencement) would apply in
relation to pre-reform AWAs as if they are (post-reform) AWAs under
the Act. These provisions would apply:
. Part V - which would give certain enforcement and compliance
functions in relation to pre-reform AWAs to workplace inspectors;
. section 110 - which would prevent parties to a pre-reform AWA
which has not passed its nominal expiry date from taking protected
industrial action;
. subsection 109B(2) - which would prohibit parties to a pre-reform
AWA from applying for a secret ballot for protected industrial
action until after the nominal expiry date of the agreement;
. Part VIII - which would allow pre-reform AWAs to be enforced under
the Act; and
. Part IX - which would apply the right of entry provisions for AWAs
to pre-reform AWAs.
New clause 21 - Calling up contents of pre-reform AWA in workplace
agreement
3336. Proposed clause 21 would provide that a pre-reform AWA is to be
treated as if it were a workplace agreement for the purposes of the
provisions relating to calling up of industrial instruments in
proposed section 101C. This would mean that a workplace agreement
could incorporate by reference the terms of a pre-reform AWA
provided, just before the workplace agreement is made, the pre-
reform AWA regulated the employment of at least one employee who
would be covered by the workplace agreement.
Part 4 - Awards under subsection 170MX(3) of the pre-reform Act
New clause 22 - Application of Part
3337. Proposed clause 22 would provide that Part 4 of Schedule 14 applies
to an award made under pre-reform section 170MX that is in force
just before the reform commencement.
New clause 23 - Continuing operation of section 170MX awards-under
old provisions
3338. Proposed subclause (1) would provide that provisions of the pre-
reform Act (including regulations made under the pre-reform Act)
which relate to section 170MX awards would continue to apply in
relation to the award.
3339. Proposed subclause 23(2) would provide exceptions to the above rule.
This would include the removal of the AIRC's power to vary and
terminate a section 170MX award. Instead, if the parties wanted to
change the terms and conditions governing the employment or
terminate a section 170MX award, they would need to make a workplace
agreement.
New clause 24 - Continuing operation of section170MX awards-under
new provisions
3340. Proposed clause 24 would provide that certain provisions under the
Act (as it applies after the reform commencement) would apply in
relation to section 170MX awards as if they are workplace
determinations under the Act. These provisions would apply:
. Part V - which would give certain enforcement and compliance
functions in relation to section 170MX awards to workplace
inspectors;
. section 110 - which would prevent parties subject to a section
170MX award which has not passed its nominal expiry date from
taking protected industrial action;
. subsection 109B(2) - which would prohibit parties subject to a
section 170MX award from applying for a secret ballot for
protected industrial action until after the nominal expiry date of
the award;
. Part VIII - which would allow section 170MX awards to be enforced
under the Act; and
. Part IX - which would apply the right of entry provisions for
collective agreements to section 170MX awards.
New clause 25 - Interaction of section 170MX awards with other
instruments
3341. Proposed subclause 25(1) would provide that a section 170MX award
has no effect while an AWA made under the Act, following the reform
commencement, operates in relation to the employee. This would
ensure that an employee's employment is only ever governed by one
agreement. The relationship between a section 170MX award and a pre-
reform AWA would be governed by subclause 23(1) - pre-reform
subsection 170VQ(2) would apply.
3342. Proposed subclause 25(2) would provide that a section 170MX award
ceases to be in operation in relation to an employee if a collective
agreement or workplace determination comes into operation in
relation to that employee. This would apply even if the section
170MX award had not passed its nominal expiry date.
3343. Proposed subclause 25(3) would provide that while a section 170MX
award operates to regulate an employee's employment, any of the
following instruments which would otherwise operate to regulate the
employee's employment are of no effect:
. an award;
. a preserved State agreement; and
. a notional agreement preserving State awards.
New clause 26 - Effect of section 170MX award if post-reform AWA is
terminated
3344. Proposed subclause 26(1) would provide that if an employee has made
an AWA under the Act following the reform commencement, and that AWA
is terminated, the employee would not fall back to any section 170MX
award that might otherwise regulate the employee's employment. In
such circumstances, the employee would be entitled to the benefit of
the Standard and any voluntary undertakings given by the employee's
employer.
3345. Proposed subclause 26(2) would provide that any section 170MX award
that might otherwise regulate the employee's employment would not
apply from the time when the AWA was terminated until another
workplace agreement comes into operation in relation to the
employee.
Part 5 - Exceptional matters orders
New clause 27 - Exceptional matters orders
3346. Proposed clause 27 would provide that an exceptional matters order
made under the pre-reform Act would cease to be in force in relation
to an employee on the earlier of:
. the date two years after it was made; and
. the date on which a workplace agreement or workplace determination
comes into operation in relation to that employee.
Part 6 - Old IR agreements
New clause 28 - Operation of old IR agreement
3347. Proposed clause 28 would apply to certain agreements certified or
approved under certain old provisions of the Act, since repealed.
3348. Subclause 28(2) would provide that 'old IR agreements' would be
subject to sunset provisions, and would cease to operate at the end
of a three year period beginning on the reform commencement. This
would enable parties to such agreements to make a workplace
agreement dealing with the matters contained in the old IR agreement
(subject to whatever limitations are in the reform provisions).
3349. Subclause 28(2) would provide that an old IR agreement that would
otherwise regulate an employee's employment is of no effect if a
workplace agreement or workplace determination comes into operation
in relation to the employee. This would ensure that an employee's
employment is only ever governed by one agreement.
3350. Subclause 28(3) would clarify that where an old IR agreement has
ceased operating it can never operate again.
New clause 29 - Old IR agreement cannot be varied after the reform
commencement
3351. Proposed clause 29 would provide that an old IR agreement cannot be
varied following the reform commencement. If parties wished to vary
an old IR agreement, they would need to make a workplace agreement
dealing with the matters.
Part 7 - Relationships between pre-reform agreements etc. and
Australian Fair Pay and Conditions Standard
New clause 30 - Relationships between pre-reform agreements etc.
and Australian Fair Pay and Conditions Standard
3352. Proposed clause 30 would provide that if an employee's employment is
subject to a pre-reform certified agreement, a pre-reform AWA or a
section 170MX award, the Standard does not apply. These instruments
would have been required to pass the no disadvantage test, or would
have been made by the AIRC, and so should ensure that an employee
covered by them is receiving at least the benefits provided by the
safety net. If such an instrument were terminated, or ceased to
operate because the employee became bound by a workplace agreement
under the Act, the Standard would then apply to the employee, and
provide the employee with the minimum entitlements set out in the
Standard.
Julian and his employer, LK Communications Pty Ltd, are parties to a pre-
reform AWA. While Julian's employment is regulated by the pre-reform AWA,
the Standard does not apply to him. Julian makes a new AWA under the Act
with LK Communications. His pre-reform AWA would cease to operate from the
time when the new AWA comes into operation. From that time, the Standard
would also apply to him and to LK Communications.
Part 8 - Applications for certification etc. before reform
commencement
New clause 31 - Certifications under -pre-reform Act after the
reform commencement
3353. Proposed clause 31 would provide that if an application had been
made to the AIRC prior to the reform commencement for the
certification of an agreement, the AIRC would apply the provisions
of the pre-reform Act relating to certifications and either certify
or refuse to certify the agreement. The new lodgment provisions in
Part VB would apply to any agreement:
. made after the reform commencement; or
. made before the reform commencement but for which an application
for certification had not been made to the AIRC prior to the
reform commencement.
New clause 32 - Approval of pre-reform AWAs under pre-reform Act
after the reform commencement
3354. Proposed clause 32 would provide that if an AWA had been filed with
the Employment Advocate prior to the reform commencement, the
Employment Advocate would apply the provisions of the pre-reform Act
relating to filing and approval of AWAs and either approve or refuse
to approve the agreement. The new lodgment provisions in Part VB
would apply to any AWA:
. made after the reform commencement; or
. made before the reform commencement but which had not been filed
with the Employment Advocate prior to the reform commencement.
Part 9 - Matters relating to Victoria
3355. Proposed Part 9 would provide that, to the extent that Schedule 14
provides transitional arrangements for pre-reform agreements that
were made under the extended operation of the WR Act to cover
employees and employers in Victoria, purely through the referral of
power by the Parliament of Victoria to the Parliament of the
Commonwealth in the CP(IR) Act, those provisions would apply only in
so far as and as long as they are within the powers referred by the
CP(IR) Act.
3356. Part 9 also creates special rules for Division 3 pre-reform
certified agreements made in reliance upon the CP(IR) Act, and deals
with the interaction between an old IR agreement and an employment
agreement (see proposed Division 10 of Part XV of the WR Act).
New clause 33 - Definitions
3357. Proposed clause 33 would provide definitions to apply throughout
Part 9 of Schedule 14.
3358. Under clause 33, the terms employee, employer and employment would
have the same meaning as provided by proposed section 489 of the WR
Act. Consequentially, an employee for the purposes of Part 9 of
Schedule 14 will mean an employee in Victoria who is both within the
meaning of employee in section 3 of the CP(IP) Act 1996, and not an
employee within the meaning of proposed subsection 4AA(1).
Expressed another way, an employee within the meaning of 33 is a
person who is an employee within the meaning of section 3 of the
CP(IP) Act 1996, and not one of the following:
. an employee of a constitutional corporation; or
. an employee of the Commonwealth; or
. an employee of a person or entity (which may be an unincorporated
club) of an individual, so far as the person or entity, in
connection with constitutional trade or commerce, employs the
individual as a flight crew officer, a maritime employee or a
waterside worker;
. an employee of a body corporate incorporated in a Territory; or
. a person or entity (which may be an unincorporated club) that
carries on an activity (whether of a commercial, governmental or
other nature) in a Territory in Australia, so far as the person or
entity employs the employee in connection with the activity
carried on in the Territory.
3359. The terms employer and employment would have a meaning that
corresponds to employee in Part 9 of Schedule 14 of the WR Act.
3360. Clause 33 would also provide that, for the purposes of Part 9 of
Schedule 14 of the WR Act, the term this Schedule' means Schedule 14
but not Part 9 of Schedule 14.
3361. Clause 33 would also provide that, for the purposes of Part 9 of
Schedule 14 of the WR Act:
. Victorian reference AWA means an AWA (within the meaning of the WR
Act immediately before reform commencement) made under the WR Act
in its operation in accordance with section 495;
. Victorian reference certified agreement means a certified
agreement that was made under Division 2 or 3 of Part VIB of the
WR Act, under its operation in accordance with the pre-reform
Division 2 of Part XV of the WR Act;
. Victorian reference Division 3 pre-reform certified agreement
means a certified agreement that was made under Division 3 of Part
VIB of the WR Act, under its operation in accordance with the pre-
reform Division 2 of Part XV of the WR Act; and
. Victorian reference section 170MX award means a section 170MX
award (within the meaning of the WR Act immediately before reform
commencement) made under the WR Act in its operation in accordance
with Division 2 of Part XV.
3362. The meanings of pre-reform AWA, pre-reform certified agreement,
section 170MX award and Division 3 pre-reform certified agreement
provided by clause 1 of Schedule 14 would apply on their terms
(subject to modifications made by Part 9 of Schedule 14) to a
Victorian reference AWA, Victorian reference certified agreement,
Victorian reference section 170MX award and Victorian reference
Division 3 pre-reform certified agreement respectively. This would
be the case because:
. a Victorian reference AWA within the meaning of clause 33 would be
within the definition of a pre-reform AWA within the meaning of
clause 1;
. a Victorian reference certified agreement within the meaning of
clause 33 would be within the definition of a pre-reform certified
agreement within the meaning of clause 1;
. a Victorian reference section 170MX award within the meaning of
clause 33 would be within the definition of a section 170MX award
within the meaning of clause 1; and
. a Victorian reference Division 3 pre-reform certified agreement
within the meaning of clause 33 would be within the definition of
a Division 3 pre-reform certified agreement within the meaning of
clause 1.
New clause 34- Part only has force if supported by reference etc.
3363. Proposed clause 34 would make it clear that each:
. clause of Part 9 of Schedule 14; and
. clause of Schedule 14, to the extent to which it relates to a
Victorian reference certified agreement, Victorian reference AWA
or Victorian reference section 170MX award (within the meaning of
those terms in clause 33):
only operates for as long as, and in so far, as the relevant referral of a
matter to the Parliament of the Commonwealth is in effect and provides
sufficient legislative power for the provision to have effect. This
reflects the constitutional position.
New clause 35- Continuing operation of pre-reform certified
agreements-under old provisions
3364. Proposed clause 35 would provide that clause 2 (Continuing operation
of pre-reform certified agreements-under old provisions) has effect
in relation to a Victorian reference certified agreement as if each
reference to a provision of the pre-reform Act were read as a
reference to the provision as it has effect because of repealed
Division 2 of Part XV. This would provide that the rules for pre-
reform certified agreements would also apply to instruments made in
reliance upon the extended application provided by Division 2 of
Part XV of the WR Act as in force immediately before the reform
commencement.
New clause 36- Victorian reference Division 3 pre-reform certified
agreements
3365. Proposed clause 36 would provide that a Victorian reference Division
3 pre-reform certified agreement within the meaning of clause 33 (ie
an agreement between an employer in Victoria and a union, in
settlement of an intra-State Victorian industrial dispute) would,
for the purposes of Schedule 14, be treated as if it were made under
section 170LJ of the pre-reform WR Act as it has effect because of
repealed Division 2 of Part XV. That is, for the purposes of
Schedule 14, such an agreement would be treated as if it were made
between an employer in Victoria and a union, under Division 2 of
Part VIB of the pre-reform WR Act as it has effect because of
repealed Division 2 of Part XV.
3366. To give effect to that intent, subclause 36(1) would provide that
clause 10 and Division 2 of Part 2 of Schedule 14 would not apply to
a Victorian reference Division 3 pre-reform certified agreement.
Further, subclause 36(2) would provide that Division 1 of Part 2 of
Schedule 14 would apply to a Victorian reference Division 3 pre-
reform certified agreement as if it had been made under section
170LJ of the WR Act as in force before the reform commencement.
New clause 37- Continuing operation of pre-reform AWAs-under old
provisions
3367. Proposed clause 37 would provide that clause 17 (Continuing
operation of pre-reform AWAs-under old provisions) has effect in
relation to a Victorian reference AWA as if each reference to a
provision of the pre-reform Act were read as a reference to the
provision as it has effect because of repealed section 495. This
would provide that the rules for pre-reform AWAs would also apply to
instruments made in reliance upon the extended application provided
by Division 2 of Part XV of the WR Act as in force immediately
before the reform commencement.
New clause 38- Continuing operation of section 170MX awards-under
old provisions
3368. Proposed clause 38 would provide that clause 23 (continuing
operation of section 170MX awards-under old provisions) has effect
in relation to a Victorian reference section 170MX award as if each
reference to a provision of the pre-reform Act were read as a
reference to the provision as it has effect because of repealed
Division 2 of Part XV. This would provide that the rules for
section 170MX awards would also apply to instruments made in
reliance upon the extended application provided by Division 2 of
Part XV of the WR Act as in force before the reform commencement.
New clause 39 - Relationship between Victorian employment agreements
and designated old IR agreements
3369. Proposed clause 39 would provide that an old IR agreement covered by
paragraph (d) of the definition of old IR agreement in clause 1 of
Schedule 14 prevails to the extent of any inconsistency with an
employment agreement within the meaning of proposed Division 10 of
Part XV.
3370. This is consistent with the position which applied, immediately
prior to 1 January 1997 under section 152 of the Industrial
Relations Act 1988, in relation to an enterprise flexibility
agreement made under Division 3 of Part VIB of the Industrial
Relations Act 1988 and an employment agreement made under the
Employee Relations Act 1992 (Vic) (as it existed immediately prior
to 1 January 1997). The Employee Relations Act 1992 (Vic) is now
known as the Long Service Leave Act 1996 (Vic).
SCHEDULE 15 - Transitional treatment of State employment agreements
and State awards
3371. The Act would apply to the exclusion of State or Territory
industrial laws (see proposed section 7C). State or Territory
industrial law is a defined term (see proposed section 4) which
includes any of the following State Acts:
. the Industrial Relations Act 1996 of New South Wales (subparagraph
4(1)(a)(i));
. the Industrial Relations Act 1999 of Queensland (subparagraph
4(1)(a)(ii));
. the Industrial Relations Act 1979 of Western Australia
(subparagraph 4(1)(a)(iii));
. the Fair Work Act of 1994 of South Australia (subparagraph
4(1)(a)(iv));
. the Industrial Relations Act 1984 of Tasmania (subparagraph
4(1)(a)(v));
3372. Employers and employees, as defined in proposed sections 4AA and
4AB, who are currently regulated by State or Territory industrial
laws would be covered by this Act after the reform commencement.
The reform commencement would be defined in subsection 4(1) to mean
the commencement of Schedule 1 to the Workplace Relations Amendment
(Work Choices) Act 2005 (the Act). This means that employers and
employees who, prior to the reform commencement, are bound by, or
subject State awards or State employment agreements, will no longer
be regulated by those awards or agreements.
3373. The purpose of Schedule 15 is to preserve for a time, certain terms
and conditions of employment which apply to employers and employees
and which arise under State or Territory industrial laws and State
or Territory instruments that regulate terms and conditions of
employment made under those laws, as they were immediately prior to
reform commencement. These preserved terms would be contained in
transitional instruments.
3374. The employers, employees and organisations which would become bound
by, or subject to the transitional instruments created under this
Schedule would be encouraged to make workplace agreements to replace
the transitional instruments.
3375. The Schedule is divided into three parts.
3376. Part 1 would define key terms used in the Schedule and would provide
objects for the Schedule.
3377. Part 2 would deal with employers and employees who are covered by an
agreement made under a State or territory industrial law immediately
before the reform commencement. It would:
. provide for the creation of a federal transitional instrument
called a preserved State agreement;
. determine who would be bound by, or whose employment would be
subject to, the preserved State agreement;
. determine the terms and conditions of the preserved State
agreement; and
. provide rules for the operation of the preserved State agreement.
3378. Part 3 would relate to employers and employees who are covered by an
award made by a State industrial authority immediately before reform
commencement. It would:
. provide for the creation of a federal transitional agreement
called a notional agreement preserving State awards;
. determine who would be bound by, and whose employment would be
subject to, the notional agreement;
. determine the terms and conditions of the notional agreement; and
. provide rules for the operation of the notional agreement.
Part 1 - Preliminary
Clause 1 - Interpretation
3379. Proposed clause 1 would define certain terms for the purposes of
Schedule 15, including:
. discriminatory
. notional agreement preserving State awards
. preserved notional entitlement
. preserved notional term
. preserved State agreement
Clause 2 - Objects
3380. Proposed clause 2 would provide that the objects of this Schedule
are:
. to preserve for a time the terms and conditions of employment, as
they were immediately before the reform commencement, for those
employees who, but for the Act, would be bound by or whose
employment would be subject to a State employment agreement, a
State award or a State or Territory Law (paragraph 2(a)); and
. to encourage employees and employers for whom those terms and
conditions have been preserved to enter into workplace agreements
during that time (paragraph 2(b)).
3381. It is generally intended that terms and conditions of employment
arising under State employment agreements, State awards and State or
Territory industrial laws would be preserved in the same or similar
terms, and operate with respect to the same classes of employees and
employers as they did prior to the reform commencement.
Part 2 - Preserved State agreements
Division 1 - Preserved State agreements
Clause 3 - What is a preserved State agreement?
3382. Proposed clause 3 would provide that a preserved State agreement
would come into operation on reform commencement where a term or
condition of a person's employment was regulated under a State
employment agreement immediately before reform commencement.
3383. State employment agreement would be defined in proposed section 4(1)
as an agreement:
. between an employer and an employee of that employer and/or a
trade union;
. that regulates wages and conditions of employment of one or more
of the employees;
. that is in force under a State or Territory industrial law; and
. that prevails over an inconsistent State award.
3384. A State employment agreement is referred to as the original
agreement in the provisions of this Schedule.
3385. A preserved State agreement (PSA) would come into operation
irrespective of whether the original agreement regulates one term or
condition of the relationship between the employer and the employee,
or whether it comprehensively regulates the employment relationship.
The actual terms and conditions of employment that would be
preserved in a PSA would be determined by proposed clause 11
(below).
Clause 4 - Who is bound by or subject to a preserved State
agreement?
3386. Under the WR Act a range of entitlements and obligations flow from
being 'bound by' or from a person's employment being 'subject to' an
agreement. Proposed clause 4 would set out who is bound by or whose
employment is subject to a preserved State agreement. This would be
determined by reference to those who were bound by, or whose
employment was subject to, the original agreement.
3387. Proposed subclauses 4(1) and (2) would address who would be bound by
the PSA by reference to those who were bound by the original
agreement. Proposed subclause 4(1) would provide that an employer,
an employee or an organisation would be bound by the PSA if that
employer, employee or organisation would, but for this Act, be bound
by or a party to the original agreement as in force immediately
before the reform commencement, would be bound by the PSA. It would
not matter whether the employer, employee or organisation would have
been bound under the terms of the original agreement or by operation
of a State or Territory industrial law.
3388. In this Schedule an organisation takes on the proposed definition in
Schedule 17 which provides that an organisation includes a
transitionally registered association.
3389. Proposed subclause 4(2) would clarify the situation referred to in
subclause 4(1) where a person is employed after reform commencement
by an employer that is bound by a PSA (under subclause 4(1)). It
provides that a person employed after reform commencement would be
bound to the PSA provided that they would have been so bound had
they been employed prior to reform commencement.
3390. Proposed subclause 4(3) and (4) would address whose employment would
be subject to the PSA by reference to whose employment was subject
to the original agreement. Proposed subclause 4(3) would provide
that a person's employment would be subject to the PSA if the
employment of a person would, but for this Act, have been subject to
the original agreement, as in force immediately before reform
commencement. It would not matter whether the person's employment
would have been subject to the original agreement under its terms or
by operation of a State or Territory industrial law.
3391. Proposed subclause 4(4) would clarify the situation where a person
is employed after reform commencement by an employer bound by a PSA
(under subclause 4(1)). It provides that the person's employment
would be subject to the PSA, provided that it would have been had
they been employed prior to reform commencement.
Clause 5 - When a preserved State agreement ceases to operate
3392. Proposed clause 5 would provide when a preserved State agreement
ceases to operate.
3393. Subclause 5(1) would provide that a PSA ceases to be in operation if
it is terminated under clause 21 (see below).
3394. Subclause 5(2) would provide that a PSA ceases to be in operation in
relation to an employee, if a workplace agreement comes into
operation in relation to the employee (paragraph 5(2)(a)), or if a
workplace determination comes into operation in relation to the
employee (paragraph 5(2)(b)). This result would arise irrespective
of whether the nominal expiry date of the PSA has passed. The
nominal expiry date is provided for in proposed clause 12.
3395. Subclause 5(3) would provide that if a PSA has ceased to operate in
relation to an employee because a workplace agreement or a workplace
determination has come into operation in relation to an employee,
then the PSA would never operate again in relation to that employee.
Clause 6 - Effect of preserved State agreement
3396. Proposed subclause 6(1) would provide that a PSA has effect
according to its terms, except to the extent that its terms are
varied or modified by this Part, or otherwise under this Act.
3397. Proposed subclause 6(2) would provide that this Part has effect
despite the terms of the PSA itself, or any State award or law of a
State.
3398. Proposed subclause 6(3) would clarify that none of the terms and
conditions of a PSA are enforceable under the law of a State. The
terms and conditions of employment included in a PSA would only be
enforceable under the WR Act.
Clause 7 - Effect of awards while preserved State agreement in
operation
3399. Proposed clause 7 would provide that an award has no effect in
relation to an employee while the terms of a PSA operate in relation
to the employee. The WR Act currently provides that a State
employment agreement may generally regulate the wages and conditions
of employment of an employee in spite of a federal award that would
otherwise be binding on an employer in respect of the employee
(subsection 152(3)). This is an exception to the approach in
subsection 152(1) which provides that a federal award prevails over
State laws to the extent of any inconsistency. This provision would
preserve the effect of subsection 152(3) in relation to the terms
and conditions contained in the PSA. This is necessary to allow the
terms and conditions from the original agreement to continue to
interact with a relevant award as they would do if the reform
commencement did not occur.
Illustrative Example
Jenny works as a receptionist at Henry's Strike 'em Down Ten Pin Bowling
Centre in Parramatta, NSW. Her employment is covered by an enterprise
agreement made under the Industrial Relations Act 1996 (NSW). Henry's
business is a respondent to the AWU Ten Pin Bowling Award 2003.
Prior to reform commencement, the agreement regulated Jenny and her
colleagues' terms and conditions of employment in spite of the federal
award, because of the operation of section 152 of the WR Act. The terms of
the agreement will be included in a preserved State agreement after reform
commencement, and the terms will continue to prevail over the terms of the
award.
Clause 8 - Relationship between preserved State agreement and
Australian Fair Pay and Conditions Standard
3400. Proposed clause 8 would provide that the Standard does not apply to
an employee if the employee is bound by a PSA, or the person's
employment is subject to the PSA. This mirrors the situation for
pre-reform federal agreements (see clause 22 of Schedule 14). The
Standard does not apply to pre-reform federal agreements because
those agreements were made under different circumstances prior to
the Standard operating.
Clause 9 - What is a preserved collective State agreement and Clause
10 - What is a preserved individual State agreement?
3401. Proposed clause 9 would define a preserved collective agreement as a
preserved State agreement that binds more than one employee, or to
which the employment of more than one employee is subject.
3402. Proposed clause 10 would define a preserved individual agreement as
a preserved State agreement that binds only one employee, or which
the employment of only one employee is subject.
3403. The distinction is relevant later in the Schedule as different rules
would apply to the different types of preserved State awards in some
circumstances, ie enforcement and termination.
Division 2 - Terms of preserved State agreement
Clause 11 - Terms of preserved State agreement
3404. This provision would provide for the terms of the PSA. It is
intended that terms of the PSA would be the terms and conditions of
employment arising under State or Territory industrial laws that
regulated persons bound by, or whose employment was subject to, the
original agreement. In addition to the terms and conditions of
employment arising directly under the original agreement, any term
or condition arising under a State award or State or Territory
industrial law that regulated the relevant employment relationship
would also be included as a term of the PSA. This recognises that
State employment agreements are not necessarily comprehensive of all
terms and conditions of employment arising under State or Territory
industrial laws. The intention is that the various sources of terms
and conditions of employment that arise under State or Territory
industrial laws would interact with one another in the same way
under the WR Act as they did immediately before reform commencement.
A term will only be included in the PSA to the extent that it
actually applied to the person. If a term did not apply because,
for example, it was included in an award which was excluded by the
operation of the original agreement, then it will not be included in
the PSA. A term will be incorporated as at immediately before the
reform commencement.
3405. Proposed subclause 11(1) would provide that the terms of a PSA are
taken to include the terms and conditions of the original agreement,
as in force immediately before reform commencement. The phrase as
in force immediately before reform commencement makes it clear that
the terms included in the original agreement would be preserved in
the PSA as they exist at that time, and would not be adjusted or
varied to reflect subsequent changes to the terms of the original
agreement. The terms and conditions of employment in a PSA may only
be varied in accordance with this Schedule.
3406. Proposed subclause 11(2) provides for a term of a State award to be
taken to be a term of the PSA in certain circumstances. This would
occur where the employment of a person who is bound by, or whose
employment is subject to, the PSA, is regulated in part by a State
award. This could arise, for example, where the original agreement
operates in conjunction with a State award. In such a case, the
term of the State award, to the extent that it regulated matters
pertaining to an affected employment relationship, is taken to be a
term of the PSA.
3407. An affected employment relationship is defined in proposed subclause
11(4) to mean an employment relationship in relation to which the
PSA applies. The effect of this would be that the terms of the PSA
would apply to the same classes of people and in the same way as the
terms of the original State award applied prior to the reform
commencement. This is subject to the provisions set out in the
remainder of Division 2 which modify the operation of some terms.
The terms are taken to be included as they were in force immediately
before the reform commencement. Future changes to the State award
would not 'flow on' to the PSA.
3408. Proposed subclause 11(3) would provide that a provision of a State
or Territory industrial law would also be preserved in a PSA in
certain circumstances. It operates in the same way as proposed
subclause 11(2) with respect to a provision of State or Territory
industrial law, to the extent that the law regulated matters
pertaining to an affected employment relationship.
Illustrative Example
Sarah has been employed as a confectioner by Sweetsbury Pty Ltd
(Sweetsbury) for 3 years. Sweetsbury and its employees, including Sarah,
are bound by a certified agreement, made under the Queensland Industrial
Relations Act 1999 (the Act).
The certified agreement provides most of Sarah's terms and conditions of
employment, however it is silent on carer's leave in relation to casual
employees. Under the Act, long term casual employees are entitled to 5
days unpaid leave in each year to care and support members of their
immediate family or members of their household when they are ill. Sarah
comes within the definition of a long term casual employee under the Act as
she has worked at Sweetsbury on a regular and systematic basis for at least
one year, and is therefore entitled to five days unpaid carer's leave each
year.
At the reform commencement Sweetsbury and its employees that are bound by
the certified agreement (which is a State employment agreement under
subsection 4(1) of the WR Act) would become bound by a PSA.
In this instance, the terms preserved in the PSA under clause 11 would be
the terms of the certified agreement as in force immediately before the
reform commencement, and the provisions of the Act relating to carer's
leave for long term casuals as in force immediately before the reform
commencement. Prior to reform commencement Sarah is entitled to carer's
leave, and would therefore be entitled to it after the reform commencement
under the terms of PSA. On the other hand, Peter is not entitled to
carer's leave prior to the reform commencement because he is a casual
employee who has only been employed by Sweetsbury for three months. Peter
would be entitled to carer's leave under the terms of the PSA if he worked
on a regular and systematic basis for at least one year.
Clause 12 - Nominal expiry date of a preserved State agreement
3409. Proposed paragraph 12(a) would provide that the nominal expiry date
of a PSA would be the same date on which the original agreement
would have nominally expired under the relevant State or Territory
industrial law. This would include a nominal expiry date provided
for under the terms of the agreement itself, or under a State or
Territory law directly, or a combined effect of the two.
3410. Proposed paragraph 12(b) would provide an exception to paragraph
12(a). If the nominal expiry date of the original agreement would
have fallen more than three years after the commencement of the
original agreement, then the nominal expiry date in the PSA will
instead be the last day of the three year period after the
commencement of the original agreement. Note that a PSA would
continue to operate after the nominal expiry date has passed until
it is terminated or replaced.
Clause 13 - Powers of State industrial authorities
3411. Proposed subclause 13(1) would provide that if a PSA confers a
function or power on a State industrial authority, that function
must not be performed and that power must not be exercised by the
State industrial authority on or after reform commencement. This
subclause is intended to ensure that the terms and conditions of a
PSA are only enforced under this Act, and not under the State or
Territory laws or in the State system in which the original
agreement was made. It would not be appropriate for State
industrial authorities to exercise powers or perform functions with
respect to PSAs as PSAs would be federal instruments.
3412. Proposed subclause 13(2) would provide that the employer and the
persons bound by the PSA may, by agreement, confer such a function
or power on the AIRC. However this option would only apply in
situations where the matter or issue does not relate to the
resolution of a dispute about the application of the agreement.
Proposed clause 14 provides that in such cases, the model dispute
resolution process would apply (see Part VIIA of Schedule 1).
Clause 14 - Dispute resolution processes
3413. Proposed subclause 14(1) would provide that a PSA is taken to
include a term requiring disputes about the application of the
agreement to be resolved in accordance with the proposed model
dispute resolution process (Part VIIA of Schedule 1).
3414. Proposed subclause 14(2) would provide that any term of the
preserved State agreement that would otherwise deal with the
resolution of those disputes is void to that extent. This subclause
is intended to ensure that disputes in relation to the application
of a PSA are resolved in a manner which is consistent with the model
dispute settlement resolution process established under the WR Act,
including that employers and employees be encouraged to resolve
disputes at the workplace level.
Clause 15 - Prohibited content
3415. Proposed clause 15 would provide that a term of a preserved State
agreement is void to the extent that it contains prohibited content
of a prescribed kind.
Division 3 - Varying a preserved State agreement
Clause 16 - Varying a preserved State agreement
3416. Proposed clause 16 would provide that a PSA may only be varied on or
after reform commencement in accordance with this Division. The
terms of a PSA reflect relevant terms and conditions of employment
arising under State or Territory industrial laws immediately prior
to the reform commencement. They are 'frozen' except to the extent
that they may be varied under this Division.
3417. Variation of these transitional instruments would be limited. It is
considered that the parties should enter into a workplace agreement
when they wish to alter the terms and conditions in the PSA.
Clause 17 - Variation to remove ambiguity or uncertainty
3418. Proposed clause 17 would provide that a person may apply to the AIRC
to have an agreement varied for the purpose of removing ambiguity or
uncertainty.
Clause 18 - Variation to remove discrimination
3419. Proposed clause 18 would provide for the variation of a PSA to
remove any discriminatory part of a PSA if a PSA is referred to the
AIRC under section 46PW of the HREOC Act 1986. The provision
defines discriminatory for the purpose of this procedure in
subclause 18(4).
Clause 19 - Variation to remove prohibited content
3420. Proposed clause 19 would provide a process for the removal of
content prescribed under clause 15 to be prohibited content. The
Employment Advocate would be responsible for the removal of such
content. The process contained in clause 12 is relevantly identical
to the process that would apply for prohibited content of workplace
agreements, which would be prescribed under proposed section 101D
and is set out in proposed sections 101G - 101L. The separate
regulation making powers mean that different prohibited content
could be prescribed for the purpose of the different instruments.
Division 4 - Enforcing preserved State agreements
Clause 20 - Enforcing preserved State agreements
3421. Proposed subclause 20(1) would provide that a preserved collective
agreement may be enforced as if it were a collective agreement.
Part VIII sets out enforcement provisions for workplace agreements.
3422. Proposed subclause 20(2) would provide that a workplace inspector
has the same functions and powers in relation to a preserved
collective State agreement as he or she has in relation to a
collective agreement. Part V sets out functions and powers of
workplace inspectors.
3423. Proposed subclause 20(3) would provide that a preserved individual
State agreement may be enforced as if it were an AWA.
3424. Proposed subclause 20(4) would provide that a workplace inspector
has the same functions and powers in relation to the preserved
individual State agreement as he or she has in relation to an AWA.
Division 5 - Terminating a preserved State agreement
Clause 21 - Terminating a preserved State agreement
3425. Proposed clause 21 would apply to a PSA on or after reform
commencement (subclause 21(1)).
3426. Proposed subclause 21(2) would provide that a preserved collective
State agreement, may only be terminated in the way in which a
certified agreement could been terminated immediately before reform
commencement, and that the AIRC has the same powers in relation to
that termination as it would have had at that time in relation to
the termination of a certified agreement. This means that a
preserved collective agreement may be terminated in the following
circumstances:
. where a valid majority of employees approve (section 170MG);
. where the nominal expiry date has passed and the AIRC considers
that it is not contrary to the public interest (section 170MH);
and
. in a way provided for under the agreement after nominal expiry
date (section 170MHA)
3427. Proposed subclause 21(3) would provide that a preserved individual
State agreement may only be terminated in the way in which an AWA
could be terminated immediately before reform commencement, and that
the AIRC has the same powers in relation to that termination as it
would have had immediately before reform commencement in relation to
the termination of an AWA. This means that a preserved individual
agreement may be terminated in the following circumstances:
. where the employer and employee agree in writing (subsection
170VM(1));
. where the nominal expiry date has passed and the AIRC considers
that it is not contrary to the public interest (subsection
170VM(3)); and
. in a way provided for in the preserved individual agreement
(subsection 170VM(6)).
Clause 22 - Coercion of persons to terminate preserved State
agreement
3428. Proposed subclause 22(1) would provide that a person must not engage
in certain types of coercive behaviour in relation to the
termination of a PSA. This subclause would broadly replicate pre-
reform subsection 170NC(1). However, because it would not be
possible for parties to make or vary a PSA (other than the limited
variations outlined in Division 3) the provision would only extend
to terminations.
3429. Proposed subclause 22(2) would provide that the coercion provisions
do not apply where a person is engaged in protected industrial
action.
3430. Proposed subclause 22(3) would have the effect that the standing to
bring a claim and remedies would be those available in relation to
the pre-reform section 170NC.
Division 6 - Industrial Action
Clause 23 - Industrial action must not be taken until after nominal
expiry date - preserved collective State agreements
3431. Proposed subclause 23(1) would provide that industrial action cannot
be taken by those bound by, or whose employment would be subject to
a collective PSA, during the period beginning on the reform
commencement and ending on the nominal expiry date, regardless of
whether or not that action relates to a matter dealt with in the
agreement. This provision would have the same effect as proposed
section 110, which applies to collective agreements. It would apply
to industrial action taken by an employee, or organised by an
organisation or officer of an organisation and to industrial action
taken by an employer.
3432. The clause would be a civil remedy provision. The possible remedies
for a breach are a pecuniary penalty - the maximum of which is $6
600 (or 60 penalty units) for a natural person or $33 000 (or 300
penalty units) for a body corporate and/or an injunction or any
other orders the Court considers necessary to stop the breach or
remedy its effects.
3433. Proposed subclauses 23(7) and (8) would set out who can apply to the
Federal Court or Federal Magistrates Court in respect of a breach of
the proposed clause
Clause 24 - Industrial action must not be taken until after nominal
expiry date - preserved individual agreements
3434. Proposed clause 24 would provide that industrial action cannot be
taken by those bound by an individual PSA during the period
beginning on the reform commencement day and ending on the
agreement's nominal expiry date. This provision would have the same
effect as proposed section 100A, which applies to AWAs. It would
apply to action taken by the employer or the employee bound by the
PSA.
3435. The clause would be a civil remedy provision. The possible remedies
for breach are a pecuniary penalty - the maximum of which is $6 600
(or 60 penalty units) for a natural person or $33 000 (or 300
penalty units) for a body corporate and/or an injunction or any
other orders the Court considers necessary to stop the breach or
remedy its effects.
3436. Subclauses 24(6) and (7) would set out who can apply to the Federal
Court or Federal Magistrates Court in respect of a breach of the
proposed clause.
Clause 25 - Industrial action taken before nominal expiry date not
protected action
3437. This provision would clarify that industrial action taken prior to
the nominal expiry date of a PSA is not protected action. It is
intended that this provision would have the same effect as proposed
section 108E with respect to workplace agreements.
Division 7 - Miscellaneous
Clause 26 - Calling up contents of preserved State agreement in a
workplace agreement
3438. Proposed subclause 26(1) would provide that a workplace agreement
may incorporate by reference terms from a PSA under section 101C as
if the PSA were a workplace agreement. Proposed section 101C sets
out the circumstances in which a workplace agreement could 'call up'
the terms of other industrial instruments. The intention is that
when the persons who are bound by, or whose employment is subject to
a PSA, make a workplace agreement, they would be able to incorporate
by reference terms from the PSA.
Clause 27 - Application of proposed section 109B in relation to
preserved State agreement
3439. Proposed clause 27 extends the operation of proposed section 109B to
PSAs. Proposed section 109B sets out who would be able to apply for
a protected action ballot order so that employees may take protected
action to support or advance claims in respect of a proposed
collective agreement.
Clause 28 - Application of Part IX in relation to a preserved State
agreement
3440. This provision would extend the operation of the right of entry
provisions in Part IX of this Act to PSAs.
Clause 29 - Application of Part XA in relation to a preserved State
agreement
3441. This provision would extend the operation of the freedom of
association provisions in Part XA of the WR Act to PSAs.
Division 8 - Regulations
Clause 30 - Regulations may apply, modify or adapt Act
3442. This provision would enable the Governor-General to make regulations
applying provisions of the WR Act to PSAs, or modifying or adapting
provisions of the WR Act to PSAs. This broad regulation power would
ensure that legal or practical uncertainties that could emerge in
relation to the operation of, or the entitlements arising under,
these transitional instruments can be addressed quickly.
Part 3 - Notional agreements preserving State awards
3443. The intention of proposed Part 3 is to provide similar mechanisms
preserving terms and conditions of employment arising under State
awards and State or Territory industrial laws as provided by Part 2
with respect to State employment agreements. Rather than
replicating the State awards as instruments that may apply to
several different employers, employees or organisations in a
particular industry, the terms and conditions would be contained in
a notional agreement that operates between the relevant employer and
its employees at the enterprise level.
Division 1 - Notional agreements preserving State awards
Clause 31 - What is a notional agreement preserving State awards?
3444. Proposed clause 31 would provide that a notional agreement
preserving State awards would come into operation on reform
commencement where a term or condition of a person's employment was
regulated under a state award or a State or Territory industrial
law. State award would be defined in subsection 4(1) to mean an
award, order, decision or determination of a State industrial
authority. In this Schedule, the relevant State award is referred
to as the original State award. The relevant State or Territory law
is referred to as the original State law.
3445. The notional agreement is taken to come into operation in respect of
an employer in a single business or part of a single business and
relevant employees. These terms would be defined at subsection 4(1)
by reference to the definition in proposed section 95A. The
intention of applying proposed section 95A to clause 32 is to
provide that a notional agreement would operate like a collective
agreement between a single business employer and its employee or
employees. The definition of single business or part of a single
business at proposed section 95A would require that the employer
carries on a business, project or undertaking. Subsection 95A(2)
and subparagraph 95A(2)(b)(i) would also apply to proposed clause
31, so that two or more employers would be deemed to be one employer
for the purposes of proposed clause 31 where certain conditions are
met.
3446. Proposed clause 31 is qualified by proposed paragraph 31(b) which
would provide that a notional agreement preserving a state award
would not come into operation if any term or condition of that
employee's employment with the employer is regulated by a State
employment agreement at the reform commencement. The intention of
proposed paragraph 31(b) is to ensure that, where any term or
condition of employment between an employer and a employee is
regulated by a State employment agreement, those terms and
conditions are preserved as a PSA under Part 2 of this Schedule, and
not as a notional agreement preserving State awards under Part 3.
The actual terms and conditions of employment that would be
preserved in a notional agreement would be determined by proposed
clause 35 (see below).
Clause 32 - Who is bound by or subject to the notional agreement?
3447. Proposed clause 32 would set out who is bound by or whose employment
is subject to a notional agreement. This would be determined by
reference to those who are bound by, or whose employment was subject
to the State award or the State or Territory industrial law.
3448. Proposed subclauses 32(1) and (2) address who would be bound by the
notional agreement by reference to the parties that were bound to
the original State award.
3449. Proposed subclause 32(1) would provide that certain persons would be
bound to the notional agreement if, but for this Act, they would be
bound by the original State award as in force immediately before the
reform commencement. An employer, employee or organisation bound by
the original award are those who would be bound to the original
agreement, subject to some qualifications necessary because the
notional agreement would operate at the enterprise level. First,
the provisions make it clear that the employer who would be bound is
determined by reference to the single business requirement.
Secondly, the provisions make it clear that an organisation would be
bound where that organisation has at least one member who is an
employee who would be bound and that organisation is entitled to
represent the industrial interest of the employee. This ensures
that organisations that were bound to the original award become
bound to notional agreements where they have a representative role.
3450. Proposed subclause 32(2) would clarify the situation referred to in
subclause 32(1) where a person is employed after the reform
commencement by an employer that is bound by a notional agreement
(under subclause 32(1)). It would provide that a person employed
after the reform commencement would be bound to the notional
agreement provided that they would have been so bound had they been
employed prior to reform commencement.
3451. Proposed subclauses 32(3) and (4) address who would be bound by the
notional agreement by reference to persons who would have been
regulated in relation to employment matters in the business by State
or Territory laws.
3452. Proposed subclause 32(3) would provide that certain persons would be
bound by the notional agreement if, but for this Act, they would
have been regulated under the provisions of the original State law
as in force immediately before the reform commencement. An
employer, employee or organisation regulated by the original State
law are those who would be bound to the original agreement, subject
to some qualifications necessary because the notional agreement
would operate at the enterprise level.
3453. Proposed subclause 32(4) would clarify the situation referred to in
subclause 32(3) where a person is employed after the reform
commencement by an employer bound by a notional agreement (under
subclause 32(3)). It would provide that the person would be bound
by the notional agreement, provided that they would have been so
bound had they been employed prior to reform commencement.
3454. Proposed subclauses 32(5) and (6) address whose employment would be
subject to the notional agreement by reference to whose employment
would have been subject to a State award. Proposed subclause 32(5)
would provide that a person's employment would be subject to the
notional agreement if the person's employment was subject to the
original State award as in force immediately before reform
commencement. Proposed subclause 32(6) would clarify the situation
referred to in subclause 32(5) where a person is employed after
reform commencement by the employer. It would provide that such a
person's employment would be subject to the notional agreement
provided that it would have been had they been employed prior to
reform commencement.
3455. Proposed subclauses 32(7) and (8) address whose employment would be
subject to the notional agreement by reference to whose employment
would have been regulated by the original State law as in force
immediately before reform commencement.
3456. Proposed subclause 32(7) would provide that a person's employment
would be subject to the notional agreement if a term or condition of
employment in the business would have been regulated by the original
State law as in force immediately before the reform commencement.
3457. Proposed subclause 32(8) would clarify the situation referred to in
subclause 32(7) where the person is employed after reform
commencement by the employer. It would provide that such a person's
employment would be subject to the notional agreement provided that
it would have been had they been employed prior to reform
commencement.
3458. Proposed subclause 32(9) clarifies that in spite of this provision,
a person who would be bound by a PSA would not be bound by a
notional agreement and that the employment of a person whose
employment is subject to a PSA would not be subject to a notional
agreement.
Illustrative Example
Six months after the reform commencement Brooke is employed as an entry
level process worker, by Milky Goodness Pty Ltd (Milky Goodness) a
manufacturer of dairy products, based in Launceston, Tasmania. Prior to
the reform commencement, the terms and conditions of employment of process
workers at Milky Goodness were regulated by the Tasmanian Butter and Cheese
Makers Award 2005. After the reform commencement the terms and conditions
of employment that existed in the Butter and Cheese Makers Award 2005
immediately before reform commencement would be preserved in a notional
agreement preserving state awards. At the reform commencement Milky
Goodness, and its current employees become bound to, or subject to the
notional agreement. When Brooke is employed by Milky Goodness, her
employment would become subject to the notional agreement. Milky Goodness
and Brooke would be able to enforce the notional agreement under the WR
Act.
Clause 33 - Operation of notional agreement
3459. Proposed clause 33 would provide the circumstances whereby a
notional agreement would cease to operate.
3460. Subclause 33(1) would provide that a notional agreement ceases to be
in operation at the end of the period of three years beginning on
reform commencement. During this period, the persons who are bound
by, or whose employment is subject to, the notional agreement may
become bound by an award (see proposed sections 120, 120A, and
120B). During this period, the AIRC would undertake award
rationalisation. The Award Review Taskforce will report to
Government with recommendations for the rationalisation of award
wage and classification structures and federal awards. Under its
terms of reference, the Taskforce will recommend an approach to
rationalise awards on an industry sector basis, and to permit
general coverage of employers and employees according to the
relevant industry sector based awards.
3461. Subclause 33(2) would provide that a notional agreement ceases to be
in operation in relation to an employee if a workplace agreement
comes into operation in relation to the employee. The workplace
agreement could be a collective agreement or an AWA.
3462. This would mean that the notional agreement ceases to regulate the
relationship between that employee and employer. The employer would
still be bound to, or subject to the notional agreement to the
extent that the notional agreement binds, or regulates terms and
conditions of employment in relation to other employees bound to, or
subject to the notional agreement.
3463. It is noted at proposed clause 33 that a reference to a workplace
agreement includes a reference to a workplace determination.
3464. Subclause 33(3) would provide that a notional agreement ceases to be
in operation in relation to an employee if an award made under
proposed section 118E comes into operation in relation to the
employee. Proposed section 118E provides for the making of awards
to give effect to award rationalisation.
3465. Subclause 33(4) would provide that if a notional agreement has
ceased to operate in relation to an employee because of subclauses
33(1), (2) or (3), the agreement can never operate again in relation
to that employee.
Clause 34 - Effect of notional agreement
3466. Proposed subclause 34(1) would provide that a notional agreement has
effect according to its terms, except where its terms are modified
or varied under this Part or under the Act.
3467. Subclause 34(2) would make it clear that this Part of the Act has
effect despite terms and conditions of the original State award, the
original law or any other law of a State.
3468. Subclause 34(3) would provide that none of the terms and conditions
of employment included in the notional agreement are enforceable
under the law of a State.
Division 2 - Terms of notional agreement
Clause 35 - Terms of notional agreement
3469. Proposed clause 35 would provide for the terms of the notional
agreement. It is intended that terms of the notional agreement
would be the terms and conditions of employment arising under State
or Territory industrial laws that regulated persons bound by, or
whose employment was subject to the original State award. In
addition to the terms and conditions of employment arising directly
under the State award, any term or condition arising under State or
Territory legislation that would have regulated the employment
relationship, would also be included as a term of the notional
agreement. This recognises that a person covered by a State award
will also derive some terms and conditions of employment from State
or Territory industrial laws. The intention is that various sources
of terms and conditions of employment that arise under State or
Territory industrial laws would interact with one another in the
same way under the WR Act as they did immediately before the reform
commencement. A term or condition will only be included in the
notional agreement to the extent that it actually applied to the
person. A term will be incorporated as at immediately before the
reform commencement.
3470. Terms of a State award or provisions of State or Territory
industrial laws which regulate or set wages will not be incorporated
into a notional agreement. Rather, wages from State awards and
State or Territory industrial laws would be incorporated into the
Australian Pay and Classification Scales to be adjusted by the AFPC
(see clause 44 below, and proposed Division 2 of Part VA).
3471. Subclause 35(1) would provide for a term of a State award to be
taken to be a term of the notional agreement in certain
circumstances. This would occur where the employment of a person
who is bound by, or whose employment is subject to, the notional
agreement, is regulated by a term of the original State award. In
such a case, to the extent that the term regulated matters
pertaining to an affected employment relationship, that term is
taken to be a term of the notional agreement.
3472. An affected employment relationship would be defined in subclause
35(3) to mean an employment relationship to which the notional
agreement applies. The term would be included as in force
immediately before the reform commencement. This makes it clear
that the terms are preserved as they exist at that time, and would
not be adjusted or varied to reflect subsequent changes to the terms
of the original State award. The effect of these provisions is that
terms of the notional agreement would apply to the same classes of
people in the same way as they applied in the original State award,
prior to the reform commencement. This is subject to the remainder
of the provisions set out in Division 3 which modify the operation
of some terms.
3473. Proposed subclause 35(2) would provide that a provision of an
original State law would also be preserved as a term of the notional
agreement in certain circumstances. It operates in the same way as
proposed subclause 35(1) with respect to a provision of an original
State law to the extent that the law regulated matters pertaining to
an affected employment relationship. As is the case in subclause
35(1) the term would be included as it was in force immediately
before the reform commencement and would apply to the same classes
of people and in the same way that it applied in the original State
law.
Illustrative Example
Julianne has been employed as a baker's assistant at Crusty Loaves Pty Ltd
(Crusty Loaves), in Perth, Western Australia, for 8 years. She is covered
by the Bakers' (Metropolitan) Award No.13 of 1987 (Bakers' Award). Among
other things, the award includes provisions dealing with redundancy and
provides a scale of severance pay depending on the period of continuous
service. The maximum that an employee is entitled to is eight weeks
severance pay in respect of a period of continuous service of four or more
years. A 2005 General Order of the Western Australian Commission in
relation to redundancy applies to all employees (as defined in the
Industrial Relations Act 1979). It also provides a scale of severance pay.
Under its terms, the maximum that an employee is entitled to is 16 weeks
severance pay in respect of a period of continuous service of nine years
and less than 10 years. This means that at the reform commencement, the
terms of the notional agreement would include the terms of the Bakers'
Award as well as the terms from the General Order that provides an
entitlement to redundancy more beneficial than the Bakers' Award, and to
the extent that those terms apply to Crusty Loaves and its employees
(including Julianne).
Clause 36 - Powers of State industrial authorities
3474. Proposed subclause 36(1) would provide that if a notional agreement
confers a function or power on a State industrial authority, that
function must not be performed and that power must not be exercised
by the State industrial authority on or after the reform
commencement. This subclause is intended to ensure that the terms
and conditions of a notional agreement are only enforced under this
Act, and not under the State or Territory laws or in the State
system in which the original agreement was made. It would not be
appropriate for State industrial authorities to exercise powers or
perform functions with respect to federal instruments.
3475. Proposed subclause 36(2) would provide that the employer and the
persons bound by the notional agreement may, by agreement, confer
such a function or power on the AIRC. However this option would
only apply in situations where the matter or issue does not relate
to the resolution of a dispute about the application of the
agreement. Proposed clause 37 would provide that in such a case,
the model dispute resolution process would apply (see Part VIIA of
Schedule 1).
Clause 37 - Dispute resolution process
3476. Proposed subclause 37(1) would provide that a notional agreement is
taken to include a term requiring disputes about the application of
the agreement to be resolved in accordance with the model dispute
resolution process (see Part VIIA of Schedule 1).
3477. Proposed subclause 37(2) would provide that any term of the notional
agreement that would otherwise deal with the resolution of those
disputes is void to that extent.
Clause 38 - Prohibited content
3478. Proposed clause 38 would provide that a term of a notional agreement
is void to the extent that it contains prohibited content of a
prescribed kind.
Division 3 - Varying a notional agreement preserving State awards
Clause 39 - Varying a notional agreement preserving State awards
3479. Proposed clause 39 would provide that a notional agreement may only
be varied on or after reform commencement in accordance with this
Division. The terms of the notional agreement reflect relevant
terms and conditions of employment arising under State or Territory
industrial laws immediately prior to the reform commencement. They
are 'frozen' except to the extent that they be varied under this
Division.
3480. Variation of a notional agreement would be limited as it is intended
that the parties to a notional agreement should enter into a
workplace agreement when they wish to alter the terms and conditions
of the notional agreement.
Clause 40 - Variation to remove ambiguity or uncertainty
3481. Proposed clause 40 would provide that a person may apply to the AIRC
to have an agreement varied for the purpose of removing ambiguity or
uncertainty.
Clause 41 - Variation to remove discrimination
3482. Proposed clause 41 would provide for the variation of a notional
agreement to remove any discriminatory part of the agreement if it
is referred to the AIRC under section 46PW of the HREOC Act 1986.
The provision defines discriminatory for the purpose of this
procedure in subclause 41(4).
Clause 42 - Variation to remove prohibited content
3483. Proposed clause 42 would provide a process for the removal of
content prescribed under proposed clause 38 to be prohibited
content. The Employment Advocate would be responsible for the
removal of such content. The process contained in this provision is
relevantly identical to the process that would apply for prohibited
content of workplace agreements, which would be prescribed under
proposed section 101D and is set out in proposed sections 101D -
101L. The separate regulation making powers mean that different
prohibited content may be prescribed for the purpose of the
different forms of agreement.
Division 4 - Enforcing the notional agreement
Clause 43 - Enforcing the notional agreement
3484. Proposed clause 43 would provide that a notional agreement may be
enforced as if it were a collective agreement. Part VIII sets out
enforcement provisions for workplace agreements.
3485. This provision would provide that a workplace inspector has the same
functions and powers in relation to a preserved collective State
agreement as he or she has in relation to a collective agreement.
Part V sets out functions and powers of workplace inspectors.
Clause 44 - Matters provided for by the Australian Fair Pay and
Conditions Standard
3486. The Standard provides key minimum entitlements of employment for the
employees to whom it applies (see proposed section 89A). Proposed
clause 40 would provide that, where the Standard provides for a
matter, then a term of the notional agreement also dealing with that
matter is unenforceable. This clause would operate subject to
Division 5 which would provide that certain terms of a notional
agreement are to be preserved and could exclude a corresponding
matter in the Standard where the term of the notional agreement is
more generous. As noted in comments for clause 35, wages will not
be included in notional agreements.
Division 5 - Preserved notional terms and preserved notional
entitlements
3487. Proposed Division 5 would provide for the preservation and different
operation of certain terms in notional agreements. These provisions
are based on the proposed provisions in Division 3 of Part VI, which
would provide for the preservation and special operation of certain
terms in awards upon the reform commencement.
3488. Proposed Division 5 is intended to provide for the relevant terms to
be dealt with in a manner which is consistent with their treatment
in awards. Like Division 3 of Part VI, this Division would also
address how an employee's entitlements under these terms interact
with the Standard - as a number of the terms that would be preserved
deal with matters also covered by the Standard.
Clause 45 - Preserved notional terms of notional agreement
3489. Proposed clause 45 would identify that certain terms in a notional
agreement are preserved notional terms. They are terms about any or
all of the matters listed in subclause 45(1). Those matters are:
annual leave, personal/carer's leave, parental leave, including
maternity and adoption leave, long service leave, notice of
termination, jury service, and superannuation. A preserved notional
term about superannuation would cease to have effect at the end of
30 June 2008.
3490. The first three of these matters are also dealt with by the
Standard. Employees will continue to have entitlements under these
terms where they are more generous than the Standard (see proposed
clauses 50 - 60).
3491. In relation to superannuation, the Government announced in 2004,
with the passage of the Superannuation Laws Amendment (2004 Measures
No.2) Act 2004, that all employees would be treated in a consistent
manner for superannuation guarantee purposes. The Government
announced that from 1 July 2008 ordinary time earnings (as defined
by the Superannuation Guarantee legislation) would be the earnings
base for determining the superannuation guarantee liability for all
employees). Accordingly, award-based earnings bases will cease to
operate from this date.
3492. Proposed subclause 45(4) would make clear that personal/carer's
leave includes war service sick leave, infectious diseases sick
leave and other like forms of sick leave.
3493. Proposed subclause 45(5) would enable regulations to provide that
parental leave does not include special maternity leave and
personal/carer's leave does not include compassionate leave and
unpaid carer's leave. The effect of such regulations would be to
exclude these matters from the 'more generous' comparison between
the preserved award term and the Standard - meaning that employees
would be entitled to special maternity leave, compassionate leave
and unpaid carer's leave as provided under the Standard regardless
of the terms of their award. This is necessary as such entitlements
are not part of the general award standard, and may otherwise be
lost when applying a global more generous test (based on overall
quantum of entitlement - as described below).
3494. Proposed subclause 45(6) would provide that regulations made under
subclause 45(5) may apply generally or in respect of employees
engaged in specified types of employment.
Clause 46 - When preserved notional entitlements have effect
3495. Proposed clause 46 would deal with the effect of entitlements under
preserved notional terms, and the interaction of some of those
entitlements with the Standard.
3496. Where an employee has an entitlement under a preserved notional term
to a matter that is also dealt with by the Standard (ie annual
leave, personal/carer's leave or parental leave), the employee is
entitled to the more generous of the award term and the Standard
(subclause 46(2)). (The meaning of more generous would be dealt
with by proposed clause 47).
3497. Where an employee has an entitlement under a preserved notional term
about one of the other matters (ie long service leave, notice of
termination, jury service or superannuation), the entitlement has
effect in accordance with the award term.
Clause 47 - Meaning of more generous
3498. Proposed clause 47 would provide when an employee's entitlement
under a preserved notional term about a matter is more generous than
the employee's entitlement about an equivalent matter under the
Standard. It is intended that this proposed provision operate in
the same way as proposed section 117C with respect to the
interaction between awards and the Standard.
3499. Subclause 47(1) would provide that whether an entitlement under a
preserved award term is more generous than an entitlement about a
corresponding matter under the Standard:
. is to be determined by regulations (paragraph 47(1)(a)); or
. if regulations do not deal with a matter, in accordance with the
ordinary meaning of the term more generous.
3500. It is intended that regulations will be made specifying
circumstances in which a preserved notional term is to be taken to
be more generous than the Standard, based on the overall quantum of
the entitlement. Where a preserved notional term is more generous
than the Standard, the whole of the award term will apply to the
exclusion of the Standard - including any associated administrative
arrangements set out in the award relating to that leave
entitlement.
3501. Proposed subclause 47(2) would provide that if a matter does not
correspond directly to a matter in the Standard, regulations made
under paragraph 47(1)(a) may provide that the matters correspond for
the purposes of this Division.
Clause 48 - Modifications that may be prescribed - personal/carer's
leave
3502. Proposed clause 48 would enable regulations to be made to specify
that certain aspects of preserved notional terms about
personal/carer's leave are to be treated as preserve notional terms
about separate matters.
3503. The matters about which such regulations could be made are:
. war service sick leave
. infectious diseases sick leave
. any other like form of sick leave
3504. This is necessary to ensure that, in applying the global more
generous test (based on overall quantum of entitlement), specific
entitlements under the preserved notional terms that apply to some
employees are not lost. The effect of the regulations would be to
ensure that in respect of those matters, there would be no
comparable matter against which an assessment with the Standard
could be made - meaning that the award entitlement would continue to
apply.
Clause 49 - Modifications that may be prescribed - parental leave
3505. Proposed clause 49 would enable regulations to be made to specify
that paid and unpaid parental leave are to be treated as separate
matters for the purpose of the more generous comparison (subclause
49(1)).
3506. The effect of such regulations would be to enable an entitlement to
paid parental leave to continue to operate, despite the terms of the
Standard.
3507. The parental leave provisions of the Standard (see proposed section
90) would operate to ensure that the amount of unpaid leave to which
an employee is entitled under the Standard is reduced by any amount
of paid leave (subclause 49(2)). This reflects how the Standard
would operate generally in relation to other forms of leave taken in
conjunction with parental leave.
Clause 50 - Preserved notional terms taken to be included in awards
3508. The purpose of proposed clause 50 is to ensure that a person who has
a preserved notional entitlement retains that entitlement if that
person becomes bound to a federal award, including a rationalised
federal award. This could occur after the notional agreement ceases
to operate.
3509. It is intended that, like preserved award entitlements, preserved
notional entitlements would be protected during the award
rationalisation process (refer to comments at subclause 33(1)). The
Award Review Taskforce will consider the manner in which preserved
entitlements are to be accommodated in the new awards that result
from the rationalisation process.
3510. Proposed clause 50 would provide that a preserved notional term in a
notional agreement is taken to be included in a rationalised award
to which a person who was bound by or whose employment was subject
to the notional agreement, becomes bound.
3511. This means that the preserved award term would be taken to be in the
award as a matter of law.
3512. Subclauses 50(3), (4) and (5) explain that the 'coverage' of a
preserved notional term included in an award remains the same, but
does not expand, as a result of its being included in a rationalised
award - that is, the same employers and class or classes of
employees (including employees employed after the rationalised award
was made) remain subject to the term.
3513. Proposed subclause 50(6) provides that the AIRC must not vary a
preserved notional term included in an award. This is because,
these terms are to be 'frozen' in awards. They would be included in
rationalised awards, but their content and coverage would not
change.
3514. Proposed subclause 50(7) extends the operation of proposed section
118P to preserved notional terms as if they are preserved award
terms. Proposed section 118P ensures that preserved award terms
which would be taken to be included in rationalised awards are
included in rationalised awards and appropriately identified.
3515. Proposed clause 50 operates in addition to the effect of the
provisions in Part VI that relate to the content and operation of
awards.
Clause 51 - Application of hours of work provision of Standard to
notional agreements preserving State awards
3516. Proposed clause 51 would provide that Division 3 of Part VA (hours
of work) does not apply to the employee's employment while the
employee is bound by, or their employment is subject to, an
operational notional agreement preserving State awards.
Division 6 - Protected Conditions
Clause 52 - Protected conditions in notional agreements preserving
State awards
3517. Proposed clause 52 is a counterpart to proposed section 101B. The
latter section would provide a mechanism to deem certain award
conditions to be included in a workplace agreement. Proposed clause
52 provides the same 'protected' status with respect to the same
matters in notional agreements preserving State awards to which
proposed section 101B applies.
3518. The mechanism operates where the conditions (the protected notional
conditions) would have effect in relation to the employment of a
person but for the fact that the person's employment is subject to a
workplace agreement. The protected notional conditions are taken to
be included in the workplace agreement and to have effect to the
extent that they are not expressly excluded or modified under the
terms of the workplace agreement. The intended effect is that the
protected notional conditions would be 'read into' a workplace
agreement unless the agreement expressly modified or excluded them.
3519. Protected notional conditions are terms of a notional agreement to
the extent that they deal with protected allowable award matters.
These matters are those listed in the definition of this term in
clause 52(3). The matters are: rest breaks, incentive-based
payments an bonuses, annual leave loading, public holidays declared
by or under State law and related entitlements for working on those
days, certain allowances relating to employees' out of pocket
expenses, skills not taken into account in pay rates and
disabilities associated with the performance of work in particular
conditions of locations, loadings for overtime or shift work,
penalty rates and any other matter prescribed in the regulations.
3520. The combined effect of clause 50 and proposed section 101B is that,
while a person is bound by, or their employment is subject to a
notional agreement preserving a State award, the protected
conditions will derive from the notional agreement. Once the
notional agreement ceases to operate under proposed clause 33, the
protected conditions would derive from an award to which the person
has become bound.
Division 7 - Miscellaneous
Clause 53 - Application of Part IX in relation to notional agreement
preserving State awards
3521. Proposed clause 53 would extend the operation of the right of entry
provisions in Part IX of this Act to notional agreements.
Clause 54 - Applications of Part XA in relation to a notional
agreement preserving State awards
3522. Proposed clause 54 would extend the operation of the freedom of
association provisions in Part XA of this Act to notional
agreements.
Division 8 - Regulations
Clause 55 - Regulations may apply, modify or adapt Act
3523. Proposed Division 8 would enable the Governor-General to make
regulations applying provisions of this Act to notional agreements,
or modifying or adapting provisions of this Act to notional
agreements. This broad regulation power is to ensure that legal or
practical uncertainties that could emerge in relation to the
operation of, or the entitlements arising under, these transitional
instruments can be addressed quickly.
Schedule 16 - Transmission of business rules (transitional
instruments)
3524. Proposed Schedule 16 would contain the transmission of business
rules relevant to the transfer of transitional instruments created
before reform commencement, replacing paragraph 149(1)(d) and
sections 170MB, 170MBA and 170VS of the pre-reform Act for these
purposes.
3525. The proposed Note would mention proposed section 4A, which outlines
which Schedules have effect under the WR Act.
New Part 1 - Introductory
New clause 1 - Object
3526. Proposed clause 1 would outline the object of Schedule 16, which is
to provide for the transfer of employer obligations under those
instruments indicated in Parts 2 - 9 of the Schedule, when the
whole, or a part, of a person's business is transmitted to another
person.
3527. The proposed clause uses the term transmitted but would also
encompass assignment of a business, or part of a business, from one
person to another and the succession of a business, or part of a
business, to one person from another.
New clause 2 - Simplified outline
3528. Proposed clause 2 would create a simplified outline detailing the
way that Schedule 16 is structured.
3529. Proposed Part 2 would provide for when the Schedule is to apply and
define key terms that are used throughout Schedule 16.
3530. Proposed Part 3 would contain provisions particular to the transfer
of pre-reform Australian Workplace Agreements (AWAs) (those AWAs
created before reform commencement) from one employer to another
upon a transmission of business.
3531. Proposed Part 4 would contain provisions particular to the transfer
of Division 2 pre-reform CAs from one employer to another upon a
transmission of business.
3532. Proposed Part 5 would contain provisions particular to the transfer
of State transitional instruments from one employer to another upon
transmission of business.
3533. Proposed Part 6 would deal with notification obligations for an
employer who becomes a successor, transmittee or assignee to a
transferring business, as well as lodgment of notices and civil
remedy provisions relevant to the notification requirements.
3534. Proposed Part 7 would contain provision to enable the transmission
of business rules to extend to Victorian employers pursuant to the
terms of the referral of power from the Parliament of Victoria to
the Commonwealth under the CP(IR) Act.
3535. Proposed Part 8 would deal with the interaction between transitional
instruments and awards and collective agreements, to which the
transmission rules in Part VIAA apply.
3536. Proposed Part 9 would enable regulations to be made to deal with
additional transmission of business issues that may arise.
New clause 3 - Definitions
3537. Proposed clause 3 would define key terms for the purposes of
Schedule 16, many by reference to definitions in proposed Part 2 of
this Schedule. Other terms are defined by reference to Schedule 14,
which sets out transitional arrangements for existing pre-reform
Federal agreements.
New Part 2 - Application of Part
3538. Proposed Part 2 would define when Schedule 16 would apply and
provide definitions for key terms.
New clause 4 - Application of Schedule
3539. Proposed clause 4 would outline the circumstances in which Schedule
16 applies.
3540. Subclause 4(1) would provide that Schedule 16 applies if a person
becomes the successor, transmittee or assignee of the whole, or a
part of a business of another person.
3541. In this context the person who initially owned the business being
transferred is the old employer and the person who becomes the
successor, transmittee or assignee is the new employer. The term
'person' is used in this definition so that this Schedule also
captures transmissions where the old employer ceases to be an
employer (ie because it either dismisses all of its employees)
before, or at the time the business transfers.
3542. Additionally, the term 'person' would cover the situation where the
new employer is not yet an employer because it does not have any
employees until or after the transmission occurs.
3543. Subclause 4(2) would define, for the purposes of Schedule 16, the
'business being transferred' as the business, or part of the
business, of which the new employer is the successor, assignee or
transmittee.
3544. Subclause 4(3) would define, for the purposes of Schedule 16, the
'time of transmission' as the time at which the new employer becomes
the successor, transmittee or assignee of the business being
transferred. The definition does not seek to pinpoint in time when
a new employer becomes a successor, transmittee or assignee.
3545. Subclause 4(4) would define the 'transmission period' as the period
of 12 months from the time of transmission. This is the maximum
period of time that a new employer may be bound by a transmitted
instrument by operation of Schedule 16.
New clause 5 - Transferring employees
3546. Proposed clause 5 would create a definition of a 'transferring
employee' for the purposes of Schedule 16.
3547. Subclause 5(1) would provide that a person is a transferring
employee, if the person is employed by the old employer immediately
before the time of transmission and the person ceases to be employed
by the old employer and becomes employed by the new employer within
2 months of the time of transmission.
3548. The proposed definition of transferring employee seeks to ensure
that the operation of Schedule 16 cannot be avoided by the new
employer employing an employee of the old employer shortly after the
time of transmission, rather than at the time of transmission.
3549. Subclause 5(2) would provide that a person is also a transferring
employee for the purposes of Schedule 16 if the person:
a) is employed by the old employer at any time within the period of 1
month before the time of transmission; and
b) the person's employment is terminated because of, or for reasons that
include, genuine 'operational reasons'; and
c) the person becomes employed by the new employer within 2 months of the
time of transmission.
3550. Operational reasons is attributed with the same meaning as in
proposed subsection 170CE(5D) of the WR Act. Proposed subsection
170CE(5D) would provide that the definition of operational reasons
are reasons of an economic, technological, structural or similar
nature relating to the employer's undertaking, establishment,
service or business, or to part of the employer's undertaking,
establishment, service or business.
3551. This limb of the definition of transferring employee is also an anti-
avoidance provision. It is intended that the effect of Schedule 16
would not be avoided by the old employer terminating the employment
of the employees shortly before the time of transmission.
Accordingly, the transmission of business rules in proposed Schedule
16 would extend to a situation where the old employer made employees
redundant in anticipation of a transmission of business, or part of
a business, close to the time of transmission but the new employer
decides to employ them anyway.
3552. Therefore, if an employee's employment is genuinely redundant and
thus terminated by the old employer within one month of the time of
transmission, this break in employment would not preclude the
employee from being a transferring employee for the purposes of
Schedule 16, if the employee is employed by the new employer within
2 months of the time of transmission.
Illustrative Example
Jade is employed by Smythe's Automobiles Pty Ltd (Smythe's) and has always
received high performance ratings. Smythe's has been running at a loss for
the past two financial years and is finally placed in administration on 1
August 2005. As a result many of Smythe's employees, including Jade, are
terminated by reason of redundancy on this date.
On 20 August 2005 the business and assets of Smythe's are transmitted to
Hodgers Holdings. To ensure the business is viable, Hodgers Holdings
wishes to retain those employees still with Smythe's, and to take on some
of those made redundant. Jade is employed by Hodgers Holdings on 27 August
2005. Because she was terminated for genuine operational reasons by
Smythe's within one month of the time of transmission and employed by
Hodgers Holdings within two months of the time of transmission, she will be
a 'transferring employee'.
3553. Subclause 5(3) would be a facilitative provision consequential upon
the inclusion of clause 5. It is to enable Schedule 16 to operate
with respect to an employee who is a transferring employee, but
whose employment was terminated by the old employer within one month
prior to the time of transmission without need for an additional
reference or extension of the term transferring employee wherever
used.
New clause 6 - transferring employees in relation to a particular
instrument
3554. Proposed clause 6 would describe how an employee is a transferring
employee in relation to a particular instrument. In this context,
the term instrument incorporates all transitional industrial
instruments created before the reform commencement (eg pre-reform
AWAs, Division 2 pre-reform CAs and State transitional instruments).
3555. Subclause 6(1) would provide that in order for a particular
instrument to bind a new employer there must be a transferring
employee who was, immediately before time of transmission, bound or
covered by the relevant instrument. Additionally, the transferring
employee's employment with the new employer must be capable of being
covered by the particular instrument.
3556. Subclause 6(2) would provide that an employee ceases to be a
transferring employee in relation to a particular instrument where
the transferring employee ceases to be employed by the new employer
after the time of transmission or the transferring employee's
employment with the new employer changes so that the instrument is
no longer capable of applying to that employment. Additionally, the
transferring employee ceases to be a transferring employee when the
transmission period ends.
3557. The terms 'apply' or 'applying' in these provisions is used to
encompass all the various ways in which an instrument may regulate
an employee's terms and conditions of employment. Accordingly, the
term should not be read as a limitation on the scope of the
provision.
3558. Subclause 6(3) would clarify that a notional agreement preserving
State awards (as defined in Schedule 15) is to be treated as an
instrument in this context.
Illustrative Example
Johnston Holdings (Johnston) has three divisions. The Human Resources
Division (HRD), the Engineering Division (ED) and the Maintenance Division
(MD). In respect of employees employed in the HRD, Johnston is bound by a
Preserved State Agreement. For employees employed in the ED, Johnston is
bound by pre-reform AWAs. For employees of the MD, a notional agreement
preserving a State award binds Johnston.
Johnston decides to sell off parts of its business, namely the maintenance
and human resources divisions. Maddie Enterprises (Maddie) buys both
divisions as distinct and operative parts of a business.
Shauna is employed by Johnston as a recruitment officer and is bound by the
Preserved State Agreement. At the time of transmission Maddie employs
Shauna as a recruitment officer. Shauna would therefore be a transferring
employee in respect of the Preserved State Agreement, and the agreement
would become binding on Maddie.
Maddie employs none of Johnston's MD employees. This means that there are
no transferring employees in relation to the notional agreement preserving
a State award. The transmission of business does not have the effect of
binding Maddie with respect to the notional agreement.
New Part 3 - Transmission of pre-reform AWA
3559. Proposed Part 3 would contain the transmission of business
provisions specific to the transfer of pre-reform AWAs from an old
employer to a new employer.
New clause 7 - Transmission of pre-reform AWA
New employer bound by pre-reform AWA
3560. Proposed subclause 7(1) would provide that where, immediately before
the time of transmission, the old employer and an employee were
bound by a pre-reform AWA, and the employee is a transferring
employee in relation to the pre-reform AWA, the new employer becomes
bound by the pre-reform AWA.
3561. This means that a new employer who is a successor, transmittee or
assignee to a business or part of a business, will be bound by the
pre-reform AWA that was binding on the old employer, in respect of
an employee if that employee is employed by the new employer within
2 months and the pre-reform AWA is capable of covering the
employee's employment with the new employer.
3562. Proposed Note 1 would mention that where the pre-reform AWA becomes
binding on the new employer by force of this section, the new
employer may have obligations imposed by clauses 28 and 29 with
respect to notification.
3563. Proposed Note 2 would provide that the clause should be read in
conjunction with clause 8, which provides for interaction rules.
Period for which the new employer remains bound
3564. Proposed subclause 7(2) would establish how long the new employer is
bound to the pre-reform AWA. It would specify four events which
would cause the new employer to no longer be bound by the
transmitted pre-reform AWA. This result would be brought about on
the occurrence of whichever of the events occurs first. They are
outlined below.
3565. Firstly, the pre-reform AWA would cease to be in operation if it was
terminated in accordance with section 170VM(1) of the pre-reform
Act. Note that proposed clause 9 would provide that a transmitted
pre-reform AWA may not be terminated during the transmission period
under sections 170VM(3) and 170VM(6) of the pre-reform Act, even if
it has reached its nominal expiry date.
3566. Secondly, the pre-reform AWA would cease to be in operation where it
is replaced by a new AWA that binds the transferring employee and
the new employer (subclause 18(1) of Schedule 14).
3567. Thirdly, the pre-reform AWA would not be binding on the new employer
where the employee ceases to be a transferring employee in relation
to the pre-reform AWA. This is where the transferring employee, for
example, ceases to be employed by the new employer, or moves to
another job while still working for the new employer that is not
capable of being covered by the pre-reform AWA.
3568. Finally, the pre-reform AWA would not be binding on the new employer
once the transmission period ends. This means that a new employer
would be bound by the pre-reform AWA by force of subclause 7(1) for
a maximum period of 12 months.
Old employer's rights and obligations that arose before time of
transmission not affected
3569. Proposed subclause 7(3) would provide that this clause does not
affect the rights and obligations of the old employer in respect of
a transferring employee that arose before the time of transmission.
This means, for example, that subclause 7(1) does not intend to
transfer liability for accrued employee entitlements to a new
employer from an old employer.
New clause 8 - Interaction rules
3570. Proposed subclause 8(1) would provide that from the time of
transmission a transitional industrial instrument cannot apply to a
transferring employee's employment, other than the pre-reform AWA.
This means that a new employer's existing transitional industrial
instruments are not capable under this clause of applying, on their
terms to transferring employees.
3571. Proposed subclause 8(2) would clarify that subclause 8(1) has effect
despite section 170VQ of the pre-reform Act.
New clause 9 - Termination of transmitted pre-reform AWA
Transmitted instrument
3572. Proposed subclause 9(1) would provide that clause 9 applies if
subclause 7(1) applies to the pre-reform AWA (ie to a transmitted
pre-reform AWA).
Modified operation of subsections 170VM(3) to (7) of the pre-reform Act
3573. Proposed subclause 9(2) would provide that during the transmission
period, the transmitted pre-reform AWA may not be terminated in
accordance with subsections 170VM(3) and 170VM(6) of the pre-reform
Act, even though it has reached its specified nominal expiry date.
Usually, a nominal expiry date is the date after which a pre-reform
AWA could be terminated other than by agreement between the parties.
Proposed clause 9 departs from this rule for a transmitted pre-
reform AWA to ensure that the transmitted pre-reform AWA may not be
transmitted or replaced without the transferring employees approval
or agreement.
New Part 4 - Transmission of Division 2 pre-reform certified
agreements
3574. Proposed Part 4 would contain the transmission of business
provisions specific to the transfer of Division 2 pre-reform CAs
from an old employer to a new employer.
3575. Division 2 pre-reform CAs are defined in clause 3 as those CAs
(within the meaning of Schedule 14) that were made under Division 2
of Part VIB before reform commencement.
New Division 1
3576. Proposed Division 1 would deal with the general provisions relating
to the transfer of Division 2 pre-reform CAs.
New clause 10 - Transmission of Division 2 pre-reform certified
agreement
New employer bound by Division 2 pre-reform certified agreement
3577. Proposed subclause 10(1) would provide that where the old employer
and employees of the old employer were bound by a Division 2 pre-
reform CA immediately before the time of transmission and there is
at least one transferring employee in relation to the Division 2 pre-
reform CA, the new employer will be bound by the Division 2 pre-
reform CA.
3578. This means that a new employer who is a successor, transmittee or
assignee to a business or part of a business, will be bound by the
Division 2 pre-reform CA that was binding on the old employer, in
respect of an employee if that employee is employed by the new
employer within 2 months and the Division 2 pre-reform CA is capable
of covering the employee's employment with the new employer.
3579. Proposed Note 1 would mention that where the Division 2 pre-reform
CA becomes binding on the new employer by force of this clause, the
new employer may have obligations imposed by clauses 28 and clause
29 with respect to notification.
3580. Proposed Note 2 would mention that the provision should be read in
conjunction with, and subject to, proposed clause 11.
Period for which new employer remains bound
3581. Proposed subclause 7(2) would establish how long the new employer is
bound to the pre-reform AWA. It would specify four events which
would cause the new employer to no longer be bound by the
transmitted pre-reform AWA. This result would be brought about on
the occurrence of whichever of the events occurs first. They are
outlined below.
3582. Proposed subclause 10(2) would establish for how long the new
employer will be bound by the Division 2 pre-reform CA. It would
specify four events which would cause the new employer to no longer
be bound by the Division 2 pre-reform CA, in its entirety. This
result would be brought about on the occurrence of whichever of the
events occurs first. They are outlined below.
3583. Firstly, the Division 2 pre-reform CA would cease to bind the
employer if it was terminated in accordance with section 170MG of
the pre-reform Act. This would mean that the Division 2 pre-reform
CA may be terminated by the AIRC where there is valid majority of
employees who approve the termination. Note that proposed clause
12(3) would provide that a Division 2 pre-reform CA may not be
terminated under section 170MH or 170MHA of the pre-reform Act,
during the transmission period, even where the agreement has
reached its nominal expiry date.
3584. Secondly, the Division 2 pre-reform CA would cease to bind the new
employer when there are no longer any transferring employees in
relation to the Division 2 pre-reform CA. This is where all the
transferring employees, for example, either cease to be employed by
the new employer or move to another job while working for the new
employer that is not capable of being covered by the Division 2 pre-
reform CA.
3585. Thirdly, the new employer would cease to be bound by the Division 2
pre-reform CA in respect of the transferring employees when the
transferring employees replace the Division 2 pre-reform CA with a
collective agreement, or all of the transferring employees make AWAs
with the new employer.
3586. The proposed Note would mention that proposed subclause 10(3) should
be considered to determine how the new employer ceases to be bound
by a Division 2 pre-reform CA in respect of each transferring
employee in order to assess whether all transferring employees are
no longer bound by the Division 2 pre-reform CA.
3587. Lastly, the Division 2 pre-reform CA would not be binding on the new
employer once the transmission period ends. This means that a new
employer would only be bound by the Division 2 pre-reform CA by
force of subclause 10(1) for a maximum period of 12 months.
Period for which new employer remains bound in relation to a particular
transferring employee
3588. Proposed subclause 10(3) would provide the circumstances where the
new employer would no longer be bound by the Division 2 pre-reform
CA in relation to each transferring employee in contrast to proposed
subclause 10(2) which would stipulate when the new employer ceases
to be bound by Division 2 pre-reform CA in respect of all employees.
Subclause 10(3) lists three ways in which this may occur.
3589. Firstly, the Division 2 pre-reform CA would cease to be in operation
in relation to a transferring employee where the new employer makes
an AWA with the transferring employee.
3590. Secondly, the Division 2 pre-reform CA would cease to be in
operation in relation to the transferring employee where it is
replaced by a collective agreement between the new employer and the
(formerly) transferring employee. Note that proposed clause 3 of
Schedule 14 would provide that a collective agreement can replace a
Division 2 pre-reform CA, even where the Division 2 pre-reform CA
has not reached its nominal expiry date.
3591. Finally, the Division 2 pre-reform CA may cease to be binding on a
particular transferring employee because an event in proposed
subclause 10(2) has occurred.
New employer bound only in relation to employment of transferring
employees in the business being transferred
3592. Proposed subsection 10(4) would provide that a new employer is bound
by the Division 2 pre-reform CA in respect of transferring employees
only, in relation to the business being transferred. This provision
is intended to limit the application of the Division 2 pre-reform CA
to transferring employees while they are employed in the business
being transferred. Therefore, employees of the new employer who are
not transferring employees cannot be bound by the Division 2 pre-
reform CA.
New employer bound subject to Commission order
3593. Proposed subclause 10(5) would provide that a new employer is bound
by the Division 2 pre-reform CA by operation of proposed subclauses
10(1), 10(2) and 10(3), subject to an order of the AIRC under
proposed clause 14.
Old employer's rights and obligations that arose before time of
transmission not affected
3594. Proposed subclause 10(6) would provide that this clause does not
affect the rights and obligations of the old employer in respect of
a transferring employee that arose before the time of transmission.
This means, for example, that subclause 10(1) does not intend to
transfer liability for accrued employee entitlements to a new
employer from an old employer.
New clause 11 - Interaction rules
3595. Proposed clause 11 would provide interaction rules that are specific
to Division 2 pre-reform CAs and other instruments. Proposed clause
11 is to be read in conjunction with clause 10.
Transmitted certified agreement
3596. Subclause 11(1) would provide that this clause applies if subclause
11(1) applies to the Division 2 pre-reform CA (ie to a transmitted
Division 2 pre-reform CA).
Existing certified agreement
3597. Subclause 11(2) would specify arrangements for where the new
employer is bound by a collective agreement immediately before the
time of transmission (the existing collective agreement) with
respect to other employees who are not transferring employees, and
the existing collective agreement would be capable of applying on
its terms to a transferring employee. The existing collective
agreement would not apply to the transferring employee by force of
this clause.
3598. The effect of this would be that a transmitted Division 2 pre-reform
CA would not be 'overridden' by an existing collective agreement
that binds the new employer.
3599. However, subclause 11(2) does not intend to prevent an existing
collective agreement from applying to transferring employees where
the transmitted Division 2 pre-reform CA is terminated during the
transmission period.
3600. Proposed subclause 11(3) would provide that subclause 11(2) does not
apply at the end of the transmission period. Therefore, at the end
of the 12 months after transmission, the existing collective
agreement if it is capable of applying on its terms, would not be
precluded from applying to a former transferring employee by
subclause 11(2).
3601. A new employer's existing collective agreement could therefore cover
former transferring employees once the end of the transmission
period has passed or where the transmitted Division 2 pre-reform CA
is terminated.
Transitional industrial instruments not to apply
3602. Proposed subclause 11(4) would provide that from the time of
transmission a transitional industrial instrument cannot apply to a
transferring employee's employment, other than the transmitted
Division 2 pre-reform CA. This means that a new employer's existing
transitional industrial instruments are not capable on their terms
of applying to transferring employees.
3603. Proposed subclause 11(5) would provide that subclause 11(4) has
effect despite section 170LY of the pre-reform Act.
New clause 12 - Termination of transmitted Division 2 pre-reform
certified agreement
Transmitted agreement
3604. Proposed subclause 12(1) would provide that this clause applies if
subclause 10(1) applies to the Division 2 pre-reform CA (ie to a
transmitted Division 2 pre-reform CA).
AWA
3605. Proposed subclause 12(2) would provide that despite subclause 3(2)
of Schedule 14, the transmitted Division 2 pre-reform CA ceases to
be in operation in relation to a transferred employee if the new
employer and the transferred employee make a new AWA. This means
that the transmitted Division 2 pre-reform CA cannot bind the new
employer in respect of the transferring employee again, when an AWA
has operated in respect of the employment, even if the AWA is
terminated prior to the end of the transmission period.
3606. The proposed Note would clarify that a Division 2 pre-reform CA is
normally only suspended in respect of a particular employee while an
AWA is in operation, whereas the effect of proposed subclause 12(2)
would be to permanently cancel the transmitted Division 2 pre-reform
CAs operation.
Modified operation of sections 170MH and 170MHA of the old Act
3607. Proposed subclause 12(3) would provide that a person may not apply
to the AIRC to have the transmitted Division 2 pre-reform CA
terminated under sections 170MH or 170MHA of the pre-reform Act
during the transmission period, even though the agreement has passed
its nominal expiry date. This provision is intended to be an
exception to the rule that a CA may be terminated by the AIRC, when
it has reached its nominal expiry date to ensure that a valid
majority of transferring employees have to approve to terminate the
transmitted Division 2 pre-reform CA.
New Division 2 - Commission's powers
3608. Division 2 would deal with AIRC's power to make orders with respect
to a transferring Division 2 pre-reform CA.
New clause 13 - Application and terminology
3609. Proposed subclause 13(1) would provide that the Division applies if
a person is bound by a Division 2 pre-reform CA and that person's
business or part of a business becomes, or is likely to become
transmitted.
3610. This definition is to enable the Division to capture the time before
transmission as well as at, or after, transmission.
3611. Proposed subclause 13(2) defines terms to be used in the Division,
which again reflect that the Division is to apply before, at and
after the time of transmission.
New clause 14 - Commission may make order
3612. Proposed subclauses 14(1) and (2) would provide that the AIRC can
make an order that an incoming employer:
. is not, or will not be, bound by a Division 2 pre-reform CA that
would otherwise bind the incoming employer under proposed
subclause 10(1); or
. is, or will be, bound by the Division 2 pre-reform CA that binds
an incoming employer by operation of subclause 10(1), but only to
the extent that the AIRC's order specified, including for a
specified period.
3613. The AIRC's order must specify the day from which the order takes
effect, however this time cannot be before the transfer time.
3614. Proposed subclause 14(3) would provide that the AIRC cannot make an
order that would vary or extend the transmission period to provide
that a transmitted Division 2 pre-reform CA is binding on a new
employer for a period longer than 12 months.
New clause 15 - When an application for an order can be made
3615. Proposed clause 15 would provide that an application for an order
under subclause 14(1) can be made before, at or after the transfer
time.
New clause 16 - Who may apply for order
3616. Proposed clause 16 would prescribe who may apply for an order from
the AIRC under proposed clause 16 in respect of a Division 2 pre-
reform CA.
3617. Subclause 16(1) would provide that before the transfer time, an
application for an order can only be made by the outgoing employer.
Therefore, before the transfer time the incoming employer could not
apply for an order that would limit the effect of a Division 2 pre-
reform CA.
3618. Subclause 16(2) would provide that at or after the transfer time, an
application may be made by the:
. incoming employer;
. a transferring employee in relation to the Division 2 pre-reform
CA;
. an organisation of employees that is bound by the Division 2 pre-
reform CA; or
. an organisation of employees that is entitled to apply in
accordance with proposed paragraph 16(2)(d).
3619. The outgoing employer cannot apply for an order at or after the
transfer time as it would no longer be bound by the Division 2 pre-
reform CA in respect of the transferring employee under this
Division.
New clause 17 - Applicant to give notice of application
3620. Proposed clause 17 would provide that an applicant for an order by
the AIRC under proposed clause 14 must take reasonable steps to give
written notice of the application to all persons who may make
submissions in relation to the application (a person who can make a
submission is specified under clause 18). This is not a civil
remedy provision.
New clause 18 - Submissions in relation to application
3621. Proposed clause 18 would establish who may make a submission to the
AIRC in relation to an application for an order under proposed
clause 14 with respect to the Division 2 pre-reform CA.
3622. Under subclauses 18(1) and 18(2), before the transfer time the
following must be given an opportunity by the AIRC to make a
submission:
. the applicant;
. an employee of the outgoing employer who is bound by the Division
2 pre-reform CA and who is employed in the business concerned;
. the incoming employer;
. an organisation of employees that is bound by the Division 2 pre-
reform CA;
. an organisation of employees that is entitled to make a submission
under proposed paragraph 18(2)(d).
3623. Under proposed subclauses 18(1) and 18(3), at or after the transfer
time the following must be given an opportunity by the AIRC to make
a submission:
. the applicant;
. the incoming employer;
. a transferring employee in relation to the transmitted Division 2
pre-reform CA;
. an organisation of employees that is bound by the transmitted
Division 2 pre-reform CA; and
. an organisation of employees that is entitled to make a submission
under proposed paragraph 18(3)(d).
3624. The requirements for organisations under proposed paragraphs
18(2)(d) and 18(3)(d) mirror the requirements for standing with
respect to enforcement and compliance in proposed Part VIII.
New Part 5 - Transmission of State transitional instruments
3625. Proposed Part 5 would contain the transmission of business
provisions specific to the transfer of State transitional
instruments from an old employer to a new employer.
3626. State transitional instruments are defined as preserved State
agreements and notional instruments preserving State awards within
the meaning of Schedule 15 (at clause 3).
New Division 1 - General
3627. Proposed Division 1 would deal with the general provisions relating
to the transfer of State transitional instruments.
New clause 19 - Transmission of State transitional instruments
New employer bound by State transitional instrument
3628. Proposed subclause 19(1) would provide that where the old employer
and employees of the old employer were bound by a State transitional
instrument immediately before the time of transmission and there is
at least one transferring employee in relation to the State
transitional instrument, the new employer will be bound by the State
transitional instrument
3629. This means that a new employer who is a successor, transmittee or
assignee to a business or part of a business, will be bound by the
State transitional instrument that was binding on the old employer,
in respect of an employee if that employee is employed by the new
employer within 2 months and the State transitional instrument is
capable of covering the employee's employment with the new employer.
3630. Proposed Note 1 would mention that where the State transitional
instrument becomes binding on the new employer by force of this
clause, the new employer may have obligations imposed by clauses 28
and 29 with respect to notification.
3631. Proposed Note 2 would mention that the provision should be read in
conjunction with and subject to proposed clause 20.
Period for which new employer remains bound
3632. Proposed subclause 19(2) would establish how long the new employer
will be bound by the transmitted State transitional instrument. It
would specify five events which would cause the new employer to no
longer be bound the transmitted State transitional instrument in its
entirety. This result would be brought about on the occurrence of
whichever of the events occurs first. They are outlined below.
3633. Firstly, the transmitted State transitional instrument would cease
to bind the new employer if it is a preserved State agreement and it
ceases to be in operation under proposed clauses 5 and 21 of
Schedule 15.
3634. Secondly, the transmitted State transitional instrument would cease
to be binding on the new employer, where it is a notional instrument
preserving a State award, at the end of the period of 3 years,
starting at the reform commencement (see clause 33(1) of Schedule
15).
3635. Thirdly, the transmitted State transitional instrument would cease
to bind the new employer when there are no longer any transferring
employees in relation to the transmitted State transitional
instrument. This is where all the transferring employees, for
example, either cease to be employed by the new employer or move to
another job while working for the new employer that is not capable
of being covered by the transmitted State transitional instrument.
3636. Fourthly, the new employer would cease to be bound by the
transmitted State transitional instrument in respect of the
transferring employees when the transferring employees replace the
transmitted State transitional instrument with a collective
agreement, or all of the transferring employees enter into AWAs with
the new employer.
3637. Finally, the transmitted State transitional instrument would not be
binding on the new employer once the transmission period ends. This
means that a new employer would only be bound by the transmitted
State transitional instrument by force of subclause 19(1) for a
maximum period of 12 months.
3638. The proposed Note would mention that proposed subclause 19(3) should
be considered to determine how the new employer ceases to be bound
by a State transitional instrument in respect of each transferring
employee in order to assess whether all transferring employees are
no longer bound by the transmitted State transitional instrument
Period for which new employer remains bound in relation to a particular
transferring employee
3639. Proposed subclause 19(3) would provide the circumstances where the
new employer would no longer be bound by the transmitted State
transitional instrument in relation to each transferring employee in
contrast to proposed subclause 19(2) which would stipulate when the
new employer ceases to be bound by the transmitting State
transitional instrument in respect of all employees. Subclause
19(3) lists four ways in which this can occur.
3640. Firstly, the transmitted State transitional instrument, if it is a
preserved State agreement, would cease to be in operation in
relation to a transferring employee where the new employer makes a
workplace agreement with the transferring employee.
3641. Secondly, the transmitted State transitional instrument, if it is a
notional agreement preserving State awards, would cease to be in
operation in relation to a transferring employee where it is
replaced by a workplace agreement between the new employer and the
employee.
3642. Thirdly, the transmitted State transitional instrument, if it is a
notional agreement preserving State awards, may cease to be binding
on the new employer if an award becomes binding on the transferring
employee (proposed subclause 33(3) of Schedule 15).
3643. Lastly, the new employer may cease to be bound by the State
transitional instrument because an event in proposed subclause 19(2)
has occurred.
New employer bound only in relation to employment of transferring
employees in the business being transferred
3644. Proposed subclause 19(4) would provide that a new employer is bound
by the transmitted transitional State instrument in respect of
transferring employees only. Therefore, employees of the new
employer who are not transferring employees cannot be bound by the
transmitted State transitional instrument.
New employer bound subject to Commission order
3645. Proposed subclause 19(5) would provide that a new employer is bound
by the transmitted State transitional instrument by operation of
subclauses 19(1), 19(2) and 19(3), subject to an order of the AIRC
under proposed clause 23.
3646. Old employer's rights and obligations that arose before time of
transmission not affected
3647. Proposed subclause 19(6) would provide that this clause does not
affect the rights and obligations of the old employer in respect of
a transferring employee that arose before the time of transmission.
This means for example, that subclause 19(1) does not intend to
transfer liability for accrued employee entitlements to a new
employer from an old employer.
New clause 20 - Interaction rules
3648. Proposed clause 20 would provide interaction rules that are specific
to transmitted State transitional instruments and other instruments.
Proposed clause 20 is to be read in conjunction with clause 19.
Transmitted instrument
3649. Subclause 20(1) would provide that this clause applies if 19(1)
applies to the State transitional instrument (ie to a transmitted
State instrument).
Collective agreement
3650. Subclause 20(2) would specify arrangements for where the new
employer is bound by a collective agreement immediately before the
time of transmission (the pre-transmission agreement) with respect
to other employees who are not transferring employees, and the pre-
transmission agreement would be capable of applying on its terms to
a transferring employee. The pre-transmission agreement would not
apply to the transferring employee by force of this section.
3651. The effect of this would be that a transmitted State transitional
instrument would not be 'overridden' by a pre-transmission agreement
that binds the new employer.
3652. However, subclause 20(2) would not intend to preclude a pre-
transmission agreement from applying to transferring employees where
the transmitted State instrument is terminated.
3653. Proposed subclause 20(3) would provide that subclause 20(2) does not
apply at the end of the transmission period. Therefore, at the end
of the 12 months after transmission, the pre-transmission agreement
if it is capable of applying on its terms, would not be precluded
from applying to a former transferring employee by subclause 20(2).
A new employer's pre-transmission agreement could therefore cover
former transferring employees once the end of the transmission
period has passed or where the transmitted State instrument ceases
to operate.
3654. Proposed subclause 20(4) would provide that from the time of
transmission a transitional industrial instrument cannot apply to a
transferring employee's employment, other than the transmitted State
transitional instrument. This means that a new employer's existing
transitional industrial instruments are not capable on their terms
of applying to transferring employees.
3655. Proposed subclause 20(5) would provide that subclause 20(4) has
effect despite subclauses 5 and 25 of Schedule 14.
New clause 21 - Termination of preserved State agreement
Transmitted agreement
3656. Proposed subclause 21(1) would provide that this clause applies if
subclause 19(1) applies to the preserved State individual agreement
Modified operation of subsection 170VM(3) - (7) of the pre-reform Act
3657. Proposed subclause 21(2) would provide that subclause 21(3) applies
to a transmitted preserved individual agreement where section 170VM
of the pre-reform Act is applied to the agreement under subclause
21(3) of Schedule 15.
3658. Proposed subclause 21(3) would provide that the transmitted
preserved State individual agreement cannot be terminated under
subsections 170VM(3) or 170VM(6) of the pre-reform Act, during the
transmission period, even if the agreement has passed its nominal
expiry date. This provision is intended to be an exception to the
rule that a preserved State agreement may be terminated after its
nominal expiry date.
Modified operation of sections 170MH and 170MHA of the pre-reform Act
3659. Proposed subclause 21(4) would provide that subclause 21(5) applies
to a transmitted preserved collective State agreement where section
170MH or 170MHA of the pre-reform Act is applied to the agreement
under subclause 21(3) of Schedule 15.
3660. Proposed subclause 21(5) would provide that the transmitted
preserved collective State agreement cannot be terminated under
sections 170MH or 170MHA of the pre-reform Act, during the
transmission period, even if the agreement has passed its nominal
expiry date. This provision is intended to be an exception to the
rule that a preserved State agreement may be terminated after its
nominal expiry date, to ensure that a valid majority of transferring
employee must agree to have the transmitted preserved State
agreement terminated.
New Division 2 - Commission's powers
3661. Division 2 would deal with AIRC's power to make orders with respect
to transferring State transitional instruments.
New clause 22 -Application and terminology
3662. Proposed subclause 22(1) would provide that the Division applies if
a person is bound by a State transitional instrument and that
person's business or part of a business becomes, or is likely to
become, transmitted.
3663. This definition is to enable the Division to capture the time before
transmission as well as at or after transmission.
3664. Proposed subclause 22(2) defines terms to be used in the Division,
which again reflect that the Division is to apply before, at and
after the time of transmission.
New clause 23 - Commission may make order
3665. Proposed subclauses 23(1) and 23(2) would provide that the AIRC can
make an order that an incoming employer:
. is not, or will not be, bound by a State transitional instrument
that would otherwise bind the incoming employer under subclause
19(1) or
. is, or will be, bound by the State transitional instrument that
binds the incoming employer by operation of subclause 19(1) but
only to the extent that the AIRC's order specified, including for
a specified period.
3666. The AIRC's order must specify the day from which the order takes
effect, however this time cannot be before the transfer time.
3667. Proposed subclause 23(3) would provide that the AIRC cannot make an
order that would vary or extend the transmission time to provide
that a transmitting State transitional instrument is binding on a
new employer for a period longer than 12 months.
New clause 24 - When an application for an order can be made
3668. Proposed clause 24 would provide that an application for an order
under subclause 23(1) can be made before, at or after the transfer
time.
New clause 25 - Who may apply for order
3669. Proposed clause 25 would prescribe who may apply for an order from
the AIRC in respect of a State transitional instrument.
3670. Subclause 25(1) would provide that before the transfer time, an
application for an order can only be made by the outgoing employer.
Therefore, before the transfer time, the incoming employer could not
apply for an order.
3671. Subclause 25(2) would provide that at or after the transfer time, an
application may be made by the incoming employer, a transferring
employee in relation to the State transitional instrument, an
organisation of employees that is bound by the State transitional
instrument or an organisation of employees that is entitled to apply
in accordance with proposed paragraph 25(2)(d). The outgoing
employer cannot apply for an order at or after the transfer time as
it would no longer be bound by the State transitional instrument in
respect of the transferring employee under this Division.
New clause 26 - Applicant to give notice of application
3672. Proposed clause 26 would provide that an applicant for an order by
the AIRC under proposed clause 23 must take reasonable steps to give
written notice of the application to all persons who may make
submissions in relation to the application (a person who can make a
submission is specified under clause 27). This is not a civil
remedy provision.
New section 27 - Submission in relation to application
3673. Proposed clause 27 would establish who may make a submission to the
AIRC in relation to an application for an order under proposed
clause 23 to prevent or stop a State transitional instrument from
transmitting.
3674. Under subclauses 27(1) and 27(2), before the transfer time the
following must be given an opportunity by the AIRC to make a
submission:
. the applicant;
. an employee of the outgoing employer who is bound by the State
transitional instrument and who is employed in the business
concerned;
. the incoming employer;
. an organisation of employees that is bound by the State
transitional instrument;
. an organisation of employees that is entitled to make a submission
under proposed paragraph 27(2)(d).
3675. Under proposed subclauses 27(1) and 27(3), at or after the transfer
time the following must be given an opportunity by the AIRC to make
a submission:
. the applicant;
. the incoming employer;
. a transferring employee in relation to the transmitted State
transitional instrument;
. an organisation of employees that is bound by the transmitted
State transitional instrument; and
. an organisation of employees that is entitled to make a submission
under proposed paragraph 27(3)(d)(ii).
3676. The requirements for organisations under proposed paragraphs
27(2)(d) and 27(3)(d) mirror the requirements for standing with
respect to enforcement and compliance in proposed Part VIII.
New Part 6 - Notice requirements and enforcement
New clause 28 - Informing transferring employees about transmission
of transitional instrument
3677. Proposed clause 28 would create notification obligations for a new
employer with respect to a transferring employee. The effect of the
provisions would be to inform the transferring employee about the
operation of transferred instruments and what instruments may apply
to the transferred employee and new employer in a transmission of
business situation. The provisions are civil remedy provisions.
3678. Subclause 28(1) would apply where a transitional instrument binds an
employer by force of the transmission of business provisions
(clauses 7, 10 and 19) in respect of a transferring employee.
3679. Subclause 28(2) would provide that within 28 days after the
transferring employee commences employment with the new employer,
the new employer must take reasonable steps to give the transferring
employee a notice that complies with subclause 28(3). There may be
exceptional circumstances which prevent a new employer from
complying with subsection 28(2).
3680. Subsection 28(3) would set out what must be contained in the notice
for it to comply with the provision.
3681. The notice must:
. identify the transmitted transitional instrument (eg the name and
date of commencement of the pre-reform AWA, Division 2 pre-reform
certified agreement or State transitional instrument);
. confirm that the new employer is bound by the transmitted
transitional instrument;
. specify the end date for the transmission period (ie the actual
date that is 12 months from the time of transmission);
. explain that the new employer will continue to be bound by the
transmitted transitional instrument until the end of the
transmission period unless it is terminated or otherwise ceases to
have effect before the end of that period;
. specify how the transferred employee and the new employer might
cease to be bound to the transmitted transitional instrument;
. set out the new employer's intentions for what instruments will
cover the transferring employer (eg the employer intends to make a
new collective agreement with the transferring employees);
. identify any other instrument that may be capable of applying, on
its terms to the transferring employees when the transmission
period ends, or if the transmitted transitional instrument is
terminated.
3682. The requirement that the new employer's intentions be indicated in
relation to the instrument that would regulate the transferring
employees employment at the end of the transmission period, or, if
the transmitted instrument is terminated, should not of itself be
seen as imposing any legal obligation on the new employer to act as
intended. However, this would not preclude penalties under some
other law if these statements amounted to, for example, fraud or
misleading conduct.
3683. Subclause 28(4) would establish situations where a new employer does
not have the notification obligations imposed by clause 28.
3684. Where a transferring employee is bound by a pre-reform AWA, and the
transferring employee and the new employer make a new AWA at the
time of transmission, or within 14 days of that time, then the new
employer will not be obliged to give notice under clause 28.
3685. Also, where the transmitted instrument is not a pre-reform AWA and
the new employer and a transferring employee become bound by an AWA
or collective agreement at the time of, or within 14 days after, the
time of transmission, the new employer would not have notification
obligations in respect of that transferring employee.
3686. The reason for removing the notification requirements in these
situations is that the transmitted transitional instrument ceases to
operate under Schedule 16 or at the choice of a transferring
employee soon after the time of transmission, making notification
redundant.
New clause 29 - Lodging copy of notice with Employment Advocate
Only one transferring employee
3687. Proposed subclause 29(1) would deal with the situation where there
is only one transferring employee with respect to the particular
transmitted transitional instrument.
3688. Where there is only one transferring employee with respect to a
transmitting pre-reform AWA, Division 2 pre-reform CA or State
transitional instrument, and the new employer gives notice under
subclause 29(2) to that employee, the employer must also lodge a
copy of the notice with the Employment Advocate.
3689. This notice must be lodged in accordance with subclause 29(4) within
14 days of giving the notice to the transferring employee.
3690. Proposed Note 1 would indicate that subclause 29(1) is a civil
remedy provision with reference to clause 31.
3691. Proposed Note 2 would refer to obligations imposed by sections 137.1
and 137.2 of the Criminal Code in relation to the provision of
information or documents.
Multiple transferring employees and notices all given on the one day
3692. Proposed subclause 29(2) would deal with the situation where there
are a number of transferring employees with respect to a particular
instrument, who were all given notice under subclause 28(2) on the
same day.
3693. Where the new employer gives a number of notices under subclause
28(2) to transferring employees in relation to a transmitting
Division 2 pre-reform CA or State transitional instrument, and all
the notices are given on the one day, the employer must lodge a copy
of one of those notices with the Employment Advocate.
3694. This notice must be lodged in accordance with subclause 29(4) within
14 days of giving the notice to the transferring employee.
3695. Proposed Note 1 would indicate that subclause 29(2) is a civil
remedy provision with reference to clause 31.
3696. Proposed Note 2 would refer to obligations imposed by sections 137.1
and 137.2 of the Criminal Code in relation to the provision of
information or documents.
Multiple transferring employees and notices given on different days
3697. Proposed subclause 29(3) would deal with the situation where there
are a number of transferring employees with respect to a particular
instrument, who were all given notice under subclause 28(2) but on
different days.
3698. Where the new employer gives a number of notices under subclause
28(2) to transferring employees in relation to a transmitting
Division 2 pre-reform CA or State transitional instrument, and all
the notices are given on different days, the employer must also
lodge a copy of one of those notices with the Employment Advocate.
3699. This notice must be a copy of the notice given on the first of those
days and lodged in accordance with subclause 29(4) within 14 days of
giving the first notice to a transferring employee.
3700. Proposed Note 1 would indicate that subclause 29(3) is a civil
remedy provision with reference to clause 31.
3701. Proposed Note 2 would refer the reader to obligations imposed by
sections 137.1 and 137.2 of the Criminal Code in relation to the
provision of information or documents.
Lodgment with the Employment Advocate
3702. Proposed subclause 29(4) would provide that a notice is lodged in
accordance with this subclause only once it is actually received by
the Employment Advocate.
3703. The proposed Note would explain that section 29 Acts Interpretation
Act 1901 (AI Act) does not apply to lodgment of a notice. Section
29 of the AI Act provides that service of a document is normally
effected when it is 'properly prepaid, addressed and posted'.
New clause 30 - Employment Advocate must issue receipt for lodgment
3704. Proposed clause 30 would provide that the Employment Advocate must
issue a receipt for a notice received under clause 29. The receipt
must state that it was lodged in accordance with clause 29 and
specify the date.
3705. The Employment Advocate would need to give a copy of the receipt to
the person who lodged the notice under clause 29.
New clause 31 - Civil penalties
3706. Proposed clause 31 would deal with the civil remedy provisions of
Schedule 16.
3707. Subclause 31(1) would specify the notification provisions in
relation to transmitted transitional instruments under subclauses
28(2) and 29(1), 29(2) and 29(3) are civil remedy provisions.
3708. The proposed note would indicate that proposed Division 4 of Part
VIII also contains provisions that are relevant to the consideration
of civil remedies under the WR Act.
3709. Proposed subclauses 29(2) and 29(3) would provide that the Federal
Magistrates Court or the Federal Court (the Court) may order a
person who has contravened the civil remedy provisions to pay a
pecuniary penalty of not more than 300 penalty units for a body
corporate or 60 penalty units in other cases.
3710. Subclause 29(4) would establish who has standing (ie who is
entitled) to make an application in relation to enforcing the
notification requirements under subclauses 28(2), 29(1), 29(2) and
29(3). Who has standing would vary depending on the nature of the
transmitted transitional instrument.
New Part 7 - Matters relating to Victoria
3711. Proposed Part 7 would provide that, to the extent that Schedule 16
provides transmission of business rules for transitional instruments
that were made under the extended operation of the WR Act to cover
employees and employers in Victoria, or which apply to purely
through the referral of power by the Parliament of Victoria to the
Parliament of the Commonwealth in the Commonwealth Powers
(Industrial Relations) Act 1996 (Vic) ('CP(IR) Act'), and to the
extent that the transmission of business rules affect such employees
and employers, those provisions would apply only in so far as and as
long as they are within the powers referred by the CP(IR) Act.
New clause 32 - Definitions
3712. Proposed clause 32 would provide definitions to apply throughout
Part 7 of Schedule 16 to the WR Act.
3713. Under clause 32, the terms employee, employer and employment would
have the same meaning as provided by proposed section 489 of the WR
Act. Consequentially, an employee for the purposes of Part 7 of
Schedule 16 will mean an employee in Victoria who is both within the
meaning of employee in section 3 of the CP(IR) Act, and not an
employee within the meaning of proposed subsection 4AA(1).
Expressed another way, an employee within the meaning of clause 32
is a person who is an employee within the meaning of section 3 of
the CP(IR) Act in Victoria, and not one of the following:
. an employee of a constitutional corporation; or
. an employee of the Commonwealth; or
. an employee of a person or entity (which may be an unincorporated
club) of an individual, so far as the person or entity, in
connection with constitutional trade or commerce, employs the
individual as a flight crew officer, a maritime employee or a
waterside worker;
. an employee of a body corporate incorporated in a Territory; or
. a person or entity (which may be an unincorporated club) that
carries on an activity (whether of a commercial, governmental or
other nature) in a Territory in Australia, so far as the person or
entity employs the employee in connection with the activity
carried on in the Territory.
3714. The terms employer and employment would have a meaning that
corresponds to employee in Part 7 of Schedule 16 to the WR Act.
3715. As a result of the meanings of pre-reform AWA, pre-reform certified
agreement and section 170MX award provided by clause 3 of Schedule
16 (see also clause 1 of Schedule 14), the provisions of Schedule 16
would apply on their terms (subject to modifications made by Part 7
of Schedule 16) to a Victorian reference AWA, Victorian reference
certified agreement or Victorian reference section 170MX award.
This would be the case because:
. a 'Victorian reference AWA' within the meaning of clause 32 would
be within the definition of a 'pre-reform AWA' within the meaning
of clause 3;
. a 'Victorian reference certified agreement' within the meaning of
clause 32 would be within the definition of a 'pre-reform
certified agreement' within the meaning of clause 3; and
. a 'Victorian reference section 170MX award' within the meaning of
clause 32 would be within the definition of a 'section 170MX
award' within the meaning of clause 3.
3716. Clause 32 would also provide that, for the purposes of Part 7 of
Schedule 16 to the WR Act, the term 'this Schedule' means Schedule
16 but not Part 7 of Schedule 16.
New clause 33-Additional effect of Schedule
3717. Proposed clause 33 would provide that Schedule 16 shall have
additional effect in relation to the employment of 'employees' by
'employers' (as those terms are defined by proposed section 489),
for so long, and in so far, as that extended application is within a
referral of matter by the Parliament of Victoria to the Parliament
of the Commonwealth in the CP(IR) Act.
3718. Subclause 33(1) would provide that, without affecting its operation
apart from proposed clause 33, Schedule 16 the WR Act also has
effect that it would have if:
. each reference in Schedule 16 to an employer meant an employer
within the meaning of proposed subsection 4AB(1) or an employer
within the meaning of proposed section 489 in Victoria;
. each reference in Schedule 16 to an employee meant an employee
within the meaning of proposed subsection 4AA(1) or an employee
within the meaning of proposed section 489 in Victoria;
. each reference in Schedule 16 to employment meant employment
within the meaning of proposed subsection 4AC(1) or employment
within the meaning of proposed section 489 in Victoria;
. each reference in Schedule 16 to 'employed' included 'employed'
within the meaning of proposed section 489 in Victoria; and
. Part 5 of Schedule 16 (which relates to State industrial
instruments which are not relevant to Victoria) had not been
enacted.
3719. Proposed subclause 33(2) would make it clear that, to the extent
that Schedule 16 (as it has effect because of subclause 33(1))
applies if an employer (within the meaning of proposed section 489)
in Victoria becomes the successor, transmittee or assignee of the
whole, or a part, of the business of an employer within the meaning
of proposed subsection 4AB(1) or an employer within the meaning of
proposed section 489 in Victoria, Schedule 16 only operates for as
long as, and in so far, as the relevant referral of a matter to the
Parliament of the Commonwealth is in effect and provides sufficient
legislative power for Schedule to have that effect. This reflects
the constitutional position.
3720. Proposed subclause 33(3) would make it clear that, to the extent
that Division 2 of Part 4 of Schedule 16 (as it has effect because
of subclause 33(1)) applies if an employer (within the meaning of
proposed section 489) in Victoria is likely to become the successor,
transmittee or assignee of the whole, or a part, of the business of
an employer within the meaning of proposed subsection 4AB(1) or an
employer within the meaning of proposed section 489 in Victoria,
Division 2 of Part 4 of Schedule 16 only operates for as long as,
and in so far, as the relevant referral of a matter to the
Parliament of the Commonwealth is in effect and provides sufficient
legislative power for Schedule to have that effect. This reflects
the constitutional position.
New Part 8 - Transitional instruments and transmitted post-reform
instruments
New clause 34 - Relationship between transitional instruments and
transmitted collective agreement
3721. Proposed subclause 34(1) would provide that this clause applies if
subsection 125(1) applies to a collective agreement (ie to a
transmitted collective agreement).
3722. Proposed subclause 34(2) would provide that from the time of
transmission, a transitional industrial instrument does not apply to
a transferring employee's employment with the new employer.
3723. This means that the transferring employees in relation to a
transmitted collective agreement cannot be covered by an employer's
existing transitional instrument.
3724. Proposed subclause 34(3) would define terms relevant to the clause.
New clause 35 - Relationship between transitional instruments and
transmitted award
3725. Proposed subclause 35(1) would provide that this clause applies if
subsection 126(1) applies to an award (ie to a transmitted award).
3726. Proposed subclause 35(2) would provide that from the time of
transmission, a transitional industrial instrument does not apply to
a transferring employee's employment with the new employer.
3727. This means that the transferring employees in relation to a
transmitted award, cannot be covered by an employer's existing
transitional instrument.
3728. Proposed subclause 35(3) would provide that the clause operates
despite provisions which may provide the contrary.
3729. Proposed subclause 35(4) would define terms relevant to the clause.
New Part 9 - Miscellaneous
New clause 36 - Regulations
3730. Proposed clause 36 would enable regulations to made with respect to
the succession, transmission or assignment of a business or part of
a business, and the obligations of employers subject to transitional
industrial instruments in these situations. The regulations might
also deal with the terms and conditions of the employment of
employees covered by transitional industrial instruments whose
employment is affected by a transmission, assignment or succession
of a business, or part of a business.
3731. This regulation making power is intended to be broad in scope, and
should not be construed narrowly.
Schedule 2 - Transitional arrangements for State organisations
Item 1 - After section 4A
3732. This item would insert proposed clause 4B.
New section 4B - Schedule 17 has effect
3733. Proposed clause4B would give effect to Schedule 17.
Item 2 - At the end of the Act
3734. This item would add a new Schedule to the WR Act.
Schedule 17 - Transitionally-registered associations.
3735. The Schedule would allow State registered employer and employee
associations who have rights under State industrial laws to
represent members who are moving into the federal system to gain
transitional registration status under the WR Act and thereby retain
their right to represent those members.
3736. A transitionally registered association would have three years to
become fully registered under Schedule 1B. During that period, its
activities would continue to be governed by its State registration
regime and not Schedule 1B. However, it would be given the same
rights and obligations as a registered organisation has under the
WR Act. For example, it would be able to enter into collective
agreements, apply for right of entry permits, and engage in
protected industrial action.
3737. The Schedule would set out a scheme for transitional registration,
including the criteria for registration and cancellation of
transitional registration provisions. It would also provide that
regulations may be made that would affect the way in which the
registration provisions in of Schedule 1B would apply to
transitionally registered associations seeking full federal
registration. It is intended that those regulations would affect
the operation of the 'conveniently belong rule' and provide that
transitionally registered associations which are identical to an
organisation (or part of an organisation) registered under
Schedule 1B would not be entitled to fully register.
New clause 1 - Definitions
3738. Proposed clause 1 would define a number of terms which would be used
in Schedule 17. One of these terms would be 'State-registered
association', which would be defined as a body that is an industrial
organisation or association for the purposes of specified State
workplace relations legislation.
New clause 2 - Application for transitional registration
3739. Proposed clause 2 would set out the criteria which a State-
registered association must satisfy in order to transitionally
register.
3740. Such an association would not be eligible for transitional
registration unless, immediately prior to the commencement of the
Schedule, it:
. was bound by a State award or State employment agreement
(paragraph 2(1)(a));
. had at least one member who was an employee and whose employment
was subject to the award, employment agreement, or a State or
Territory industrial law, or an employer of such an employee
(paragraph 2(1)(b)); and
. was entitled to represent the industrial interests of the member
in relation to the work that was covered by the award, employment
agreement, or State or Territory industrial law
(paragraph 2(1)(c)).
3741. In addition to these criteria, an association would not be eligible
for transitional registration unless on the reform commencement, the
employee or employer will become bound by, or the employment of the
employee will be subject to, a preserved State agreement or a
notional agreement preserving State awards (paragraph 2(1)(d)).
3742. The final criterion would be that the association is not already an
organisation or a branch of an organisation registered under
Schedule 1B (paragraph 2(1)(e)).
3743. The purpose of this requirement would be to prevent multiple
registrations by the same entity as some State-registered
associations may already be registered under Schedule 1B. For
example, a federally registered organisation or a branch of a
federally registered organisation may register as an organisation
under the Industrial Relations Act 1996 (NSW). Such associations
would not be able to transitionally register under Schedule 17.
3744. Subsection 2(2) would provide that an application for transitional
registration must be accompanied by:
. a copy of the rules of the association (paragraph 2(2)(b));
. other particulars of the association (for example, its address and
details of its officers) (paragraph 2(2)(c)); and
. evidence establishing that the applicant satisfies the criteria
set out in subsection (1) (paragraph 2(2)(a)).
3745. Subclause 2(3) would provide that the Registrar must grant an
application for transitional registration if he or she is satisfied
the association has satisfied the criteria set out in subclause
2(1). The grant of transitional registration would be required to
be recorded on a written instrument. The written instrument issued
by the Registrar:
. would not be a legislative instrument for the purposes of the
Legislative Instruments Act 2003 (subsection 2(4)), and
. must be provided to the association granted transitional
registration (subclause 351(5)).
3746. Subclause 2(6) would provide that an association is taken to be
registered under Schedule 17 when the Registrar grants the
application.
New clause 3 - Application of this Act to transitionally-registered
associations
3747. Proposed clause 3 would provide that the provisions of the WR Act
(other than Schedule 1B) apply to associations granted transitional
registration as though they were organisations registered under
Schedule 1B. This would confer upon transitionally-registered
associations the same rights and obligations enjoyed by Schedule 1B
organisations under the WR Act such as being able to enter into
collective agreements and apply for right of entry permits.
3748. Clause 3 would also provide that the provisions of the WR Act (other
than Schedule 1B) apply to the transitionally registered association
as though it were a legal person.
3749. The non-application of Schedule 1B to transitionally registered
associations occurs through the use of the term 'this Act' in the
proposed section. 'This Act' would be defined in proposed clause 4
so as to exclude Schedule 1B or regulations made under Schedule 1B.
Transitionally registered associations would not be required to
comply with the provisions of Schedule 1B, insofar as they apply to
organisations within the meaning of Schedule 1B. This is to avoid
them being required to comply with two substantive sets of
governance provisions as they will remain subject to whatever
regulatory requirements are imposed upon them by virtue of their
registration or status under state industrial laws.
New clause 4 - Representation rights of transitionally-registered
associations
3750. Proposed subclause 4(1) would provide that regulations may be made
enabling the AIRC to make orders in relation to the right of
transitionally-registered associations to represent the interests of
particular classes or groups or employees. Subclause 4(2) would
provide that such regulations may specify the weight to be given by
the AIRC to existing State demarcation orders. It is intended that
the regulations made under this section would require the AIRC to
take appropriate account of any State demarcation orders and whether
those demarcations should be maintained in the federal system.
New clause 5 - Cancellation of transitional registration
3751. Proposed clause 5 would set out the grounds on which the Federal
Court, the AIRC, or the Registrar would be able to cancel an
association's transitional registration.
Cancellation by the Federal Court
3752. Subclause 5(1) would provide that an interested person or the
Minister for Employment and Workplace Relations may apply to the
Federal Court for an order cancelling the transitional registration
of an association on certain grounds.
3753. These grounds include that the association (or a substantial number
of its members):
. has engaged in conduct which has prevented or hindered the
achievement of an object of the WR Act (paragraph 5(1)(a));
. has engaged in industrial action that has prevented, hindered or
interfered with the activities of a federal system employer or
with the provision of any public service by the Commonwealth, a
State or a Territory or an authority of the Commonwealth, a State
or a Territory (subparagraphs 5(1)(b)(i) - (ii)); or
. has, or is, engaged in industrial action which has had, or is
likely to have, a substantial adverse effect on the safety, health
and welfare of the community or a part of the community
(paragraph 5(1)(c)).
3754. A further ground for the cancellation of transitional registration
would be that the association (or a substantial number of its
members or a section or class of members) has failed to comply with
various Court orders under the WR Act including:
. an injunction to stop industrial action (subparagraph 5(1)(d)(i));
. an order in relation to contravention of the strike pay provisions
(subparagraph 5(1)(d)(ii));
. an order made under the WR Act's freedom of association provisions
(subparagraph 5(1)(d)(iii));
. an interim injunction granted under proposed section 354A of the
WR Act in relation to a contravention of the industrial action,
strike pay or freedom of association provisions
(subparagraph 5(1)(d)(iv)); or
. an order made under section 23 of Schedule 1B, which provides that
certain orders may be made in consequence of a finding that an
association or organisation has engaged in prohibited conduct
under sections 21 and 22 of Schedule 1B (subparagraph 5(1)(d)(v)).
3755. Subclause 5(2) would provide that an association which is subject to
an application to cancel its transitional registration must be given
an opportunity to be heard.
3756. Subclause 5(3) would provide the Federal Court with discretion
regarding whether it cancels an association's transitional
registration. If the Court finds that a ground for cancellation has
been established (paragraph 354(4)(a)) then it must cancel the
registration unless it considers the cancellation would be unjust
having regard to the gravity of the relevant conduct and any
mitigating or other conduct (paragraph 5(4)(b)).
Cancellation by the AIRC
3757. Proposed paragraph 5(5)(a) would provide that the AIRC may, on
application by a State-registered association, cancel the
association's transitional registration. Proposed paragraph 5(5)(b)
would provide that the AIRC, on application by an interested person
or the Minister, may also cancel an association's transitional
registration if it is satisfied that the association:
. was registered by mistake (subparagraph 5(5)(b)(i)); or
. is no longer a State-registered association (subparagraph
5(5)(b)(ii)).
Cancellation by the Registrar
3758. Subsection 5(6) would provide that the Registrar may cancel an
association's transitional registration if he or she is satisfied
that the association no longer exists. The cancellation must be by
written instrument.
3759. Subsection 5(7) would provide that the written instrument recording
the cancellation of an association's transitional registration is
not a legislative instrument.
New clause 6 - End of transitional registration
3760. Proposed section 6 would provide that an association's transitional
registration would cease:
. when cancelled by the Federal Court, the AIRC or the Registrar
under section 5 (subclause 6(a)); or
. when the association becomes registered under Schedule 1B
(subclause 6(b)).
3761. Clause 6 would also provide that an association's transitional
registration would cease three years after the commencement of
Schedule 17 (subclause 6(c)). This reflects the fact that these
provisions are only transitional and that transitionally registered
associations will ultimately need to become an organisation
registered under Schedule 1B if they wish to retain rights under the
WR Act.
New clause 7 - Modification of Registration and Accountability of
Organisations Schedule
3762. Proposed clause 7 would provide that regulations may be made
affecting the way in which clause 19 of Schedule 1B would operate in
relation to applications for registration as an organisation by
transitionally-registered associations. Clause 19 of Schedule 1B
sets out the criteria for registration as an employer or employee
organisation. One of the requirements is that there is not already
an organisation registered under Schedule 1B:
. to which the members of the association applying for registration
could more conveniently belong; and
. that would more effectively represent those members.
3763. This is commonly known as the 'conveniently belong to rule'. It is
intended that regulations would be made pursuant to clause 7 to
provide that this rule does not apply to transitionally registered
associations seeking registration under Schedule 1B.
3764. It is also intended that a regulation would also be made under
section 356 to make it a criterion for registration that the
transitionally-registered association is not substantially or
effectively the same as a federal organisation or part of a federal
organisation. That regulation would prevent, for example, the
registration under Schedule 1B of a State-registered association
which is identical in all respects to the State branch of an
affiliated federal organisation but has a separate legal identity
through being registered under a state industrial law.
Schedule 3 - School-based apprentices and trainees
Item 1 - After Part XVI
3765. This item would insert a new Part XVII
New Part XVII - School-based apprentices and trainees
3766. Part XVII would provide for minimum rates of pay and conditions for
school-based apprentices and trainees. Item 4 of the table in
clause 2 of the Bill enables Part XVII to commence ahead of other
provisions in the Bill to ensure that provisions for minimum wages
and conditions for school-based apprentices and trainees commence at
the start of the 2006 school year.
3767. Proposed Part XVII is designed to remove a major barrier to the
employment of school-based apprentices and trainees. Some awards
make no specific provision for the pay and conditions of school-
based apprentices and trainees. Those awards impose disincentives
to the employment of school-based apprentices and trainees because
the employer must pay them the full-time apprentice or trainee rate
of pay.
3768. Proposed Part XVII would remove these disincentives by establishing
appropriate minimum wages and conditions for school-based
apprentices and trainees who would not otherwise be covered by an
appropriate instrument. The minimum wages would be set at the
standard level currently contained in Federal awards.
New section 550 - Definitions
3769. Proposed section 550 would set out definitions of terms used in Part
XVII, including:
3770. School-based apprentice would be defined as an employee whose
employment is part of his or her schooling, and who would otherwise
be a full-time apprentice if working full-time in the same capacity.
While undertaking school-based training, the school-based
apprentice continues their course of secondary education.
3771. School-based trainee would be defined as an employee, other than a
school-based apprentice, whose employment is part of a school-based
training arrangement. While undertaking school-based training, the
school-based trainee would continue their course of secondary
education.
3772. Training arrangement would be defined to mean a combination of work
and training done under a training agreement or contract which is
registered with a State or Territory training authority, which is
also or alternatively registered under a law of a State or Territory
relating to the training of employees.
3773. Work on-the-job would be defined, in relation to a school-based
apprentice or a school-based trainee, as work that contributes
directly to the productive output of the employer of that apprentice
or trainee. It is intended that time spent studying by the employee
or undertaking other off-the-job training is not included within the
definition.
New section 551 - Concurrent operation of State and Territory laws
3774. Proposed section 551 would provide that Part XVII does not apply to
the exclusion of a State or Territory law to the extent that the law
is capable of operating concurrently with Part XVII. It would
operate from the commencement of Part XVII until Part VA commences.
During the transitional period, where a State or Federal award that
binds a constitutional corporation contains express provisions for
school-based apprentices and trainees, pay rates in the award will
apply. After the transitional period, wage and classification
provisions in awards will be translated into an Australian Pay and
Classification Scale.
New section 552 - Pay for school-based apprentices
3775. Proposed section 552 would provide for the minimum rate of pay for
school-based apprentices in the transitional period, where the
relevant wage instrument does not specifically provide for pay rates
for this category of employees.
3776. Proposed subsection 552(1) would provide that the rate of pay for a
school-based apprentice is an hourly rate of pay that is paid only
for hours worked on-the-job, as calculated in accordance with a
formula. The formula would provide that the rate of pay payable to
a school-based apprentice is the rate for the corresponding full-
time first-year apprentice (as contained in the relevant wage
instrument) multiplied by 1.25. The formula is consistent with
model clauses endorsed by the Full Bench of the AIRC on 6 March 2000
[Print S3850].
3777. To avoid doubt, proposed subsection 552(2) would clarify that
subsection 552(1) does not prevent a school-based apprentice from
receiving a higher rate of pay, for example in a workplace
agreement, than the rate calculated in accordance with subsection
552(1).
3778. Proposed subsection 552(3) would provide that section 552 does not
apply to a school-based apprentice if a wage instrument covers the
work of the school-based apprentice, and makes specific provision
for a rate of pay for school-based apprentices.
New section 553 - Additional conditions for school-based apprentices
3779. Proposed section 553 would provide that a school-based apprentice is
entitled to the conditions of a corresponding full-time apprentice
(other than rates of pay which will be determined in accordance with
this proposed Part XVII).
3780. Proposed subsection 553(1) would provide that a school-based
apprentice is entitled to the conditions of a corresponding full-
time apprentice.
3781. Proposed subsection 553(2) would provide that the full-time
conditions to which a school-based apprentice is entitled under
subsection 553(1) are adjusted as necessary in proportion to the
hours worked on-the-job by the school-based apprentice. The
operation of proposed subsection 553(1) is intended to be subject to
any regulations made under subsection 553(3).
3782. Proposed subsection 553(3) would enable regulations to be made to
determine or make provision for determining:
. whether particular full-time conditions should be adjusted in
proportion to the hours worked on-the-job by the school-based
apprentice. (In effect, this provision would allow for
adjustments to be made to the minimum entitlement that is
otherwise conferred under subsection 553(2), to allow for
entitlements more generous than the entitlement under subsection
553(2)); and/or
. the method for adjusting particular full-time conditions in
proportion to the hours worked on-the-job by the school-based
apprentice.
3783. To avoid doubt, proposed subsection 553(4) would clarify that
section 553 does not prevent a school-based apprentice from
receiving conditions more generous than those provided by section
553.
3784. Proposed subsection 553(5) would provide that section 553 does not
apply to a school-based apprentice if a wage instrument covers the
work of the school-based apprentice, and makes specific provision
for rates of pay for school-based apprentices.
New section 554 - Pay for apprentices who were school-based
apprentices
3785. Proposed section 554 would provide that, if a school-based
apprentice continues an apprenticeship after finishing school, half
the time spent as a school-based apprentice will count as time spent
as a full-time apprentice. The intended effect of this provision is
that it would, in accordance with the formula, count a person's time
as a school-based apprentice for the purpose of determining the
applicable wage scale for a full-time apprentice in the relevant
wage instrument. For example, if an employee has spent two years as
a school-based apprentice, that will count as one year spent as a
full-time apprentice, and the minimum wage rate for a one-year full-
time apprentice will apply.
New section 555 - Pay for school-based trainees
3786. Proposed section 555 would provide for the rate of pay for school-
based trainees in the transitional period.
3787. Proposed subsection 555(1) would provide a specific rate of pay for
school-based trainees. The minimum rate of pay for a school-based
trainee enrolled in a year up to and including Year 11 would be
$7.27 per hour. The minimum rate of pay for a school-based trainee
enrolled in Year 12 or a later year would be $7.99 per hour. These
rates are drawn from comparable hourly rates of pay for trainees
under the National Training Wage Award 2000. The level of these
rates reflects the fact that school-based trainees are only paid for
hours they spend on-the-job, whereas the rates for full-time
trainees include payment for time spent in approved off-the-job
training. After the commencement of the larger reform Bill, these
rates will be preserved, and subject to periodic adjustment by the
AFPC.
3788. To avoid doubt, proposed subsection 555(2) would clarify that
section 555 does not prevent a school-based trainee from receiving
conditions more generous than those provided by subsection 555(1).
3789. Proposed subsection 555(3) would provide that section 555 does not
apply to a school-based trainee if a wage instrument covers the work
of the school-based trainee, and makes specific provision for a rate
of pay for school-based trainees.
New section 556 - Additional conditions for school-based trainees
3790. Proposed section 556 would provide that a school-based trainee is
entitled to the conditions of a corresponding full-time trainee
(other than rates of pay which will be determined in accordance with
this Part XVII).
3791. Proposed subsection 556(1) would provide that a school-based trainee
is entitled to the conditions of a corresponding full-time trainee.
3792. Subject to section 557, which deals with payment of a loading in
lieu of certain conditions, proposed subsection 556(2) would provide
that the full-time conditions to which a school-based apprentice is
entitled under subsection 556(1) are adjusted as necessary in
proportion to the hours worked on-the-job by the school-based
apprentice.
3793. Proposed subsection 556(3) would enable regulations to be made to
determine or make provision for determining:
. whether particular full-time conditions should be adjusted in
proportion to the hours worked on-the-job by the school-based
trainee. (In effect, this provision would allow for adjustments
to be made to the minimum entitlement that is otherwise conferred
under subsection 556(2), to allow for entitlements more generous
than the entitlement under subsection 556(2)); and/or
. the method for adjusting particular full-time conditions in
proportion to the hours worked on-the-job by the school-based
trainee.
3794. Proposed subsection 556(5) clarifies that section 556 does not
prevent a school-based trainee from receiving conditions more
generous than those provided by section 556.
3795. Proposed subsection 556(6) would provide that section 556 does not
apply to a school-based trainee if a wage instrument covers the work
of the school-based trainee, and makes specific provision for a rate
of pay for school-based trainees.
New section 557 - Loading in lieu of certain conditions
3796. Proposed section 557 would provide for loading of 20% in lieu of
certain conditions for a school-based trainee.
3797. Subsection 557(1) would provide that the employer and school-based
trainee may, by written agreement, pay the school-based trainee
loading in lieu of paid annual leave, paid sick leave, paid personal
leave, and paid public holidays.
3798. Subsection 557(2) would provide that the loading is 20% for all
hours worked on-the-job.
3799. Proposed section 558 provides that Part VIII, dealing with penalties
and other remedies for contravention of awards and orders, has
effect in relation to the entitlements provided in accordance with
proposed sections 552(1), 553(2), 555(1) and 556(2), as if those
entitlements were provided by a relevant award.
Illustrative Example - School-based trainee
Carolyn is a Year 12 student in Adelaide. She commences a school-based
training arrangement in the hospitality industry while completing her
senior secondary certificate. As part of her traineeship the school has
arranged for her to attend TAFE, and she works with a local employer,
David's Bar & Bistro Pty Ltd, one day each week. David's Bar & Bistro Pty
Ltd. While the South Australian Hotels, Clubs, Etc, Award that applies to
other employees in Carolyn's workplace, contains wages and conditions for
full-time trainees, it has no provisions for school-based trainees.
Proposed section 555 would provide a minimum hourly rate of $7.99 per hour
for the time Carolyn spends at work. Carolyn would be also entitled to any
additional conditions that apply to a full-time trainee under the award,
adjusted pro rata for the hours she works on-the-job. Carolyn would have
those entitlements on the commencement of Part XVII. After commencement of
the larger reform Bill, her minimum wage would be subject to periodic
adjustment by the AFPC.
Illustrative Example - School-based apprentice
Karl is a Year 11 student in Sydney. He commences a school-based training
arrangement as a mechanic while completing his senior secondary
certificate. As part of his training arrangement, the school has arranged
for Karl to attend TAFE, and he works one day a week with a local employer.
Karl is employed by Bob's Mechanical Engineering Pty Ltd. While the NSW
Metal Engineering and Associated Industries (State) Award, that applies to
other employees at Bob's Mechanical Engineering Pty Ltd, contains wages and
conditions for full-time apprentices, it has no provisions for school-based
apprentices. However, if Karl were undertaking the registered training
arrangement full-time, he would be an apprentice mechanic under the award.
Accordingly, Karl is a school-based apprentice for the purposes of the
definition of school-based apprentice in proposed section 550.
Proposed sections 552 and 553 would specify Karl's minimum wages and
conditions. The minimum hourly rate of pay for the time Karl spends at
work would be calculated by multiplying the applicable full-time hourly
rate for a first-year apprentice mechanic under the award by 1.25 (eg $6.39
× 1.25 = $7.99 per hour). School-based apprentices are paid 25% more than
the full-time apprentice hourly rate because they are only paid for the
hours spent on-the-job. The rates for full-time apprentices include
payment for both the time spent at work and in approved off-the-job
training.
Karl would also be entitled to any additional conditions that apply to a
full-time apprentice under the award, adjusted on a pro rata basis for the
hours he works on-the-job.
Schedule 4 - Transitional and other provisions
Part 1 - Regulations for transitional etc. provisions and
consequential amendments
Item 1 - Regulations may deal with transitional etc. matters
3800. Item 1 would enable regulations to be made about matters of a
transitional, saving or application nature relating to amendments
made by the Bill, including amendments made by regulations under
item 2 (consequential and related amendments).
3801. Regulations made under this item might provide, for example, that
for proceedings pending before a court or the AIRC immediately prior
to commencement, specified provisions of the WR Act that would be
amended by the Bill are to apply to those proceedings as if they had
not been amended.
3802. Subitem 1(2) would provide that regulations made under this item may
take effect from a date before the regulations are registered under
the Legislative Instruments Act 2003. This is because subsection
12(2) of the Legislative Instruments Act 2003 provides that a
legislative instrument or provisions of a legislative instrument
must not take effect before it is or they are registered under that
Act in certain circumstances where rights would be affected or
liabilities imposed. Subsection 12(3) of the Legislative
Instruments Act 2003 provides that the effect of subsection 12(2) on
a legislative instrument is subject to any contrary intention in the
enabling legislation. Subitem 1(2) expresses a contrary intention
for this purpose.
Item 2 - Regulations may make consequential amendments of Acts
3803. Item 2 would enable regulations to be made making amendments of the
WR Act and other Acts which are consequential on, or otherwise
relate to, amendments made by the Bill. The extensive changes to
structures and arrangements under the WR Act that would be made by
the Bill would mean that changes to the WR Act and other Acts could
be necessary or desirable to allow the provisions of those Acts to
operate fully and effectively in the new system.
3804. Subitem 2(2) would provide that regulations made under this item may
take effect from a date before the regulations are registered under
the Legislative Instruments Act 2003. This is because subsection
12(2) of the Legislative Instruments Act 2003 provides that a
legislative instrument or provisions of a legislative instrument
must not take effect before it is or they are registered under that
Act in certain circumstances where rights would be affected or
liabilities imposed. Subsection 12(3) of the Legislative
Instruments Act 2003 provides that the effect of subsection 12(2) on
a legislative instrument is subject to any contrary intention in the
enabling legislation. Subitem 2(2) expresses a contrary intention
for this purpose.
3805. Subitem 2(3) would provide that, for the purposes of the Amendments
Incorporation Act 1905, amendments made by regulations under item 2
are to be treated as if they were made by an Act. As noted in the
legislative note to the subsection, this would mean that the
amendments could be incorporated into a reprint of the amended Act.
Part 2 - Transitional, application and saving provisions
Division 1 - Definitions
Item 3 - Definitions
3806. This item would provide for the definitions of terms that are to
apply in Part 2.
Division 2 - Awards
Item 4 - Continuing operation of awards in force before commencement
3807. This item would provide for the continued operation of awards that
are in force prior to reform commencement and also sets out the
manner in which employers, employees and organisations are to be
bound by the awards.
3808. Subitem 4(1) would provide that this item applies to an award (an
original award) in force immediately before reform commencement.
3809. Subitem 4(2) would provide that the original award continues in
force as a pre-reform award to the extent that it regulates
employers in respect of the employment of these employees, in the
same terms as the original award on and from reform commencement.
The pre-reform award binds each employer bound by the original award
before reform commencement and each of the employer's employees and
will also bind each organisation that was bound by the original
award prior to reform commencement.
3810. The terms employer and employee have the meaning in proposed
subsections 4AB(1) and 4AA(1) respectively (which draw upon a range
of constitutional powers). Those employees and employers that do
not fall within these definitions remain covered by their pre-
existing award. Arrangements for the continuing operation of awards
would be provided by proposed Schedule 13.
3811. Prior to reform commencement, an original award would have only
bound employees that were members of an organisation of employees
that was bound by the award. On and after reform commencement, all
employees of an employer bound by an award continued in force by
this item will also be bound, subject to the award relating to the
employee's employment by the employer.
3812. Subitems 4(3) - (4) would clarify that the intention of subitem 4(2)
is to bind to the pre-reform award those employers and organisations
that were bound by the original award in the manner set out in
subsection 149(1) of the WR Act as it was in force immediately
before reform commencement.
Item 5 - Transitional provision for redundancy pay - repeal of
paragraph 89A(2)(m)
3813. Item 5 would provide that the repeal of paragraph 89A(2)(m) of the
WR Act, which specifies redundancy pay as an allowable award matter,
does not affect any entitlement to a redundancy payment that arose
before reform commencement.
3814. The intention is that if an entitlement to redundancy pay under an
award crystallised before reform commencement (where an employee had
been notified by the employee's employer that their position had
been made redundant in circumstances that resulted in the employee
being entitled to redundancy pay), the entitlement to receive the
payment is not lost if the employment does not end until after
reform commencement.
Item 6 - Terms of awards that cease to have effect
3815. Item 6 would provide that employees will not lose any rights accrued
under an award prior to reform commencement when, under
section 116L, a term in an award about a matter that is specified
not to be an allowable award matter ceases to have effect.
3816. The intention is that employees will not lose accrued entitlements
such as to leave, including annual leave or personal/carer's leave,
as well as to payment for work performed where reform commencement
occurs during a pay cycle.
Division 3 - Termination of Employment
3817. Division 3 contains provisions relating to amendments made by
Schedule 1 of the Bill to Division 3 of Part VIA of the WR Act.
Item 7 - Application to terminations that occur after the reform
commencement
3818. This item would provide that the amendments made by the items listed
in subitem 7(2) would apply in relation all terminations of
employment which occur after reform commencement, regardless of the
date when the employment commenced.
3819. It is not intended that the amendments made by the items listed in
subitem 7(2) would apply in relation to a termination of employment
which occurred before reform commencement, even if the employee does
not make an application under section 170CE until after reform
commencement.
Item 8 - Application of item 111
3820. This item would provide that the amendment to paragraph 170CE(5B)(a)
made by item 111 of Schedule 1 (extending the default qualifying
period from three months to six months) would only apply to
employees whose employment commenced after the commencement of this
item.
3821. Therefore, the amendment made by item111 will not apply to the
employment of an employee whose qualifying period of employment, in
that employment, has already commenced or has already been completed
at the time of the reform commencement.
Item 9 - Application of items 145 to 149
3822. This item would provide that the amendments made by items 145, 146,
147, 148 and 149 of Schedule 1, each of which involves an amendment
to Subdivision E of Division 3 of Part VIA of the WR Act, would
apply in relation to an application for an order under section 170GA
of the WR Act if the application is made on or after the reform
commencement. As a consequence, an application for orders under
section 170GA that was made prior to reform commencement will
continue to be heard and determined in accordance with Subdivision E
of Division 3 of Part VIA of the WR Act as if the amendments made by
items 145 to 149 had not been made.
3823. It is not intended that the application of these items will depend
upon the date upon which an employer decided to terminate more than
15 employees' employment, or upon the date of the relevant
terminations of employment.
3824. Subitem 9(2) would provide that, to the extent that section 170GD
would continue to apply to an application for an order under section
170GA of the WR Act if the application is made before commencement
(as a result of subitem 9(1)), Division 2 of Part VI of the WR Act
as in force immediately before reform commencement will apply to
that application.
Item 10 - Transitional provision for termination of employment
3825. This item would provide that various transitional industrial
instruments referred to in proposed Schedules to the WR Act will be
treated as if they were 'awards' for the purposes of various
provisions of Divisions 3 and 4 of Part VIA of the WR Act.
Subsection 170CD(3), section 170JG and paragraph (a) of the
definition of daily hire employee in subsection 170CD(1), would
apply, on after reform commencement, as if a reference to an 'award'
were a reference to one or more of the following:
. a pre-reform certified agreement, within the meaning of proposed
Schedule 16 to the WR Act;
. a notional agreement preserving State awards, within the meaning
of proposed Schedule 15 to the WR Act;
. a preserved State agreement, within the meaning of proposed
Schedule 15 to the WR Act;
. a transitional award, within the meaning of proposed Schedule 13
to the WR Act;
. an old IR agreement, within the meaning of proposed Schedule 14 to
the WR Act;
. a pre-reform AWA, within the meaning of proposed Schedule 14 to
the WR Act; or
. a common rule continued in effect by proposed clause 82 of
Schedule 13 to the WR Act.
3826. It is not intended that this item will affect item 105 of Schedule 1
of the Bill, which would insert proposed subsection 170CD(1A).
Division 4 - Miscellaneous
Item 11 - Investigations started by authorised officers
3827. This proposed item would allow an investigation that had been
commenced, but not completed, by an authorised officer before the
commencement of the Bill to be continued by a workplace inspector.
Item 12 - Application of section 83BS to pre-reform AWAs
3828. This proposed item would extend the application of proposed section
83BS by deeming it to apply to the identification of a person who is
or was a party to a pre-reform AWA in the same way as it applies to
the identification of persons are or have been parties to a post-
reform AWA.
Item 13 - Saving of existing inspectors' appointments
3829. This item would preserve the appointment of existing inspectors
under subsection 84(2). It would allow inspectors who have been
appointed under the existing provisions of the WR Act to continue to
perform their role as workplace inspectors for the unexpired term of
their appointment.
Item 14 - Repeal of Part VA
3830. This item would provide for transitional provisions as a consequence
of the repeal of Part VA of the WR Act.
3831. Subitems 15(1)-(3) would provide that Division 1 of Part 2 of
Chapter 7 of the Building and Construction Industry Improvement Act
2005 (the BCII Act) has effect as if information, documents or
answers given to the Secretary or an assistant pursuant to pre-
reform section 88AA of the WR Act had been given or produced to the
Australian Building and Construction Commissioner under section 52
of the BCII Act. The information, document or answers may be used
for the purpose of proceedings under the BCII Act, which includes
proceedings under the WR Act by virtue of section 73 of the BCII
Act.
3832. Subitems 15(4)-(6) would provide that the requirement for the
Commonwealth Ombudsman to conduct a review under pre-reform section
88AI of the WR Act on the use of the section 88A power is preserved.
Instead of the review relating to a year to which section 88AA
applies as defined in subsection 88AI(4), the review would relate to
the period starting on 13 January 2006 and ending on the reform
commencement.
Item 15 - Application of hours of work provisions of Standard to pre-
reform awards
3833. Under proposed item 15, a three year transitional period will be
provided for pre-reform awards. After that period, an award term
that provides a lower standard than the maximum ordinary hours
guaranteed by the Standard (eg if it provides for 40 maximum hours
of work per week) will not operate to the extent it would be
contrary to the Standard.
Item 16 - Succession, transmission or assignment of business
3834. This item would provide that proposed Part VIAA of, and Schedule 16
to, the WR Act would apply to a succession, transmission or
assignment of a business, or part of a business, that occurs at the
time of, or after, reform commencement.
Item 17 - Application of conciliation and mediation provisions
3835. This item would provide that the conciliation and mediation
provisions (proposed sections 170BDA, 170BDB and 170BDC - see item
76 of Schedule 1) would only apply to applications under Division 2
of Part VIA lodged after the commencement of those provisions.
Therefore, applications which are already on foot at the time of
reform commencement would not be subject under the new Division 2 of
Part VIA to a compulsory conciliation or mediation stage prior to
the AIRC hearing and determining the matter. This would not affect
the AIRC's ability to conduct conciliation under the pre-reform
powers in respect of an application for an equal remuneration remedy
lodged prior to commencement.
Item 18 - Application of parental leave
3836. This item contains transitional provisions relating to the repeal
and replacement of Division 5 of Part VIA of the WR Act (see item
166 of Schedule 1).
3837. Item 18 would provide that the repeal and replacement of Division 5
of Part VIA of the WR Act would not apply to an employee whose
employment is wholly regulated by:
. a preserved State agreement;
. a notional agreement preserving a State award;
. an AWA made before the reform commencement;
. a certified agreement made before the reform commencement;
. an award made under section 170MX of the WR Act before the reform
commencement;
. a transitional award; or
. an old IR agreement within the meaning of proposed Schedule 14 of
the WR Act.
3838. For those employees whose employment is subject to an instrument
listed above, the provisions of Division 5 of Part VIA as in force
immediately before the reform commencement apply.
3839. If, after reform commencement, an employee's employment ceases to be
wholly regulated by one of the instruments set out above, then item
19 of Schedule 14 will cease to apply and the employee's parental
leave and adoption leave entitlements will be as provided by item
166 of Schedule 1.
Item 19 - Application of Part VC of amended Act
3840. Part VC would apply to all actions or states of affairs that occur
after the commencement of the Part. This means that the any
industrial action occurring after the commencement of the Part will
be governed by the provisions of the Part, even if the industrial
action started before the Part commenced.
Item 20 - Application in relation to negotiations for workplace agreements
3841. This item would provide for the continuation of conciliation
conducted by the AIRC in relation to the negotiation of certified
agreements that commenced before the reform commencement.
Conciliation matters that commenced under section 170NA in
Division 8 of Part VIB of the WR Act may continue to be dealt with
in accordance with that provision for a transitional period of three
months commencing on the reform commencement. This would mean that
the AIRC would continue to exercise its conciliation powers
including, where relevant, those particular powers contained in
Division 3 of Part VI of the WR Act as in force at that time.
Item 21 - Application of new offences in section 299
3842. This item would provide that the offence provisions in subsections
299(3) (contravening an order of the AIRC) applies to conduct
breaching an order which occurs after reform commencement even if
the order itself was made by the AIRC before the date of
commencement.
3843. This item would provide similarly in relation to subsection 299(5)
(publishing false allegations of misconduct affecting the AIRC); it
would be an offence to publish a statement after reform
commencement, even if the statement was made before commencement.
Item 22 - Transitional provision - entry permits
3844. Item 22 would provide that permits in force under the repealed Part
IX immediately before the reform commencement continue to operate.
Those permits would be subject to the proposed Part IX (new Part IX)
arrangements including the rules relating to revocation and
suspension.
3845. Subitem 22(2) would define the new Part IX and repealed Part IX.
Item 23 - Application provisions relating to registered organisations
3846. This item would set out the application provisions for amendments
made by items in Schedule 1 to the Bill.
Item 24 - Transitional provision relating to registered organisations
3847. This item would provide that proposed subparagraph 30(1)(c)(v) of
Schedule 1B, which would provide that an organisation may be
deregistered if it is not, or is no longer, federally registrable,
would not apply to any currently registered organisations for a
period of three years after the commencement of this item. This
would provide existing organisations with the opportunity to
restructure to make themselves federally registrable. In addition,
it would recognise that these organisations may be operating in the
transitional award system set out in Schedule 13 - Transitional
arrangements for parties bound by federal awards.
Schedule 5 - Renumbering the Workplace Relations Act 1996
Item 1 - Renumbering the Workplace Relations Act (other than the
Schedules)
Item 2 - Limited renumbering of Schedules to the Workplace Relations
Act
3848. Item 1 would renumber the Parts, Divisions and sections of the WR
Act so that they bear consecutive numerals starting with '1', and
would similarly reletter and renumber the Subdivisions, subsections,
paragraphs, subparagraphs and sub-sub-paragraphs of the WR Act.
Item 2 would renumber the Schedules to the WR Act.
3849. An example of an Act that has been renumbered in a similar way is
the Migration Act 1958, which was renumbered by the Migration
Legislation Amendment Act 1994.
3850. Provisions in the WR Act that refer to another provision in the WR
Act or to a Schedule would be amended so as to correctly identify
the renumbered or relettered provision or Schedule (subitems 1(10)
and 1(11)). However, subitem 1(12) would ensure that references to
a provision or Schedule as in force at a time prior to commencement
of this item are not changed in this way. Subitems 2(3), 2(4) and
2(5) would provide similarly in relation to references in a
Schedule.
Item 3 - References in other Acts to renumbered provisions and
Schedules
3851. Item 3 would provide that existing references to provisions of the
WR Act or its Schedules in other Acts or in an instrument or
document, are to be construed as a reference to the renumbered or
relettered provision or Schedule, except where the reference is to a
provision or Schedule as in force at a time prior to commencement of
this item.
-----------------------
[1] IMF, Australia: 2005 Article IV Consultation - Staff Report and Public
Information Notice on the Executive Board Discussion, 24 August 2005
[2] The exception to this rule are Victoria, which has already referred its
workplace relations power to the Commonwealth, and the ACT and NT.
[3] ABS, Employee Earnings and Hours, May 2004 (Cat No 6306.0)
[4] ABS, Employee Earnings and Hours, May 2004 (Cat No 6306.0)
[5] ABS, Employee Earnings and Hours, May 2004 (Cat No 6306.0)
[6] UK Department of Trade and Industry, National Minimum Wage - Low Pay
Commission Report 2005, February 2005, p. 237.
[7] The Sustainability of Outcomes: Job Search Training, Intensive
Assistance and Work for the Dole, DEWR, March 2004, p.20
[8] HILDA Survey, unpublished data. 'Low paid' refers to hourly rates
below C10, which is the Tradespersons rate in the Metal Industries Award.
'Higher paid' refers to hourly rates above C10, adjusted for casual
loadings.
[9] DEWR, Workplace Agreements Database, agreements current as at 30 June
2005.
[10] DEWR, Agreement Making in Australia under the Workplace Relations Act
1996: 2002 - 2003, 95.
[11] Benoit Freyens and Paul Oslington, Dismissal Costs and their Impact on
Employment: Evidence from Australian Small and Medium Enterprises, August
2005.
[12] Sensis, Business Index - Small and Medium Enterprises, August 2005,
page 20.
http://www.about.sensis.com.au/media/pdf/mediarelease_aug05sbi.pdf
(accessed 14 September 2005).
[13] MYOB Australian Small Business Survey, September 2005.
http://myob.com/servlet/Satellite?cid=1124931447336&pagename=MYOB%2FMYOBArti
cle%2FNewsArticlePage&pageId=1107835709846&site=en_AU (accessed 14
September 2005).
[14] Harding, D., The Effect of Unfair Dismissal Laws on Small and Medium
Businesses, Melbourne Institute of Applied Economic and Social Research,
University of Melbourne, 2002.
[15] ABS, Employee Earnings and Hours, May 2004 (Cat No 6306.0)
[16] ABS Australian Bureau of Statistics Business Register: Counts of
Businesses - Summary Tables (Cat No 8161.0.55.001)