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1999
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
WORKPLACE
RELATIONS LEGISLATION AMENDMENT
(MORE JOBS, BETTER PAY) BILL
1999
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for
Employment, Workplace Relations
and Small Business, the Honourable Peter
Reith MP)
MADE BY THE HOUSE OF
REPRESENTATIVES
ISBN: 0642 41050X
WORKPLACE RELATIONS LEGISLATION
AMENDMENT
(MORE JOBS, BETTER PAY) BILL 1999
OUTLINE
This Act will amend the Workplace Relations Act
1996 (the WR Act) to further strengthen the operation of the workplace
relations framework put in place by the Workplace Relations and Other
Legislation Amendment Act 1996. The Act will also make a number of minor
consequential amendments to other Acts.
The major reforms to be
implemented by the Act:
• reinforce the new workplace relations framework introduced by the
Workplace Relations and Other Legislation Amendment Act 1996 by amending
the Principal object of the Act to emphasise the basic safety net role of
awards, choice as to jurisdiction, the role of the courts and Commission in
stopping or preventing unprotected industrial action (Schedule
1);
• change the name of the Australian Industrial Relations Commission
to the Australian Workplace Relations Commission and revise its structure,
change the name of the Australian Industrial Registry to the Australian
Workplace Relations Registry and increase the focus of both the Commission and
the Registry on improving access to their services by employers, employees and
organisations (Schedule 2);
• establish a distinction between
compulsory and voluntary conciliation by the Commission, with compulsory
conciliation being available only in relation to matters where arbitration can
be used. Voluntary conciliation would be available in respect of a wider range
of matters on payment of a fee (Schedule 4);
• provide for the
voluntary use of mediation in industrial disputes for use as an alternative to
the processes of the Australian Workplace Relations Commission and provide for a
national accreditation scheme for workplace relations mediators and create the
role of the Mediation Adviser to oversee and facilitate the use of mediation to
resolve workplace disputes (Schedule 5);
• reinforce the role of
awards as a safety net of basic minimum entitlements by amending the principal
object and the objects of Part VI of the WR Act, by further limiting the
allowable award matters and encouraging the acceleration of the award
simplification process and by strengthening the presumption in favour of
existing forms of regulation and introduce new requirements in relation to logs
of claims (Schedule 6);
• reform the termination of employment
provisions to ease the burden that unfair dismissal applications impose on
employers, reinforce disincentives to speculative and unmeritorious unfair
dismissal claims, and introduce greater rigour into processing by the Australian
Workplace Relations Commission of unfair dismissal applications (Schedule 7);
• streamline the requirements for certification of agreements,
including by allowing applications to be made to the Workplace Relations
Registrar for certification of agreements in cases where there is no need for
scrutiny by the Australian Workplace Relations Commission (Schedule
8);
• simplify the processes for the making and approval of AWAs by
consolidating the existing assessment of 'filing requirements' and 'approval
requirements' into a one step approval process, and by giving parties access to
a streamlined approval process for AWAs providing remuneration in excess of
$68000 per year (Schedule 9)
• clarify rights and responsibilities
relating to industrial action by distinguishing more clearly between protected
and unprotected action, requiring protected industrial action to be preceded by
secret ballots, providing access to cooling off periods and strengthening the
remedies against unlawful industrial action and clarifying the ‘strike
pay’ provisions of the WR Act (Schedules 1, 11 and 12);
• reform the right of entry provisions of the WR Act consistent
with the principle that unions should act as representatives of their members
and be accountable to those members, and not act as uninvited quasi-inspectors
at the workplace (Schedule 13).
• strengthen the operation of
freedom of association provisions of the WR Act by extending the existing
prohibitions to cover a broader range of conduct and prohibited reasons and by
prohibiting the inclusion in certified agreements and awards of provisions which
encourage or discourage union membership, or which indicate support for unionism
or non-unionism (Schedule 14);
• clarify the operation of
provisions of the Act which preserve aspects of the previous Victorian system
and provide for the expanded operation in Victoria of provisions contained in
other Parts of the Act (Schedule 15);
• repeal the provisions that
allow the Federal Court to vary or set aside contracts made with independent
contractors (Schedule 16).
Schedules 3, 10, 17 and 18 introduce a range
of consequential and technical amendments.
FINANCIAL IMPACT
STATEMENT
Impact on the economy generally
The reform
measures in the Act will entrench the benefits of structural reform, further
develop a flexible and adaptable labour market, and encourage employment
growth.
The further streamlining of agreement-making and approval
processes and improved access to Commission services will make agreements more
accessible and less costly. Continuing growth in agreement-making will provide a
basis for boosting workplace productivity and competitiveness, and contributing
to stronger economic growth and increased employment.
The measures in the
Act directed towards preventing or stopping unprotected industrial action will
reduce the burden that such action imposes on the businesses directly affected
and the economy more generally.
Reforms to the unfair dismissal laws will remove the disincentive to recruitment created by the existing laws and will encourage employment growth, especially in the small business sector.
Voluntary Conciliation
Parties utilising the voluntary conciliation services of the Commission will
be required to pay a fee of $500. It is difficult to predict the financial
impact of this measure, particularly given the accompanying measures that
provide legislative recognition for private mediation services. It is expected
that any financial impact would be gradual, and the net impact of the changes
will be evaluated as part of a broader evaluation of the impact of the
legislation.
Mediation
The establishment of the role of
Mediation Adviser will involve some set up costs, but the function is expected
to be budget-neutral.
Secret Ballots
The requirements for
protected action to be preceded by a secret ballot will involve costs to the
Commonwealth. The applicant will be liable for the costs of the ballot, but the
Commonwealth will reimburse to applicants 80 per cent of the reasonable costs
incurred in holding the ballot.
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 specifies when the various provisions
of the Act are proposed to commence. Subclause 2(1) provides that Sections 1, 2
and 3 and Schedules 2 and 3 commence on the day the Act receives Royal
Assent.
3. Subclause 2(2) provides that, subject to this section, other
Schedules commence on a day or days to be fixed by
proclamation.
4. Subclause 2(3) has the effect that if an item in a
Schedule is not proclaimed to commence within six months of the Act receiving
Royal Assent, it will commence on the day following that period of six
months.
5. Subclause 2(4) provides that if the Public Service Act
1999 commences before or on the commencement of Schedule 5 to this Act, then
item 7 of that Schedule will commence immediately after the commencement of item
6 of that Schedule. If the Public Service Act 1999 commences after the
commencement of Schedule 5 to this Act, then item 7 of that Schedule will
commence immediately after the commencement of that Act. (Item 7 of Schedule 5
would amend a reference in proposed subsection 83J(2) to appointment or
engagement under the Public Service Act 1922 and replace it with a
reference to engagement under the Public Service Act
1999.)
6. Subclause 2(5) provides that items 68 and 69 of Schedule 8
commence immediately after the commencement of item 34 of Schedule 11. This is
to ensure that items 68 and 69, which amend section 170MS of the Workplace
Relations Act 1996 (the WR Act), amends section 170MS as inserted by
item 34 of Schedule 11.
7. Subclause 2(6) provides that item 73 of
Schedule 8 commences at the later of the commencement of item 1 of that Schedule
or immediately after the commencement of the Public Service Act 1999.
(Item 73 of Schedule 8 would repeal existing section 170NK of the WR Act, which
deals with certified agreements with Commonwealth employees, and replace it with
a new section on the same subject that would reflect relevant provisions of the
Public Service Act 1999.)
8. Subclause 2(7) provides that items 7 to 10
of Schedule 10 commence immediately after the commencement of item 17 of
Schedule 8. This is to ensure that items 7 to 10 of Schedule 10, which reflect
the procedural arrangements for the certification of agreements set out in item
17 of Schedule 8, do not commence until after those new procedural arrangements
have commenced.
9. Subclause 2(8) provides that item 7 of Schedule 15
(which provides for the application of section 170MB in Victoria) is to commence
immediately after the commencement of items in Schedule 8 that amend section
170MB.
10. Subclause 2(9) provides that if item 964 of Schedule 1 to the
Public Employment (Consequential and Transitional) Amendment Act 1999
commences before or on the commencement of item 1 of Schedule 9 to this Act,
then items 21 and 22 never commence. Otherwise, those items commence at the same
time as item 1 of Schedule 9. (Items 21 and 22 set out who can act on behalf of
the Commonwealth to make an AWA with a Commonwealth
employee.)
11. Subclause 2(10) provides that item 24 of Schedule 9
commences at the later of the commencement of item 1 of that Schedule or
immediately after the commencement of the Public Service Act 1999.
(Item 24 would amend section 170WK of the WR Act, which deals with AWAs with
Commonwealth employees, to reflect relevant provisions of the Public Service Act
1999.)
12. Subclause 2(11) provides that, if on the day this Act
receives the Royal Assent, subsection 83(2) of the Workplace Relations Act
1996 has been repealed and replaced by an amendment made by the Public
Employment (Consequential and Transitional) Amendment Act 1999, then subitem
117(1) does not have effect.
13. Subclause 2(12) provides that if
subsection 83(2) of the Workplace Relations Act 1996 has not been
repealed and replaced by an amendment made under the Public Employment
(Consequential and Transitional) Amendment Act 1999, subitem 117(1) will
have effect. If, subsequently, the Public Employment (Consequential and
Transitional) Amendment Act 1999 repeals and replaces subsection 83(2), then
subitem 117(2) will commence immediately after.
Clause 3 -
Schedules
This clause provides 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.
1.1 This Schedule would amend the principal object set out in section 3
of the Act. The principal object lists the principles under which the Act should
operate to provide a framework for cooperative workplace relations which
promotes the economic prosperity and welfare of the people of Australia. This
list would be amended and supplemented to reflect and underpin amendments to the
Act that would be made by various Schedules of this Bill.
1.2 The
Schedule would also amend the objects of Part VI of the Act (section 88A) and
the provisions setting out the functions of the Commission generally (section
88B). These amendments are intended to emphasise the role of awards as providing
a safety net of basic minimum wages and conditions of employment.
Item 1A - After paragraph 3(c)
1.3 This item would insert a
new paragraph (ca) into the principal object. This paragraph stipulates that the
workplace relations framework provided by the Act should enable employers and
employees to choose the jurisdiction most appropriate for the regulation of
their particular employment relationship. It is intended to indicate that the
Act does not create a presumption in favour of the extension of Commonwealth
regulation.
Item 1 - Subparagraph 3(d)(ii)
1.4 This item would repeal subparagraph 3(d)(ii) and replace it with two new paragraphs (d)(ii) and (d)(iii), designed to:
• emphasise the role of awards made under the Act as providing a safety net of basic minimum wages and conditions of employment;
• indicate (by referring to ‘appropriate’ allowable award matters) that this safety net does not require every allowable award matter to be included in each award made under the Act;
• indicate that awards should be primarily for the protection of the
low paid (rather than other groups) and that the level of wages and conditions
is a factor in meeting their needs; and
• indicate that awards should
not provide for wages and conditions above that safety net.
Item 2 -
After paragraph 3(e)
1.5 This item would insert two new paragraphs
(3(ea) and 3(eb)). Paragraph 3(ea) recognises that unprotected industrial action
(that is, industrial action that does not have protected status under Division 8
of Part VIB of the Act) is inconsistent with the purposes of the Act. This means
that the Act does not imply any legitimacy for such unprotected industrial
action and that provisions of the Act about stopping or preventing such action
should be applied in that context. The paragraph also indicates that the
framework created by the Act provides mechanisms by which the Commission and
courts are able to stop and prevent unprotected industrial action where it is
happening or in prospect. It is intended that the Commission and courts should
do so as quickly as possible and in a manner that is effective in stopping or
preventing the action.
1.6 Paragraph 3(eb) reflects the intention of the
legislature to reform the system under which industrial action may become
protected. Schedule 12 proposes to introduce provisions that require a secret
ballot process to authorise industrial action before it attracts protected
status. Paragraph 3(eb) enunciates the principle underlying this reform, namely
that the secret ballot process will ensure that, where protected industrial
action is taken, it is supported by the employees directly concerned. The
paragraph also indicates that the ballots must be fair and
democratic.
Item 3 - Paragraph 3(h)
1.7 This item would
repeal paragraph 3(h) and insert new paragraphs (h), (ha) and (hb). These
paragraphs recognise further reforms that would be implemented by this Bill -
the creation of a distinction between compulsory and voluntary conciliation
(with the Commission having different powers in relation to each) and the
recognition of a role for mediation in dispute resolution. (Schedule 4 proposes
to introduce new provisions that distinguish the Commission’s voluntary
conciliation powers and functions from its compulsory conciliation powers and
functions. Schedule 5 proposes to introduce new provisions relating to
mediation.)
1.8 New paragraph 3(h) indicates that the Commission’s
compulsory conciliation jurisdiction is coextensive with its arbitration
jurisdiction. This reflects proposed subsection 101(4) - see Schedule 4 –
which would provide that the Commission will be able to exercise powers of
compulsory conciliation in respect of disputes about allowable award matters,
demarcation disputes and disputes about exceptional matters under subsection
89A(7). (The Commission would also continue to exercise compulsory conciliation
powers in respect of unfair dismissal applications made under Part VIA of the
Act.). New paragraph 3(h) also indicates that the Commission’s arbitration
powers should be exercised only as a last resort. This intended to indicate that
the Commission should as far as possible try to settle disputes by conciliation
before exercising its arbitration powers.
1.9 New paragraph 3(ha)
recognises the Commission’s voluntary conciliation role. This reflects
proposed new Part VA of the Act – see Schedule 4 – which sets out
the voluntary conciliation powers and functions of the Commission and the
circumstances in which they are to be exercised. The Commission’s
voluntary conciliation role would be exercised only with the consent of the
parties involved and would be largely in respect of industrial disputes about
non-allowable matters and assisting the negotiation of agreements at the
workplace level. The Commission would be able to exercise voluntary conciliation
powers in respect of allowable matters (this might be practicable where both
allowable and non-allowable matters are at issue in the negotiation of an
agreement).
1.10 New paragraph 3(hb) recognises that voluntary mediation
has a legitimate role in the workplace relations framework provided by the Act.
Voluntary mediation would be an alternative to voluntary conciliation and would
be conducted outside the auspices of the Commission.
Item 4 -
Paragraph 88A(b)
1.11 This item would repeal paragraph 88A(b) and replace it with two new paragraphs (b) and (c) designed to:
• emphasise the role of awards made under Part VI of the Act as providing a safety net of basic minimum wages and conditions of employment;
• indicate (by referring to ‘appropriate’ allowable award matters) that this safety net does not require every allowable award matter to be included in each award made under Part VI;
• indicate that awards should be primarily for the protection of the
low paid (rather than other groups) and that the level of wages and conditions
is a factor in meeting their needs; and
• indicate that awards should
not provide for wages and conditions above that safety net.
Item 5 -
Subsection 88B(2)
1.12 This item would repeal subsection 88B(2) and
replace it with a new subsection (2). Proposed new subsection 88B(2) would
require the Commission, in performing its functions under Part VI, to ensure
that awards act as a safety net, providing basic minimum wages and conditions of
employment. The Commission would not have to include every allowable award
matter in each award made under Part VI (because of the reference to
‘appropriate’ allowable award matters). In ensuring that awards act
as such a safety net the Commission would be required to have regard to various
matters. These matters are set out in proposed paragraphs (a), (b), and (c) of
subsection 88B(2) and are in identical terms to the existing paragraphs
88B(2)(a), (b) and (c).
1.13 This item would insert a new section 88C. Proposed new section 88C
is intended to limit the matters to which the Commission may have regard when
performing its functions under Part VI. Under Part VI, the Commission will be
required to ensure that awards act as a safety net of basic minimum wages and
conditions of employment, having regard to various matters (see item 5 above).
The effect of proposed section 88C is to further qualify this by providing that
the Commission must not have regard to the maintenance of relativities between
classification rates of pay within individual awards. This is intended to
indicate that in the setting and adjusting of safety net wages and conditions of
employment, relativities between classification rates of pay within awards are
not to be a consideration (in contrast to wage relativities between awards,
which may be relevant under paragraph 88B(3)(a)).
SCHEDULE 2 - RENAMING OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
ETC. AND RESTRUCTURING OF THE COMMISSION
2.1 This Schedule proposes to:
• rename the Australian Industrial Relations Commission as the Australian Workplace Relations Commission (the Commission);
• change the existing structure of the Commission by removing the distinction between the offices of Vice President, Senior Deputy President and Deputy President and renaming all Presidential members (except for the President) ‘Vice President’;
• enable the appointment of members of the Commission for fixed terms;
• enable the appointment of acting Commissioners;
• allow Presidential members with appropriate qualifications to elect to be styled ‘Justice’;
• require the President of the Commission to develop a training and professional development program for members and require members to participate in the program;
• rename the Australian Industrial Registry as the Australian Workplace Relations Registry;
• allow persons employed in the registries of State industrial tribunals to be appointed as Deputy Workplace Relations Registrars;
• require the Commission and the Registry to have greater regard to the needs of employers, employees and organisations, and to provide user-friendly systems and procedures;
• enable the President to have greater control over the administration of the Registry;
• require the President’s annual report to report on the
performance and efficiency of both the Commission and the Registry;
and
• make consequential amendments of various other Acts.
Part 1 - Amendments concerning renaming and
restructuring
of the Australian Industrial Relations
Commission
Item 1 - Subsection 4(1) (definition of
Commission)
2.2 This item amends the definition of
‘Commission’ to reflect the proposed change to the name of the
Commission
2.3 The definition of ‘Deputy President’ would be redundant
as a consequence of the proposed new structure of the Commission [items 9 and 10
of this Schedule] and would be repealed.
2.4 These items propose to repeal the definition of ‘Senior Deputy
President’, and amend the definition of ‘Presidential Member’
so that it refers only to the President and Vice Presidents. This reflects the
proposed new structure under which all Presidential Members (other than the
President) would be called ‘Vice President’ [items 7 and 8 of this
Schedule].
Item 5 - Part II (heading)
2.5 This item
would amend the heading of Part II to refer to the proposed new name of the
Commission. Part II deals with the establishment and organisation of the
Commission, representation and intervention in proceedings before the
Commission, and some related miscellaneous matters.
Item 6 -
Subsection 8(1)
2.6 This item proposes to amend subsection 8(1),
which provides for the establishment of the Commission, to refer to the proposed
new name of the Commission.
Item 7 - Paragraphs 8(2)(ab) and
(ac)
2.7 These items would amend subsection 8(2) to give effect to the
proposed new structure of the Commission. Subsection 8(2) establishes the
constitution of the Commission. Paragraphs 8(2)(ab) and (ac) provide that the
constitution of the Commission shall include two Vice Presidents and a number of
Senior Deputy Presidents. Paragraph 8(2)(b) provides that the constitution of
the Commission shall include a number of Deputy Presidents. Item 7 proposes to
repeal paragraphs 8(2)(ab) and (ac), and item 8 amends paragraph 8(2)(b) to
refer to ‘Vice Presidents’ instead of to ‘Deputy
Presidents’.
2.8 As a result of these amendments, the Commission would consist of:
• the President;
• the Vice Presidents (including members holding appointments as Senior
Deputy Presidents and Deputy Presidents immediately before the Schedule
commences); and
• the Commissioners.
2.9 The amendments would not adversely affect the tenure, seniority or remuneration of any member holding an appointment to the Commission immediately before this Schedule commences:
• item 199 of this Schedule would provide that members of the Commission who hold office as Senior Deputy Presidents or Deputy Presidents become Vice Presidents upon the commencement of this Schedule;
• the seniority and remuneration of the Vice Presidents and Senior
Deputy Presidents holding office immediately before this Schedule commences
would be preserved by the amendments proposed by items 200 and 201 of this
Schedule; and
• the remuneration of any member holding an appointment
as Deputy President immediately before this Schedule commences would be
increased as a consequence of those office holders becoming Vice Presidents
[item 24 of this Schedule].
Item 9 - Subsection
9(1)
2.10 Existing subsection 9(1) provides that the President, Vice
Presidents, Senior Deputy Presidents and Commissioners shall be appointed by the
Governor-General. This item would amend subsection 9(1) to reflect the proposed
new structure of the Commission by omitting the references to Senior Deputy
Presidents and Deputy Presidents.
Item 10 - After subsection
9(3)
2.11 Item 10 proposes to insert new subsections 9(3A) and 9(3B)
into the Act. New subsection 9(3A) would provide that a Presidential Member who
has the specified legal qualifications may elect to be styled
‘Justice’. Those qualifications are the same as the legal
qualifications specified for appointment as a Presidential
Member.
2.12 New subsection 9(3B) would have the effect of preventing a
person who is acting, or has acted, as a Presidential Member from styling him or
herself as ‘Justice’. This amendment is in similar terms to
existing subsection 9(4), which prevents a person styling him or herself as
‘the Honourable’ merely because the person has acted, or is acting,
as a Presidential Member.
Item 11 - Paragraph
10(1)(b)
2.13 Existing paragraph 10(1)(b) provides in effect that, in
addition to possessing the other qualifications specified in subsection 10(1), a
person may only be appointed President of the Commission if the person has, in
the opinion of the Governor-General, appropriate skills and experience ‘in
the field of industrial relations’. Consistent with the proposed change in
the name of the Commission, item 11 would amend paragraph 10(1)(b) by replacing
the words ‘industrial relations’ with ‘workplace
relations’.
Item 12 - Subsection 10(2)
2.14 Existing subsection 10(2) sets out the qualifications required for appointment as a Presidential Member. Item 12 proposes to repeal existing subsection 10(2) and substitute a new subsection that is to the same effect except that:
• to reflect the proposed new structure of the Commission, references
to the offices of Senior Deputy President and Deputy President have been
omitted; and
• consistent with the proposed change in the name of the
Commission, the words ‘industrial relations’ have been replaced by
‘workplace relations’ wherever they occur.
Item 13 -
Subsection 10(3)
2.15 Existing subsection 10(3) provides that a
person may only be appointed a Commissioner if the person has, in the opinion of
the Governor-General, appropriate skills and experience ‘in the field of
industrial relations’. Consistent with the proposed change in the name of
the Commission, item 13 would amend subsection 10(3) by replacing the words
‘industrial relations’ with ‘workplace
relations’.
Item 14 - Paragraphs 11(ac) and
(b)
2.16 Existing section 11 deals with the seniority of members of
the Commission. To reflect the proposed new structure of the Commission, this
item would repeal paragraphs 11(ac) and (b), which refer to Senior Deputy
Presidents and Deputy Presidents.
2.17 The existing seniority of the
current Vice Presidents, Senior Deputy Presidents and Deputy Presidents would be
preserved by item 200 of this Schedule.
Item 15 - Subsection
16(1)
2.18 Existing subsection 16(1) provides that a member of the
Commission holds office until the member resigns, is removed from office or
attains the age of 65 years. Proposed subsection 16(1A) [item 16 of this
Schedule] would provide for fixed-term appointments to the Commission.
Existing subsection 16(2) already permits the appointment for a fixed term of
persons who are members of State industrial authorities. This item proposes to
amend subsection 16(1) to make clear that proposed new subsection (1A) [see item
18 of this Schedule] and subsection (2), not subsection (1), apply to the tenure
of members appointed for fixed periods. The proposed amendment has no
implications for the tenure of existing members of the
Commission.
Item 16 - Subsection 16(1A)
2.19 This item
proposes the repeal of existing subsection 16(1A) and the substitution of three
new subsections. Existing subsection 16(1A) deals with the tenure of the first
President to be appointed after the commencement of the Industrial Relations
Amendment Act 1994, which occurred on 24 March 1994. The first
President appointed after that date resigned on 29 August 1997. Consequently,
existing subsection 16(1A) is redundant and is to be repealed.
2.20 Proposed new subsections 16(1A), (1B) and (1C) make provision for
the appointment of members of the Commission for a fixed period of 7 years.
Such appointees would be eligible for re-appointment. The proposed amendments
have no implications for the tenure of existing members of the Commission.
2.21 These items are consequential upon the proposed changes to the
structure of the Commission. Existing sections 17A, 17B and 18 provide for
Acting Vice Presidents, Acting Senior Deputy Presidents, and Acting Deputy
Presidents respectively. Item 17 would repeal sections 17A and 17B, which are
redundant under the proposed new structure, while item 18 would amend section 18
to refer to Acting Vice Presidents instead of Acting Deputy Presidents.
Consequently, section 18 would become the provision providing for the
appointment of acting Vice Presidents.
2.22 As explained under items 17 and 18, the Act currently provides for
the appointment of acting Presidential Members of the Commission. There is,
however, no provision for the appointment of acting Commissioners. Item 19
proposes to insert a new section 18A, which would provide for the appointment of
persons to act as Commissioner.
2.23 Existing section 19A, which provides that the President is to be
assisted by the Vice President in the discharge of the business of the
Commission, is redundant under the proposed new structure of the Commission.
Item 20 therefore proposes the repeal of section 19A and the substitution of a
new section 19A.
2.24 New section 19A would require the President to
develop an annual training and professional development program for members of
the Commission. The proposed program must relate to matters that the President
considers relevant to the performance of duties under the Act.
2.25 Existing section 20 provides that it is the duty of each member of
the Commission to keep acquainted with industrial affairs and conditions. Item
21 proposes to repeal existing section 20 and substitute a new section, which
re-enacts the requirement in existing section 20 (replacing the reference to
‘industrial affairs’ with a reference to ‘workplace
relations’) together with the additional requirement that, to the extent
necessary to acquire or maintain the full range of skills necessary for the
effective performance of the member’s duties, each member must participate
in the training and professional development scheme referred to in item 20 of
this Schedule.
Item 22 - Subsection 21(2)
Item 23 -
Subsection 21(2A)
2.26 Existing subsection 21(2) specifies that Vice Presidents shall be paid
an annual salary equal to 103% of the annual salary paid to a Judge of the
Federal Court of Australia, while subsection 21(2A) specifies that Senior Deputy
Presidents shall be paid an annual salary equal to the annual salary of a Judge
of the Court. It is proposed that, under the new structure, Vice Presidents
will be paid an annual salary equal to that of a Judge of the Court, that is,
the same rate of salary that is now payable to a Senior Deputy President.
Accordingly, item 22 would repeal subsection 21(2) and item 23 would amend
subsection 21(2A) to refer to Vice Presidents instead of to Senior Deputy
Presidents:
• item 201 of this Schedule would preserve the current
salary level of members of the Commission who currently hold an appointment as
Vice President.
Item 24 - Subsection 21(2B)
2.27 This item
proposes to repeal subsection 21(2B), which provides for the remuneration of
Deputy Presidents and will be redundant under the proposed new structure. As a
consequence of becoming Vice Presidents [item 199 of this Schedule], the
remuneration of members of the Commission holding office as Deputy Presidents
immediately before this Schedule commences would increase from 95% of the rate
of salary payable to a Judge of the Federal Court of Australia to the same rate
of salary payable to a Judge of the Court.
Item 25 - Subsection
21(2E)
Item 26 - Subsections 21(2F) and (2G)
2.29 Existing
subsections 21(2F) and (2G), which refer to the entitlement to payment of Senior
Deputy Presidents and Deputy Presidents, would be redundant under the proposed
new structure. Accordingly, item 26 would repeal these two subsections.
Item 28 - Subsection 23(3)
Item 29 - Subsection
23(3)
2.31 These items would amend subsection 23(3) to reflect the
intention that, under the proposed new structure of the Commission, the annual
rate of salary of Commissioners would be 66.5% of the annual rate of salary of
Vice Presidents.
2.32 Existing section 35 deals with the circumstance where, in relation
to any proceeding before the Commission, the Commission is divided in opinion.
The section specifies whose opinion is to prevail, depending upon the
composition of the Commission for the proceeding in question. Item 30 proposes
to repeal existing section 35 and substitute a new section to reflect the
proposed new structure of the Commission.
Item 31 - Subsections 40(2)
and (3)
2.33 Existing subsection 40(1) authorises the President to
delegate all or any of the President’s powers to a Vice President.
Subsections 40(2) and (3) authorise further delegations to a Senior Deputy
President. Under the proposed new structure, the references to Senior Deputy
Presidents will be redundant. Accordingly, item 31 repeals subsections 40(2) and
(3).
Item 32 - Subsection 47(1)
2.34 Subsection 47(1)
provides that the Commission shall have a seal bearing the name of the
Commission. Item 32 would amend the subsection to refer to the proposed new name
of the Commission.
Item 33 - After subsection
48(1)
2.35 Subsection 48(1) authorises the President to make rules
with respect to practice and procedure to be followed in the Commission and the
conduct of the business of the Commission. Item 33 proposes to insert a new
subsection 48(1A) into the Act to require the President to ensure that any new
rules made after the commencement of the amendment have regard to the needs of
employers, employees and organisations and are drafted in plain English.
2.36 Subsection 48(1) authorises the President to make rules with respect
to practice and procedure to be followed in the Commission and the conduct of
the business of the Commission. Item 34 proposes to insert a new subsection
into the Act to require the President to review the rules and to recommend
changes to improve the practices and procedures of the Commission and the
Registry.
Item 35 - Subsection 49(1)
2.37 Existing subsection 49(1) requires the President to prepare an annual report of the operations of the Commission. Item 35 proposes to amend the subsection to require the annual report to cover the operations of both the Commission and the Registry and to include the matters specified. The additional requirements reflect:
• the desirability of more detailed and rigorous reporting requirements concerning the performance and efficiency of the Commission and the Registry;
• the proposed additional power of the President in respect of the
administration of the Registry [item 97 of this Schedule]; and
• the
proposed provisions concerning the development of a training and professional
development program for members of the Commission and their participation in the
program [items 20 and 21 of this Schedule].
2.38 The requirement that the
Industrial Registrar prepare a separate annual report of the operations of the
Registry is to be repealed [item 93 of this Schedule].
Item 36 -
Paragraph 147(2)(b)
2.39 This item proposes a consequential amendment
to give effect to the change in terminology from ‘industrial
relations’ to ‘workplace relations’ [items 11 and 13 of this
Schedule].
Item 37 - Subsection 520(3)
2.40 This amendment
is consequential upon the proposed change in the name of the Commission.
Item 38 - Subsection 4(1) (definition of Industrial
Registry)
Item 39 - Subsection 4(1)
2.41 These items
would give effect to the proposed change in the name of the Industrial Registry
[item 42 of this Schedule] by repealing the existing definition of
‘Industrial Registry’ and substituting a new
definition.
Item 40 - Part IV (heading)
Item 41 - Division 1
of Part IV (heading)
2.42 These items propose to amend the headings
of Part IV – Australian Industrial Registry, and Division 1 of Part IV
– Establishment and functions of Australian Industrial Registry, to
reflect the proposed change in the name of the Registry [item 42 of this
Schedule].
Item 42 - Subsection 62(1)
2.43 Subsection 62(1)
provides for the establishment of the Australian Industrial Registry. Item 42
proposes to change the name of the Registry to ‘the Australian Workplace
Relations Registry’.
Item 43 - Subsection 62(4)
Item
44 - Subsection 63(1)
2.44 These items would make consequential
amendments to reflect the proposed new name of the Registry.
Item 45 -
After subsection 63(1)
2.45 Subsection 63(1) specifies the functions
of the Registry. Item 45 proposes to insert a new subsection 63(1AA), requiring
the Registry, in performing its functions, to employ systems and procedures that
facilitate access to the services of the Registry and the Commission by
employers, employees and organisations. A similar requirement is proposed for
the Commission [item 58 of this Schedule].
Item 46 - Subsection
63(1B)
Item 47 - Subsection 63(1C)
Item 48 - Subsection
63(1D)
Item 49 - Subsections 64(1) and (2)
Item 50 -
Subsections 65(1) and (3)
Item 51 - Subsection 65(4)
Item 52
- Paragraph 67(2)(b)
Item 53 - Paragraph 67(2B)(a)
Item 54 -
Subsection 67(5)
Item 55 - Paragraph 75(2)(b)
Item 56 -
Paragraph 75(4)(a)
Item 57 - Subsection 83(1)
2.46 These
items propose consequential amendments to the provisions indicated by omitting
references to the existing name of the Registry and substituting the proposed
new name.
Item 58 - Section 98A
2.47 Item 58 proposes to
repeal existing section 98A and insert a new section 98A. Paragraph (a) of the
proposed new section re-enacts the substantive provisions of existing section
98A, and paragraph (b) imposes an additional requirement that the Commission
adopt systems and procedures that facilitate access to the services of the
Commission.
Item 59 - Subsection 170WHB(4) (paragraph (b) of the
definition of Registry official)
Item 60 - Subsection
198(2)
Item 61 - Subsection 202(2)
Item 62 - Paragraph
202(11)(a)
Item 63 - Subsections 205(1) and (2)
Item 64 -
Subsection 211(1)
Item 65 - Subsection 214(1)
Item 66 -
Paragraph 214(2)(a)
Item 67 - Subsection 236(1)
Item 68 -
Subsection 241(1)
Item 69 - Subsection 242(1)
Item 70 -
Subsections 244(1) and 245(1)
Item 71 - Subsections 253D(2) and
(5)
Item 72 - Subsection 253L(1)
Item 73 - Subsections
268(3) and (4) and 269(1), (2) and (3)
Item 74 - Paragraph
279(2)(a)
Item 75 - Subsections 280(1), (2) and (5)
Item 76
- Subsections 281(3), (4) and (5)
Item 77 - Section 292
Item
78 - Paragraph 310(a)
Item 79 - Subsection 322(2)
Item 80 -
Paragraph 328(a)
Item 81 - Paragraph 330(a)
2.48 The above
items propose consequential amendments to the provisions referred to by omitting
references to the Registry by its existing name and substituting its proposed
new name.
Part 3 – Amendments to alter references to the
Industrial Registrar
or a Deputy Industrial Registrar
Item 82 - Subsection 4(1) (definition of
Registrar)
2.49 This item proposes to amend the definition of
‘Registrar’ to refer to the proposed new titles of Workplace
Relations Registrar and Deputy Workplace Relations Registrar.
Item 83
- Subsections 44(1) and (2)
Item 84 - Subsection 62(2)
Item
85 - Subsection 62(2)
Item 86 - Subsection 62(3)
Item 87 -
Subsection 62(3)
Item 88 - Subsection 62(4)
Item 89 -
Paragraph 63(1A)(a) and (b)
Item 90 - Subparagraphs 63(1C)(a)(i) and
(ii)
Item 91 - Subsection 63(2)
Item 92 - Subsection
65(3)
Item 94 - Subsections 67(1) and (2)
Item 95 -
Paragraphs 67(2A)(a) and (b)
Item 96 - Subsections 67(2B) and
(3)
2.50 These items propose consequential amendments to replace
existing references to the Registrar and Deputy Registrars with the proposed new
titles of those offices.
Item 93 - Section 66
2.51 This
item proposes the repeal of section 66 of the Act, which requires the Industrial
Registrar to prepare an annual report of the Australian Industrial
Registry.
Item 97 - Subsection 67(4)
2.52 Existing subsection 67(4) provides that, in exercising the powers and performing the functions of his or her office in relation to the Commission, the Industrial Registrar shall comply with any directions given by the President. This item would amend subsection 67(4) to:
• replace the reference to the Registrar with the proposed new title of
that office; and
• insert the additional requirement that, in managing
the administrative affairs of the Registry, the Registrar shall comply with any
directions given by the President.
2.53 Because of the role of the
Registry in providing services to the Commission and to employers, employees and
organisations utilising the services of the Commission, the latter change is
intended to give the President greater control over the administration of the
Registry.
Item 98 - After subsection 67(4)
2.54 This item
proposes to insert a new subsection to complement the proposed requirements that
the Commission and the Registry employ systems and procedures that facilitate
access to the services of both bodies [items 48 and 61 of this
Schedule].
Item 99 - Subsection 67(4A)
Item 100 - Subsection
67(5)
Item 101 - Sections 68 and 69
Item 102 - Subsection 70(1)
2.56 Existing subsection 70(1) provides that the Industrial Registrar shall not engage in paid employment outside the duties of the office without the consent of the Minister. Item 105 proposes to amend subsection 70(1) to:
• replace the reference to the Industrial Registrar with the proposed
new title of that office; and
• substitute the President of the
Commission as the person whose consent the Industrial Registrar must
obtain.
2.57 The latter change complements the proposal to give the
President more direct control over the administration of the Registry [item 97
of this Schedule].
Item 103 - Subsection 70(2)
2.58 This
item proposes a consequential amendment to replace the existing reference to the
Registrar with the proposed new title of that office.
Item 104 -
Subsection 71(1)
2.59 This item would repeal existing subsection 71(1) and substitute a new subsection that is to the same effect as the existing subsection except that:
• the existing reference to the Registrar is replaced by a reference to
the proposed new title of that office; and
• the Registrar is to be
required to disclose all relevant pecuniary interests to the President of the
Commission instead of to the Minister, as is presently the case.
2.60 The
latter change complements the proposal to give the President more direct control
over the administration of the Registry [item 97 of this
Schedule].
Item 105 - Subsection 71(2)
Item 106 - Subsection
72(1)
2.61 These items propose consequential amendments to replace
the existing references to the Registrar with references to the proposed new
title of that office.
Item 107 - Subsection 72(2)
2.62 Existing subsection 72(2) provides that the Minister may grant the Registrar leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines. Item 107 proposes to repeal the existing provision and substitutes a new provision that is substantially to the same effect except that:
• the reference to the Registrar is replaced with a reference to the proposed new title of that office;
• the Registrar’s leave of absence is to be approved by the
President instead of by the Minister; and
• the Minister must have
approved any terms and conditions which the President applies to a grant of
leave.
2.63 The last two changes complement the proposal to give the
President more direct control over the administration of the Registry [item 97
of this Schedule].
Item 108 - Sections 73 and 74
Item 109 -
Subsection 75(1)
Item 110 - Subsection 75(2)
Item 111 -
Subsection 75(3)
Item 112 - Subsection 75(4)
2.64 These
items propose consequential amendments to replace the existing references to the
Registrar and Deputy Registrars with references to the proposed new titles of
those offices.
Item 113 - Subsection 76(1)
2.65 Existing subsection 76(1) provides that the Minister may appoint a person to act in the office of Industrial Registrar. This item would repeal existing subsection 76(1) and substitute a new subsection that is to the same effect except that:
• the reference to the Industrial Registrar is replaced with a
reference to the proposed new title of that office; and
• the
President, instead of the Minister, is given the power to appoint a person to
act in the position.
2.66 The latter amendment complements the proposal
to give the President more direct control over the Registry [item 97 of this
Schedule].
Item 114 - Subsection 77(1)
2.67 This item
proposes a consequential amendment to replace the existing reference to the
Registrar with a reference to the proposed new title of that office.
2.68 Item 115 proposes the insertion of a new section 77A which would
enable persons employed in the registry of a State industrial body to be
appointed as a Deputy Workplace Relations Registrar or Acting Deputy Workplace
Relations Registrar.
2.69 Such an appointment would be subject to the
Minister reaching agreement with the appropriate State authority and to the
terms of the industrial law of that State: new subsection
77A(1).
2.70 Proposed subsection 77A(3) would expressly provide that
section 83 is not to apply in relation to a person so appointed. Section 83
provides that the staff of the Registry, including the Deputy Workplace
Relations Registrars, must be persons appointed or employed under the Public
Service Act 1922.
2.71 The proposed amendment is intended to further
strengthen the harmonisation of the federal and State workplace relations
systems. It complements existing provisions of the Act which enable the
Registrar and Deputy Registrars to be appointed under State laws to be the
Registrar of a State industrial body and the Registry to perform State registry
functions (subsections 63(1A), (1B), (1C) and (1D)).
Item 116 -
Subsection 83(1)
Item 117 - Subsection 83(2)
Item 118 -
Subsection 137(2)
Item 119 - Paragraphs 138(1)(a) and
(b)
Item 120 - Subsections 138(4), (5) and (6)
Item 121 -
Subsection 143(4)
Item 122 - Subsections 151(3) and (4)
Item
123 - Subsection 170WHB(4) (paragraph (a) of the definition of Registry
official)
Item 127 - Subsections 191(1), (2), (4) and (6)
Item 128 -
Subsections 198(3), (4) and (6)
Item 129 - Subsection
198(7)
Item 130 - Subsection 198(7)
Item 131 - Subsection
198(9)
Item 132 - Subsections 202(3), (4), (5) and (10)
Item
133 - Paragraph 202(11)(b)
Item 134 - Subsection 203(1)
Item
135 - Subsection 203(1)
Item 136 - Paragraph 205(4)(b)
Item
137 - Section 206
Item 138 - Subsection 208(11) (paragraph (b) of the
definition of appropriate authority)
Item 139 - Subsection
211(4)
Item 140 - Subsection 212(2)
Item 141 - Subsection
214(1)
Item 142 - Paragraph 214(2)(a)
Item 143 - Subsections
220(1) and (2)
Item 144 - Paragraph 223(3)(c)
Item 145 -
Section 224
Item 146 - Subsection 228(5)
Item 147 -
Subsection 236(4)
Item 148 - Subsection 248(1)
Item 149 -
Paragraph 253Q(3)(a)
Item 150 - Subsection 253TA(2)
Item 151
- Section 253ZQ
Item 152 - Section 297
Item 153 - Section
308
Item 154 - Section 310
Item 155 - Paragraph
316(b)
Item 156 - Paragraph 359(2)(d)
2.72 The above items propose consequential amendments to omit references
to the Industrial Registrar and substitute the proposed new title of that
office.
Part 4 - Amendment of other Acts concerning renaming and
restructuring
of the Australian Industrial Relations
Commission
Australian Federal Police Act 1979
Builders Labourers'
Federation (Cancellation of Registration – Consequential Provisions) Act
1986
Coal Mining Industry (Long Service Leave Funding) Act
1992
Defence Act 1903
Federal Court of
Australia Act 1976
Freedom of Information Act
1982
Judges' Pensions Act 1968
Judicial and
Statutory Officers (Remuneration and Allowances) Act 1984
Jury
Exemption Act 1965
National Crime Authority Act
1984
National Health Act 1953
Northern
Territory (Self-Government) Act 1978
Occupational Health and
Safety (Commonwealth Employment) Act 1991
Occupational Health
and Safety (Maritime Industry) Act 1993
Petroleum (Submerged
Lands) Act 1967
Remuneration and Allowances Act
1990
Remuneration Tribunal Act 1973
Seat of
Government (Administration) Act 1910
Sex Discrimination Act
1984
Social Security Act 1991
Superannuation
Guarantee (Administration) Act 1992
Trade Practices Act
1974
2.73 Items 158 – 191 would amend the above Acts by:
• omitting references to the ‘Australian Industrial Relations Commission’ where they occur and substituting ‘Australian Workplace Relations Commission’;
• omitting references to ‘Senior Deputy Presidents’ and
‘Deputy Presidents’ where they occur and substituting ‘Vice
President’; and
• omitting references to the ‘Industrial
Relations Act 1998’ where they occur and substituting
‘Workplace Relations Act 1996’.
Part 5 - Amendment of other Acts consequential on the renaming of the Australian Industrial Relations Registry, the Industrial Registrar and the Deputy Industrial Registrar
Freedom of Information Act 1982
Judges’ Pensions
Act 1968
Judicial and Statutory Officers (Remuneration and
Allowances) Act 1984
Navigation Act 1912
2.74 Items 192 - 196 would amend the above Acts by:
• omitting references to the ‘Industrial Registry’ where
they occur and substituting ‘Workplace Relations Registry’;
and
• omitting references to the ‘Industrial Registrar’ and
‘Deputy Industrial Registrar’ where they occur and substituting
‘Workplace Relations Registrar’ and ‘Deputy Workplace
Relations Registrar’.
2.75 This Part proposes certain provisions for the transition to the new
provisions proposed by this Schedule.
2.76 This item defines certain terms for the purpose of Part 6 -
Transitional of this Schedule.
2.77 The most significant definitions are:
• ‘commencing day’, which is defined to mean the day on
which the amendments made by this Schedule come into force;
and
• ‘original member’, which is defined to mean all
members of the Commission holding office immediately before the commencement of
this Schedule who are still members on commencing day.
2.78 Item 198 has been included to make clear that the changes proposed
by this Schedule would not affect either the continuity of the
Commission’s existence or the continuity of the appointments of the
‘original members’ (as defined in item 197) of the
Commission.
Item 199 - Appointment change for some
members
2.79 Subitem (1) of this item would give effect to the
proposed restructuring of the Commission as it affects the current Presidential
Members by providing that, upon the commencement of these amendments, all
current Senior Deputy Presidents and Deputy Presidents of the Commission would
become Vice Presidents.
2.80 Subitem (2) is intended to ensure that
transferring to the new office of Vice President will not affect the continuity
of tenure of the members concerned. The effect of subitem (2) is that, for all
purposes, the tenure of each of those members as Vice Presidents, would be taken
to have commenced when they were originally appointed as Senior Deputy President
or Deputy President, as the case may be.
2.82 Subitem (1) explains that members holding appointments as Senior
Deputy Presidents and Deputy Presidents would become Vice Presidents upon the
commencement of these amendments, while the members holding appointments as Vice
Presidents would continue as Vice Presidents.
2.83 Subitem (2) explains
that the seniority of those members would be determined in accordance with
subitem (3).
2.84 Subitem (3) proposes that the seniority of those
members is to be determined in accordance with the order of precedence set out
in that subitem. The effect of that order of precedence would be to preserve the
current seniority of the members concerned in relation to each other,
notwithstanding that, upon commencing day, the Senior Deputy Presidents and
Deputy Presidents will have become Vice Presidents.
2.85 The note to this
item explains that, after the amendments proposed by this Schedule commence, the
seniority of the original members in relation to members appointed after
commencing day would be determined in accordance with section 11 of the
Principal Act, which is the substantive section governing the seniority of
members of the Commission.
2.86 This item would preserve the annual rate of salary of the existing
Vice Presidents of the Commission, whose salaries would otherwise decrease as a
result of the proposed restructure.
2.87 This is because existing
subsection 21(2) provides that a Vice President is to be paid salary at an
annual rate equal to 103% of the annual rate of salary payable to a Judge of the
Federal Court of Australia. Under the proposed restructuring, however, Vice
Presidents would be paid salary at an annual rate equal to the annual rate of
salary payable to a Judge of the Federal Court [items 22 and 23 of this
Schedule].
Item 202 - Consent to engage in outside
employment
2.88 Existing subsection 70(1) of the Principal Act
provides that the Industrial Registrar shall not, except with the consent of the
Minister, engage in paid employment outside the duties of the office. Item 102
of this Schedule proposes to amend subsection 70(1) to substitute the President
of the Commission as the person whose consent the Industrial Registrar must
obtain. This item would preserve any consent which the Minister may have already
given under subsection 70(1) and which is still in force immediately before the
commencement of this Schedule.
Item 203 - Disclosure of interests by
Workplace Relations Registrar
2.89 Existing subsection 71(1) of the Principal Act requires the Industrial Registrar to give written notice to the Minister of all direct or indirect pecuniary interests that the Industrial Registrar has or acquires in any business or in any company carrying on a business. Item 104 of this Schedule proposes to amend subsection 71(1) to substitute the President of the Commission as the person to whom the Industrial Registrar must give such notice:
• subitem 203(1) would preserve the effect of any notice that the
Industrial Registrar may have given to the Minister under subsection 71(1)
before the commencement of this Schedule; and
• subitem 203(2) would
require the Minister to give to the President any written notice that the
Industrial Registrar may have given to the Minister in compliance with existing
subsection 71(1).
2.90 Existing subsection 72(2) of the Principal Act provides that the
Minister may grant the Industrial Registrar leave of absence, other than
recreation leave, on such terms and conditions as the Minister determines. Item
107 of this Schedule proposes to amend subsection 72(2) to substitute the
President of the Commission as the person who may grant leave of absence to the
Industrial Registrar. This item would preserve the right of the Industrial
Registrar to take any leave granted by the Minister but not taken before the
commencement of this Schedule.
2.91 Existing subsection 76(1) of the Principal Act provides that the
Minister may appoint a person to act in the office of Industrial Registrar. Item
113 of this Schedule proposes to amend subsection 76(1) to substitute the
President of the Commission as the person who may appoint a person as acting
Industrial Registrar. This item would preserve the operation of any acting
appointment made under subsection 76(1) that is still in force immediately
before the commencement of this Schedule.
2.92 Subsection 98A(4) of the National Health Act 1953 provides
that a person is not eligible to be appointed as Chairperson of the
Pharmaceutical Benefits Remuneration Tribunal unless the person is a Senior
Deputy President or a Deputy President of the Australian Industrial Relations
Commission. Item 172 of this Schedule proposes to amend subsection 98A(4) to
substitute references to the proposed new name of the Commission and to
substitute ‘Vice President’ for the references to ‘Senior
Deputy President’ and ‘Deputy President’. This item would
preserve the existing appointment of the Chairperson of the Pharmaceutical
Benefits Remuneration Tribunal by providing that the Chairperson does not cease
to hold office only because that person’s appointment as a Senior Deputy
President or a Deputy President of the Commission is changed to that of a Vice
President under proposed item 199 of this Schedule.
SCHEDULE 3 - EMPLOYMENT ADVOCATE
Workplace Relations Act 1996
Item 1 - Subsection
83BE(3)
3.1 This item would make a minor technical amendment to
correct a drafting error.
Item 2 - Subsection 83BS(1)
Item 3
- Paragraph 83BS(2)(a)
3.2 Items 2 and 3 remove the term
‘entrusted person’ for the purpose of broadening the prohibition on
disclosure of information that could identify a person as being, or having been,
a party to an Australian Workplace Agreement (AWA). These items, in conjunction
with item 6 of this Schedule, would ensure that the prohibition on disclosure of
such information extends to a person who acquires information from a person who
obtained that information from an AWA official under subsection
83BS(2).
Item 4 - Paragraphs 83BS(2)(b) and
(c)
3.3 Subsection 83BS(2) sets out exceptions to the prohibition on
disclosure of information under subsection 83BS(1). These exceptions relevantly
include where the disclosure is authorised by the Workplace Relations
Regulations or is required or permitted by another Act. Item 4 would repeal
paragraphs 83BS(2)(b) and (c) and replace them with a new paragraph (b) that
would provide that, in addition to the existing exceptions set out in those
paragraphs, the Act and regulations made under other Acts may authorise, require
or permit disclosure.
Item 5 - Subsection 83BS(4)
3.4 This
item indicates that proposed subsection 83BS(5) gives the term ‘AWA’
an extended meaning.
Item 6 - Subsection 83BS(4) (definition of
protected information)
3.6 Item 6 would amend the definition
of ‘protected information’ for the purpose of the prohibition on
disclosure of information that could identify a person as being, or having been,
a party to an AWA. The amendment would extend the prohibition to cover a person
who acquires information from a person who obtained that information from an AWA
official under subsection 83BS(2).
Item 7 - At the end of section
83BS
3.7 Proposed subsection 83BS(5) would extend the definition of
the term ‘AWA’ to include a proposed AWA.
SCHEDULE 4 - CONCILIATION
4.1 This Schedule proposes amendments to the conciliation powers of the Commission. The principles underpinning the amendments are that:
• compulsory conciliation by the Commission should only be available in relation to matters where arbitration can be used;
• the Commission should be conferred with express powers of voluntary conciliation;
• voluntary conciliation by the Commission should be available, on
payment of a fee, in respect of a wider range of matters.
4.2 In giving
effect to these principles, the amendments propose to distinguish between
compulsory conciliation and voluntary conciliation in the Act.
4.3 In
relation to industrial disputes which are notified to the Commission, the
amendments would require the Commission to determine whether the dispute is one
that it can deal with under Part VI before beginning to deal with the matter by
compulsory conciliation or arbitration. If the matter is partly about Part VI
matters but is also about other matters, then the part of the dispute that is
about Part VI matters would be taken to be a separate dispute. It is only in
relation to that Part VI dispute that the Commission is to exercise powers of
compulsory conciliation and arbitration.
4.4 Voluntary conciliation would
be available for a range of matters, including assisting agreement making under
Part VIB, assisting the resolution of disputes arising under awards, certified
agreements and Australian Workplace Agreements, and assisting the resolution of
certain industrial disputes. Because these matters could also be resolved by
mediation by private sector mediators it is appropriate that a fee should be
payable for these conciliation services.
Workplace Relations Act 1996
Item 1 - Subsection 4(1)
4.5 This item proposes to insert a new
definition of ‘compulsory conciliation’, indicating when the
Commission may use compulsory conciliation under the Act.
4.6 Compulsory
conciliation may occur under Part VI in relation to industrial disputes about
allowable award matters or exceptional matters, and demarcation disputes.
4.7 Compulsory conciliation can also occur in relation to applications
for equal remuneration orders under Division 2 of Part VIA of the Act, as well
as in relation to applications in respect of termination of employment under
Subdivision B of Division 3 of Part VIA (which is about unfair dismissal of
individual employees), and also under Subdivisions D and E (which allow the
Commission to make orders of more general application in relation to
termination).
4.8 Compulsory conciliation can occur under section 170MX,
which allows awards to be made in certain limited circumstances following the
termination of a bargaining period and the breakdown of negotiations for a
certified agreement.
Item 2 - Subsection 4(1) (definition of
conciliation powers)
4.9 This item proposes to amend the
definition of ‘conciliation powers’ to recognise both forms of
conciliation provided for in the Act.
Item 3 - Subsection 4(1)
4.10 This item proposes to insert a definition of ‘voluntary
conciliation’ into the Act, referring to conciliation by the Commission
under new Part VA [item 5 of this Schedule].
Item 4 - After subsection
34(1)
4.11 This item proposes to amend section 34 to allow the
Commission to be constituted by a different member where the member who first
began dealing with a matter by voluntary conciliation becomes unavailable. It
corresponds to the provision made in existing subsection 34(1) where a member
who has commenced hearing a matter becomes unavailable to complete the
hearing.
Item 5 - After Part V
4.12 This item proposes to
insert a new Part VA in the Act, as follows.
New section 88AA - Object of this Part
4.13 This new
section would state the object of the new Part, which is to provide for
voluntary conciliation by the Commission.
New section 88AB - Parties
may request conciliation
4.14 New section 88AB would set out the
circumstances in which voluntary conciliation can be conducted by the
Commission.
4.15 First, there would have to be a matter in issue between
parties which answers the description in a paragraph of subsection 88AB(1).
These are the only matters for which voluntary conciliation could be sought.
This does not mean that voluntary conciliation is necessarily the only form of
third party assistance that would be available in relation to such matters.
Depending on the circumstances, mediation by third parties or compulsory
conciliation and arbitration by the Commission could also be available in
relation to the matters specified.
4.16 Proposed paragraph 88AB(1)(a)
refers to negotiations in relation to an agreement under Part VIB. This would
cover situations where an employer is negotiating with either employees or an
organisation of employees with a view to making, varying, extending or
terminating an agreement under Part VIB.
4.17 Proposed paragraph
88AB(1)(b) refers to a matter arising under an award, a certified agreement or
an Australian Workplace Agreement by which the parties are bound. This would
include where the matter arises under a dispute settling procedure in the award
or agreement. For example, parties bound by a certified agreement may disagree
about the application of the agreement to particular circumstances and be unable
to resolve that issue without third party assistance.
4.18 Issues
arising under an award will usually be able to be dealt with by compulsory
conciliation and arbitration under Part VI. However, issues may arise under a
dispute settling procedure in an award that could not be dealt with by the
Commission under that Part. For example, the issue may relate to the application
of the award to circumstances in a particular workplace where a further award or
order of the Commission, or a variation of an existing award or order, could not
be obtained. Voluntary conciliation would be available in these circumstances
under new Part VA.
4.19 Proposed paragraph 88AB(1)(c) refers to an industrial dispute. This provision would allow parties to an industrial dispute to apply to the Commission for voluntary conciliation where compulsory conciliation is not available or not wanted. Some examples of when this may occur are:
• the dispute is not about allowable award matters or demarcation, and the parties are not claiming it is about an exceptional matter;
• only part of a dispute is about allowable award matters – in
such a case the part of the dispute that is not about allowable award matters,
or that part together with all or some of the allowable award matters, could be
subject to voluntary conciliation; or
• the dispute is about allowable
award matters but is about actual rather than minimum wages and
conditions.
4.20 If a matter in issue is caught by one or more of the
paragraphs in section 88AB(1), the parties could apply to the Commission for
conciliation of the matter under new Part VA.
4.21 Proposed subsection
88AB(2) would require the application to be in writing and signed by the
parties. If a form is prescribed, the application must be in that form. The
matter for which conciliation is sought would have to be
described.
4.22 Proposed paragraph 88AB(2)(d) would require an
application to be accompanied by a $500 fee or such other fee as is prescribed
by the regulations. The new subsection does not specify who must pay the fee but
only that it is a requirement of a valid application. It is envisaged that
parties who decide to request conciliation would work out the liability for the
fee among themselves. They could provide for this in a formal agreement but it
is a matter for the parties to decide in the same way as they would for a
private mediation.
4.23 Proposed subsection 88AB(3) would allow the
Commission to request further information about the matter. This power might be
used to acquire sufficient information to enable the Commission to decide
whether the matter is within subsection 88AB(1) or to estimate the time that
might be required for the conciliation.
New section 88AC - Decision
whether to conciliate
4.24 This new section would require the
Commission to conciliate a matter for which it receives an application
(accompanied by the fee) and which it determines is a matter covered by new
paragraphs 88AB(1)(a), (b) or (c). The Commission would not be able to
conciliate if the matter is not covered by one or more of those paragraphs. It
also could not conciliate if to do so would be a breach of a dispute settling
procedure in an award or agreement - for example, where the parties have not
complied with any procedures which an agreement states should precede
conciliation.
4.25 Proposed subsection 88AC(4) would ensure that where
voluntary conciliation does not proceed, the fee is refunded to the person who
paid it.
New section 88AD - Powers and procedures of the Commission
4.26 New section 88AD would set out the powers and procedures of the
Commission when it is conciliating under new Part VA. The proposed section
recognises that, when the Commission is engaged in voluntary conciliation, it
should not have the same powers of compulsion that attach to compulsory
conciliation.
4.27 Proposed subsection 88AD(1) would require the
Commission to take the action that is appropriate to resolve the matter by
conciliation. This indicates that the processes to be followed are not
prescriptive and would depend on the wishes of the parties and the circumstances
of the particular case. This general direction would operate subject to the
remainder of subsection 88AD(2).
4.28 Proposed subsection 88AD(2)
indicates two kinds of procedure that the Commission may use. These are
arranging conferences at which the conciliator is present, and arranging for
conferences between the parties themselves. These procedures are characteristic
of conciliation by the Commission (see section 102).
4.29 New subsection
88AD(3) would give general guidance to the Commission as to the manner in which
it should conduct voluntary conciliation under new Part VA. As well as acting
quickly and in a non-legalistic manner, the Commission should endeavour to
comply with any agreement by the parties as to the conciliation. That agreement
may be formal or informal, and would include a joint request made to the
Commission in the course of the conciliation.
4.30 Where the
conciliation is occurring under a dispute settling procedure in an award or
agreement, the Commission would be required to act in accordance with that
procedure as far as practicable.
4.31 Proposed subsection 88AD(4) makes
it clear that the compulsory powers and procedures of the Commission which are
set out in Part VI (for example, in sections 111, 119 and 135) do not apply when
the Commission is conciliating under new Part VA. This subsection would also
make it clear that the Commission has no power to make an award or order when
undertaking voluntary conciliation under new Part VA.
4.32 New subsection
88AD(5) recognises that there may be cases where the parties to a voluntary
conciliation want the Commission to go further than facilitation or persuasion.
This subsection would provide that the parties may request the Commission to
recommend the course they should take, and if they so request, the Commission
may make such recommendations. It is anticipated that the Commission would
rarely refuse such a request, but there may be circumstances where it would
consider the making of a recommendation to be inappropriate or unhelpful for the
resolution of the matters in dispute.
4.33 Proposed subsection 88AD(6)
would recognise that the Commission may, even in the absence of a request, make
recommendations to the parties about both procedural and substantive
matters.
4.34 Proposed subsection 88AD(7) would ensure that section 90
does not apply when the Commission is performing functions under new Part VA.
The broader public interest concerns, which govern the performance of most of
the Commission’s functions, should not apply when it is conciliating
privately at the request of the parties.
New section 88AE -
Conciliation to be in private and information not to be used
4.35 This new section would make the private character of
conciliation under new Part VA clear. It would also prohibit the Commission from
disclosing information and documents given to the Commission in the
conciliation, or using the information or documents in any other proceedings.
The ban on disclosure and use of information and documents may be displaced if
all the parties who requested the conciliation consent to the disclosure or
use.
New section 88AF - When conciliation is
completed
4.36 New section 88AF would specify when conciliation under
new Part VA is completed.
4.37 First, the conciliation would be completed
where the Commission is satisfied that the matter is resolved. This satisfaction
would normally follow a successful resolution to which all parties agree.
4.38 Secondly, the conciliation would be completed where a party to the
conciliation informs the Commission that it no longer wishes the conciliation to
continue. This provision recognises that the conciliation is voluntary and
consensual in nature and may only proceed with the consent of all the parties
involved.
4.39 Thirdly, the Commission could discontinue conciliation
where it is satisfied that further conciliation would not resolve the matter
within a reasonable period. This decision would be taken by the Commission if it
reached the view there was no or little prospect of resolving the matter by
conciliation within a reasonable time.
4.40 Fourthly, if the Commission
has already spent a reasonable time in conciliation with the parties, it could
decide to end the conciliation whether or not it is satisfied that further
conciliation will be fruitless. This provision recognises that the resources of
the Commission are limited and it should not be obliged to continue conciliation
indefinitely. It would be required only to spend a reasonable time in the
conciliation. It is envisaged that the member of the Commission who is assigned
to a particular conciliation would discuss the expected duration and other
arrangements in advance of the conciliation commencing.
4.41 Finally, the
section would allow the Commission to have regard to a dispute settling
procedure in an award, certified agreement or Australian Workplace Agreement by
which the conciliation parties are bound. Dispute settling procedures in awards
and agreements bind the parties to those instruments and it is not intended that
the Commission should be involved in any breach by the parties of such
procedures.
Item 6 - Subsection 89A(1)
4.42 This amendment
would make it clear that a demarcation dispute could be dealt with by compulsory
conciliation and arbitration even though demarcation is not included as an
allowable award matter in subsection 89A(2).
Item 7 - Before
paragraph 89(1)(a)
4.43 This amendment would ensure that, except in
the case of a demarcation dispute or a dispute about exceptional matters, the
Commission can deal with an industrial dispute by compulsory conciliation only
if it is about allowable award matters (as set out in subsection 89A(2)). The
effect of subsection 89A(1) as amended would be that compulsory conciliation by
the Commission in relation to industrial disputes could be exercised only in
respect of the same matters that attract its arbitration powers.
Item
8 - Paragraph 89A(7)(b)
4.44 This amendment would recognise
that an industrial dispute about a non-allowable award matter may be the subject
of voluntary conciliation (e.g. before the matter was identified as being
exceptional) or compulsory conciliation (following a determination by the
Commission that the matter is an exceptional matter).
Item 9 - Section
91
4.45 This item proposes to amend section 91 to recognise that
dispute settling procedures included in an award may provide for the processes
of mediation and voluntary conciliation as well as discussion and
agreement.
Item 10 - Section 92
4.46 This amendment would
ensure that the powers of the Commission referred to in section 92 are its
powers under Part VI. Separate provision is to be made in new Part VA for regard
to be had to dispute settling procedures in awards and agreements when the
Commission is conciliating in relation to an industrial dispute under that
Part.
Item 11 - Subsection 99(1)
4.47 This proposed
amendment would provide that not all industrial disputes (as defined in section
4) need to be notified to the Commission. For example, where the dispute is
about terms and conditions of employment above the safety net, particular
parties may decide that the dispute should be settled by certified agreements
negotiated under Part VIB. Similarly, if the industrial dispute is not a
demarcation dispute and is about matters which are not allowable award matters
(and not exceptional matters within the meaning of subsection 89A(7)), then it
should not have to be notified.
Item 12 - Subsection 100(1)
4.48 This amendment would ensure, consistent with the previous
amendment, that the Commission does not have to refer every industrial dispute
of which it becomes aware for compulsory conciliation or arbitration under this
Part. Only those disputes that are notified under section 99 would be required
to be referred to a member of the Commission.
Item 13 - Subsections
100(1) and (2)
4.49 This amendment would provide that the
conciliation referred to in section 100 is compulsory
conciliation.
Item 14 - After subsection 101(1)
Item 15 -
Subsection 101(3)
Item 16 - At the end of subsection
101
4.50 These amendments to section 101 would be made necessary by
the proposed amendment to subsection 89A(1) [item 7 of this Schedule]. The new
provisions would establish mechanisms for determining whether an industrial
dispute is one with which the Commission can deal under Part VI by compulsory
conciliation and arbitration, and for separating such a dispute from a larger
dispute which only partly meets the requirements of subsection 89A(1).
4.51 New subsection 101(1A) would require the Commission to determine
whether an industrial dispute is a Part VI dispute and to record its findings.
As with subsection 101(1), the Commission would be able to vary or revoke its
findings.
4.52 New subsection 101(1B) would prescribe what happens if the
industrial dispute referred to the Commission is only partly a Part VI dispute.
The part of the dispute that consists of things which are referred to in new
subsection 101(4) (which defines ‘Part VI dispute’) is taken to be a
separate dispute. The part of the dispute which does not consist of those things
is taken to be a separate dispute that is not a Part VI dispute.
4.53 New
subsection 101(1C) would require the Commission to cease to deal with a dispute
that is not a Part VI dispute. The Commission would be required to inform the
parties that that dispute may be dealt with by mediation or voluntary
conciliation.
4.54 The proposed amendment to subsection 101(3) is
consequential on the requirement imposed on the Commission to determine whether
a dispute is a Part VI dispute, as well as whether it is an industrial
dispute.
4.55 New subsection 101(4) would define ‘Part VI dispute’ for the purposes of section 101. The things referred to in this subsection are all matters that other provisions of Part VI allow to be dealt with by compulsory conciliation and arbitration by the Commission and in relation to which awards or orders can be made:
• proposed paragraph 101(4)(a) would catch an industrial dispute about allowable award matters. These disputes may be subject to compulsory conciliation by virtue of section 89A;
• proposed paragraph 101(4)(b) would catch exceptional matters - that
is, matters that are allowed to be included in an industrial dispute because of
subsection 89A(7) and in respect of which exceptional matters orders can be made
under section 120A; and
• proposed paragraph 101(4)(c) would catch
demarcation disputes that can be dealt with by compulsory conciliation under
section 102 and by arbitration under section 118A.
Item 17 -
Subsection 102(1)
Item 18 - Subsection 103(1)
Item 19 -
Subsections 104(1), (2), (4) and (5)
4.56 These items
propose consequential amendments to recognise that the conciliation referred to
in sections 102, 103 and 104 is, in each case, compulsory conciliation.
Item 20 - Subsection 105(1)
4.57 This amendment would
preclude a member of the Commission arbitrating a matter with respect to which
that member has exercised conciliation powers except with the consent of the
parties. It would change the current position, which allows arbitration by such
a member unless a party objects. This section would apply whether the powers
exercised related to compulsory conciliation or voluntary
conciliation.
Item 21 - After paragraph 107(2)(a)
4.58 This
amendment proposes to insert a new paragraph 107(2)(aa) into the Act to allow
applications for a proceeding about whether an industrial dispute is a Part VI
dispute within the meaning of new subsection 101(4) to be dealt with by a Full
Bench.
Item 22 - Paragraph 107(2)(b)
4.59 This amendment to
paragraph 107(2)(b) would recognise that conciliation of a Part VI dispute under
Part VI is compulsory conciliation.
Item 23 - Subsection
107(3)
4.60 This amendment is consequential on the amendment proposed
by item 21 of this Schedule and would allow applications under new paragraph
107(2)(aa) to be accompanied by an application under paragraph
107(2)(b).
Item 24 - After subsection 107(3)
4.61 This
amendment proposes a new provision consequential on the amendment made by item
23 of this Schedule and corresponds to the similar provision made in subsection
107(3).
Item 25 - Paragraph 107(6)(a)
4.62 This proposed
amendment is consequential on the amendment proposed by item 21 of this
Schedule.
Item 26 - After paragraph 107(7)(a)
4.63 This
amendment would provide for what happens if an application made under paragraph
107(2)(a) (as to whether the alleged industrial dispute is an industrial
dispute) is accompanied by an application under new paragraph 107(2)(aa) that
was granted. The Full Bench would be required to decide whether the industrial
dispute is a Part VI dispute and record its findings.
Item 27 -
Paragraph 107(7)(b)
4.64 This amendment would insert a requirement
that the Full Bench must find that there is a Part VI dispute before proceeding
to hear and determine the dispute. This corresponds to the requirements placed
on a single member of the Commission by section 101.
Item 28 - After
subsection 107(7)
4.65 This amendment proposes to insert a new
subsection 107(7A), which would provide for what happens if an application under
new paragraph 107(2)(aa) is granted. The Full Bench would be required, if it
considers the industrial dispute is a Part VI dispute, to record its findings
under section 101. If the application under paragraph 107(2)(aa) was accompanied
by an application under paragraph 107(2)(b) that was also granted, the Full
Bench would be required to hear and determine the dispute.
4.66 The new
provisions correspond to those in subsection 107(7), except that they are not
premised on an application under new paragraph 107(2)(aa) accompanying an
application under paragraph 107(2)(a).
Item 29 - Subsection
108(3)
4.67 This amendment would require the President, when dealing
with a matter under section 108, to consider whether the proceeding relates to a
Part VI dispute before dealing with the matter in accordance with the
section.
Item 30 - Subparagraphs 108(3)(b)(i) and
(ii)
4.68 This amendment would make it clear that the conciliation
referred to in paragraph 108(3)(b) is compulsory conciliation.
Item 31
- After subsection 111(1E)
Item 32 - At the end of subsection
111(2)
4.69 These items propose to insert a new subsection 111(1E)
and amend subsection 111(2). The amendments would make it clear that subsection
111(1) does not apply when the Commission is engaging in voluntary conciliation
under new Part VA [item 5 of this Schedule]. However, when conciliating under
new Part VA, the Commission would be able to exercise powers (which may
correspond to those in subsection 111(1)) by virtue of Part VA itself, which
would allow the Commission to take such action as is appropriate to assist the
parties by conciliation.
Item 33 - Subsection 111AA(1)
Item
34 - Paragraph 111AA(1)(a)
4.70 These amendments would make it clear
that section 111AA applies only when the Commission is exercising its powers of
compulsory conciliation in relation to a matter.
Item 35 -
After paragraph 111AA(1)(c)
4.71 This item proposes to insert new
subsection 111AA(1)(c) into the Act, to impose a requirement that if the parties
make a request for recommendations under section 111AA, their request must be
accompanied by a fee of $500 or such other fee as is prescribed. This fee
corresponds to the fee that is to be paid for voluntary conciliation by the
Commission. Its imposition recognises that the powers exercised under this
section are a form of voluntary arbitration.
Item 36 - Paragraphs
118A(1A)(a) and (b)
4.72 This amendment would make it clear that
conciliation under section 118A is compulsory conciliation.
Item 37 -
Subsection 119(1)
4.73 This amendment would make it clear that powers
under section 119 are exercised when the Commission is exercising powers and
performing functions under Part VI.
Item 38 - After paragraph
128(1)(c)
4.74 This amendment proposes to insert two new paragraphs
into subsection 128(1) to confer power on the Full Bench of the Commission to
restrain a State industrial authority from dealing with an industrial dispute or
matter that is the subject of voluntary conciliation by the Commission or of
mediation. The power would be able to be exercised in respect of mediation where
the matter is one that could have been the subject of voluntary conciliation by
the Commission but the parties have chosen mediation instead.
Item 39
- Subsection 130(1)
4.75 This amendment would make it clear that the
Commission’s power to refer an industrial dispute to a local industrial
board exists only when the industrial dispute is a Part VI dispute within the
meaning of subsection 101(4).
Item 40 - Section
132
4.76 This amendment is consequential on other proposed amendments
and would recognise that when the Commission makes an award or order in relation
to an industrial dispute, any relevant previous conciliation would have been
compulsory conciliation.
Item 41 - At the end of subsection
134(2)
Item 42 - Subsection 134(3)
4.77 These proposed
amendments to section 134 would ensure that compulsory powers of inspection
cannot be exercised by the Commission or authorised persons in relation to
voluntary conciliation under new Part VA [item 5 of this
Schedule].
Item 43 - Section 139
4.78 This item
proposes a consequential amendment to section 139 to recognise that the
conciliation referred to in section 139 is compulsory
conciliation.
Item 44 - Paragraph 170CA(1)(a)
Item 45 -
Paragraph 170CA(1)(b)
Item 46 - Subsections 170CF(1) and
(2)
4.79 These items propose to amend sections 170CA and 170CF to
recognise that any conciliation by the Commission in relation to termination of
employment under Division 3 of Part VIA would be compulsory conciliation.
Item 47 - At the end of section 170L
4.80 This item would
amend section 170L to recognise in the object of Part VIB that the processes for
making agreements include negotiation, mediation and voluntary conciliation
rather than compulsory conciliation or arbitration.
Item 48 -
Subsection 170LC(6)
4.81 This item is consequential on the repeal of
section 170NA [item 52 of this Schedule].
Item 49 - Subsection
170MY(1)
4.82 This item proposes to amend section 170MY to make it
clear that conciliation by the Commission under section 170MX is compulsory
conciliation.
Item 50 - Subsection 170N(1)
4.83 This item would amend
subsection 170N(1) to prohibit the Commission from engaging in compulsory
conciliation under Part VI during a bargaining period in relation to a matter
that is at issue between the parties.
4.84 The heading to the section
would also be amended so that it refers to compulsory conciliation as well as
arbitration.
Item 51 - At the end of subsection 170N(1)
4.85 This item proposes to add a note at the end of section 170N to
indicate the availability of voluntary conciliation by the Commission in
relation to the negotiation of agreements under Part VIB, and to note that the
parties may also seek mediation.
Item 52 - Section
170NA
4.86 This item proposes to repeal existing section 170NA. It is
intended that the Commission would not be able to engage in compulsory
conciliation in relation to the negotiation of an agreement under Part VIB
(except where section 170MX applies). It would be able to provide conciliation
assistance to the negotiating parties by voluntary conciliation
only.
Item 53 - Paragraphs 174(1)(a) and (c)
4.87 This amendment to section 174 is proposed to ensure that industrial
disputes referred to a State tribunal for conciliation would be dealt with only
by compulsory conciliation. The President could not refer an industrial dispute
that the Commission is dealing with under new Part VA.
Item 54 - After
section 357
4.88 This item proposes to insert two consequential
provisions related to the payment of fees under sections 88AB or 111AA, as
follows.
New section 357A - The way the Commonwealth pays
fees
4.89 New section 357A would make provision for the payment of
fees by the Commonwealth (as defined in new subsection 357A(4)). This section
indicates Parliament’s intention that the Commonwealth should be
notionally liable to pay such fees.
4.90 Proposed subsection 357A(2)
would provide that the Minister for Finance and Administration may give such
written directions as are necessary and convenient for carrying out or giving
effect to this intention.
4.91 New subsection 357A(3) would provide for
the effect of such directions.
New section 357B - Waiver of
fees
4.92 New section 357B would allow the Commission to waive all or
part of the fee payable or notionally payable if satisfied that payment of the
fee by the person would cause the person hardship. For example, a person who is
involved in small business who had previously agreed with employees (or an
organisation of employees) to bear the cost of any conciliation relating to a
workplace grievance might seek to have the fee waived where a matter for
conciliation arose at a time when the employer was experiencing financial
difficulties. Under proposed section 357B the Commission would have power to
grant the waiver.
Item 55 - Paragraph 520(2)(c)
Item 56 -
Paragraph 520(2)(d)
Item 57 - Subsection 520(3)
4.93 These
items propose consequential amendments to section 520 in relation to dispute
settling procedures in employment agreements which were entered into under
repealed provisions of the Employee Relations Act 1992 of Victoria and
which continue in force under Part XV of the Workplace Relations Act
1996.
4.94 Item 55 would ensure that the default dispute resolution
procedure set out in subsection 520(2) provides for voluntary conciliation by
the Commission.
4.95 Item 56 would clarify that arbitration undertaken
in accordance with this default provision is arbitration by a person other than
the Commission.
4.96 Item 57 would amend the reference to conciliation
in subsection 520(3) to ‘voluntary conciliation’.
Part 2 - Application and transitional
provisions
4.97 This Part makes provision for the application of amendments made by
Part 1 of this Schedule and also makes transitional provision where relevant.
Item 58 - Definitions
4.98 This item defines
‘Principal Act’ and ‘transitional period’ for the
purposes of Part 2 of this Schedule. The ‘transitional period’ would
be the period that begins on the commencement of Part 2 and ends three months
after that commencement.
Item 59 - Application of Part 1 to industrial
disputes
4.99 This item provides for how the amendments proposed in
Part 1 would apply to industrial disputes.
4.100 Subitem (1) makes it
clear that the amendments would apply in relation to industrial disputes
notified on or after the commencement of item 59.
4.101 Subitem (2) would
ensure that the amendments also apply in relation to industrial disputes
notified before that commencement in relation to which no findings had been made
under section 101, 107 or 108 before the commencement. This subitem would apply
even if the Commission had begun to consider the matter (under section 101 or
otherwise).
4.102 Subitem (3) would ensure that the amendments apply in
accordance with item 59 even if provision is made in a dispute settling
procedure of an award for the Commission to exercise powers which have been
removed by amendments made by this Schedule.
Item 60 - Treatment of
industrial disputes where a finding is made before the
commencement
4.103 This item would provide for a transitional period
of three months during which an industrial dispute may be the subject of
compulsory conciliation despite the amendments in Part 1 of this Schedule.
During the transitional period, an industrial dispute about which a finding had
been made under section 101, 107 or 108 before the commencement could be the
subject of compulsory conciliation by the Commission.
4.104 After the end
of the transitional period, the industrial dispute could not be the subject of
compulsory conciliation unless the Commission determines that the dispute is a
Part VI dispute.
4.105 Provision would be made by subitems (3), (4) and
(5) for the Commission to undertake substantially the same process in relation
to an industrial dispute covered by this item as it must undertake in relation
to new industrial disputes under the new provisions of section 101 of the
Principal Act.
4.106 The effect of this item would be that at the end of
the three month transitional period, industrial disputes being dealt with by the
Commission under Part VI could be the subject of compulsory conciliation by the
Commission only if the Commission has determined that they consist wholly of
allowable award matters, exceptional matters (within the meaning of subsection
89A(7) or demarcation issues, or wholly of a combination of such
issues.
4.107 Subitem (6) is in similar terms to subitem 59(3) and would
ensure that the provision made by this item is not overridden by any dispute
settling procedure providing for compulsory conciliation by the
Commission.
Item 62 - Application of Part 1 to negotiations in
relation to certified agreements
4.108 This item would provide for
how the amendments in Part 1 of this Schedule apply to conciliation in relation
to the negotiation of agreements and other matters arising under Part VIB of the
Act. Two of the relevant amendments for the purposes of this item are the
amendment of section 170N and the repeal of section 170NA.
4.109 Subitems (1) and (2) would make it clear that the amendments made
by Part 1 apply whether the matter in relation to which conciliation is sought
arose before, on or after the commencement of item 62. It would not matter if
negotiations for an agreement under Part VIB had begun before the
commencement.
4.110 Subitem (3) would provide for a transitional period
of 3 months where conciliation had begun but had not been completed under
section 170NA of the Act (as in force before its repeal). In such cases, the
Commission could continue to conciliate for up to 3 months after the
commencement as if the amendments had not been made. This transitional period
would allow the Commission to conciliate the matter that was the subject of
conciliation on the commencing day only. It would not allow conciliation by the
Commission under section 170NA in relation to another matter between the same
parties even if it arises out of the same negotiations.
4.111 Subitem
(4) would provide that at the end of the transitional period, a matter covered
by subitem (2) could be the subject of voluntary conciliation by the Commission.
New Part VA would apply to any such voluntary conciliation.
5.1 This Schedule proposes to insert a new Part IVB into the Act to
facilitate the voluntary use of mediation in workplace relations matters as an
alternative or supplement to the processes of the Australian Workplace Relations
Commission.
5.2 The use of mediation in workplace relations matters
reflects the need for employers and employees to take responsibility for their
own issues within the workplace. Mediation by an independent third party will
assist resolution of workplace issues when parties are unable to resolve them by
discussion and negotiation between themselves.
5.3 The new Part would
provide a single, national accreditation scheme for workplace relations
mediators by providing for the approval of mediation agencies which would, in
turn, carry out the assessment and accreditation of workplace relations
mediators according to a determined set of competency standards.
5.4 The Part also proposes to establish the office of the Mediation Adviser, who would oversee and facilitate the use of mediation to resolve workplace disputes by:
• establishing and maintaining a register of accredited workplace relations mediators;
• approving mediation agencies who will in turn accredit mediators;
• setting the competency standards in consultation with the approved mediation agencies;
• promoting mediation by accredited mediators;
• providing
advice to employers, employees and organisations about using mediation to
resolve workplace issues and differences.
5.5 The new Part does not
propose to provide for the arrangements that parties may make for the use of
mediation, its outcome or its cost. These matters would continue to be resolved
by the parties by contract or other arrangements chosen by the parties.
Amendments
Item 1 - Subsection 4(1)
5.6 Item 1 proposes to insert the
definition of ‘accredited workplace relations mediator’ into
subsection 4(1). An accredited workplace relations mediator is a person
accredited in accordance with the provisions of new Division 5 of Part IVB of
the Act [item 6 of this Schedule].
Item 2 - Subsection
4(1)
5.7 Item 2 proposes to insert the definition of ‘approved
mediation agency’ into subsection 4(1). An approved mediation
agency is a person or body approved under new Division 3 of Part IVB of the Act
[item 6 of this Schedule].
Item 3 - Subsection 4(1)
5.8 Item 3
proposes to insert the definition of ‘competency standards’
into subsection 4(1). The competency standards for accredited workplace
relations mediators would be the standards determined by the Mediation Adviser
under new Division 4 of Part IVB of the Act [item 6 of this Schedule].
Item 4 - Subsection 4(1)
5.9 Item 4 proposes to insert the
definition of ‘Mediation Adviser’ into subsection 4(1). The
Mediation Adviser is the person referred to in new Part IVB of the Act [item 6
of this Schedule].
Item 5 - Subsection 4(1)
5.10 Item 5
proposes to insert the definition of ‘Register of Accredited Workplace
Relations Mediators’ into subsection 4(1). The Register of
Accredited Workplace Relations Mediators is the Register established under new
Division 6 of Part IVB of the Act [item 6 of this Schedule].
5.11 This item proposes to insert a new Part IVB into the Act, as
follows.
5.12 New section 83C would set out the principal objects of new Part IVA. These objects would be:
• to encourage the use of voluntary mediation to resolve differences and issues that arise in relation to certain workplace relations matters covered by this Act;
• to facilitate high quality mediation in relation to those workplace
relations matters; and
• to assist people in choosing an appropriate
mediator by providing for a Register of Accredited Workplace Relations Mediators
whilst recognising that people are free to choose their own mediator and make
their own arrangements relating to costs.
5.13 New section 83D would provide that there is to be a Mediation
Adviser.
5.14 New section 83E would list the functions of the Mediation Adviser. These functions would be:
• to establish and maintain the Register of Accredited Workplace Relations Mediators;
• to approve people or bodies as approved mediation agencies;
• to develop competency standards for the accreditation of accredited workplace relations mediators, in consultation with approved mediation agencies;
• to promote the use of voluntary mediation by accredited workplace relations mediators to resolve workplace differences and issues;
• to provide advice to employers, employees and organisations about the
use of mediation to resolve workplace differences and issues covered by the Act;
and
• to carry out such other functions as are conferred on the
Mediation Adviser by the Act and by any other law of the Commonwealth.
5.15 New section 83F would provide that the Mediation Adviser has the
power to do all things necessary or convenient to be done for, or in connection
with, the performance of the Adviser’s functions.
5.16 New section 83G would provide that the Minister may give directions
to the Mediation Adviser regarding the manner in which he or she must exercise
or perform the powers or functions of the Mediation Adviser. These directions
would be published in the Government Gazette and could be disallowed under
section 46A of the Acts Interpretation Act 1901.
5.17 New section 83H would require the Mediation Adviser to prepare an
annual report to be laid before each House of Parliament. The report would be
required to give details of the operations of the Mediation Adviser during the
financial year and of any directions provided to the Mediation Adviser from the
Minister under new section 83G.
5.18 New section 83J would provide for the appointment of the Mediation
Adviser by the Minister. The position would be full-time and on the terms
specified in the appointment. The person appointed as the Mediation Adviser
could be appointed or employed under the Public Service Act 1922.
However, if the Mediation Adviser was not appointed under the Public
Service Act 1922, the period of appointment could not exceed 5 years.
5.19 New section 83K would provide that the Mediation Adviser may approve a person or body as a ‘mediation agency’ if that person or body:
• carries out the functions of assessing and accrediting mediators;
• uses explicit, transparent and verifiable procedures to assess mediators for accreditation and for removal of accreditation;
• takes reasonable steps to monitor whether accredited mediators should
remain accredited; and
• meets such other criteria (if any) that are
prescribed.
5.20 The Mediation Adviser could also determine that a
person or body ceases to be a mediation agency if that body or person no longer
meets the criteria outlined above.
5.21 New subsection 83L(1) would provide that the Mediation Adviser may
determine competency standards for accredited workplace relations mediators.
5.22 New subsection 83L(2) would provide that any competency standard
determined under new subsection 83L(1) will take effect on the day on which the
determination is made, or on a later day specified in the determination.
5.23 New subsections 83L(3), (4) and (5) would provide for the
revocation or variation of competency standards, and would ensure that
competency standards are only determined, varied or revoked after reasonable
consultation with all approved mediation agencies (except for variations of a
minor technical nature).
5.24 New subsection 83L(6) would provide for the
publication of a variation or revocation of a competency standard by notice in
an appropriate medium such as the Internet, and would require the Mediation
Adviser to take steps to ensure that all approved mediation agencies and the
public are informed of the determination, variation or revocation.
5.25 New subsection 83L(7) would provide that a failure to comply with
new subsection (6) would not affect the validity of any determination, variation
or revocation.
5.26 New section 83M(1) would provide that an approved mediation agency may determine that a person or body is an ‘accredited workplace relations mediator’ if:
• that person or body satisfies the competency standards;
• the person or body satisfies any other standards which the agency
applies to the accreditation of mediators; and
• the person or body
consents to the approved mediation agency making such a determination.
5.27 Under new subsection 83M(2) a determination made under new
subsection 83M(1) would be required to be conveyed to the Mediation Adviser.
5.28 New subsection 83N(1) would provide that accreditation as a
workplace relations mediator may be withdrawn by determination if the mediation
agency which accredited the meditator is satisfied that the person or body no
longer satisfies the competency standards, or any other standards applied to the
accreditation of mediators.
5.29 New subsection 83N(2) would provide
that if the mediation agency makes a determination under new subsection 83N(1)
then the agency must inform the Mediation Adviser.
5.30 New subsection
83N(3) would make provision for what happens to mediators who are accredited by
a mediation agency which ceases to be an approved mediation agency.
5.31 The subsection would provide that a person or body will cease to be
an accredited workplace relations mediator at the end of 12 months where the
mediation agency which determines that the body or person was an accredited
workplace relations mediator ceased to be an approved mediation agency and no
other approved mediation agency determined that the body or person is an
accredited workplace relations mediator within 12 months. This would place an
onus on mediators to become accredited by another agency if the original agency
ceases to be approved.
5.32 New section 83P would provide that the Mediation Adviser must
establish and maintain a register of all accredited workplace relations
mediators, to be known as the Register of Accredited Workplace Relations
Mediators (“the Register”).
5.33 New section 83Q would provide that the Register must contain the following information:
• the name of each accredited workplace relations mediator;
• the Australian Company Number of each accredited workplace relations mediator that is a company;
• an address and telephone number for each accredited workplace
relations mediator (a fax number should also be included if the mediator has
one); and
• any other information as prescribed by the regulations.
5.34 New section 83R would provide that the Mediation Adviser must
maintain the Register in such a form as to enable information to be accessed by
the public. The Register may be kept electronically, and the information on the
Register may be made available on the Internet.
Item 7 - Subsection
83J(2)
5.35 Item 7 proposes a technical amendment to subsection
83J(2) to omit the words “appointed or employed under the Public
Service Act 1922” and substitute “engaged under the Public
Service Act 1999.” This is to accommodate the possible enactment of
new Public Service legislation.
SCHEDULE 6 - AWARDS
6.1 This Schedule proposes amendments to
Part VI of the Act and consequential amendments to Part XV of the Act.
6.2 Consistent with the proposed amendments to the principal object of the Act and the objects of Part VI, these amendments are directed towards:
• ensuring that awards act as a safety net of basic minimum wages and conditions of employment in respect of appropriate allowable award matters to help address the needs of the low paid;
• ensuring that awards do not provide for wages and conditions of
employment above the safety net; and
• enabling employers and employees
to choose the most appropriate jurisdiction for the regulation of their
employment relationship.
6.3 The proposed amendments provide for
further simplification of awards, set out new requirements in relation to logs
of claims, widen the circumstances in which the Commission is required to cease
dealing with an industrial dispute, widen the range of agreements that will
displace the operation of a federal award and provide for the acceleration of
the process of cancelling obsolete awards.
Workplace Relations Act 1996
Item 1 - Subsection
4(1) (definition of State employment agreement)
6.4 Item 1
would amend the definition of ‘State employment agreement’ to
include an employment agreement within the meaning of section 489 of the
Act.
Items 2 to 18
6.5 Subsection 89A(2) of the Act sets
out the ‘allowable award matters’. These are the matters that may be
the subject of an industrial dispute for the purposes of the exercise by the
Commission of the powers set out in subsection 89A(1). Items 2 to 18 propose to
remove some matters from the scope of the allowable award matters, limit or
clarify the scope of other allowable matters and clarify the Commission’s
powers to include other matters in awards.
Item 2 - Paragraph
89A(2)(a)
6.6 Item 2 would remove ‘skill based career
paths’ from the allowable award matters. These matters are more
appropriately dealt with at the enterprise or workplace level and, if regulation
by an industrial instrument is necessary, by a certified agreement or an
Australian Workplace Agreement.
Item 3 - Paragraph 89A(2)(d)
6.7 Item 3 would remove ‘tallies and bonuses’ from the
allowable award matters. These matters are more appropriately dealt with at the
enterprise or workplace level and, if regulation by an industrial instrument is
necessary, by a certified agreement or an Australian Workplace
Agreement.
Item 4 - Paragraph 89A(2)(f)
6.8 Item 4 would
remove ‘long service leave’ from the allowable award matters.
Minimum standards of long service leave would be regulated by State or Territory
legislation.
Item 5 - Paragraph 89A(2)(g)
6.9 Item 5 would
omit ‘cultural leave’ from paragraph 89A(2)(g) and remove
‘other like forms of leave’ from the allowable award matters. The
capacity to include in an award provision for certain forms of cultural leave is
provided for in proposed paragraph 89A(2)(ga) [item 6 of this
Schedule].
Item 6 - After paragraph 89A(2)(g)
6.10 Proposed new paragraph 89A(2)(ga) would include in the allowable
award matters leave for Aboriginal and Torres Strait Islander people to meet
ceremonial obligations and leave for other cultural or religious obligations of
a similar nature.
Item 7 - Paragraph 89A(2)(i)
6.11 Item 7 would repeal paragraph 89A(2)(i) and replace it with a new provision that further limits the scope of the Commission’s powers under subsection 89A(1) in respect of public holidays. Proposed paragraph 89A(2)(i) would limit the Commission’s powers to including in an award provisions dealing with:
• the observance of days declared by State or Territory Governments to
be observed as public holidays generally within the State or Territory or region
of the State or Territory concerned by employees who work in the relevant State,
Territory or region; and
• entitlements of employees to payment in
respect of those days.
6.12 Proposed paragraph 89A(2)(i) would preclude the Commission from including in awards provisions that treat particular days as public holidays in addition to those declared by State and Territory Governments to be observed generally in the relevant community as public holidays. This means that an award could not include as public holidays:
• days such as ‘picnic days’ or ‘union picnic
days’ that are not observed as public holidays by the relevant community
as a whole; or
• additional days which may be or may have been treated
as ‘extra’ public holidays in a particular
industry.
6.13 Proposed paragraph 89A(2)(i) is not intended to 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.
Item 8 - Paragraph 89A(2)(j)
6.14 Item 8
would replace existing paragraph 89A(2)(j) (which includes
‘allowances’ as an allowable matter) with a new provision limiting
the type of allowances that may be included in an award to monetary allowances
payable to employees for expenses incurred in the course of their employment,
particular responsibilities or skills that are not taken into account in the
employee’s rate of pay or for disabilities associated with the performance
of particular tasks (for example, handling hazardous materials) or work in
particular conditions or locations (for example, wet conditions or remote
locations).
Item 9 - Paragraph 89A(2)(m)
6.15 Existing
paragraph 89A(2)(m) allows awards to provide for redundancy pay. Item 9 would
amend the paragraph to limit the circumstances in which an award may provide for
redundancy pay to circumstances in which an employee’s employment has been
terminated at the initiative of the employer on the grounds of redundancy. As is
the case with existing paragraph 89A(2)(m), neither new paragraph 89A(2)(m) nor
subsection 89A(6) would operate to allow the inclusion in awards of provisions
which affect the capacity of an employer to determine the number or identity of
persons whose employment is to be terminated on redundancy grounds.
Item 10 - Paragraph 89A(2)(n)
6.16 Item 10 would remove
‘notice of termination’ from the allowable award matters. Minimum
requirements as to notice of termination at the initiative of the employer are
set out in Part VIA of the Act.
Item 11 - Paragraph 89A(2)(q)
6.17 Item 11 would remove ‘jury service’ from the allowable
award matters.
Item 12 – After paragraph
89A(2)(s)
6.18 Item 12 proposes to amend subsection 89A(2) to insert
new paragraph (sa). New paragraph (sa) will contain a new allowable award matter
– ‘bonuses for outworkers’. The amendment is required because
‘bonuses’ generally are to be deleted as an allowable award matter
(item 3), but are to be retained as an allowable award matter for outworkers.
6.19 Paragraph 89A(2)(t) presently allows the Commission to make
provision in awards for the pay and conditions of outworkers, ‘...but only
to the extent necessary to ensure that their overall pay and conditions of
employment are fair and reasonable in comparison with the pay and
conditions specified in a relevant award or awards for employees who
perform the same kind of work at the employer’s business or commercial
premises’. As ‘bonuses’ generally are to be deleted as an
allowable award matter and thus no longer going to be specified in awards,
paragraph 89A(2)(t) would not permit the inclusion in awards of clauses
providing for bonuses for outworkers.
Item 13 – Paragraph
89A(2)(t)
6.20 Item 13 proposes consequential amendments to paragraph
89A(2)(t) to expressly provide that that allowable award matter concerns pay and
conditions for outworkers, other than bonuses, which are fair and reasonable in
comparison with the pay and conditions specified in a relevant award or awards
for employees who perform the same kind of work at an employer’s
commercial or business premises.
6.21 The amendments proposed by items
12 and 13 are designed to ensure that outworkers in the clothing industry who
are paid in accordance with payment by results systems do not lose access to
that mode of remuneration.
Item 14 - At the end of subsection
89A(3)
6.22 Item 14 would amend subsection 89A(3) by providing that
the Commission’s power to make or vary an award dealing with the matters
in subsection 89A(2) is limited to making a minimum rates award that provides
for basic minimum entitlements. This amendment reinforces the objects of
ensuring that awards act as a safety net of basic minimum wages and conditions
of employment to help address the needs of the low paid, that awards do not
provide for wages and conditions of employment above the safety net and do not
operate as a disincentive to agreement-making.
Item 15 - After
subsection 89A(3)
6.23 Proposed new subsection 89A(3A) would clarify
the scope of the allowable award matters set out in subsection 89A(2) by
expressly providing that certain matters are not within the scope of the
allowable matters. Whilst the provision makes it clear that certain specified
matters do not fall within the scope of the allowable matters, the range of
‘non-allowable’ matters is not confined to the matters listed in
subsection 89A(3A). The list of matters set out in proposed new subsection
89A(3A) is simply intended to provide greater certainty as to the status of the
matters listed in that provision.
6.24 Proposed new paragraph 89A(3A)(a)
would provide that transfers between work locations do not come within the scope
of the allowable award matters. This provision is intended to remove from the
scope of awards provisions such as those setting out conditions applicable to
transfers or selection for transfer from one work location to another. It is not
intended to prevent the inclusion of provisions that permit the transfer of
employees to a work location other than their usual location where the employer
is not able to usefully employ them because of any strike, breakdown of
machinery or any stoppage of work for any cause for which the employer cannot
reasonably be held responsible.
6.25 Proposed new paragraph 89A(3A)(b)
would provide that matters pertaining to training and education, such as
participation in training activities, leave for training or study purposes and
fees (except in relation to leave and allowances for trainees and apprentices)
do not come within the scope of the allowable award matters.
6.26 Proposed new paragraph 89A(3A)(c) would provide that requirements
for the recording of employees’ work times do not come within the scope of
the allowable award matters. Section 353A of the Act provides for the making of
regulations in relation to employment records which may include records of the
hours worked by employees.
6.27 Proposed new paragraph 89A(3A)(d) would
exclude accident make up pay from the scope of the allowable award matters.
Minimum standards applicable to work-related injuries would continue to be
regulated by State or Territory legislation or, in some cases, by federal
legislation.
6.28 Proposed new paragraph 89A(3A)(e) would provide that
union picnic days do not come within the scope of the allowable award matters.
This provision would further qualify the scope of the Commission’s powers
under subsection 89A(1) of the Act in relation to public holidays. Whilst an
award may, as noted in paragraph 6.13 above, provide for substitution of
different days as public holidays, an award may not make provision for the
observance by employees of, or payment in relation to, picnic days or union
picnic days, however described.
6.29 Proposed new paragraph 89A(3A)(f)
would exclude from the scope of the allowable award matters dispute settling
procedures that provide for an organisation of employers or employees to
participate in, or represent an employer or employee in the whole or part of the
dispute settling process but do not allow the employer or the employee the right
to represent their own interests or to choose a representative other than a
particular organisation or organisations. This limitation is not intended to
exclude organisations from involvement in dispute settling procedures, but
rather to ensure that award-based procedures provide employers and employees
with choice as to representation.
6.30 Proposed new paragraph 89A(3A)(g)
would provide that transfers from one type of employment to another type of
employment do not come within the scope of the allowable award matters.
‘Type of employment’ refers to categories such as full-time
employment, casual employment, regular part-time employment and shift work [see
paragraph 89A(2)(r)]. It is not intended to refer to types of work or duties (as
distinct from types of employment) and would not preclude the inclusion of award
provisions that permit the transfer of employees to different duties where the
employer is not able to usefully employ them to perform their usual duties
because of any strike, breakdown of machinery or any stoppage of work for any
cause for which the employer cannot reasonably be held responsible.
6.31 Proposed new paragraph 89A(3A)(h) would exclude from the scope of
the allowable award matters the number or proportion of employees that an
employer may employ in a particular type of employment or classification. This
means, for example, that an award is not permitted to include provisions 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 or classification,
whether by imposing a quota on that employment type or classification or
requiring the number of persons (or minimum or maximum number of persons) in a
particular type of employment or classification to be determined by reference to
the number of persons employed in another type of employment or classification.
6.32 Proposed new paragraph 89A(3A)(i) would exclude from the scope of
the allowable award matters prohibitions (whether direct or indirect) on an
employer employing persons in a particular type of employment or classification.
This limitation is not intended to preclude an award from including provisions
that stipulate that particular competencies, qualifications or licences must be
held in order to perform certain duties.
6.33 Proposed new paragraph
89A(3A)(j) would exclude from the scope of the allowable award matters
provisions setting maximum or minimum hours of work for regular part-time
employees. This paragraph would have the same effect as existing paragraph
89A(4)(b).
6.34 Proposed new paragraph 89A(3A)(k) would provide that
tallies do not come within the scope of the allowable award matters. Item 3 of
this Schedule would remove tallies from the allowable matters. The purpose of
proposed new paragraph 89A(3A)(k) is to make clear that tally arrangements
cannot otherwise be included in awards as a form of piece rate or method of
payment.
Item 16 - Subsection 89A(4)
6.35 This item would
repeal subsection 89A(4), which provides that the Commission’s powers to
make an award in relation to the matters covered by paragraph (2)(r) does not
include the power to limit the number or proportion of employees that an
employer may employ in a particular type of employment or to set minimum or
maximum hours of work for regular part-time employees. These qualifications on
the allowable award matters are to remain in place but would be covered by new
paragraphs 89A(3A)(h), 89A(3A)(i) and 89A(3A)(j).
Item 17 - Subsection
89A(5)
6.36 This amendment is consequential upon the repeal of
subsection 89A(4) [item 16 of this Schedule]. It replaces a reference to
paragraph 89A(4)(b) with a reference to the corresponding new paragraph
89A(3A)(j).
Item 18 - Subsection 89A(6)
6.37 This item
would amend subsection 89A(6) to limit the scope of ‘incidental’
provisions that may be included in an award to those provisions that are
essential for the purpose of making particular clauses relating to allowable
matters operate in a practical way. That is, to be included in an award under
this subsection, a provision must be both incidental to an allowable matter and
essential to the operation of a particular award clause. This provision would
allow the Commission to include in awards provisions that are required to ensure
the practical operation of clauses dealing with allowable matters, but would
also ensure that the scope of the allowable matters is not expanded, thereby
recognising that awards should act as a safety net of basic minimum wages and
conditions of employment.
Item 19 - After subsection
89A(6)
6.38 Item 19 would insert new subsection 89A(6A) to clarify
that subsection 89A(2) does not preclude awards from including machinery
provisions such as definitions, arrangements, commencement date, term and
parties bound.
Item 20 - After subsection 89A(8)
6.39 Item
20 would insert new subsection 89A(8A) to make it clear that subsection 89A(2)
does not preclude awards from including provisions that are allowed by
subsection 143(1C) of the Act, such as facilitative provisions and provisions
indicating that parties are free to make agreements under the Act [item 30 of
this Schedule].
Item 21 - Section
94
6.40 Existing section 94 provides that the Commission does not
have the power to include terms in an award that would require or permit, or
have the effect of requiring or permitting, any conduct that would contravene
Part XA of the Act. This item would amend section 94 to broaden the range of
matters that the Commission cannot include in an award.
6.41 Proposed
section 94 would preclude the Commission from including in an award terms that
are ‘objectionable provisions’ within the meaning of section 298Z of
the Act. Item 44 of Schedule 14 would amend section 298Z to broaden the
definition of objectionable provisions to include, in addition to terms that
require or permit conduct that would contravene Part XA, terms that encourage or
discourage membership of an industrial association; indicate support for
membership or non-membership of an industrial association; or require the
payment of a fee to an industrial association or person.
6.42 Item 21
would also alter the heading to section 94 to reflect the amendments to the
provision.
Item 22 - Subsection 101(1)
6.43 This
amendment is consequential upon the amendment proposed by item 23. It would
provide, in relation to an alleged industrial dispute notified to the
Commission, that the Commission’s powers to determine the parties to the
industrial dispute and the matters in dispute and to record its finding are
subject to the requirements set out in proposed new section 101A.
Item 23 - After section 101
New section 101A - When
Commission must not make findings under section 101
6.44 Item 23
would insert a new section 101A, which would provide that where an alleged
industrial dispute has been notified to the Commission on the grounds that a
party has not agreed to demands set out in a log of claims, the Commission must
not make any findings under section 101 unless it is satisfied that the
requirements set out in paragraphs (a) to (d) have been
met.
6.45 Proposed new paragraph (a) would require the log of claims
served by the party notifying the alleged industrial dispute to be accompanied
by a notice containing prescribed information.
6.46 The purpose of the
requirement contained in paragraph (a) is to ensure that the recipients of logs
of claims, especially recipients that are unfamiliar with the log of claims
process, such as small business or new business operators, are provided with
basic information about the process and their rights and obligations at the time
the log is served. Relevant information would include, for example, explanations
of the processes of the Commission for dealing with logs of claims, the
Commission’s powers with respect to matters contained in logs of claims
and the rights of parties who have been served with logs.
6.47 Proposed
new paragraph (b) would require that the alleged industrial dispute was notified
under section 99 of the Act at least 28 days after the service of the log.
6.48 Proposed new paragraph (c) would require that the party notifying
the alleged industrial dispute had, at least 28 days before the day fixed for
the initial proceedings in relation to the alleged dispute, served each person
alleged to be a party to the dispute with a notice of the time and place fixed
for the proceedings.
6.49 The purpose of the requirements contained in
paragraphs (b) and (c) is to ensure that the recipients of logs of claims and
notices of proceedings, especially recipients that are unfamiliar with the log
of claims process, are allowed adequate time to seek advice about their rights
and obligations and to prepare for any relevant proceedings.
6.50 Proposed new paragraph (d) would require that the log of claims does not include any demand that:
• requires conduct that would contravene Part XA of the Act;
• requires a provision that is an objectionable provision (within the
meaning of section 298Z) to be included in an award or agreement;
or
• does not pertain to the relationship between employers and
employees.
6.51 Proposed new paragraph (d) is designed to ensure that
where a log of claims is served with a view to notifying the Commission of an
alleged industrial dispute in relation to the log, such a log of claims should
only include demands in respect of matters that may be included in an award or
agreement under the Act.
Item 24 - Subsection 111AAA(1)
Item 25 - After subsection 111AAA(1)
Item 26 - Subsection
111AAA(2)
Item 27 - Subsection 111AAA(4)
6.52 Items 24 to
27 would widen the operation of section 111AAA of the Act, which sets out the
circumstances in which the Commission is required to cease dealing with an
industrial dispute. Existing section 111AAA requires the Commission to cease
dealing with a dispute in relation to employees whose wages and conditions are
governed by a State award or State employment agreement unless the Commission is
satisfied that ceasing to deal with the dispute would not be in the public
interest. The provision creates a presumption in favour of retaining these
existing forms of regulation rather than displacing them by federal
awards.
6.53 Item 24 would repeal existing subsection 111AAA(1) and
replace it with a new provision that would require the Commission to cease
dealing with an industrial dispute in relation to employees whose wages and
conditions of employment are governed by a State award, State employment
agreement or relevant contract of employment. The amended provision would
broaden the circumstances in which the presumption in favour of retaining
existing forms of regulation is to apply.
6.54 The term ‘cease
dealing’ is defined in subsection 111AAA(4). ‘State award’ and
‘State employment agreement’ are defined in section 4(1). (Item 1 of
this Schedule would amend the definition of ‘State employment
agreement’ so as to include an employment agreement as defined in section
489.) Item 27 would amend subsection 111AAA(4) to insert a definition of the
term ‘relevant contract of employment’.
6.55 A
‘relevant contract of employment’ means a contract of employment
that is underpinned by minimum conditions set out in Part XV and Schedule 1A to
the Workplace Relations Act 1996, the Western Australian Minimum
Conditions of Employment Act 1993 and the South Australian Industrial and
Employee Relations Act 1994.
6.56 Proposed subsection 111AAA(1)
would also make it clear that the requirement to cease dealing with an
industrial dispute applies whether or not the Commission began to deal with, or
has dealt with the dispute before the commencement of this
section.
6.57 Item 25 would insert a new subsection 111AAA(1A). This
provision would permit the Commission to continue dealing with a dispute only
where a party to the dispute applies to the Commission requesting that the
Commission continue to deal with the dispute and the Commission determines that
exceptional circumstances exist for it to do so. The ‘exceptional
circumstances’ requirement replaces the existing public interest test, and
further strengthens the presumption against displacing existing forms of
regulation.
6.58 Item 26 would amend subsection 111AAA(2) to provide
that, in considering whether to continue to deal with a dispute, the Commission
may have regard to the views of the employer or employers and employees
concerned. For example, where employees and their employers are in agreement as
to the jurisdiction within which they wish to operate, they should, as a general
rule, be permitted to operate within the jurisdiction of their agreed
choice.
Item 28 - Before subsection 113(4)
6.59 Item 28
would insert new subsection 113(3C), which would preclude the Commission from
varying an award to make a safety net wage adjustment until the award has been
reviewed in accordance with the award simplification provisions set out in Part
2 of this Schedule. This provision will apply in respect of applications for a
safety net wage adjustment made on or after the commencement of the interim
period provided for the further simplification of awards [item 53 of this
Schedule].
Item 29 – Subsection 120A(4)
6.60 Section
120A of the Act permits the Commission to make ‘exceptional matters
orders’ which are orders relating to ‘non-allowable’ matters
of an exceptional nature which may be made if the criteria set out in subsection
89A(7) and section 120A are satisfied. Item 29 would provide that an exceptional
matters order must be made by a Full Bench. (Existing subsection 120A(4)
requires that exceptional matters orders be made by a Full Bench only where they
relate to multiple businesses.)
Item 30 - After paragraph
143(1C)(a)
6.61 Item 30 would require the Commission to include in an
award, if it considers it appropriate, a clause that would make it clear that
employers and employees or organisations of employees to whom the award applies
are free to enter into certified agreements under Part VIB of the Act and that
employers and employees are also free to make AWAs under Part VID of the Act.
6.62 The inclusion of such a provision in awards emphasises the range of
options available to employers, employees and organisations of employees under
the Act to regulate the relationship between employers and
employees.
Items 31 and 32
6.63 Section 151 provides for
the review of awards for the purposes of identifying and cancelling obsolete
awards. Items 31 and 32 are aimed at accelerating the review
process.
Item 31 - Subsection 151(2)
6.64 Item 31 would
repeal existing subsection 151(2) and replace it with a new provision to the
effect that where an apparently obsolete award is drawn to the attention of a
member of the Commission under subsection 151(1), the member must, as far as
practicable, determine whether the award should be cancelled and, if so, cancel
the award within 6 months of the award being drawn to the member’s
attention under subsection (1). (If the award is cancelled, the member must also
consider whether any operative provisions should be included in another award,
and if so, vary that other award accordingly). New subsection 151(2) would no
longer expressly require a member of the Commission to whom an apparently
obsolete award has been referred to invite the award parties to take part in
discussions about the award. However, the member could convene such discussions
or take such other steps as the member considers necessary to determine whether
the award should be cancelled, and what steps, if any, should be taken to vary
another award to include any operative provisions of the award to be
cancelled.
Item 32 - Subsections 151(3) and
(4)
6.65 Existing subsections 151(3) and (4) require the Industrial
Registrar to cause each award in force to be reviewed at least once every 5
years. Item 32 would amend subsections 151(3) and (4) to reduce the review cycle
from 5 years to 3 years.
Item 33 - Subsection
152(5)
6.66 Item 33 would repeal subsection 152(5), which limits the
type of State employment agreements that may displace the operation of awards
made under the Act.
Item 34 - Subsection 528(1)
Item 35 -
Subsection 529
Item 36 - Paragraph 529(c)
Item 37 -
Paragraph 529(c) (note)
Item 38 - Paragraph 529(d)
Item 39 -
After section 529
6.67 Section 528 provides for the operation of
section 111AAA in respect of Victorian employment agreements (as defined in
section 489). It provides that section 111AAA applies to an employment agreement
unless it was not genuinely entered into or is an agreement of one of the types
specified in paragraphs (a) to (d) of section 529. Items 34 and 35 would amend
section 528 to extend the application of section 111AAA to include the forms of
employment agreement specified in paragraphs (a) to (c) of section 529.
6.68 The effect of the amendments proposed by items 34 and 35 is to extend the operation of section 111AAA to cover:
• agreements that are taken to exist by section 516 of the Act, or were
taken to exist at any time before the commencement of Part XA of the Act by
subsection 11(3) of the Victorian Employee Relations Act 1992 as then in
force. These are collective agreements made under the Victorian Employee
Relations Act 1992 whose period of operation has expired, the terms of which
continue to apply by way of individual agreements covering the employees
previously covered by the collective agreement; and
• agreements that
were taken to exist by subsection 24(3) of the Victorian Employee Relations
Act 1992 at any time while that subsection was in force. These are
individual agreements deemed to exist following the expiration of Victorian
awards in March 1993. Under subsection 24(3) (which was repealed in 1994), an
individual agreement incorporating the terms of the relevant expired award was
deemed to exist where the employer and relevant employee(s) did not enter into
an agreement under the Act.
6.69 Item 34 would remove the reference to section 529 from section 528
and substitute a reference to section 529A. New section 529A, which would
operate to the same effect as existing paragraph 529(d) [to be repealed by item
38 of this Schedule], is to be inserted by item 39 of this Schedule. Item 35
would remove from section 529 the reference to section 528, reflecting the fact
that the section would no longer apply to section 528.
6.70 Items 36 and
37 make minor editorial amendments consequential upon the repeal of paragraph
529(d).
6.71 Item 38 would repeal paragraph 529(d) and item 39 would
insert a new section 529A. Proposed new section 529A would operate to the same
effect as existing paragraph 529(d).
Item 40 - Section
530
6.72 Item 40 would repeal existing section 530, which provides
that an award made under the Act prevails to the extent of any inconsistency
with an employment agreement (as defined in section 489). The amendments made by
items 1 and 33 of this Schedule would have the effect that, while in force, a
State employment agreement (which includes an employment agreement) that
regulates or would regulate the wages and conditions of an employee operates to
the exclusion of an award that would otherwise be binding in respect of the
employee’s employment.
Items 41 to 50 - Division 1 - Provisions relating to award
simplification
6.73 Items 41 to 50 provide for the simplification of
awards, that is, review and variation of existing awards to bring them into line
with section 89A of the Act as amended by this Schedule and, where appropriate,
with the criteria set out in subitem 44(6) or subitem 46(5).
6.74 Item
45 proposes that at the end of the ‘interim period’ [item 41],
awards cease to have effect to the extent that they provide for matters other
than allowable matters, unless those matters have been included in an award
under subitem 44(7) (which deals with the variation of awards during the interim
period) or are allowed by subsection 89A(6), (6A), (8) or (8A) of the Act. Item
44 provides for the review and variation of awards before the end of the interim
period and item 46 provides for the review and variation of awards after the end
of the interim period.
Item 41 - Definitions
6.75 Proposed item 41 contains definitions for the purposes of new Division 1 of Part 2 of this Schedule. The terms defined are:
• ‘award’ - the definition provides that, for the purposes of this Division, an award does not include an award made under section 170MX(3) of the Act or an exceptional matters order;
• ‘interim period’ - in relation to award provisions dealing with all matters except long service leave, the interim period is 6 months from the day on which Part 1 of Schedule 6 commences, and in relation to long service leave, the interim period is 2 years from the day on which Part 1 of Schedule 6 commences. The provision of a longer interim period in relation to long service leave recognises that, in the absence of award regulation of this matter, State legislative requirements will need to be met. The longer interim period will give the parties to awards an appropriate amount of time to adjust to any new requirements’;
• ‘Principal Act’ means the Workplace Relations Act
1996; and
• ‘special consent provisions’ and
‘termination time’ - these definitions relate to the transitional
arrangements for special consent provisions within the meaning of item 43 of
this Schedule.
Item 42 - Commission’s powers under this Division
6.76 Subitem 42(1) would provide that the conciliation and
arbitration powers that the Commission may exercise in relation to varying
awards under this Division are the same as those that it would have under Part
VI of the Principal Act if that Part applied to conciliation and arbitration in
relation to varying awards under this Division instead of in relation to
industrial disputes.
6.77 Subitem 42(2) provides guidance to the
Commission in relation to the exercise of its powers under this Division. The
provision is intended to encourage the simplification of awards during the
interim period rather than the simplification occurring through the operation of
item 45 of this Schedule. It would require the Commission to have regard to the
desirability of assisting the parties to agree on appropriate variations to
their awards.
Item 43 - Special consent provisions
6.78 This item would provide a definition of the expression
‘special consent provisions’. These are provisions of awards which
are briefly described as enterprise agreements given effect as consent awards by
reference to specified Commission wage fixing principles. The relevant
principles are set out in paragraphs (a), (b) and (c) of item
43.
6.79 This provision is related to item 44, which makes provision in
relation to the variation of special consent provisions, and subitem 45(2),
which excludes special consent provisions from the operation of subitem 45(1)
and item 46 before their termination time where their termination time is after
the end of the interim period.
Item 44 - Variation of awards during
the interim period
6.80 This item would provide for the
simplification of awards during the interim period.
6.81 Subitem 44(1)
would enable the Commission, on application by a party to an award, to vary the
award so that it only provides only for allowable award
matters.
6.82 Subitem 44(2) would provide that special consent provisions
cannot be varied under this item before the termination time of those provisions
(as defined in item 41).
6.83 Subitem 44(3) would provide that the
Commission may only arbitrate in respect of an application made under subitem
44(1) if the applicant or applicants have made reasonable attempts to reach
agreement about how the award should be varied.
6.84 Subitem 44(4) would
enable the Commission, as part of the award simplification process, to vary paid
rates awards so that the rates of pay they provide are expressed as minimum
rates of pay. In expressing the rates of pay as minimum rates, the Commission
must act consistently with sections 88A and 88B and subsection 89A(3) of the
Act.
6.85 Subitem 44(5) would provide that where the Commission varies a
paid rates award under subitem 44(4), it must include in the award provisions
that ensure that overall entitlements to pay under the award are not reduced.
The Commission would be required to include such provisions unless it would be
in the public interest not to include them.
6.86 Subitem 44(6) would require the Commission to review the award to determine whether or not it meets the following criteria:
• it does not include matters of detail or process that are more appropriately dealt with by agreement at the workplace or enterprise level;
• it does not prescribe work practices or procedures that restrict or hinder the efficient performance of work;
• it does not contain provisions that have the effect of restricting or hindering productivity, having regard to fairness to employees;
• it contains facilitative provisions that allow agreement at the workplace or enterprise level, between employers and employees (including individual employees), on how the award provisions are to apply;
• it contains provisions enabling the employment of regular part-time employees;
• it is expressed in plain English and is easy to understand in both structure and content;
• it does not contain provisions that are obsolete or that need updating;
• it provides support to training arrangements through appropriate trainee wages and a supported wage system for people with disabilities;
• it does not contain provisions that discriminate against an employee
because of, or for reasons including, race, colour, sex, sexual preference, age,
physical or mental disability, marital status, family responsibilities,
pregnancy, religion, political opinion, national extraction or social origin;
and
• it includes a provision indicating that employers and employees
or organisations of employees to whom the award applies are free to enter into
certified agreements under Part VIB of the Act and that employers and employees
are also free to make AWAs under Part VID of the Act.
6.87 Subitem 44(7)
would provide that where an award does not meet the criteria set out in subitem
44(6), the Commission must, if it considers it appropriate, vary the award so
that it meets those criteria.
Item 45 - Parts of awards cease to have
effect at the end of the interim period
6.88 Subitem 45(1) proposes
that, at the end of the interim period, provisions in awards cease to have
effect to the extent that they provide for matters other than allowable matters,
unless those matters have been included in an award under subitem 44(7) or are
allowed by subsection 89A(6), (6A), (8) or (8A) of the Act.
6.89 Subitem
45(2) would provide that where the termination time for special consent
provisions is after the end of the interim period, this item and item 46 do not
apply to those special consent provisions until their termination time.
6.90 Item 46 would require each award that is in force at the end of the
interim period to be reviewed and varied to remove provisions that have ceased
to have effect under item 45. Subitem 46(1) would require the Commission to
commence such reviews as soon as practicable after the end of the interim
period.
6.91 Subitem 46(2) would allow the Commission, when making such
variations, to also restructure awards. This would allow the Commission to
ensure that the award continues to reasonably represent the entitlements of
employees that were provided in the award, in respect of allowable award
matters, before item 45 affected the award.
6.92 Subitems 46(3) to 46(6)
would require the Commission, in undertaking a review under this item, to take
the same steps that it would be required to take under subitems 44(4) to
44(7).
Item 47 - Reviews under Schedule 5 to the Workplace
Relations and Other Legislation Amendment Act 1996
6.93 This item
deals with situations in which the Commission has not started, or has started
but not completed, a review of the award under item 49 or 51 of Schedule 5 to
the Workplace Relations and Other Legislation Amendment Act 1996
(‘the old review item’) before the commencement of this
Division. Subitem 47(1) would provide that where a review under the old review
item has not started, or has started but has not been completed, a review under
this Division is to be undertaken instead of completing the review under the old
review item.
6.94 Subitem 47(2) would provide that where a review had
been commenced, but not completed under the old review item, the Commission may,
for the purposes of a review under item 44 or 46, have regard to any evidence
given or submissions made in proceedings under the old review
item.
Item 48 - Corporations not bound by State awards
6.95 This item proposes to ensure that where a constitutional
corporation (as defined in section 4 of the Act) is bound by an award, and the
award is either varied under subitem 44(1) or wholly or partly ceases to have
effect because of item 45 (and as a consequence the award no longer operates to
render a State award invalid), the corporation will not become bound by the
State award unless it chooses to do so. (A corporation wishing to bound by the
State award would need to apply to the relevant State authority to be bound by
the State award.)
Item 49 - Matters to be dealt with by Full
Bench
6.96 This item would provide for the establishment of Full
Bench principles about how the Commission is to deal with matters arising under
the transitional provisions set out in this Division.
6.97 Subitem 49(1)
would allow the Commission to establish such principles.
6.98 Subitem
49(2) would provide that, after such principles have been established, the power
of the Commission to vary an award under this Division could only be exercised
by a Full Bench unless the variation gives effect to a determination of a Full
Bench under the transitional provisions, or is consistent with principles
established by a Full Bench under this item.
Item 50 - Certain
provisions not discriminatory
6.99 This item would qualify the provisions of paragraphs 44(6)(i) and 46(5)(i) which would require the Commission to review and vary awards to remove discriminatory provisions. This item provides that an award is not discriminatory merely because it:
• provides for a junior rate of pay;
• discriminates on the basis of the inherent requirements of particular
employment; or
• in respect of employment in a religious institution,
discriminates on the basis of the teachings or beliefs of the religion and does
so in good faith.
Items 51 to 56 - Division 2 - Other application and
transitional provisions
Item 51 - Application of items 1, 24 to 27
and 34 to 39
6.100 This item proposes that the amendments made by
items 1, 24 to 27 and 34 to 39 of this Schedule apply in relation to an
industrial dispute that the Commission began to deal with or had dealt with
before the commencement of those items and an industrial dispute that the
Commission begins to deal with on or after the commencement of those
items.
Item 52 - Application of item 23
6.101 This item
proposes that the amendments made by item 23 of this Schedule, which relate to
the notification of alleged industrial disputes on the grounds that a party has
not agreed to demands set out in a log of claims, apply to disputes that are
notified to the Commission after the commencement of that item.
Item
53 - Application of item 28
6.102 This item proposes that the
amendment made by item 28, which would require that awards must not be varied to
make safety net wage adjustments until they have been reviewed in accordance
with Division 1 of this Part, applies in relation to applications made on or
after the end of the interim period (within the meaning of item 41).
Item 54 - Transitional - exceptional matters orders made before
commencement of item 29
6.103 This item saves exceptional matters
orders made in accordance with section 120A before the commencement of item 29
of this Schedule (which would require exceptional matters orders to be made by a
Full Bench of the Commission.)
Item 55 - Transitional - proceedings
begun before commencement of item 29
6.104 Item 55 deals with
applications for exceptional matters orders made under section 120A, but not
determined before the commencement of item 29. It proposes that, if a
substantive hearing of the application has commenced before the commencement of
item 29, the application would be dealt with as if section 120A had not been
amended. If no substantive hearing has commenced, the application would be dealt
with under section 120A as amended by item 29.
Item 56 - Application
of item 31
6.105 This item proposes that the amendment made by item
31 of this Schedule, which would accelerate the review process in relation to
obsolete awards, applies to awards that are drawn to the attention of a member
of the Commission on or after the commencement of the item.
SCHEDULE 7 - TERMINATION OF EMPLOYMENT
7.1 This Schedule
proposes to amend Division 3 of Part VIA of the Act, which contains the
termination of employment provisions. The amendments proposed by this Schedule
are directed at easing the burden that unfair dismissal applications impose on
employers, by reinforcing disincentives to speculative and unmeritorious unfair
dismissal claims, and introducing greater rigour into processing by the
Australian Workplace Relations Commission of unfair dismissal applications.
7.2 These objectives would be achieved by:
• preventing forum-shopping by employees who are entitled to a federal unfair dismissal remedy, through the amendment of existing subsection 152(1A) and the insertion of new section 170CCA;
• limiting the discretion of the Commission and the Federal Court of Australia to grant extensions of time for lodgment of applications in respect of both ‘unfair’ and ‘unlawful’ dismissal;
• qualifying the definition of ‘termination at the initiative of the employer’ to limit access to a remedy in respect of termination of employment for employees who have resigned, except in certain circumstances;
• making it clear that a respondent to an application under section 170CE can seek to have a motion for dismissal of the application for want of jurisdiction dealt with at any time;
• limiting the Commission’s jurisdiction to find that a termination of employment is harsh, unjust or unreasonable (ie. unfair) where the employer can establish that the termination (or terminations) were required on operational grounds;
• conferring power on the Commission to prevent an applicant for an unfair dismissal remedy proceeding to arbitration unless the Commission certifies, on the balance of probabilities, that the application is likely to succeed at arbitration;
• conferring power on the Commission to require a representative who has been retained pursuant to a contingency fee agreement or costs arrangement to disclose that fact to the Commission;
• conferring express power on the Commission to dismiss an application in respect of a termination of employment if the applicant fails to attend a proceeding;
• widening access to costs orders and clarify that costs can be awarded in jurisdictional, costs and appeal proceedings;
• conferring power on the Commission (if it sees fit) to require an applicant to lodge an amount as security for any costs that might be awarded against him or her;
• preventing an applicant from making two applications in relation to
the same termination of employment; and
• introducing a new Subdivision
G in Division 3 of Part VIA, containing a prohibition on advisers from
encouraging applicants to institute or continue speculative or unmeritorious
proceedings.
Workplace Relations Act 1996
Item 2 - Subsection 4(1)
7.4 Item 2 proposes to insert a
definition of ‘legal practitioner’ in subsection 4(1) of the
Act.
Item 3 - At the end of subsection 48(1)
7.5 Item 3
would provide for the President of the Commission to be able to make rules in
relation to the provision of security for costs by a person bringing an
application in respect of termination of employment. Item 30 of this Schedule
would insert new section 170CJA, which would confer power on the Commission to
order an applicant to lodge an amount as security for costs that might be
incurred in respect of his or her claim.
Item 4 - Subsection
152(1A)
7.6 Item 4 would amend subsection 152(1A) of the Act to limit
the circumstances in which a State law or award providing protection against
harsh, unjust or unreasonable termination of employment would be able to operate
in circumstances where a federal award also makes provision in respect of
termination of employment.
7.7 Subsection 152(1A) operates as an
exception to subsection 152(1) of the Act. Subsection 152(1) confirms that the
provisions of a federal award prevail over a State law or State award to the
extent of any inconsistency.
7.8 Subsection 152(1A) preserves the
operation of State laws providing protection for an employee against harsh,
unjust or unreasonable termination of employment (however described in those
laws), to the extent that those State laws are able to operate concurrently with
a federal award. The provision was included so that a federal award employee
falling outside the scope of subsection 170CB(1) of the Act (and therefore
unable to apply under the Act for a remedy in respect of unfair dismissal) would
not be prevented from seeking an unfair dismissal remedy under State law merely
because his or her federal award contained a clause concerning termination of
employment.
7.9 However, existing subsection 152(1A) also permits Federal
award employees who are eligible to apply for an unfair dismissal remedy under
the Act to apply for an unfair dismissal remedy under the law of the State in
which they are employed (where permitted to do so by that
law).
7.10 Accordingly, item 4 proposes to amend subsection 152(1A) to
specify that the preservation of the operation of State laws would operate only
in respect of employees who do not fall within subsection 170CB(1) of the Act.
The practical effect of the amendment would be that employees who fall within
subsection 170CB(1) of the Act would only be able to seek a remedy under
Subdivision B of Division 3 of Part VIA of the Act, or enforce the terms of a
Federal award (if an employee’s employment has been terminated in breach
of the applicable award).
Item 5 - After subsection
152(1A)
7.11 The Workplace Relations Regulations 1996 (the
Regulations) exclude several classes of employees - who would otherwise be
covered by the federal unfair dismissal provisions by the operation of section
170CB - from a remedy for termination of employment under the Act.
7.12 Item 5 proposes the insertion of new subsection 152(1B), in order
to clarify that the proposed amendment of subsection 152(1A) [item 4 of this
Schedule] is intended to exclude all employees who fall within subsection
170CB(1) from accessing a State unfair dismissal remedy, including those
categories of employees whom are excluded from an unfair dismissal remedy by the
Regulations.
New section 170CCA - Division to cover the field in certain
cases
7.13 Item 6 proposes to insert section 170CCA, which is a ‘covering the
field’ provision. It applies to:
• Commonwealth public sector employees,
• Territory
employees;
• employees employed by a constitutional corporation;
or
• employees employed by certain employers engaged in interstate and
overseas trade and commerce
who are not covered by a federal award clause relating to termination of
employment (either because their awards do not contain such clauses, they are
covered by a certified agreement or an AWA, or because they are award-free).
7.14 Proposed section 170CCA is intended to operate in conjunction with
sections 152(1A) and 152(1B) (as amended) [Schedule 7, items 4 and 5] to
preclude certain employees who are eligible to access the unfair dismissal
remedy under the Workplace Relations Act 1996 from accessing similar
remedies under State law. Proposed subsections 152(1A) and 152(1B) will
‘cover the field’ in respect of those federal award employees whose
awards contain clauses relating to termination of employment, and who are
eligible to apply for an unfair dismissal remedy under the WR
Act.
7.15 Proposed subsection 170CCA(3) clarifies that a reference to each of
the categories of employee covered by subsection 170CB(1) includes a reference
to an employee who is excluded by the Regulations from a remedy or remedies
under Division 3 of Part VIA of the Act.
7.16 The legislative note at the
bottom of proposed section 170CCA would make clear that it ‘covers the
field’ in respect of those employees who are eligible to apply for an
unfair dismissal remedy under the WR Act, but who are either not covered by a
federal award, or who are covered by a federal award which does not contain a
clause relating to termination of employment. In respect of those employees who
are eligible to apply for an unfair dismissal remedy under the WR Act and who
are covered by a federal award clause relating to termination of employment, the
note makes clear that section 152 of the WR Act ‘covers the field’
in respect of those employees.
Item 7 - Subsection 170CD(1)
(definition of Federal award employee)
7.17 Item 7 proposes to
amend the definition of ‘Federal award employee’ in subsection
170CD(1) of the Act to insert a reference to ‘old IR agreement’ (a
definition of ‘old IR agreement’ is to be inserted into subsection
4(1) of the Act by item 3 of Schedule 11 of the Bill). The amendment would make
clear that employees whose terms and conditions of employment are governed by
certified agreements and enterprise flexibility agreements made under the former
provisions of the Industrial Relations Act 1988 are ‘Federal award
employees’, and therefore eligible to seek a remedy under Subdivision B of
Division 3 of Part VIA.
New section 170CDA - Resignation not taken to be termination of
employment at initiative of employer in certain circumstances
7.18 Item 8 proposes the insertion of new section 170CDA. The provision would qualify the scope of the expression ‘termination of employment at the initiative of the employer’ so as to limit access to a remedy under Subdivisions B and C of Division 3 of Part VIA for an employee who has resigned from his or her employment to circumstances where the employee is able to establish that the employer:
• had indicated to the employee, either directly or indirectly, that the employee would be dismissed if he or she did not resign; or
• had engaged in conduct, or in a course of conduct, that the employer
intended would cause the employee to resign,
and the employee resigned
because of that indication, conduct or course of conduct.
7.19 New
subsections 170CD(2) and (3) outline proposed evidentiary requirements in
relation to proof of the employer’s intention to cause the
employee’s resignation.
Item 9 - After subsection
170CE(1)
7.20 Item 9 proposes to insert a legislative note, drawing
attention to new subsection 170CG(4), which provides that if it is established
that a termination was effected because of the operational requirements of the
employer’s undertaking, establishment or service, the termination cannot
be found to be harsh, unjust or unreasonable. Subsection 170CG(4) would be
inserted by item 25 of this Schedule.
Item 10 - Subsection
170CE(8)
7.21 Item 10 proposes the repeal of existing subsection
170CE(8), and the insertion of new subsections 170CE(8) and (8A).
7.22 Proposed subsection 170CE(8) would change the current test for
accepting applications lodged out of time from requiring an assessment of
whether ‘it would be unfair not to do so’ to whether ‘it would
be equitable to accept the application’.
7.23 Proposed subsection
170CE(8A) sets out the matters that an applicant is to be required to establish
before the Commission can decide that it would be equitable to accept the
out-of-time application.
New section 170CEA - Motions for dismissal of application for want of
jurisdiction
7.24 Item 11 proposes the insertion of new section
170CEA. New subsection 170CEA(1) would allow an employer respondent to move for
the dismissal of an application under section 170CE on the grounds that the
Commission does not have jurisdiction to deal with the application. The
respondent would be able to move for the dismissal of an application at any
stage of the proceedings, including before the Commission has begun dealing with
the application
7.25 New subsection 170CEA(2) would require the
Commission to deal with the motion for dismissal before taking any other action
in relation to the application, unless the respondent employer agrees that the
jurisdictional objection is to be dealt with at a later time. An example would
be where the respondent raises a jurisdictional objection before the Commission
has begun to conciliate the application. The respondent would have the right to
have the jurisdictional issue determined immediately, but may agree to wait
until after conciliation has taken place.
Item 12 - Paragraph
170CF(2)(b)
7.26 This item proposes to implement different
requirements for the conciliation certificate in relation to the assessment of
unfair and unlawful dismissal matters.
7.27 New paragraph 170CF(2)(aa)
would provide that a conciliation certificate issued in relation to an
application for relief on grounds that the dismissal was harsh, unjust or
unreasonable must indicate whether, on the evidence presented at conciliation,
the applicant is likely, on the balance of probabilities, to succeed in claiming
unfair dismissal.
7.28 The applicant would be given the opportunity to
elect to proceed to arbitration of his/her unfair dismissal claim only where the
Commission indicates that, on the balance of probabilities, the unfair dismissal
application is likely to succeed.
7.29 Where the claim involves both
unlawful and unfair grounds for dismissal, the conciliation certificate would be
required to contain separate assessments in relation to whether the termination
is likely to succeed on paragraph 170CE(1)(a) and non-paragraph 170CE(1)(a)
grounds.
7.30 In relation to grounds concerning unlawful dismissal
applications (ie grounds other than that in paragraph 170CE(1)(a)), new
paragraph 170CF(2)(b) would require the Commission to indicate to the parties
the Commission’s assessment of the merits of the application in so far as
it relates to that ground or grounds.
7.31 Existing paragraph
170CF(2)(c), which permits the Commission to recommend that an applicant elect
not to pursue a ground or grounds of the application, will be retained.
Item 13 - Subsection 170CFA(1)
7.32 Item 13 proposes to
repeal existing subsection 170CFA(1) and insert subsections 170CFA(1) and (1A).
7.33 Proposed subsection 170CFA(1) would apply where the conciliation
certificate indicates that, on the balance of probabilities, the applicant is
likely to succeed in arbitration on the ground referred to in paragraph
170CE(1)(a) (ie that the dismissal was harsh, unjust or unreasonable). In that
circumstance, the applicant could elect to proceed to arbitration to determine
whether the dismissal was harsh, unjust or unreasonable, or to discontinue the
application.
7.34 Proposed subsection 170CFA(1A) would apply where the
conciliation certificate indicates that, on the balance of probabilities, the
applicant is not likely to succeed on the ground referred to in paragraph
170CE(1)(a). In that circumstance, the application would not be able to proceed
further and would be taken to have been dismissed by the Commission from the
date of the certificate.
Item 14 - Subsection
170CFA(2)
7.35 Item 14 proposes to amend existing subsection
170CFA(2). Subsection 170CFA(2), as amended, would apply where the Commission
finds, on the balance of probabilities, that the applicant’s claim in
respect of the paragraph 170CE(1)(a) ground is likely to succeed, and the
Commission’s certificate also identifies the ground of an alleged
contravention of section 170CM (ie. failure to provide the requisite period of
notice of termination, or payment of compensation in lieu of notice) as grounds
in respect of which conciliation is, or is likely to be, unsuccessful.
7.36 In this circumstance, the applicant could elect to:
• proceed to arbitration to determine whether the dismissal was harsh, unjust or unreasonable; and/or
• begin proceedings in a court of competent jurisdiction in respect of
the alleged contravention of section 170CM; or
• not pursue either
ground of the application.
Item 15 - After subsection
170CFA(2)
7.38 In this circumstance, the applicant would not be entitled to
proceed to arbitration to determine whether his or her termination was harsh,
unjust or unreasonable, and this aspect of the application would be dismissed
from the date of the certificate. However, the applicant would be able to
commence proceedings in a court of competent jurisdiction in respect of the
alleged breach of section 170CM.
Item 16 - Subsection
170CFA(3)
7.39 Item 16 proposes the amendment of existing subsection 170CFA(3). Where the Commission’s certificate identifies the ground of alleged contravention of paragraph 170CE(1)(a), and one or more of the grounds of alleged contravention of one or more of the following provisions:
• section 170CK - termination of employment on prohibited grounds;
• section 170CL - employer’s failure to notify the competent authority in the case where the employer is proposing to terminate the employment of 15 or more employees for reasons of an economic, technological or structural or similar nature;
• section 170CN - termination of employment in contravention of an
order made by the Commission under section 170FA of the Act,
as grounds where
conciliation has failed, or is unlikely to succeed, and the certificate also
indicates that, on the balance of probabilities, the applicant is likely to
succeed in arbitration on the ground referred to in paragraph 170CE(1)(a), the
applicant would be able to proceed to arbitration before the Commission in
relation to the unfair dismissal portion of the application, or apply to the
Federal Court for a remedy in respect of the alleged contraventions of one or
more of sections 170CK, 170CL or 170CN.
Item 17 - After subsection
170CFA(3)
7.40 Item 17 proposes the insertion of new section
170CFA(3). It would apply where the conciliation certificate identifies the same
grounds as those mentioned in subsection 170CFA(3), but states that, on the
balance of probabilities, the applicant’s claim in respect of the
paragraph 170CE(1)(a) ground is not likely to succeed at
arbitration.
7.41 In this case, the applicant could only elect to begin
proceedings in respect of a contravention of section 170CK, 170CL or 170CN (or a
combination of these where more than one breach has been alleged). The applicant
would not be entitled to proceed to arbitration to determine whether his or her
termination was harsh, unjust or unreasonable, and this aspect of the
application would be dismissed from the date of the certificate.
Item
18 - Subsection 170CFA(5)
7.42 Item 18 proposes the amendment of existing subsection 170CFA(5). Where the conciliation certificate identifies the grounds of: unfair dismissal, an alleged breach of the notice requirements in section 170CM, and an alleged contravention of one or more of sections 170CK, 170CL or 170CN as grounds where conciliation has failed, or is unlikely to succeed, and also indicates that, on the balance of probabilities, the applicant is likely to succeed in arbitration on the ground referred to in paragraph 170CE(1)(a), the applicant would be able to:
• elect to have the unfair dismissal ground of the claim arbitrated by the Commission and do nothing else;
• elect to have the unfair dismissal ground of the claim arbitrated by the Commission, and apply to a court of competent jurisdiction for an order in respect of the alleged contravention of the requirement to provide notice of termination or compensation in lieu (section 170CM);
• apply to the Federal Court for a remedy in respect of the alleged
contravention of one or more of sections 170CK, 170CL or 170CN, as well as a
remedy in respect of the alleged contravention of section 170CM;
or
• do none of the above.
Item 19 - After subsection
170CFA(5)
7.43 Item 19 proposes the insertion of new subsection
170CFA(5A). This provision would apply where the conciliation certificate
identifies the same grounds as those mentioned in subsection 170CFA(5), but
states that, on the balance of probabilities, the applicant’s claim in
respect of the paragraph 170CE(1)(a) ground is not likely to succeed at
arbitration.
7.44 An applicant in this position would only be able to do one, both or neither of the following:
• apply to the Federal Court for a remedy in respect of the alleged
contravention of one or more of sections 170CK, 170CL or 170CN;
• apply
to a court of competent jurisdiction for a remedy in respect of the alleged
contravention of section 170CM.
7.45 The applicant would not be entitled
to proceed to arbitration to determine whether his or her termination was harsh,
unjust or unreasonable, and this aspect of the application would be dismissed
from the date of the certificate.
Item 20 - Subsections 170CFA(6) and
(7)
7.46 Item 20 proposes the inclusion of references to the new
subsections proposed by items 15, 17 and 19 in subsections 170CFA(6) and
(7).
Item 21 - Subsection 170CFA(7)
7.47 Item 21 proposes
to omit the reference to subsection 170CFA(8), which would be repealed by item
22 of this Schedule.
Item 22 - Subsection
170CFA(8)
7.48 This item proposes to repeal subsection
170CFA(8).
7.49 The effect of this amendment would be to remove an
applicant’s ability to apply for an extension of time to lodge an election
to proceed to arbitration of his or her unfair dismissal claim or pursue a
remedy in the Federal Court in respect of an unlawful termination or a failure
to provide notice of termination.
Item 23 - Paragraph
170CG(3)(a)
7.50 Item 23 proposes the removal of the reference to a
valid reason for termination based on the operational requirements of the
employer’s undertaking. This is consequential upon the amendment proposed
by item 25 of this Schedule.
Item 24 - After paragraph
170CG(3)(d)
7.51 Item 24 proposes to add to the matters to which the
Commission must have regard in making its decision whether termination was
harsh, unjust or unreasonable. In determining whether a dismissal is harsh,
unjust or unreasonable, the Commission would be required to have regard to the
degree to which the size of the employer’s undertaking, establishment or
service would be likely to have on the procedures followed in effecting the
termination.
7.52 For example, where a respondent employer is a
business which is too small to have a separate human resources function, the
Commission would be required to take that fact into account when considering the
extent (if any) to which the procedures followed in effecting the termination
have a bearing on the issue of whether the employee’s dismissal was harsh,
unjust or unreasonable.
Item 25 - At the end of section
170CG
7.53 Item 25 proposes the insertion of new subsection 170CG(4).
This amendment would preclude the Commission from making a finding that the
termination of an employee or group of employees was harsh, unjust or
unreasonable where the respondent employer establishes that the employment was
terminated on the ground of, or grounds including, the operational requirements
of the employer’s undertaking, establishment or service.
7.54 An
employee who claims that his or her selection for redundancy was for a
prohibited reason (ie in contravention of a ground or grounds in subsection
170CK(2)) would be able to apply to the Federal Court for a remedy in respect of
unlawful dismissal.
Item 26 - After section 170CI
New
section 170CIA - Representatives to disclose contingency fee
agreements
7.55 Item 26 proposes the insertion of new section 170CIA.
New subsections 170CIA(1) and (2) would empower the Commission to ask a person
appearing on behalf of a party to an unfair dismissal proceeding whether he or
she is engaged on a costs arrangement or, in the case of a legal practitioner, a
contingency fee arrangement.
7.56 Subsection 170CIA(3) would require a
representative or legal practitioner to inform the Commission where they have
been retained under a costs arrangement or contingency fee
agreement.
7.57 Definitions of various terms are contained in proposed
subsection 170CIA(4). The proposed definition of ‘costs arrangement’
would not require a representative’s payment to depend on his or her
client being successful, only to be related to the outcome of proceedings. (The
same applies to the definition of ‘contingency fee agreement’ in
item 1 of this Schedule.)
New section 170CIB - Commission may dismiss
application if applicant fails to attend
7.58 Item 26 also proposes
the insertion of new section 170CIB. This would confer an express power on the
Commission to dismiss an application under section 170CE where the employee
fails to attend a proceeding in relation to the application.
7.59 Prior
to dismissing the application, the Commission would be required to give the
applicant a reasonable opportunity to be heard.
Item 27 -
Subsections 170CJ(2), (3), (4) and (5)
7.60 Item 27 proposes
substantial amendments to the provisions relating to costs orders under the
termination of employment provisions.
7.61 The new provisions would
broaden the scope for costs orders to be made in various ways. Firstly,
additional tests in relation to liability for costs would be inserted into
section 170CJ so that more types of behaviour that will give rise to
liability.
7.62 Secondly, the requirements for existing tests would be
simplified to enable greater access to costs.
7.63 Thirdly, the
amendments to subsections 170CJ(2), (3) and (4) would include express references
to applications other than the initial application under section
170CE.
New subsection 170CJ(2)
7.64 This amendment proposes
to introduce a new test to assess whether costs should be awarded against
applicants to proceedings.
7.65 The applicant or party instituting
proceedings would be liable for costs where the Commission decides that it
should have been reasonably apparent to the applicant or the party instituting
proceedings that the application or proceeding did not have a substantial
prospect of success.
7.66 The test in proposed subsection 170CJ(2)
relates to the merits of the application, but would not require the likelihood
of success to be as low as the ‘vexatious or without reasonable
cause’ criteria in subsection 170CJ(1). Where a party knew, or ought to
have known, that it was likely the application or proceeding would fail, then
the Commission would have the discretion to award costs, which is less than the
level of certainty required under subsection 170CJ(1).
New subsection
170CJ(3)
7.67 Proposed subsection 170CJ(3) restates the test for
costs contained in existing subsection 170CJ(2) (ie prior to its proposed
amendment) but with a slight alteration.
7.68 The requirement that the
Commission must have begun arbitrating an application under section 170CE before
costs may be awarded would be removed.
New subsection
170CJ(4)
7.69 Proposed subsection 170CJ(4) would allow costs to be
awarded against a party where the Commission is satisfied that an unreasonable
act or omission by that party in connection with the conduct of the proceeding
resulted in the other party to the proceeding incurring costs. An example is
where one party incurs costs in preparing a response to the other party’s
unwarranted procedural objection.
New subsection
170CJ(5)
7.70 It is proposed that subsection 170CJ(5) be amended to
provide that an application for an order for costs must be made within 14 days
after either an application or a proceeding in relation to an application under
section 170CE has finished, irrespective of how the application or proceeding
was resolved.
New subsection 170CJ(5A)
7.71 New subsection
170CJ(5A) would provide that the regulations may prescribe a Schedule of costs
in relation to applications before the Commission, and to proceedings in
relation to an application under section 170CE.
Item 28 - Subsection
170CJ(7)
7.72 Item 28 proposes a consequential amendment to
subsection 170CJ(7) to amend the reference to the subsection dealing with
Schedules of costs.
Item 29 - At the end of section
170CJ
7.73 Item 29 proposes the insertion of new subsection 170CJ(8),
which would contain a definition of ‘proceedings relating to an
application under section 170CE’ for the purposes of section 170CJ of the
Act. The new provision would list the types of proceedings that can result from
an application under section 170CE and which therefore could be the subject of
costs applications. The provision also makes clear that the list is not
exhaustive.
Item 30 - After section 170CJ
New section
170CJA - Security
7.74 Item 30 proposes the insertion of new section
170CJA, which would confer power on the Commission (if it sees fit) to order a
person bringing an application under section 170CE to provide security in the
event that costs are awarded against that person.
7.75 Proposed
subsections 170CJA(2) and 170CJA(3) would give the Commission wide discretion to
set and vary the amount of security respectively.
7.76 New subsection
170CJA(4) would permit the Commission to dismiss an application if security is
not provided in response to an order.
Item 31 - Subsection
170CL(2)
7.77 Section 170CL of the Act applies in the case where an
employer proposes to terminate the employment of 15 or more employees for
reasons of an economic, technological, structural or similar nature, or for
reasons including such reasons. At present, subsection 170CL(2) provides that
the employer must give written notification of the proposed terminations to the
Commonwealth Employment Service.
7.78 Item 31 proposes to amend
subsection 170CL(2) to remove the reference to the Commonwealth Employment
Service, and provide that the notice must be given to a body prescribed by the
regulations, or, failing prescription of such a body, to the Secretary of the
Department administering the Act. It is intended to prescribe Centrelink in the
regulations, to reflect the fact that it currently receives the notices pursuant
to a service arrangement between the Chief Executive Officer of Centrelink and
the Secretary of the Department of Employment, Workplace Relations and Small
Business.
Item 32 - Subsection 170CP(7)
7.79 Item 32
proposes to amend the existing provisions pertaining to the discretion of the
Federal Court to grant an extension of time to an applicant to lodge an
application for a remedy in respect of unlawful dismissal.
7.80 The
proposed new test (which is that the Court must be satisfied that it would be
‘equitable’ to accept the application), and the criteria that the
applicant would be required to establish before the test is satisfied, are
similar to that proposed by item 10 of this Schedule, with the exception that
the applicant would not be required to establish that he or she took action to
contest his or her termination of employment within 21 days after the day the
termination took effect.
Item 33 - After section
170HB
New section 170HBA - No second applications under section
170CE concerning same termination to be made
7.81 Item 33 proposes
the insertion of section 170HBA, which would expressly provide that an
application in respect of a termination of employment of an employee cannot be
made under section 170CE where a previous application was lodged under section
170CE in respect of the same termination.
Item 34 - At the end of
Division 3 of Part VIA
New Subdivision G - Unmeritorious or
speculative proceedings
7.82 Item 34 proposes the insertion of new
Subdivision G of Division 3 of Part VIA, which would introduce an avenue of
redress against advisers who encourage applicants to institute or pursue
unmeritorious or speculative claims or proceedings.
New section 170HD
- Definitions
7.83 New section 170HD sets out relevant definitions
for the purposes of proposed Subdivision G.
7.84 The definition of
‘encourage’ has been framed so as to exclude a right to seek a
remedy where an applicant instituted or pursued an application and the adviser
attempted to persuade the applicant not to do so.
7.85 ‘Unfair
termination application’ refers to a termination of employment application
on grounds contained in paragraph 170CE(1)(a) or including those
grounds.
New section 170HE - Advisers not to encourage applicants to
make, or pursue, certain applications
7.86 New section 170HE would
establish a prohibition on an adviser encouraging an employee to make or pursue
an application for unfair dismissal if, on the facts that have been disclosed or
ought reasonably to have been apparent to the adviser, the adviser should have
been, or should have become, aware that the application had no reasonable
prospect of success.
New section 170HF - Applications to the
Court
7.87 New section 170HF would allow an application to be made to
the Federal Court for an order imposing a penalty on an adviser for
contravention of section 170HE. Such an application could be made by an
applicant to an unfair termination application, a respondent to an unfair
termination application, or the Minister.
7.88 An application to the
Court would only be able to be made after the relevant unfair termination
application has been determined, dismissed or discontinued. This is to prevent
the use of Subdivision G for tactical purposes by a party to an unfair
termination application.
7.89 Proposed subsection 170HF(4) expressly
provides that the law relating to legal professional privilege is not to be
affected by the requirements of this proposed Subdivision.
New section
170HG - Burden of proof
7.90 This amendment proposes to create a
reverse onus of proof in relation to proving whether the adviser contravened the
prohibition in proposed section 170HE. When an applicant for an order
establishes a prima facie case of a contravention of section 170HE, the adviser
would be taken to have contravened the section unless the adviser can establish
the contrary on the balance of probabilities.
7.91 The amendment
recognises the fact that the evidence which would be required to prove that an
adviser encouraged an unmeritorious or speculative claim might be difficult to
obtain, particularly where an applicant for a penalty is seeking a penalty
against the adviser of the other party to the unfair termination claim. In that
circumstance, there may be evidence of encouragement that is peculiarly within
the knowledge of the adviser, and which, without a shift in the onus of proof,
might not otherwise be revealed.
New section 170HH - Evidentiary
matters
7.92 New section 170HH would set out criteria that the Court
must consider when deciding whether the relevant unfair termination application
had ‘no reasonable prospect of success’.
7.93 Before
deciding this issue, the Court would be required to have regard to the outcome
of the application under section 170CE before the Commission, and the contents
of the conciliation certificate issued relating to the application (where the
unlawful termination application reached that stage).
Section
170HI - Order that the Court may make
7.94 New section 170HI would
allow the Court, where it considers it appropriate to do so, to impose a penalty
on an adviser who has been found to have contravened section 170HE. The Court
would be able to impose monetary penalties, up to a maximum of $10,000 for a
body corporate, and $2,000 for an individual.
Part 2 - Application and saving provisions
Item 35 - Application of items 1, 2 and 26
7.95 Item 35
would provide that the proposed amendments in relation to the newly defined
terms in section 4 of the Act, the obligation to disclose costs arrangements and
contingency fee agreements, and the Commission’s express power to dismiss
applications would apply to those applications under section 170CE made on or
after commencement of those items.
Item 36 - Application of items 3
and 30
7.96 Item 36 proposes that the amendments in relation to
security for costs would apply in relation to applications made under section
170CE on or after the commencement of those items.
Item 37 -
Application of item 8
7.97 Item 37 proposes that the amendment
limiting the availability of a termination of employment remedy in cases where
an employee has resigned from his or her employment would apply in relation to
applications made under section 170CE on or after the commencement of the
item.
Item 38 - Application of item 10
7.98 Item 38
proposes that the amendment in relation to the granting of extensions of time to
lodge unfair dismissal applications would apply in relation to applications made
under section 170CE on or after the commencement of the item.
Item 39
- Saving provision concerning certain motions for dismissal
7.99 Item
39 deals with jurisdictional proceedings in relation to an application under
section 170CE instituted prior to the commencement of item 11 but not yet
determined at the time that item commences.
7.100 Such a proceeding would
be treated as if it were a motion for dismissal under the amended version of
section 170CEA, and that provision would apply.
Item 40 - Application
provision concerning certificates given under subsection
170CF(2)
7.101 Item 40 proposes that the amendments pertaining to the
content of conciliation certificates, and the requirement of the Commission to
determine whether, on the balance of probabilities, an unfair dismissal
application is likely to succeed, would apply in relation to applications made
under section 170CE on or after the date on which item 12
commences.
7.102 Accordingly, applications on foot that have not been
conciliated prior to the amendments to 170CF(2) commencing would not be subject
to the new requirements in respect of conciliation certificates, or to proposed
section 170CFA.
Item 41 - Application of items 23 and
25
7.103 Item 41 proposes that the amendments to proposed paragraph
170CG(3)(a) and proposed subsection 170CG(4) would apply in relation to
applications made under section 170CE on or after the date on which the item
commences.
Item 42 - Application of item 24
7.104 Item 42
proposes that the amendment requiring the Commission to have regard to the size
of the respondent employer in determining whether a dismissal is harsh, unjust
or unreasonable would apply in relation to applications made under section 170CE
on or after the date on which the item commences.
Item 43 -
Application of items 27, 28 and 29
7.105 Item 43 proposes that the
amendments to section 170CJ concerning costs would apply only in relation to a
proceeding to an application under section 170CE where the application under
section 170CE to which the proceeding relates was made on or after the
commencement of those items.
Item 44 - Application of item
32
7.106 Item 44 proposes that the amendments pertaining to the test
for the granting of extensions of time to lodge an application in the Federal
Court for a remedy in respect of unlawful termination of employment would apply
in respect of applications made under section 170CP on or after the day the item
commences.
Item 45 - Application provision concerning unmeritorious
or speculative claims
7.107 Item 45 proposes that applications for
orders under new Subdivision G would only be able to be made in relation to
applications under section 170CE made on or after the day on which item 34
commences.
8.1 This Schedule proposes amendments to the certified agreement
provisions of the Act. The amendments are principally directed at streamlining
the requirements for certification of agreements, including allowing
applications to be made to the Workplace Relations Registrar for certification
of agreements in cases where there is no need for scrutiny by the Australian
Workplace Relations Commission.
8.2 The new provisions are intended to make agreement making easier and more widely accessible, to reduce the formality and cost involved in having an agreement certified, and to prevent unwarranted interference by third parties in agreement making. These objectives would be achieved by:
• streamlining the process of certifying agreements by providing for applications for certification to be made to the Workplace Relations Registrar, as an alternative to applying to the Australian Workplace Relations Commission;
• providing that, in cases where an application is considered by the Commission, no formal hearing should be held unless it is necessary in the circumstances;
• providing a mechanism for ‘switching’ from the section 170LJ stream of agreement-making (agreements with employee organisations) to the section 170LK stream (agreements with employees), in circumstances where a valid majority of employees has approved an agreement but the union which purportedly made the agreement (or all such unions) claims it did not validly execute the agreement;
• removing the entitlement of employee organisations to prevent the extension, variation or termination of section 170LK agreements, while still retaining a role for such organisations where requested by a member;
• removing limitations on agreements which apply to part of a single business, and strengthening the definition of ‘single business’ (by removing the reference to ‘common enterprise’) to prevent multiple-employer agreements being certified as single business agreements;
• prohibiting the certification of agreements which purport to restrict
the use of Australian Workplace Agreements, making void any such provisions in
existing agreements, and providing a mechanism for the removal of such clauses;
and
• making a number of minor or consequential amendments.
8.3 This item would insert a definition of ‘anti-AWA provision’
into section 4 of the Act. An ‘anti-AWA provision’ is one which
directly or indirectly restricts the ability of an employer or an employee to
offer, negotiate or enter into an Australian Workplace Agreement:
• an
agreement could not be certified if it contains an anti-AWA provision [items 26
and 37 of this Schedule]; any such provision would be void [proposed section
170LZB, to be inserted by item 44]; and there would be a mechanism for the
removal of such provisions from agreements [item 61].
Item 2 -
Subsection 4(1) (definition of certified agreement)
8.4 This
item proposes a minor amendment to the definition of ‘certified
agreement’, consequential upon the amendments relating to applications to
the Workplace Relations Registrar for certification of agreements [items 26 and
27 of this Schedule].
Item 3 - After section 42
New
section 42A - Limitation on representation by organisations
etc.
8.5 This item would insert a new section 42A. This new section
would have the effect that, in proceedings for certification of an agreement
under Division 2 or 3 of Part VIB, a party that is not an organisation may not
be represented by an organisation (or a peak council to which the organisation
is affiliated), which would not be entitled to intervene in the proceedings
under subsection 43(2). (Section 43(2) allows intervention by an organisation
only where the organisation has been requested to represent an employee as
provided by subsection 170LK(4), in relation to the agreement.) This amendment
is intended to prevent section 42 being used to circumvent the restriction on
intervention in section 43.
Item 4 - Paragraph
45(1)(ed)
8.6 This item proposes a technical amendment to correct an
oversight.
Item 5 - After section 81
8.7 This item would
insert new sections 81A and 81B.
8.8 Section 81 provides that decisions
taken or acts done by a Registrar under the Act are subject to appeal to the
Commission.
8.9 Proposed new Division 2A of Part VIB would provide for
agreements to be certified by the Workplace Relations Registrar in many cases,
under a new streamlined procedure. In cases where the Registrar is not able to
certify an agreement, he or she would be required to refer the matter to the
Commission for decision.
New section 81A - Appeals related to
certification by Workplace Relations Registrar
8.10 Proposed new section 81A would make specific provision in respect of appeals under section 81 from a Registrar’s decision to certify an agreement under the new section 170LMF (subsection (1)). It would provide as follows:
• an appeal from the Workplace Relations Registrar’s decision to certify an agreement could be instituted by the employer, or (if the agreement is made under section 170LK) the prescribed number of employees worked out in accordance with the regulations, or (if the agreement is made under section 170LJ or 170LL) an organisation that made the agreement (subsections (2) and (3));
• if an agreement is certified by the Registrar and later overturned by the Commission on appeal, an employee whose employment was subject to the agreement would be entitled to recover in an appropriate court any shortfall between the total value of his or her entitlements under the agreement, and the total entitlements he or she would have been entitled to if the agreement had not been made (subsection (4));
• where any party has taken action in accordance with an agreement
which is later overturned on appeal, that party would not be liable for any
alleged breach of an award or agreement in respect of that conduct (subsection
(5)); and
• subsections (6) to (8) would ensure that any recovery
proceedings under subsection (4) are covered by the same procedural provisions
as other proceedings under the Act for the recovery of
underpayments.
New section 81B - No appeal against decision to refer
certification to Commission
8.11 Proposed new section 81B would
provide that no appeal lies from the Registrar’s decision to refer an
agreement to the Commission.
Item 6 – Paragraph
143(3)(a)
8.12 Item 6 proposes to replace the reference to ‘the
list’ in paragraph 143(3)(a) with a reference to ‘a list’, as
the amendments proposed by items 7 and 8 of this Schedule will result in the
possibility of more than one list being received by the Registrar under section
143(2)(d).
Item 7 - Subparagraph 143(2)(d)(ia)
Item 8 -
Subparagraph 143(2)(d)(ii)
Item 9 - Paragraph
143(3)(a)
8.13 These items would effect consequential amendments to
the requirements for publication of decisions arising from the proposed new
requirement (section 170LVB) that the Commission dispense with formal hearings
in most applications to certify agreements [item 39 of this Schedule].
Item 10 - Section 170L
8.14 Section 170L sets out the
object of Part VIB, which is to facilitate the making, and certifying by the
Commission, of certain agreements. As the Workplace Relations Registrar would
have a role in certifying some agreements under the proposed new scheme, a
reference to the Registrar is proposed here.
Item 11 - Paragraph
170LB(2)(a)
8.15 This item would amend the category of employers
which can be regarded as a single employer for the purposes of Part VIB, so that
two or more employers engaged in a ‘common enterprise’ which is not
a joint venture would not be deemed to be a single employer for the purposes of
certification of an agreement. (Section 170LC will continue to allow
certification of multiple-business agreements in certain
circumstances.)
Item 12 – At the end of section
170LD
8.16 New subsection 170LD(2) would provide that where no
nominal expiry date is specified in the agreement, or the date specified is more
than 3 years after commencement of the agreement, the nominal expiry date of a
certified agreement would be 3 years after the agreement comes into operation.
Item 13 - Paragraph 170LE(c)
Item 14 - Subparagraph
170LE(d)(i)
Item 15 - Subparagraph 170LE(d)(ii)
Item 16 - At
the end of section 170LE
8.17 The amendments proposed by these items
would define more clearly the category of employees who may constitute a
‘valid majority’ for the purpose of making or approving an
agreement, or of approving an extension, variation or termination of an
agreement. New subsection 170LE(2) [item 16] defines the category of
‘eligible employees’, while the amendments proposed by items 13 to
15 are consequential upon that change.
Item 17 - Section
170LH
Item 18 - At the end of section 170LH
8.18 Section
170LH describes the scope of Division 2 of Part VIB.
8.19 Item 17
proposes a technical change to the existing section 170LH (which would become
subsection 170LH(1)) to reflect the fact that the Workplace Relations Registrar
is to be able to certify some agreements.
8.20 New subsections 170LH(2) - (7) [item 18] describe the general features of the proposed streamlined process for certification of agreements by the Registrar:
• an application could be made to either the Registrar or the Commission (subsection (2));
• subsection (3) would set out who may apply for certification of an agreement made under sections 170LJ, 170LK and 170LL respectively;
• subsection (4) would allow for regulations to provide a prescribed number of employees who may apply for certification of an agreement made under section 170LK;
• subsection (5) would make provision for cases in which more than one application is made for certification of the same agreement (ie, if the later application is made more than 21 days after the earlier, the later application is taken never to have been made);
• where the Registrar is unable to certify an agreement, or where an
application is made to refer a certification application to the Commission, then
the Commission would deal with the matter (subsection (6));
and
• subsection (7) flags the new arrangement of Part VIB, where new
Division 2A would deal with certification of agreements by the Registrar, and
Division 4 would continue to deal with certification by the
Commission.
Item 19 - Subsection 170LI(1)
8.21 This item
proposes a consequential change to subsection 170LI(1) to reflect the fact that
the Workplace Relations Registrar is to be able to certify some
agreements.
Item 20 - Paragraph 170LJ(3)(a)
8.22 This item
proposes an amendment to address a technical defect, concerning the process for
approval by employees of agreements made under section 170LJ (agreements between
employers and organisations of employees). It is intended to provide that, where
an employee or employees commence work with the employer during the 14 day
period prior to approval of the agreement, the employer must take steps to
provide those employees with access to the agreement before approval is given.
The requirement for a minimum of 14 days notice would not apply in relation to
such employees. (Paragraph 170LJ(3)(b) continues to require that the agreement
be explained, before approval, to all persons whose employment will be subject
to the agreement.)
Item 21 - At the end of section
170LJ
8.23 This item would insert a new subsection 170LJ(5), which is
intended to clarify the operation of section 170LJ. It would clarify that, where
more than one employee organisation represents employees at a workplace, an
agreement does not need to be made with all such organisations.
Item
22 - Subsection 170LK(2)
8.24 This item would effect an amendment to
address a technical defect, concerning the process for approval by employees of
agreements made under section 170LK (agreements between employers and their
employees). It is intended to provide that, where an employee or employees
commence work with the employer during the 14 day period prior to approval of
the agreement, the employer must take steps to provide those employees with
access to the agreement before approval is given. The requirement for a minimum
of 14 days notice would not apply in relation to such employees. (Subsection (7)
continues to require that the agreement be explained, before it is made, to all
persons whose employment will be subject to the agreement.)
Item 23 -
After subsection 170LK(4)
8.25 This item would insert a new
subsection 170LK(4A) into the Act.
8.26 Before an agreement is made under
section 170LK, the employer is required to give employees notice of intention to
make the agreement [subsection (2)]. The notice must also state that an employee
may request his or her employee organisation to represent the employee in
meeting and conferring with the employer about the agreement.
8.27 New
subsection 170LK(4A) would require that any such request must be in writing, and
must be in relation to the specific agreement to which the employer’s
notice relates. This is intended to ensure that such requests are genuine, and
to prevent employees making standing requests.
Item 24 - At the end of
subsection 170LK(8)
8.28 This item proposes to add a note after
subsection 170LK(8). The note would refer readers to the Commission’s
power under the proposed new subsection 170LT(10) to dispense with compliance
with subsection 170LK(8) in certain cases.
Item 25 - Subsection
170LM(1)
8.29 This item proposes a consequential change to subsection
170LM(1) to reflect the fact that the Workplace Relations Registrar is to be
able to certify some agreements.
Item 26 - Subsection
170LM(2)
8.30 Subsection 170LM(2) sets out the time limits within which an application must be made to certify an agreement under Division 2 of Part VIB. This item proposes to repeal existing subsection 170LM(2) and insert new subsections 170LM(2) to (10):
• proposed subsections (2) and (3) would set out the time limits within which an application to certify an agreement must be made;
• new subsection (4) would allow the Commission to continue to deal
with an application to certify an agreement purportedly made under section 170LJ
where it subsequently turns out that the agreement was not validly executed;
and
• proposed subsections (5) to (10) would provide further
requirements which must be satisfied for an agreement to be certified by the
Workplace Relations Registrar under the new streamlined procedure which would
be introduced by new Division 2A [item 27 of this Schedule].
New
subsections (2) to (4)
8.31 Present subsection 170LM(2) provides that an application to certify an
agreement must be made within 21 days of the agreement being made (if the
agreement was made in accordance with section 170LK or 170LL); or within 21 days
of approval by a valid majority of employees (if an agreement the agreement was
made in accordance with section 170LJ). These time limits would be retained by
new paragraphs (2)(a) and (b). Proposed new paragraph 170LM(2)(c) is intended to
provide a time limit in cases where an employee organisation claims that an
agreement entered into by its officer or employee, and purportedly with the
organisation’s authority, was not validly executed by it, and the
agreement is not in fact validly executed by any
organisation
• proposed new section 170LVA in Division 4 [item 38 of
this Schedule] would provide for such an agreement to be dealt with by the
Commission as if it were made directly with employees under section 170LK,
without the need for further employee approval.
8.32 The time limit in
such cases would be 21 days after approval by a valid majority [new subsection
170LM(3)].
8.33 New subsection 170LM(4) would preserve an application for
certification of an agreement that was made in accordance with section 170LJ, in
the case where after the application is made, it is established that no
organisation had validly executed the agreement.
New subsections (5)
to (10)
8.34 New subsections (5) to (10) would set out the
requirements for applications to be made to the Workplace Relations Registrar
under the new streamlined certification procedure, which would allow
certification of agreements without the need for scrutiny by the
Commission.
8.35 Subsection (5) would establish the basic conditions that
must be satisfied in order for an application to be made to the Registrar. These
prerequisites reflect the matters of which the Commission is to be satisfied
before certifying an agreement presented to it, other than those which require
the exercise of discretion. (For example, if an applicant seeks certification of
an agreement made in response to a short-term business crisis, which does not
satisfy the no-disadvantage test (see subsections 170LT(3) and (4)), that
application would have to be made to the Commission).
8.36 The prerequisites for an application to the Registrar for certification would be as follows:
• the no-disadvantage test is satisfied [the equivalent requirement for the Commission is in subsection 170LT(2)];
• the agreement does not contain any anti-AWA provisions (see item 1 of this Schedule, which defines ‘anti-AWA provision’ - proposed new subsection 170LU(8) sets out the equivalent Commission requirement);
• the agreement was genuinely made or genuinely approved by valid majority [see subsections 170LT(5) and (6)];
• appropriate explanation of the agreement was provided to employees, having regard to their particular circumstances and needs [see subsection 170LT(7)]. For example, an agreement which covers the employment of women, persons from a non-English speaking background or young persons should be explained in a manner appropriate to their circumstances;
• the employer did not coerce any employee to refrain from making, or to withdraw, a request for union representation [see subsection 170LT(9)];
• there is no inconsistency with Division 3 of Part VIA (termination of employment), or with an order or injunction under that Division [see subsection 170LU(2)];
• the agreement does not contain any ‘objectionable provisions’ within the meaning of Part XA (freedom of association) [see subsection 170LU(2A)];
• the employer, in negotiating the agreement, has not contravened section 170NB (discrimination between unionists and non-unionists) or Part XA (freedom of association) [see paragraph 170LU(3)(a)];
• the employer has not indirectly contravened section 170NB or Part XA [see paragraph 170LU(3)(b)];
• no person or body on behalf of the employer has engaged, directly or indirectly, in conduct of the kind referred to in the two paragraphs above [see paragraph 170LU(3)(c)];
• no provision of the agreement discriminates against an employee on grounds of race, colour, sex, sexual preference, age, disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin [see subsection 170LU(5)];
• the employer has not been notified of a claim by an organisation that
it did not validly execute the agreement under new section 170LVA [item 38 of
this Schedule]; and
• there is a relevant or designated award
applicable to all of the persons whose employment would be subject to the
agreement, for the purposes of the no-disadvantage test [section 170X defines
the terms relevant award and designated award; if there is no relevant award, an
award must designated by the Commission – section 170XF].
8.37 Subsection (6) indicates that an agreement to be certified by the Registrar should contain:
• procedures for settling disputes about matters arising under the
agreement; and
• a nominal expiry date, no more than 3 years after the
agreement commences.
8.38 If the agreement does not contain a dispute
settling procedure, new section 170LZA [item 44 of this Schedule] would provide
a model procedure that would apply by force of that section. Similarly, if the
agreement does not specify a nominal expiry date, or the date specified is more
than 3 years after commencement, new subsection 170LD(2) [item 12 of this
Schedule] would provide that the nominal expiry date is 3 years after
commencement.
8.39 Subsection (7) provides that an agreement does not
discriminate against an employee merely because it provides for junior rates of
pay, or discriminates on the basis of the particular requirements of the
employment, or where the employment in question is employment by a religious
institution, and the agreement discriminates in good faith on the basis of the
beliefs of the religion [see subsection 170LU(6)].
8.40 Subsections (8)
and (9) would provide that applications to the Registrar by employers
[subsection (8)] and by persons other than employers [subsection (9)] must be
accompanied by declarations, the form of which would be prescribed by
regulation. The declaration would attest to the agreement’s compliance
with subsections (5) and (6), and would contain such other information as
prescribed by the regulations. The form of the declaration would differ slightly
as between employer and non-employer applications (to reflect the fact that
non-employer applicants will not be in a position to attest definitively to some
matters).
8.41 Subsection (10) would impose penalties for false
declarations made for the purposes of section 170LM. A maximum penalty of 20
penalty units – currently $2,200 – would be imposed.
Item
27 - After Division 2 of Part VIB
8.42 Item 27 proposes the insertion
of a new Division 2A, to provide a streamlined procedure for approval of
certified agreements, in particular by allowing agreements to be certified by
the Workplace Relations Registrar.
8.43 Consideration by the Commission
(which occurs under the existing Division 4 of Part VIB) would still be
available where referral to the Commission is sought by the employer, or by
relevant employee organisations, or by a ‘prescribed number’ of
affected employees, or by a person prescribed by the regulations.
8.44 The proposed new Division is as follows:
New Division 2A
- Certification of agreements by Workplace Relations Registrar
New
section 170LMA - When Division applies
8.45 New section 170LMA would
set out the application of new Division 2A – the Division would apply when
an application is made to the Registrar under section 170LM for certification of
an agreement.
New section 170LMB - Notice of application to be given to
persons who made agreement
8.46 New section 170LMB proposes that a
copy of the application for certification be given to specified parties within 7
days after the application is made: if the agreement is made under sections
170LJ or 170LL, those parties are each other person or organisation that made
the agreement; if the agreement is made under section 170LK and the application
is made other than by the employer, the employer must be given a
copy.
New section 170LMC - Application to be made available to
employees subject to agreement
8.47 Where an agreement is made under
section 170LJ or 170LK, the employer would be required take steps to make
available to affected employees copies of the certification application and of
the declaration made under subsections 170LM(8) or (9) (ie the declaration as to
the content of the agreement). The employer would also be required to provide
notice of the rights of employees under section 170LME to seek referral of an
application to the Commission for consideration. These steps would have to be
taken within 14 days after the application is made, or (for new employees who
commence within that period) as soon as practicable.
8.48 If the employer
does not take these steps, the application would be referred to the
Commission.
New section 170LMD - Declaration that requirements of
sections 170LMB and 170LMC have been satisfied
8.49 Proposed section
170LMD would require an applicant to give to the Registrar, within 21 days after
the application was made, a declaration that the applicable requirements of
sections 170LMB and 170LMC have been satisfied. The declaration would be
required to state the dates on which the requirements were satisfied, and
contain such other information as is prescribed by the regulations. A penalty
for false declarations would be imposed, in similar terms to that in section
170LM [item 26 of this Schedule].
New section 170LME - Persons or
organisations may request that application be referred to Commission
8.50 Where an application for certification is made to the Registrar, certain persons would be able to apply to have it referred to the Commission. An application for referral could be made by:
• the employer;
• the prescribed number of employees whose employment will be subject to the agreement;
• an organisation that made the agreement;
• an organisation that has given notice under section 170M(3) that it
wants to be bound by the agreement; or
• a person prescribed by the
regulations, where conditions (if any) prescribed in relation to applications by
that person are satisfied.
8.51 An application for referral would be
required to be made within 14 days after actions to comply with the applicable
requirements of sections 170LMB and 170LMC (service of certification application
and declaration on other parties, and making them available to employees) were
completed.
New section 170LMF - Certification of
agreements
8.52 Proposed section 170LMF would set out the circumstances in which the Registrar must certify an agreement. These are set out in proposed subsection (1) as follows:
• an appropriate application and declaration as to the contents of the agreement have been lodged [see new subsections 170LM(8) and (9)];
• a declaration under new section 170LMD has been lodged within 21 days of the application being made;
• no application has been made to the Commission to certify the agreement;
• the Registrar has not been notified of any claim that an organisation
did not validly execute the agreement; and
• no application has been
made for referral to the Commission (see new section 170LME).
8.53 The
Registrar would be able to allow applicants to amend their applications or
declarations in appropriate cases [subsection (2)]. (Proposed sections 170LMB
and 170LMC would not apply to such amendments.)
8.54 No hearings are to
be held by the Registrar in determining whether to certify an agreement
[subsection (3)].
New section 170LMG - Referral of agreements to
Commission
8.55 This section would set out the circumstances in which the Registrar must refer an agreement to the Commission for consideration. It is proposed that this would occur in the following circumstances:
• the Registrar receives an application under section 170LME for referral to the Commission;
• the Registrar is notified of a claim by an organisation that it did
not validly execute the agreement; or
• the Registrar is not able to
certify the agreement because the declaration requirements are not satisfied, or
an application in respect of the same agreement has been made to the Commission
(new paragraphs 170LMF(1)(a), (b) and (c) refer).
New section 170LMH
- Publication of agreements
8.56 This section would specify the
requirements for the Registrar to reduce to writing a decision to certify an
agreement, and to ensure that copies are provided to relevant persons and made
available for inspection at the Registry. These proposed provisions reflect
relevant provisions of existing section 143 (which applies to decisions of the
Commission).
New section 170LMI - Delegation by Workplace Relations
Registrar
8.57 Under proposed section 170LMI the Registrar would be
able to delegate, by written instrument, all or any of his or her powers under
Part VIB to a Deputy Workplace Relations Registrar.
Item 28 - Paragraph
170LR(2)(a)
8.58 This item proposes an amendment to address a
technical defect, concerning the process for approval by employees of agreements
made under Division 3 (agreements between employers and organisations of
employees). It is intended to provide that, where an employee or employees
commence work with the employer during the 14 day period prior to approval of
the agreement, the employer must take steps to provide those employees with
access to the agreement before approval is given. The requirement for a minimum
of 14 days notice would not apply in relation to such employees. (Paragraph
170LR(2)(b) continues to require that the agreement be explained, before
approval, to all persons whose employment will be subject to the
agreement.)
Item 29 - Division 4 of Part VIB
(heading)
8.59 This item would alter the heading of Division 4, to
reflect the fact that not all agreements would now be certified by the
Commission.
Item 30 - Subsection 170LT(1)
8.60 This item
proposes a technical amendment, concerning consideration of agreements by the
Commission. It reflects the fact that not all agreements considered by the
Commission would come before it by way of direct application; some would be
referred by the Workplace Relations Registrar.
Item 31 - After
subsection 170LT(5)
8.61 Section 170LT (together with section 170LU)
sets out the matters of which the Commission must be satisfied before it
certifies an agreement.
8.62 This item proposes to insert a new
subsection 170LT(5A). This amendment is related to the proposed new provisions
dealing with purported agreements - new section 170LVA [item 38 of this
Schedule].
8.63 Existing subsection 170LT(5) requires, as a condition of
the Commission certifying an agreement made in accordance with section 170LJ or
Division 3, that a valid majority has genuinely approved the
agreement.
8.64 The new section 170LT(5A) would apply where, after a
valid majority has approved such an agreement, an organisation which has members
affected by the agreement claims that it has not validly executed the agreement
(though there is at least one organisation which does not dispute execution). In
that case, to avoid doubt as to whether the change in the identity of the
organisations which have made the agreement means that subsection 170LT(5) is
not satisfied where it otherwise would be, the new provision would deem that
requirement to be satisfied.
Item 32 - Subsection
170LT(8)
8.65 This item proposes the repeal of subsection 170LT(8),
which requires certified agreements to include dispute settling procedures. This
provision would be replaced by new subsection 170LTA(1) [item 34 of this
Schedule].
Item 33 - Subsection 170LT(10)
8.66 This item
proposes the repeal of subsection 170LT(10), which requires certified agreements
to specify a nominal expiry date. This provision would be replaced by new
subsection 170LTA(2) [item 34 of this Schedule].
Item 34 - After
section 170LT
8.67 This item proposes to insert a new section 170LTA,
as follows.
New section 170LTA – Other matters that should be
in agreements
8.68 New section 170LTA would replace existing
subsections 170LT(8) and 170LT(10), which provide that certified agreements
must contain dispute settling procedures and a nominal expiry date,
respectively. The new section would specify that agreements should
contain those provisions: if an agreement does not contain a dispute
settling procedure, it would be taken to include the model procedure prescribed
by the regulations under new subsection 170LZA(2) [item 44 of this Schedule];
and if an agreement does not specify a nominal expiry date, or the date
specified is more than 3 years after commencement, new subsection 170LD(2) would
provide a default nominal expiry date, 3 years after the agreement commences
[item 12 of this Schedule].
Item 35 – Paragraph
170LU(2)(c)
8.69 Item 35 proposes to substitute the reference to
‘the Court’ in paragraph 170LU(2)(c) with a reference to ‘a
court’. The proposed amendment reflects the fact that orders in respect
of unlawful termination may be made by courts other than the Federal Court of
Australia.
Item 36 - Subsection 170LU(2A)
8.70 This item
proposes a technical amendment to subsection 170LU(2A), which requires the
Commission to refuse to certify an agreement which contains provisions which
permit conduct that contravenes Part XA (freedom of association). Rather than
set out in detail the types of provisions that are prohibited, the section would
now refer to the definition in section 298Z of ‘objectionable
provision’.
Item 37 - Subsection 170LU(8)
8.71 This
item proposes to replace subsection 170LU(8).
8.72 Existing subsection
170LU(8) defines the circumstances in which the Commission must refuse to
certify an agreement applying to part only of a single business. It is intended
to remove this restriction on certification of agreements that apply to part of
a business.
8.73 New subsection 170LU(8) would require the Commission to
refuse to certify an agreement which contains an ‘anti-AWA
provision’, defined in section 4 [item 1 of this Schedule]. Such
provisions would be rendered void by new section 170LZB [item 44 of this
Schedule]; new section 170MDB would provide a mechanism for removing such
clauses from agreements [item 61 of this Schedule].
Item 38 - After
section 170LV
8.74 This item proposes to insert a new section 170LVA,
which would in certain cases enable an agreement purportedly made under section
170LJ to be certified as if it were a section 170LK agreement.
New
section 170LVA - Commission may deal with purported agreements
8.75 New subsection 170LVA(1) would provide that this new ‘switching’ mechanism will apply where the Commission is satisfied that:
• an officer or employee of an employee organisation, purporting to act with the authority of the organisation, has purported to make a written agreement (‘purported agreement’) with an employer in accordance with section 170LJ;
• if the purported agreement had been duly made, the requirements of subsections 170LJ(2) and (3) would have been satisfied in relation to it (that is, has been made available and appropriately explained to the employees; and the agreement has been approved by a valid majority of employees);
• at any time before the purported agreement is certified [whether
before, during or after the post approval period, defined in subsection
(2)], the organisation claims that it did not validly execute the agreement;
and
• as at the end of the post-approval period, no organisation
has validly executed the agreement.
8.76 New subsection 170LVA(2) would
define post-approval period, in relation to a purported agreement, as the
14-day period after it is approved by a valid majority of employees.
8.77 When new section 170LVA applies in relation to an agreement, then in any
certification proceedings (whether by application to the Commission, or on
referral from the Registrar under Division 2A) the Commission would be required
to deal with the application under Division 4 as if the agreement had been made
in accordance with section 170LK, and the requirements of section 170LK were
satisfied
• if, at the time a claim that the agreement was not validly
executed is made, an application for certification has already been made in
accordance with paragraph 170LM(2)(a), then the Commission would be able to
continue to deal with that application (as a result of the application of
proposed new subsection 170LM(4) [item 26 of this Schedule]).
8.78 The
proposed note to subsection (3) would make clear that subsection 170M(3) applies
to such agreements. Subsection 170M(3) allows employee organisations to apply to
be bound by agreements made between employers and employees where asked to do so
by a member whose employment is subject to the agreement and whose industrial
interests the organisation is entitled to represent.
8.79 Proposed new
subsection (4) is intended to remove any doubt about the status of
‘switched’ agreements. Such an agreement would be taken for all
purposes to have been made in accordance with section 170LK between the employer
and the valid majority of employees who approved the agreement as required by
subsection 170LJ(2). Further, industrial action taken during the bargaining
period for the purported agreement would not lose its protected status because
of the application of section 170LVA.
Item 39 - Before section
170LW
8.80 This item proposes to insert a new section
170LVB.
New section 170LVB - Hearings not
required
8.81 Proposed section 170LVB is a further measure (along
with streamlined certification by the Registrar) to expedite certification of
agreements. The Commission would be required to deal with applications for
certification (whether made directly to the Commission, or referred by the
Registrar under section 170LME) without holding formal hearings, unless it
considers a hearing necessary. The Commission should, however, hold a hearing
before refusing certification of an agreement.
Item 40 - Section
170LW
8.82 This item proposes to repeal section 170LW.
8.83 Section 170LW allows a certified agreement (if the Commission so approves) to confer on the Commission power to:
• settle disputes over the application of the agreement; and
• appoint a board of reference for the purpose of settling such
disputes.
8.84 It is proposed that these powers would be replaced by
new powers available under new section 170LZA [item 44 of this
Schedule].
Item 41 - Paragraph 170LY(1)(a)
8.85 This item
proposes a technical amendment to paragraph 170LY(1)(a), consequent upon the
insertion of new subsections (2A) and (4) [items 42 and 43 of this
Schedule].
Item 42 - After subsection 170LY(2)
8.86 Section
170LY deals with the interaction of certified agreements with certain other
instruments under the Act.
8.87 This item proposes to insert a new
subsection 170LY(2A) to provide for the situation where an agreement is
certified after the nominal expiry date of an award made under subsection
170MX(3), and at least one of the employees whose employment is subject to the
agreement is covered by the award. In that case, the certified agreement would
prevail to the extent of any inconsistency.
Item 43 - At the end of
subsection 170LY
8.88 Item 43 proposes to insert a new subsection 170LY(4) to address the
interaction of an agreement certified under the current Act and an old IR
agreement: the certified agreement would prevail, to the extent of any
inconsistency, over the old IR agreement
• an ‘old IR
agreement’ is an agreement certified or approved under various now
repealed provisions of the Act [item 3 of Schedule 11 proposes to insert a
definition of ‘old IR agreement’].
Item 44 - At the end of
Division 5 of Part VIB
8.89 This item proposes to insert two new
sections, as follows.
New section 170LZA - Procedures for preventing
and settling disputes
8.90 New section 170LZA would provide that a dispute settling procedure in a certified agreement may:
• provide for mediation by a person other than the Commission;
or
• empower the Commission to exercise voluntary conciliation powers
in accordance with new Part VA [Schedule 4].
8.91 Section 170LZA would
replace existing section 170LW, which allows a certified agreement (if the
Commission so approves) to confer power on the Commission to settle disputes
over the application of the agreement, and to appoint a board of reference under
section 131 for the purpose of settling such disputes.
New section
170LZB - Provisions limiting AWAs are void
8.92 Proposed section 170LZB would provide that any ‘anti-AWA
provision’ in a certified agreement is void. An anti-AWA provision is one
which directly or indirectly restricts the ability of an employer or an employee
to offer, negotiate or enter into an Australian Workplace Agreement [item 1 of
this Schedule inserts a definition of ‘anti-AWA
provision’]
• proposed new section 170MDB would provide a
mechanism for such provisions to be removed from certified agreements [item 61
of this Schedule].
Item 45 - Subsection 170M(3)
8.93 This
item proposes a technical change to subsection 170M(3) to reflect the fact that
the Workplace Relations Registrar is to be able to certify some
agreements.
Item 46 - Paragraph 170MB(1)(d)
Item 47 -
Paragraph 170MB(1)(f)
Item 48 - Paragraph 170MB(2)(d)
Item
49 - Paragraph 170MB(2)(f)
8.94 These items propose technical changes
consequent upon the insertion of new subsections 170MB(2A) - (2D) [item 50 of
this Schedule].
Item 50 - After subsection
170MB(2)
8.95 This item proposes to insert new subsections 170MB(2A),
(2B), (2C) and (2D) into the Act.
8.96 Section 170MB provides for
agreements in respect of a single business to bind a successor, transmittee or
assignee employer (whether immediate or not).
8.97 New subsections
170MB(2A) - (2D) would allow the Commission to order that a certified agreement
has limited or no binding effect on a successor, transmittee or assignee of the
business, or part of the business, to which a certified agreement applies. This
is intended to bring the successor provision in relation to certified agreements
into line with equivalent provisions regarding award respondency (section
149).
8.98 Subsection (2A) would provide the Commission with the power to
make an order as to whether, or to what extent, the new employer is bound by the
agreement. The order would be required to specify the day from which it takes
effect, and it could not be retrospective.
8.99 Proposed subsection (2B) would provide that an order under the section may be made on the application of the employer bound by the agreement. It is envisaged that the Commission might make an order on application by:
• the successor employer after the succession, assignment or
transmission has occurred; or
• an employer who is contemplating a
transfer of their business. In this situation, the Commission order would only
take effect if a succession, assignment or transfer occurred.
8.100 It is
intended that this amendment should be applicable to all successions,
assignments and transmissions of business, whether they occurred before or after
the amendment commenced.
8.101 New subsection (2C) would require the
Commission, before it makes an order, to give the persons bound by the agreement
an opportunity to make submissions.
8.102 However, under new subsection (2D) an organisation bound by an agreement made directly between an employer and the employer’s employees (ie, an agreement made in accordance with section 170LK) would only to be entitled to make submissions if asked to do so by a member of the organisation:
• whose employment is subject to the agreement; and
• whose
industrial interests the organisation is entitled to represent.
Item
51 - Subsection 170MC(1)
Item 52 - Paragraphs 170MC(1)(a) and (b)
Item 53 - After subsection 170MC(2)
Item 54 - Subsection
170MC(5)
8.103 Items 51 - 54 propose amendments to section 170MC,
which deals with extension of the nominal expiry date of a certified agreement
(where a valid majority approve).
8.104 At present an organisation of
employees bound by an agreement made in accordance with section 170LK (ie an
agreement between an employer and the employer’s employees) must consent
to an extension. The amendments proposed by these items are intended to remove
the entitlement of employee organisations to prevent the extension of section
170LK agreements, while still retaining a role for such organisations where
requested by a member.
8.105 Item 52 would replace paragraphs 170MC(1)(a)
and (b).
8.106 New paragraphs (1)(a) and (b) would provide that an application for Commission approval of an extension to the nominal expiry date must be made by:
• in the case of an agreement between an employer and one or more
employee organisations under section 170LJ or Division 3 (the duration of a
‘greenfields’ agreement made under section 170LL may not be
extended) - the employer and one or more of the organisations bound by the
agreement; or
• in the case of an agreement between an employer and the
employer’s employees made in accordance with section 170LK – the
employer.
8.107 Item 53 proposes to insert new subsections (2A) and (2B) to ensure that an organisation bound by a section 170LK agreement could make submissions in relation to the proposed extension if asked to do so by a member of the organisation:
• whose employment is subject to the agreement; and
• whose
industrial interests the organisation is entitled to represent.
8.108 Items 51 and 54 propose consequential amendments.
Item 55 -
Paragraphs 170MD(1)(a) and (b)
Item 56 - After subsection 170MD(2)
Item 57 - Subsection 170MD(6)
8.109 Items 55 - 57 propose
amendments to section 170MD, which deals with variation of a certified agreement
(where a valid majority approve).
8.110 At present an organisation of
employees bound by an agreement made in accordance with section 170LK (ie an
agreement between an employer and the employer’s employees) must consent
to a variation. The amendments proposed by these items are intended to remove
the entitlement of employee organisations to prevent the variation of section
170LK agreements, while still retaining a role for such organisations where
requested by a member.
8.111 Item 55 would replace paragraphs 170MD(1)(a) and (b). New paragraphs (1)(a) and (b) would provide that an application for Commission approval of a variation must be made by:
• in the case of an agreement between an employer and one or more
employee organisations under section 170LJ, section 170LL or Division 3 - the
employer and one or more of the organisations bound by the agreement;
or
• in the case of an agreement between an employer and the
employer’s employees made in accordance with section 170LK – the
employer.
8.112 Item 56 proposes to insert new subsections (2A) and (2B) to ensure that an organisation bound by a section 170LK agreement could make submissions in relation to the proposed variation if asked to do so by a member of the organisation:
• whose employment is subject to the agreement; and
• whose
industrial interests the organisation is entitled to represent.
8.113 Item 57 proposes to amend subsection (6), which deals with
variation of an agreement for the purpose of removing ambiguity or uncertainty,
or including, omitting or varying stand-down clauses. Consistent with the
amendment made by item 55, item 57 would ensure that only those that made an
agreement may make such an application (ie an organisation of employees bound by
a section 170LK agreement may not apply).
Item 58 - Before paragraph
170MD(7)(a)
Item 59 - After paragraph 170MD(7)(c)
Item 60 -
Paragraph 170MD(7)(e)
8.114 Items 58, 59 and 60 also propose
amendments to section 170MD. These amendments are consequential on other
amendments made by this Schedule.
8.115 Items 58 and 59 would amend subsection 170MD(7) (which lists exclusively the ways in which a certified agreement may be varied under the Act):
• item 58 would insert a reference to the power of the Commission under
proposed paragraph 170MB(2A), which relates to succession, transmission or
assignment of business [item 50 of this Schedule]; and
• item 59 would
insert a reference to the power of the Commission under proposed new section
170MDB, which relates to removal of anti-AWA provisions from agreements [item 61
of this Schedule].
8.116 Item 60 proposes a consequential amendment to
remove a reference to ‘preference clauses’ and replace it with
‘objectionable provisions’. (This amendment is designed to bring
paragraph 170MD(7)(e) into line with amendments proposed to section 298Z –
Schedule 14 refers.)
Item 61 - After section 170MDA
New
section 170MDB - Removal of provisions limiting AWAs from certified
agreements
8.117 This item proposes to insert a new section 170MDB,
which would empower the Commission to remove ‘anti-AWA provisions’
from certified agreements.
8.118 An ‘anti-AWA provision’ is a clause in an agreement that
directly or indirectly restricts the ability of an employer or an employee to
offer, negotiate or enter into an AWA
• under proposed new section
170LZB, such clauses would be void [item 44 of this Schedule]. An agreement may
not be certified by the Commission if it contains such a provision [new
subsection 170LU(8), to be inserted by item 37 of this Schedule];
• an application to the Workplace Relations Registrar to certify
an agreement must be accompanied by a declaration to the effect that the
agreement does not contain an anti-AWA provision.
8.119 Under new section 170MDB, an application for removal of an alleged ‘anti-AWA provision’ could be made by:
• a person or organisation bound by the agreement (this includes employers);
• an employee whose employment is subject to the agreement;
or
• a person prescribed by the regulations.
8.120 If the
Commission, on application, was satisfied that an agreement contained an
anti-AWA provision, it would be required to vary the agreement to remove the
provision.
Item 62 - Subsection 170ME(2)
8.121 This
amendment is consequential upon new section 170MHB [item 69 of this Schedule],
which would provide that the Commission is to proceed without holding formal
hearings when approving the extension, variation or termination of agreements,
unless hearings are necessary.
Item 63 - Paragraphs 170MG(1)(a) and
(b)
Item 64 - After subsection 170MG(2)
8.122 Items 63 and
64 propose amendments to section 170MG, which deals with termination of a
certified agreement at any time (where a valid majority
approves).
8.123 At present, an organisation of employees bound by an
agreement made in accordance with section 170LK (ie an agreement between an
employer and the employer’s employees) must consent to a termination. The
amendments proposed by these items are intended to remove the entitlement of
employee organisations to prevent the termination of a section 170LK agreement,
while still retaining a role for such organisations where requested by a
member.
8.124 Item 63 would replace paragraphs 170MG(1)(a) and
(b).
8.125 New paragraphs (1)(a) and (b) would provide that an application for Commission approval of a termination must be made by:
• in the case of an agreement between an employer and one or more
employee organisations under section 170LJ, section 170LL or Division 3 - the
employer and one or more of the organisations bound by the agreement;
or
• in the case of an agreement between an employer and the
employer’s employees made in accordance with section 170LK – the
employer.
8.126 Item 64 proposes to insert new subsections (2A) and (2B) to ensure that an organisation bound by a section 170LK agreement could make submissions in relation to the proposed termination if asked to do so by a member of the organisation:
• whose employment is subject to the agreement; and
• whose
industrial interests the organisation is entitled to represent.
Item
65 - Paragraph 170MH(1)(c)
8.127 Section 170MH provides for
termination of a certified agreement after the nominal expiry date. Such an
agreement may be terminated where to do so is not contrary to the public
interest.
8.128 Under subsection (1), an application for termination
of an agreement that has passed its nominal expiry date may be made by the
employer, a valid majority of employees or an organisation bound by the
agreement.
8.129 The effect of the amendment proposed by item 65 would be
to remove the entitlement of employee organisations to seek termination of a
section 170LK agreement. The right of such organisations to put their views on a
proposed termination is governed by existing subsection (2) and proposed
subsection (2A).
Item 66 – After subsection
170MH(2)
8.130 Item 66 proposes to insert new subsection 170MH(2A).
The amendment would provide that the Commission may only obtain the views of an
organisation bound by a section 170LK agreement in respect of a proposed
termination if it has been requested to make a submission by at least one member
whose employment is subject to the agreement, and whose industrial interests the
organisation is entitled to represent in relation to work that is subject to the
agreement.
Item 67 - Paragraph 170MHA(2)(c)
Item 68 - After
subsection 170MHA(3)
8.131 Items 67 and 68 propose amendments to
section 170MHA, which deals with termination of a certified agreement in a
manner provided for by the agreement.
8.132 Under subsection (1), an
application for termination of an agreement that has passed its nominal expiry
date may be made by the employer, a valid majority of employees or an
organisation bound by the agreement.
8.133 The effect of the amendment
proposed by item 67 would be to remove the entitlement of employee organisations
to seek termination of a section 170LK agreement.
8.134 Such organisations would retain, as a result of amendments proposed by item 68, a right to make submissions in relation to a proposed termination if asked to do so by a member of the organisation:
• whose employment is subject to the agreement; and
• whose
industrial interests the organisation is entitled to represent.
Item
69 - At the end of Division 7 of Part VIB
8.135 This item would
insert a new section 170MHB.
New section 170MHB - Hearings not
required
8.136 New section 170MHB would provide that the Commission
is to proceed without holding formal hearings when approving the extension,
variation or termination of agreements unless hearings are necessary. The
Commission would be required, however, to hold a hearing before refusing to
extend, vary or terminate an agreement.
Item 70 - Paragraph
170MI(2)(b)
8.137 This item proposes a technical change to paragraph
170MI(2)(b) to reflect the fact that the Workplace Relations Registrar would
certify some agreements under new Division 2A.
Item 71 - Subsection
170MS(1)
Item 72 - At the end of section 170MS
8.138 These
items propose to amend section 170MS. Schedule 11 proposes to replace existing
section 170MS. The amendments in these two items would insert extra provisions
into the section as amended by Schedule 11.
8.139 Section 170MS (as it is
proposed to be amended) provides that unless an application to certify an
agreement is made within 21 days of the agreement being made (in the case of an
agreement made in accordance with section 170LK) or approved (in other cases),
industrial action taken in pursuit of the agreement is not protected.
8.140 Item 72 proposes a new subsection 170MS(3). This subsection is
intended to provide a time limit in cases where an employee organisation claims
that an agreement entered into by its officer or employee, and purportedly with
the organisation’s authority, was not validly executed by it, and the
agreement is not in fact validly executed by any organisation. Proposed new
section 170LVA [item 38 of this Schedule] would provide for such an agreement to
be dealt with by the Commission as if it were a section 170LK agreement. The
time limit for seeking certification of such agreements would be 21 days after
approval by a valid majority.
8.141 Item 71 proposes a technical
amendment consequential upon the amendment proposed by item 72.
Item
73 - Section 170NG
8.142 Item 73 would amend section 170NG to make
clear that any person may seek an injunction (including an interim injunction)
in respect of a breach of a penalty provision.
Item 74 - At the end of
Division 11 of Part VIB
8.143 This item proposes to insert two new
sections in Division 11 of Part VIB, as follows.
New section 170NJ -
Signature on behalf of body corporate
8.144 This new section would
provide that an agreement or declaration under Division VIB may be signed by a
duly authorised officer on behalf of a body corporate, and need not be made
under seal.
New section 170NK - Agreements with Commonwealth
employees
8.145 This new section deals with the powers of a Secretary
of a Commonwealth Department in relation to agreements covering Commonwealth
employees. The section would provide that a Secretary may act on behalf of the
Commonwealth in relation to agreements with such employees and their
organisations. It would also provide for such powers to be
delegated.
Item 75 - Section 170X (paragraph (b) of the definition of
initial day)
8.146 This item proposes a technical amendment to
the definition of initial day, to reflect the fact that the Workplace
Relations Registrar is to be able to certify some agreements.
Part 2 – Further Amendment
New section 170NK – Agreements with Commonwealth
employees
8.147 This item would replace section 170NK [inserted by
item 74 of this Schedule]. This amendment is consequential upon amendments
proposed in Schedule 1 to the Public Employment (Consequential and
Transitional) Amendment Bill 1999 which was introduced in the House of
Representatives on 30 March 1999 (and would commence immediately after the
commencement of that item). The Public Employment (Consequential and
Transitional) Amendment Bill 1999 would amend the terminology of section
170WK of the Act (which deals with the powers of a Secretary of a Commonwealth
Department in relation to Australian Workplace Agreements) to reflect the
proposed new Public Service Act.
8.148 This item is designed to ensure
that sections 170NK and 170WK are consistent.
8.149 Part 3 of this Schedule makes provision for the application of the
substantive provisions of the Schedule.
Item 77 - Application of items
1, 36 and 59 to 61
8.150 This item concerns the application of the items in Schedule 8 concerning:
• anti-AWA provisions [items 1, 59 and 61];
and
• objectionable provisions [items 36 and 60].
8.151 The
amendments made by these items would apply to any certified agreement whether
certified before, on or after the commencement of item 77.
Item 78 -
Application of items 2, 3, 5 to 12, 17 to 20, 22, 24 to 34, 38 to 40, 45, 70 to
72
and 75
8.152 This item concerns the application of items
in Schedule 8 concerning certification of agreements, including the
certification process and the new streamlined certification procedure. The
amendments made by these items would apply in relation to any agreement where
the application to certify the agreement is made on or after the commencement of
item 78. The amendments would also apply in relation to the applications to
certify those agreements.
Item 79 - Application of item
4
8.153 The amendment made by item 4 of this Schedule [amendment to
paragraph 45(1)(ed)] would apply to decisions of the Commission made before, on
or after the commencement of item 79.
Item 80 - Application of items
13 to 16
8.154 This item concerns the application of the items in
Schedule 8 that amend section 170LE in relation to employees eligible to
constitute a ‘valid majority’. The amendments made by these items
would apply in determining whether a valid majority has made or approved an
agreement, or approved an extension, variation or termination of a certified
agreement on or after the commencement of item 80.
Item 81 -
Application of item 23
8.155 The amendment made by item 23 of this
Schedule [insertion of subsection 170LK(4A)] would apply to requests under
subsection 170LK(4) made on or after the commencement of item 81.
Item
82 - Application of item 37
8.156 The amendment made by item 37 of
this Schedule [repeal and substitution of subsection 170LU(8)] would apply to a
decision made on or after the commencement of item 82 about whether to certify
an agreement under Part VIB of the Act (whether the application for
certification was made before, on or after that commencement).
Item 83
- Application of section 170LZA
8.157 This item concerns the
application of new section 170LZA, which is to be inserted by item 44 of
this Schedule and relates to procedures in agreements for preventing and
settling disputes. Section 170LZA would apply in relation to any agreement where
the application to certify the agreement is made on or after the commencement of
item 83. The amendment would also apply in relation to the applications to
certify such agreements.
Item 84 - Application of section
170LZB
8.158 This item concerns the application of new section
170LZB, which is inserted by item 44 of this Schedule and renders void anti-AWA
provisions in agreements. Section 170LZB would apply on or after the
commencement of item 84 in relation to any certified agreement whether certified
before, on or after that commencement.
Item 85 - Application of items
41 to 43
8.159 The amendments made by items 41 to 43 of this Schedule
(amendments to section 170LY) would apply in relation to any agreement that is
certified on or after the commencement of item 85.
Item 86 -
Application of items 51 to 57 and 62 to 69
8.160 This item provides
that the amendments made by items 51 to 57 and 62 to 69 of this Schedule (which
concern the extension, variation or termination of certified agreements) would
apply to decisions of the Commission made on or after the commencement of item
86 about the extension, variation or termination of a certified agreement in
respect of applications for the extension, variation or termination made on or
after that commencement.
Item 87 - Meaning of Principal
Act
8.161 This item defines the expression ‘Principal
Act’ as used in Part 3 of this Schedule, as meaning the Workplace
Relations Act 1996.
SCHEDULE 9 - AWAs
9.1 This Schedule would amend Part VID of the Workplace Relations Act which provides for Australian Workplace Agreements (‘AWAs’). The amendments would:
• provide for AWAs to take effect on the date of signing or, if later, the date specified in the AWA as the commencing day, or in the case of a new employee, the date the employment commences;
• permit employees to sign AWAs at any time after receiving a copy of the information statement prepared by the Employment Advocate and an explanation of the effect of the agreement;
• permit an employee party to an AWA that provides for remuneration of $68000 per year or less to withdraw consent within a cooling-off period;
• remove the requirement relating to offering identical AWAs to comparable employees;
• simplify the approval process by:
- consolidating the existing assessment of ‘filing requirements’ and ‘approval requirements’ into a one step approval process;
- removing the requirement that the Employment Advocate refer AWAs to the
Commission where there is concern that the AWA does not pass the no-disadvantage
test - the Employment Advocate would apply the no-disadvantage test in all cases
(subject to principles which may be developed by the Commission);
- providing
more a streamlined process for AWAs that provide rates of remuneration in
excess of $68000 per year;
• amend the provisions dealing with the relationship between AWAs and
certified agreements and awards made under subsection 170MX(3) of the Act;
and
• remove the limited immunity available in respect of industrial
action taken in support of a claim for an AWA.
Workplace Relations Act 1996
Item 1 - Divisions
1, 2, 3, 4, 5 and 6 of Part VID
9.2 Item 1 would repeal existing
Divisions 1, 2, 3, 4, 5 and 6 of Part VID of the Act, and replace them with new
Divisions 1, 2, 3, 4 and 5. Whilst the proposed new Divisions would
significantly amend the procedures for the making, approval and enforcement of
AWAs, a number of existing provisions would be reinserted in their existing
form.
New Subdivision A - Outline of Part
New section 170VA
- Outline of Part
9.3 Proposed section 170VA sets out the contents of
Part VID.
New Subdivision B - Interpretation
9.4 New section 170VAA defines a range of terms used in this Part.
New section 170VAB - Proposed AWAs and ancillary documents -
interpretation
9.5 New subsection 170VAB(1) would provide that a
reference to an Australian Workplace Agreement (AWA) or an ancillary document
includes a proposed AWA or ancillary document. (‘Ancillary
documents’ are agreements to vary, extend or terminate an
AWA.)
9.6 In a proposed AWA or ancillary document, a reference to an
employer or employee would include a reference to the future employer or
employee [new subsection 170VAB(2)].
New Subdivision C - Scope
of this Part etc.
New section 170VAC - Scope of this
Part
9.7 Proposed section 170VAC reflects the constitutional limitations on the making of AWAs and would require that one of the following criteria apply at the AWA date (as defined in new section 170VAA) for the AWA to have effect:
• the employer is a constitutional corporation;
• the employer is the Commonwealth;
• the employee’s primary workplace is in a Territory;
• the employer is a waterside employer, the employee is a waterside worker and the employee’s employment is in connection with constitutional trade and commerce;
• the employee is a maritime worker and the employee’s employment is in connection with constitutional trade and commerce;
• the employee is a flight crew officer and the employee’s
employment is in connection with constitutional trade and commerce.
(Existing
section 495 provides for the additional operation of Part VID in
Victoria.)
9.8 New section 170VD would provide that AWAs and ancillary documents
only have effect as provided for in this Part.
New Division 2 - Making an
AWA
9.9 New subsection 170VB(1) would provide that an employer and employee
may make a written agreement, called an AWA, that deals with matters pertaining
to the employment relationship.
9.10 New subsection 170VB(2) would
provide that requirements in new sections 170VBA (which deals with the making of
AWAs) and 170VBB (which deals with the content of AWAs) must be
met.
9.11 New subsection 170VB(3) would permit an AWA to be made before
an employee commences employment (the term ‘new employee’ is defined
in proposed section 170VAA as an employee who signed the AWA before or at the
time of commencing the work to which the AWA relates).
New section
170VBA - Making an AWA
9.12 New section 170VBA sets out the proposed
requirements for making an AWA:
• the AWA must be signed and dated by the employer and the employee who are parties to it [subsection 170VBA(1)];
• the employee must genuinely consent to the terms and conditions in the AWA [subsection 170VBA(2)];
• the employer must give the employee a copy of the AWA [subsection 170VBA(3)]; and
• before the employee signs the AWA, the employer must give the employee a copy of an information statement prepared by the Employment Advocate and explain the effect of the AWA to the employee [subsection 170VBA(4)].
9.13 Proposed subsection 170VBA(5) sets out the information that would
be required to be provided in the information statement referred to in
subsection 170VBA(4).
9.14 Proposed subsection 170VBA(6) would provide
that where the employee’s remuneration under the AWA is $68000 per year or
less, the employee may withdraw consent to the AWA within a cooling-off period.
The cooling-off period is 5 days after the date of signing for new employees and
14 days after signing for existing employees [subsection 170VBA(7)]. Written
notice of withdrawal would be required to be given to the employer and to the
Employment Advocate [subsections 170VBA(6) and 170VC(6)]. The effect of
withdrawing consent is dealt with in new section 170VCA.
New section
170VBB - Content of AWA
9.15 New subsection 170VBB(1) would
provide that an AWA must include the provisions relating to discrimination that
are to be prescribed by the regulations. The prescribed provisions relating to
discrimination would automatically be included in any AWA that does not include
the prescribed provisions.
9.16 New subsection 170VBB(2) would require an AWA
to include a dispute resolution procedure, which may include procedures about
mediation and voluntary conciliation. A default procedure (to be prescribed by
the regulations) would automatically be included in any AWA that does not
include a dispute resolution procedure.
9.17 New subsection 170VBB(3)
would allow a dispute resolution procedure in an AWA (whether the default
procedure or not) to provide for voluntary conciliation by the Commission under
new Part VA [Schedule 4] to settle disputes between the parties to an AWA about
the application or interpretation of the AWA.
9.18 New subsection
170VBB(4) would provide that the AWA must not include any provisions which would
prohibit or restrict either party to the AWA from disclosing details of the AWA
to another person.
9.19 New subsection 170VBB(5) would provide that the
AWA must not include any objectionable provisions within the meaning of section
298Z of the Act. These are provisions that require or permit conduct that would
contravene Part XA, encourage or discourage membership of an industrial
association, indicate support for membership or non-membership of an industrial
association or require the payment of a fee to an industrial association or
person [see item 44 of Schedule 14].
New section 170VBC - Nominal
expiry date of AWA
9.20 New section 170VBC would provide that an AWA
may specify a nominal expiry date; however, this date could not be more than 3
years after the AWA was signed [new subsection 170VBC(1)]. If no date is
specified, then the nominal expiry date would be the third anniversary of the
date of signing [new subsection 170VBC(2)].
9.21 Proposed section 170VBD sets out when an AWA would start and stop
operating. An AWA would start operating on the later of:
• the AWA date (which is defined in section 170VAA as the date the AWA is signed, or if signed on different dates, the later of those dates) [paragraph 170VBD(a)];
• the date specified in the AWA as the starting day [paragraph 170VBD(b)]; or
• in the case of a new employee (as defined in section 170VAA) as the
day the employment commences [paragraph 170VBD(c)].
9.22 An AWA would stop operating at the earlier of any of the following
times:
• subject to section 170VCE (which specifies the consequences
of failing to apply for approval or where approval is refused), where the
employer fails to make an application for approval of the AWA within the period
of 60 days starting on the AWA date - the start of the day after the 60 day
period ends [paragraph 170VBD(d)];
• where approval of the AWA is refused - the end of the day the refusal notice is issued [paragraph 170VBD(e)];
• where the AWA is terminated under proposed sections 170VEN, 170VEO or 170VEQ - the time the termination takes effect under the relevant section [paragraph 170VBD(f)]; or
• the time when another AWA between the employer and employee starts to
operate [paragraph 170VBD(g)].
9.23 The operation of an AWA would also
be affected where an eligible employee withdraws his or her consent to the AWA
(see proposed section 170VCA below).
New Division 3 - Approval of AWAs
New section 170VC - Applications for approval of AWAs
9.24 Proposed section 170VC would set out the process for applying for an AWA to be approved:
• a written application for approval of an AWA would be required to be made to the Employment Advocate unless the employee withdraws his or her consent during the cooling off period [subsection 170VC(1)];
• the application would be required to be made within the 60 day period starting on the AWA date, or within a longer period if permitted by the Employment Advocate [subsection 170VC(2)];
• an application would be required to be accompanied by a copy of the
AWA and any other information required by the Employment Advocate. (The
Employment Advocate may publish a notice in the Gazette specifying the
information to be provided by the applicant.) [subsection 170VC(3)];
• where the employee’s annual rate of remuneration under the AWA
is more than $68,000, the application could be accompanied by a declaration to
that effect [paragraph 170VC(4)(a)] and a request signed by the employee asking
that the Employment Advocate assess the AWA for the purposes of the
no-disadvantage test [paragraph 170VC(4)(b)]. (The no-disadvantage test is set
out in Part XIE of the Act.) In the absence of such a request from the employee,
an AWA accompanied by the declaration provided for in paragraph 170VC(4)(a)
would be taken to pass the no-disadvantage test [see subsection 170VCB(2)];
9.25 Proposed subsection 170VC(5) would permit two or more AWAs to be
included in the same notice of application, provided that the same employer is a
party to all the agreements. There would be no requirement that multiple AWAs
filed in a single application contain the same terms.
9.26 Proposed
subsections 170VC(6) and (7) would set out further requirements for an employee
to withdraw consent to an AWA. In addition to satisfying the requirements in
subsections 170VBA(6) and (7), an employee would be required to give the
Employment Advocate written notice of the withdrawal of consent within 7 days
after giving notice of withdrawal to the employer. A withdrawal of consent would
not be effective unless these requirements have been met.
9.27 If consent is withdrawn, the employer would not be required to apply for
approval of the AWA. However, if the employer applies for the AWA to be approved
before consent is withdrawn, the notice of withdrawal would provide a basis for
the Employment Advocate to cease dealing with the application.
New section
170VCA - Consequences for AWA of employee’s withdrawal of consent
9.28 Proposed section 170VCA would provide that where an employee
withdraws his or her consent to the AWA before the end of the cooling off
period, the AWA would be taken not to have started to operate.
New
section 170VCB - Employment Advocate must approve, or refuse to approve,
AWA
9.29 Section 170VCB would provide for the approval of AWAs. New subsection 170VCB(1) would require the Employment Advocate to approve an AWA if:
• the application has been made in accordance with section 170VC [paragraph 170VCB(1)(a)];
• the AWA satisfies the requirements of section 170VBA [paragraph 170VCB(1)(b)];
• the AWA complies with section 170VBB [paragraph 170VCB(1)(c)]; and
• subject to subsection 170VCB(2), the AWA passes the no-disadvantage
test [paragraph 170VCB(1)(d)].
9.30 Subsection 170VCB(2) would provide
that an AWA that is accompanied by a declaration that the employee’s
annual rate of remuneration under the AWA is more than $68,000, is taken to pass
the no-disadvantage test. That is, the no-disadvantage test applies as a matter
of law, but the Employment Advocate would not be required to separately assess
the AWA for the purposes of the no-disadvantage test. However, an employee could
request that the Employment Advocate assess the AWA for the purposes of the
no-disadvantage test. Such a request would be signed by the employee and
accompany the application for approval of the AWA [paragraph 170VC(4)(b)].
9.31 As subsection 170VCB(2) would only apply where the AWA is
accompanied by a declaration signed by the employer and the employee, the
employee would have the opportunity when signing the declaration to add a
request to the effect that he or she wishes the Employment Advocate to assess
the agreement for the purposes of the no-disadvantage test.
9.32 New subsection 170VCB(3) would provide that if the Employment Advocate has any concerns about whether the AWA meets the requirements of subsection 170VCB(1), the Employment Advocate would be required to give the parties to the AWA an opportunity to:
• take any action (including the giving of undertakings) [paragraph
170VCB(3)(a)]; or
• give the Employment Advocate any further
information [paragraph 170VCB(3)(b)].
If these steps resolve the
Employment Advocate’s concerns, the Employment Advocate would then be
required to approve the AWA [subsection 170VCB(3)].
9.33 New subsection
170VCB(4) would provide that any undertakings accepted by the Employment
Advocate are taken to be included in the AWA.
9.34 New subsection
170VCB(5) would require the Employment Advocate to approve an AWA in certain
circumstances where the requirements of paragraphs 170VCB(1)(a), (b) and (c)
have not been met in all respects. This requirement would apply only where the
Employment Advocate is satisfied that the failure to meet those requirements has
not disadvantaged, and will not disadvantage, either party to the AWA. New
subsection 170VCB(5) would not apply to the requirements in subsections
170VBB(4) and (5). That is, an AWA could not be approved if the requirements in
those subsections had not been satisfied. A legislative note to the section
makes it clear that subsection 170VCB(5) does not affect the application of the
no-disadvantage test.
9.35 New subsection 170VCB(6) would provide that
where the Employment Advocate is not satisfied that an AWA passes the
no-disadvantage test (see Part XIE), the Employment Advocate would be required
to approve the AWA if satisfied that it is not contrary to the public interest
to do so.
9.36 New subsection 170VCB(7) would provide that in deciding
whether the approval of an AWA is not contrary to the public interest, the
Employment Advocate would have to apply the principles (if any) established by
the President of the Commission under section 170VCC (see below).
9.37 The effect of new subsection 170VCB(8) would be that if none of
preceding subsections require the Employment Advocate to approve an AWA, the
Employment Advocate must refuse to approve it.
New section 170VCC -
Principles for deciding whether approval of an AWA etc. is not contrary to the
public interest
9.38 Under proposed subsection 170VCC(1), the
President of the Australian Workplace Relations Commission could establish
principles to provide general guidance to the Employment Advocate concerning
whether the approval of an AWA (or an AWA as varied) is not contrary to the
public interest.
9.39 New subsection 170VCC(2) would permit the President
to establish such principles at his or her own initiative, or upon application
by the Employment Advocate.
9.40 Under new subsection 170VCC(3), if the
Employment Advocate applies to the President for the establishment of
principles, the President would be required to take such steps as he or she
considers appropriate to ascertain the Employment Advocate’s views about
the proposed principles.
9.41 New subsections 170VCD(1) and (2) would require the Employment
Advocate to issue either an approval notice or a refusal notice to the employer.
9.42 New subsection 170VCD(3) would require that, where the Employment
Advocate has designated an award for the purposes of the no-disadvantage test
(see sections 170X and 170XE of the Act and items 4 to 6 of Schedule 10), the
approval or refusal notice must identify the designated award.
9.43 Under new subsection 170VCD(4), an approval notice would be
required to include copies of any provisions included by reason of section
170VBB(1) (model anti-discrimination provisions), 170VBB(2) (model dispute
resolution procedure) or 170VCB(4) (undertakings).
New section 170VCE -
Consequences for AWA of failure to apply for approval, or refusal of
approval
9.44 New section 170VCE would set out what happens when an
AWA is not approved because of either failure to apply for approval of an AWA
within 60 days of the AWA date (or such longer period as the Employment Advocate
allows) or the issuing of a refusal notice.
9.45 Proposed subsection 170VCE(1) would provide that:
• where the AWA has started operating, the AWA stops operating after the end of the 60 day (or longer) period [paragraph 170VCE(1)(a)];
• if the AWA has not started operating, it does not start operating (an
AWA may not have started operating in circumstances in which it has been signed
well in advance of the commencement of employment or the date specified in the
AWA as the start date) [paragraph 170VCE(1)(b)]; and
• where paragraph
(a) or (b) applies, the Employment Advocate is not permitted to approve the AWA
[paragraph 170VCE(1)(c)].
9.46 New subsection 170VCE(2) would provide that:
• where the AWA has started operating, the AWA stops operating at the end of the day the refusal notice is issued [paragraph 170VCE(2)(a)];
• if the AWA has not started operating, it does not start operating (an
AWA may not have started operating in circumstances in which it has been signed
well in advance of the commencement of employment or the date specified in the
AWA as the start date) [paragraph 170VCE(2)(b)]; and
• where paragraph
(a) or (b) applies, the Employment Advocate is not permitted to approve the AWA
[paragraph 170VCE(2)(c)].
9.47 Proposed subsection 170VCF(1) would require that, as soon as
practicable after the employer has received a copy of the approval or refusal
notice, the employer must provide a copy of the notice to the employee, together
with any material taken to be included in the AWA by reason of section 170VBB(1)
(model anti-discrimination provisions), 170VBB(2) (model dispute resolution
procedure) or 170VCB(4) (undertakings). (The requirement to provide the employee
with a copy of the AWA is provided for in section 170VBA.) Proposed subsection
170VCF(2) would require the employer to provide the employee with any other
document if required to do so by the regulations.
9.48 New section 170VD would set out the relationship between AWAs and awards (including State awards), certified agreements and State agreements. During its period of operation (as provided for in section 170VBD), an AWA would:
• operate to the exclusion of any federal award (including an award made under subsection 170MX(3) of the Act but not exceptional matters orders) that would otherwise apply to the employee’s employment [new subsection 170VD(1)];
• prevail to the extent of any inconsistency over any exceptional matters orders that would otherwise apply to the employee’s employment [new subsection 170VD(2)];
• operate to the exclusion of any State award or State agreement that would otherwise apply to the employee’s employment [new subsection 170VD(3)];
• operate to the exclusion of any certified agreement or old IR agreement that would otherwise apply to the employee’s employment unless subsection (5) or (6) applies [new subsection 170VD(4)]. An ‘old IR agreement’ is an agreement certified or approved under various now repealed provisions of the Act [see Item 3 of Schedule 11, which would insert a definition of ‘old IR agreement’];
• prevail to the extent of any inconsistency over any certified
agreement or old IR agreement that would otherwise apply to the employee’s
employment if the AWA expressly provides that it does not operate to the
exclusion of the certified agreement or old IR agreement [new subsection
170VD(5)];
• be prevailed over to the extent of any inconsistency by
any certified agreement that comes into operation after the AWA’s nominal
expiry date if the certified agreement makes express provision to that effect
[new subsection 170VD(6)].
9.49 New section 170VDA would set out the relationship between AWAs and
State and other Commonwealth laws.
9.50 New subsection 170VDA(1) would
provide that, subject to the exceptions contained in this section, an AWA
prevails over conditions of employment in State laws to the extent of any
inconsistency.
9.51 New subsection 170VDA(2) proposes exceptions to this
general rule. Provisions in an AWA which deal with occupational health and
safety, workers’ compensation or apprenticeship would operate subject to
the provisions of any State law which deal with those matters. This is intended
to ensure that these fundamental matters are dealt with consistently while still
enabling the parties to address the issue in the AWA if they wish to do so. The
regulations could also prescribe other matters that are to operate subject to a
State law.
9.52 New subsection 170VDA(3) would ensure that State laws
providing a remedy for termination of employment are still to be available,
where they are able to operate concurrently with the AWA.
9.53 New
subsection 170VDA(4) would provide that to the extent of any inconsistency, an
AWA prevails over prescribed conditions of employment which are specified in a
Commonwealth law which is prescribed by the regulations.
9.54 New
subsection 170VDA(5) defines the terms ‘Commonwealth law’,
‘prescribed conditions’ and ‘State law’.
New
section 170VDB - Parties must not breach AWA
9.55 New subsection
170VDB would require that a party to an AWA must not breach the AWA.
Contravention of this subsection could lead to the imposition of a civil penalty
(see section 170VV).
New section 170VDC - Industrial action etc. by
party to AWA
9.56 New subsection 170VDC(1) would prevent an employee
whose employment is covered by an AWA from engaging in industrial action in
relation to the employment to which the AWA relates during the period of
operation of the AWA before its nominal expiry date.
9.57 New subsection
170VDC(2) would prevent an employer locking out an employee who is covered by an
AWA during the period of operation of the AWA, but before the nominal expiry
date of the AWA, for the purpose of supporting or advancing claims in respect of
the employee’s employment.
9.58 A civil penalty could be imposed in
respect of a breach of either subsection 170VDC(1) or (2) (see section
170VV).
New section 170VDD - Employer’s successor and AWA to
which employer is a party
9.59 Proposed section 170VDD would specify
the circumstances in which AWAs bind a successor, transmittee or assignee
employer.
9.60 New subsection 170VDD(2) would allow the Employment
Advocate to order that an AWA has limited or no binding effect on a new employer
who is the successor, transmittee or assignee of the business, or part of the
business, to which an AWA applies. This would bring the successor provision in
relation to AWAs into line with equivalent provisions regarding award
respondency (existing section 149). An order made by the Employment Advocate
would be required to specify the day from which it takes effect, and it could
not be retrospective.
9.61 Subsection 170VDD(3) would provide that an order under the section may be made on the application of the employer bound by the agreement. It is envisaged that the Employment Advocate might make an order on application by:
• the successor employer after the succession, assignment or
transmission has occurred;
• an employer who is contemplating a
transfer of their business.
9.62 Subsection 170VDD(4) requires the
Employment Advocate, before making an order, to give the parties to the AWA an
opportunity to make submissions.
9.63 Subsection 170VDD(5) would make it
clear that the rights and obligations of the previous employer which arose
before the succession of the business or undertaking are not affected.
9.64 Subsection 170VDD(6) would provide that for the purposes of this
section, a successor includes a transmittee or assignee.
New Division 5
- Extending, varying or terminating an AWA
9.65 Proposed section 170VE would allow parties to an AWA to make a
written agreement to extend the AWA’s nominal expiry date. Such an
agreement could only be made before the AWA’s nominal expiry date and the
extended date could not be more than 3 years after the AWA date [new subsections
170VE(1) and (2)].
9.66 Proposed subsection 170VE(3) would provide that
an extension agreement will be made when it is signed and dated by the parties
to the agreement. The employee would have to genuinely consent to making the
extension agreement [new subsection 170VE(4)].
9.67 The agreement would
come into effect on the day when both parties have signed the agreement
[subsection (170VE(5)].
9.68 Proposed section 170VEA would set out the application process for
approval of extension agreements.
9.69 Under proposed subsection
170VEA(1), an employer would be required to apply for approval of the extension
agreement within 60 days of the day when the agreement takes effect or such
longer time permitted by the Employment Advocate.
9.70 Under proposed
subsection 170VEA(2), the application would be required to be accompanied by a
copy of the agreement, together with any information required by the Employment
Advocate.
9.71 Two or more agreements could be included in the same
notice of application for approval. The agreements need not be in the same terms
[new subsection 170VEA(3)].
New section 170VEB - Employment Advocate
must approve, or refuse to approve, extension agreement
9.72 New
section 170VEB would require the Employment Advocate to approve an extension
agreement if the application has been made in accordance with section 170VEA and
the agreement satisfies the requirements of section 170VE [new subsection
170VEB(1)].
9.73 If the Employment Advocate is not satisfied that the
requirements set out in paragraphs 170VEB(1)(a) and (b) have been met in all
respects, the Employment Advocate would be required to approve the extension
agreement if he or she is satisfied that the failure to meet those requirements
has not disadvantaged, and will not, disadvantage either party to the AWA [new
subsection 170VEB(2)].
9.74 New subsections 170VEB(3), (4), (5) and (6)
would set out the proposed requirements in relation to the issuing of approval
and refusal notices by the Employment Advocate and the provision of a copy of
the notice, the approved agreement and any other prescribed information to the
employee.
New section 170VEC - Consequences for extension agreement
of failure to apply for approval or refusal of approval
9.75 Proposed
subsection 170VEC(1) would provide that if an employer fails to apply for
approval of an extension agreement within 60 days of the starting day of the
agreement (or such longer period that the Employment Advocate allows), the
agreement would cease operating after the end of that period and the Employment
Advocate cannot approve the extension agreement.
9.76 Under proposed
subsection 170VEC(2), the issuing of a refusal notice in relation to an
extension agreement would cause the agreement to cease to operate from the end
of the day on which the notice was issued.
9.77 New subsection 170VED(1) would provide that parties to an AWA may
enter into a written agreement to vary the terms of the AWA. (A variation
agreement may vary the AWA’s nominal expiry date. That is, where the
parties agree to vary the nominal expiry date as well as other terms of the
agreement, it would not be necessary to make separate extension and variation
agreements.) A variation agreement would be made when it is signed and dated by
the parties to the agreement.
9.78 New subsections 170VED(2) and (3)
would provide for a cooling off period during which an employee whose AWA, as
varied, would provide for remuneration of $68,000 per year or less may withdraw
his or her consent to the variation agreement. This cooling off period would
operate in the same manner as the cooling off period applicable to
AWAs.
9.79 New subsection 170VED(4) would provide that subject to
sections 170VEF (which deals with withdrawal of consent) and 170VEJ (which deals
with the consequences of failure to apply for approval and refusal of approval)
a variation agreement takes effect on the day on which the parties sign the
agreement (or the later day if signed on different days), or, if later, on the
day specified in the agreement.
9.80 Proposed subsections 170VBA and
170VBB would apply to the AWA as varied. That is, the employee would be required
to genuinely consent to the terms and conditions in the variation agreement, the
employer would be required to give the employee a copy of the agreement and
before the employee signs the agreement, the employer would be required to give
the employee a copy of an information statement prepared by the Employment
Advocate and explain the effect of the agreement to the employee. The AWA as
varied would have to include the prescribed anti-discrimination provisions and a
dispute resolution procedure. The AWA as varied could not include any provisions
which would prohibit or restrict either party to the AWA from disclosing details
of the AWA to another person and could not include any objectionable provisions
within the meaning of section 298Z of the Act.
New section 170VEE -
Applications for approval of variation agreements
9.81 Proposed
section 170VEE would set out the requirements for applications for approval of
variation agreements. These requirements would operate in the same way as the
proposed requirements for applications for approval of an AWA.
New
section 170VEF - Consequences for variation agreement of employee’s
withdrawal of consent
9.82 New section 170VEF would set out the
consequences of the withdrawal of consent. If an eligible employee withdraws his
or her consent to the variation agreement before the end of the cooling off
period, the agreement would be taken not to have started to operate.
New section 170VEG - Employment Advocate must approve, or refuse to
approve, variation agreement
9.83 New section 170VEG proposes
requirements for approval of a variation agreement. These requirements would
operate in the same way as the proposed requirements for approval of an AWA.
9.84 New section 170VEH proposes requirements applicable to the issuing
of approval and refusal notices in respect of variation agreements. New
subsection 170VEH(1) would require the Employment Advocate to issue an approval
notice in respect of an approved variation agreement and provide a copy of the
notice and the agreement to the employer. New subsection 170VEH(2) would require
the Employment Advocate to issue to the employer a refusal notice in respect of
a variation agreement that has been refused.
9.85 New section 170VEI would specify the information that the employer
must provide to the employee after receiving an approval or refusal notice from
the Employment Advocate. Proposed subsection 170VEI(1) would require that as
soon as practicable after the employer has received a copy of the approval or
refusal notice, the employer must provide a copy of the notice to the employee,
together with a copy of the variation agreement and any material taken to be
included in the AWA as varied by reason of subsection 170VBB(1) (model
anti-discrimination provisions), 170VBB(2) (model dispute resolution procedure)
or 170VEG(4) (undertakings).
9.86 New subsection 170VEI(2) would provide
for regulations to prescribe additional requirements as to material to be
provided to the employee.
New section 170VEJ - Consequences for
variation agreement of failure to apply for approval or refusal of
approval
9.87 New section 170VEJ would set out what happens when a
variation agreement is not approved because of either failure to apply for
approval within 60 days of the AWA date (or such longer period as the Employment
Advocate allows) or the issuing of a refusal notice.
9.88 Proposed subsection 170VEJ(1) would provide that:
• where the variation agreement has already taken effect, it ceases effect after the end of the 60 day (or longer) period [paragraph 170VEJ(1)(a)];
• if the variation agreement has not already taken effect, it does not
take effect [paragraph 170VEJ(1)(b)]; and
• where paragraph (a) or (b)
applies, the Employment Advocate is not permitted to approve the AWA [paragraph
170VEJ(1)(c)].
9.89 New subsection 170VEJ(2) would provide that:
• where the variation agreement has already taken effect, it ceases to
have effect at the end of the day the refusal notice is issued [paragraph
170VEJ(2)(a)]; and
• if the variation agreement has not already taken
effect, it does not take effect [paragraph 170VEJ(2)(b)].
9.90 New section 170VEK would set out the three ways in which an AWA may be terminated:
• by a termination agreement as provided for in sections 170VEL and 170VEN;
• by the Employment Advocate on application of an AWA party as provided
for in section 170VEO; and
• in accordance with a provision in the AWA
as provided for in sections 170VEP and 170VEQ.
9.91 New subsection 170VEL(1) would allow the parties to an AWA at any
time to make a written agreement to terminate the AWA. Proposed subsection
170VEL(2) would provide that the termination agreement will be made when it is
signed and dated by the parties to the agreement. The employee would be required
to genuinely consent to making the termination agreement [new subsection
170VEL(3)].
9.92 A termination agreement would be required to be
approved by the Employment Advocate, and if approved, it would come into effect
on the day on which the approval notice is issued, or a later date if specified
in the termination agreement [subsection 170VEL(4)].
9.93 New section 170VEM would set out the requirements for an application
for approval of a termination agreement.
9.94 Under proposed subsection
170VEM(1), an employer would be required to apply in writing to the Employment
Advocate for approval of the termination agreement. The application would have
to be made within 60 days of the agreement being made or such longer period as
allowed by the Employment Advocate [new subsection 170VEM(2)].
9.95 Under
proposed subsection 170VEM(3), the application would be required to be
accompanied by a copy of the agreement, together with any information required
by the Employment Advocate.
9.96 Two or more agreements could be
included in the same notice of application for approval. The agreements need not
be in the same terms [new subsection 170VEM(4)].
New section 170VEN
- Employment Advocate must approve, or refuse to approve, termination
agreement
9.97 New section 170VEN would require the Employment
Advocate to approve a termination agreement if the application has been made in
accordance with section 170VEM and the agreement satisfies the requirements of
section 170VEL [new subsection 170VEN(1)].
9.98 If the Employment
Advocate is not satisfied that the requirements set out in paragraphs
170VEN(1)(a) and (b) have been met in all respects, the Employment Advocate
would be required to approve the termination agreement if he or she is satisfied
that the failure to meet those requirements has not disadvantaged, and will not
disadvantage, either party to the AWA [new subsection 170VEN(2)].
9.99 New subsections 170VEN(3), (4), (5) and (6) would set out the
proposed requirements in relation to the issuing of approval and refusal notices
by the Employment Advocate and the provision of a copy of the notice, the
approved agreement and any other prescribed information to the employee.
9.100 New section 170VEO would provide for an AWA party to apply to have
the AWA terminated. Applications would be made in writing to the Employment
Advocate after the AWA’s nominal expiry date [new subsection
170VEO(1)].
9.101 Before making a determination in respect of an
application to terminate an AWA, the Employment Advocate would be required to
take such steps as he or she considers appropriate to obtain the views of each
of the parties about whether the agreement should be terminated [new subsection
170VEO(1)].
9.102 The Employment Advocate would be required to issue a
determination in respect of an application under subsection 170VEO(1). If the
Employment Advocate determines that the AWA should be terminated, the
termination would take place at the end of the day the determination is issued
and or a later time if specified in the determination [new subsections 170VEO(3)
and (4)].
9.103 New section 170VEP would provide for the termination of an AWA in
the manner provided for in the AWA. Such terminations would need to be approved
by the Employment Advocate to ensure that they comply with the terms of the
relevant AWA. Applications would be required to be made in writing to the
Employment Advocate after the AWA’s nominal expiry date [new subsection
170VEP(1)]. The applicant would be required to notify the other party to the AWA
of the application as soon as practicable after it is made [new subsection
170VEP(2)].
9.104 New subsection 170VEP(3) would set out the requirements for
an application under subsection 170VEP(1). The application would be required to
be accompanied by details of the manner of termination provided for in the AWA
and any other information the Employment Advocate requires (as specified by a
Gazette notice).
9.105 The termination of two or more agreements
could be covered in the same notice of application if the applicant is the
employer and the employer is a party to all the AWAs to which the notice of
application applies. The terminations need not be in the same terms [new
subsection 170VEP(4)].
9.106 New subsection 170VEP(5) would provide
that a termination in accordance with an AWA comes into effect on the day on
which the approval notice is issued, or a later date if specified in the
application.
New section 170VEQ - Employment Advocate must approve, or
refuse to approve termination under AWAs
9.107 New section 170VEQ
would require the Employment Advocate to approve an application if it has been
made in accordance with section 170VEP, the applicant has notified the other
party of the application and the termination is in accordance with the AWA [new
subsection 170VEQ(1)].
9.108 If the Employment Advocate is not satisfied
that the requirements set out in paragraphs 170VEQ(1)(a) and (b) have been met
in all respects, the Employment Advocate would be required to approve the
termination if he or she is satisfied that the failure to meet those
requirements has not disadvantaged, and will not, disadvantage either party to
the AWA [new subsection 170VEQ(2)].
9.109 New subsections 170VEQ(3),
(4), (5) and (6) set out the proposed requirements in relation to the issuing of
approval and refusal notices by the Employment Advocate and the provision of a
copy of the notice and any other prescribed information by the applicant to the
other party.
Item 2 - At the end of subsection
170VV(1)
9.110 Section 170VV sets out the penalties for contravening
this Part. Item 2 proposes to add a new provision to make it clear that the
penalties are civil penalties. This item also proposes to replace the existing
heading with a new heading – ‘Civil penalties’.
Item
3 - Subsection 170VV(4) (definition of penalty
provision)
9.111 This item would repeal existing subsection
170VV(4), which lists the sections of this Part which are penalty provisions,
and replace it with a new provision listing the new sections to which penalties
apply.
Item 4 - Subsection 170VV(3)
9.112 Subsection
170VV(1) provides that an eligible court may impose a penalty on a person who
contravenes a penalty provision. Existing subsection 170VV(3) provides that an
application for an order under subsection 170VV(1) that relates to an AWA or
ancillary document may be made by a party to the AWA or ancillary document. New
subsection 170VV(3) would permit an application for an order under subsection
170VV(1) to be made by the Employment Advocate or an authorised officer (as
defined in section 83BG) or by a party to the AWA or ancillary
document.
Item 5 - After section 170VV
New section
170VVA - Eligible court may order employer to pay underpayment to
employee
9.113 Item 5 would insert new section 170VVA, which would
permit a court, in a proceeding under section 170VV, to order an employer to
make a payment to an employee in respect of any underpayment of entitlements
under an AWA. The power to make such an order is additional to the power to
impose a penalty under subsection 170VV(1).
9.114 New subsection
170VVA(2) would limit the scope of orders under subsection 170VVA(1) to exclude
underpayments relating to any period more than 6 years before the commencement
of the proceedings. This limit is consistent with the time limit on recovery of
underpayments imposed by subsection 179(7) in respect of breaches of awards and
certified agreements.
Item 6 - At the end of section
170VW
9.115 Item 6 would insert new subsection 170VW(3), which would
ensure that, to the extent that the relevant loss had been recovered through an
order made under subsection 170VV(3), an employee could not recover damages for
a breach of an AWA.
Item 7 - Section 170VX
9.116 Item 7
would repeal existing section 170VX (which deals with compensation for
shortfalls for new employees whose AWAs are subsequently refused approval) and
insert new sections 170VX, 170VXA, 170VXB and 170VXC. The new sections would
also provide for the recovery of compensation for shortfalls, but they
substantially widen the circumstances in which compensation may be recovered.
The new sections providing for the recovery of compensation take account of the
new sections providing for the commencement of AWAs and variation agreements,
the effect of which would be that most AWAs and variation agreements (including
those for existing employees) would start to operate before they are assessed by
the Employment Advocate.
9.117 The new provisions would also widen access
to recovery of compensation where an AWA has been approved on the basis of
undertakings or other action, and the undertakings have been breached or other
action has not been taken as required.
9.118 In each case, the employee
(or the Employment Advocate or an authorised officer on the employee’s
behalf) could make a claim in an eligible court for this amount (an
‘eligible court’ is defined in new section 170VA).
New
section 170VX - Compensation for shortfall in entitlements - AWA not
operating
9.119 New section 170VX(1) would allow an employee
(or the Employment Advocate or an authorised officer on the employee’s
behalf) to claim compensation in the event that he or she was disadvantaged by
making an AWA that subsequently stopped operating for one of the reasons set out
in subsection 170VX(2). (The reasons specified in subsection 170VX(2) are that
the AWA was subsequently refused approval or that the employer failed to apply
for the AWA’s approval as required by new section 170VC(2).
9.120 New subsection 170VX(1) would provide a formula for calculating
the amount of compensation payable.
New section 170VXA - Compensation
for shortfall in entitlements - AWA approved after employer’s
action
9.121 New subsection 170VXA(1) would allow an employee (or the
Employment Advocate or an authorised officer on the employee’s behalf) to
claim compensation where his or her entitlements under an AWA are increased as a
result of a requirement that the employee’s employer give undertakings or
take other action in order for an AWA to be approved.
9.122 New
subsection 170VXA(2) would provide a formula for calculating the amount of
compensation payable.
New section 170VXB - Compensation for shortfall
in entitlements - variation agreement ceasing to have
effect
9.123 New subsection 170VXB(1) would allow an employee (or the
Employment Advocate or an authorised officer on the employee’s behalf) to
claim compensation where a variation agreement has stopped operating for one of
the reasons set out in subsection 170VXB(2). (The reasons specified in
subsection 170VXB(2) are that the variation agreement was subsequently refused
approval or that the employer failed to apply for the approval of the agreement
as required by new section 170VEE(2).
9.124 New subsection 170VXB(1)
would provide a formula for calculating the amount of compensation
payable.
New section 170VXC - Compensation for shortfall in
entitlements - variation agreement approved after employer’s
action
9.125 New subsection 170VXC(1) would allow an employee (or the
Employment Advocate or an authorised officer on the employee’s behalf) to
claim compensation where his or her entitlements under an AWA, as varied by a
variation agreement, were increased as a result of a requirement that the
employee’s employer give undertakings or take other action in order for an
AWA to be approved.
9.126 New subsection 170VXC(2) would provide a
formula for calculating the amount of compensation payable.
Item 8 -
Division 8 of Part VID
9.127 Item 8 would repeal Division 8, which
confers limited immunity for certain industrial action.
Item 9 -
Before section 170WF
9.128 Item 9 would insert a new section 170WAA
which sets out the requirements relating to bargaining agents, as
follows.
New section 170WAA - Bargaining agents
9.129 New
subsection 170WAA(1) would provide that either of the parties may appoint a
bargaining agent to negotiate an AWA. This appointment would be required to be
in writing. Subsection 170WAA(5) would provide that a bargaining agent may be a
group of persons.
9.130 New subsection 170WAA(2) would provide that a
party must not refuse to recognise the appointment of a duly appointed
bargaining agent by the other party for the purposes of new subsection
170WAA(1). Contravention of this section could lead to the imposition of a
monetary penalty. If a person did not wish to negotiate the making of an AWA,
that would not constitute a refusal to recognise a bargaining agent.
9.131 New subsection 170WAA(3) would provide that a party is not in
breach of new subsection 170WAA(2) if they were not given a copy of the
bargaining agent’s instrument of appointment before the refusal.
9.132 New subsection 170WAA(4) would provide that a party must not coerce or attempt to coerce the other party:
• to appoint or not to appoint a particular person as their authorised
bargaining agent; or
• to terminate the appointment of their authorised
bargaining agent.
9.133 The contravention of this provision could lead to
the imposition of a civil penalty.
Item 10 - At the end of subsection
170WF(1)
Item 11 - At the end of subsection 170WG(1)
Item 12
- At the end of subsection 170WG(2)
9.134 Items 10 to 12 would amend
subsections 170WF(1), 170WG(1) and 170WG(2) by inserting notes indicating that
the penalties applicable to a breach of these provisions are civil
penalties.
Item 13 - Section 170WH
New section 170WH -
Information must not be false or misleading
9.135 Item 13 would
repeal existing section 170WH and replace it with a new provision to the effect
that a person must not give the Employment Advocate information for the purposes
of this Part that the person knows or ought reasonably to know is false or
misleading.
9.136 The contravention of this provision could lead to the
imposition of a civil penalty.
9.137 In determining whether a person
ought reasonably to know that information is false or misleading, it would be
appropriate to have regard to the person’s abilities, experience,
qualifications and other attributes and to all the other circumstances
surrounding the alleged contravention.
Item 14 - Subsection
170WHA(1)
9.138 This item proposes a minor technical amendment
consequent upon the replacement of ‘filing’ requirements with
‘approval’ requirements.
Item 15 - Sections 170WHB, 170WHC
and 170WHD
9.139 Item 15 would repeal sections 170WHB, 170WHC and
170WHD which concern the Commission’s functions with respect to AWAs.
These provisions would not be required as a consequence of the repeal of
Subdivision C of Division 5 of Part VID and subsections 170VM(3), (4) and (5),
which provide for the approval of AWAs and variation agreements and the
termination of AWAs by the Commission. These functions would be transferred to
the Employment Advocate by item 1.
Item 16 - Subsection
170WI(1)
9.140 This item proposes a minor technical amendment
consequent upon the replacement of ‘filing’ requirements with
‘approval’ requirements.
Item 17 - Subsection
170WI(1)
9.141 This item would omit a reference to the Commission in
subsection 170WI(1) consequent upon the transfer to the Employment Advocate of
the Commission’s functions with respect to the approval of AWAs and
variation agreements and the termination of AWAs.
Item 18 - Paragraph
170WI(2)(a)
9.142 This item proposes a minor technical amendment
consequent upon the replacement of ‘filing’ requirements with
‘approval’ requirements.
Item 19 - Paragraph
170WI(2)(b)
9.143 This item would omit a reference to the Commission
in paragraph 170WI(2)(b) consequent upon the transfer to the Employment Advocate
of the Commission’s functions with respect to the approval of AWAs and
variation agreements and the termination of AWAs.
Item 20 - Paragraph
170WI(2)(c)
9.144 Item 20 would repeal existing paragraph 170WI(2)(c)
and replace it with a new paragraph to reflect the replacement of
‘filing’ requirements with ‘approval’
requirements.
Item 21 - Subsection
170WK(1)
9.145 Subsection 170WK(1) permits a Secretary to act on
behalf of the Commonwealth (as employer) in the negotiation of AWAs with
employees in relation to whom the Secretary has the powers of Secretary. This
item would clarify the reference to a Secretary by adding the words “to a
Department”.
Item 22 - After subsection
170WK(1)
9.146 This item would provide for the delegation in writing
of a Departmental Secretary’s powers under subsection 170WK(1) to a person
holding, or performing the duties of a Senior Executive Service (SES) office in
the Department.
Item 23 – Paragraph
170WL(d)
9.147 This amendment proposes to remove existing paragraph
170WL(d), which provides that the regulations may make provision in relation to
‘the witnessing of signatures on AWAs or ancillary documents’.
Under the amendments proposed in Schedule 9, the AWA, extension agreement,
variation agreement or termination agreement will be required to be signed only
by the employer and employee parties to the AWA. As a consequence, the
regulation-making power in paragraph 170WL(d) will no longer be necessary.
Item 24 - Sections 524 and 525
9.148 Existing sections 524
and 525 set out limitations on access to protected industrial action under Part
VIB of the Act, and AWA industrial action under Part VID, where certain
Victorian employment agreements are in place. Item 24 would repeal sections 524
and 525 of the Workplace Relations Act and replace them with new provisions
which omit the references to Part VID and AWA industrial action. These
amendments are consequential upon the repeal of Division 8 of Part VID which
provided for AWA industrial action.
Item 25 - At the end of section 170WK
9.148 This item would
provide for the delegation in writing of an Agency Head’s powers under
subsection 170WK(1) to a person holding, or performing the duties a Senior
Executive Service office. This amendment would reflect relevant provisions of
the Public Service Act 1999, and subclause 2(10) provides for
commencement of this item at the later of the commencement of item 1 of Schedule
9 or immediately after the commencement of the Public Service Act 1999.
Item 26 - Application of items 1, 3, 7, 9 and 13 to
20
9.149 Item 26 would provide that subject to item 27 of this
Schedule, items 1,3, 7, 9 and 13 to 20 apply only to AWAs, extension agreements,
variation agreements and termination agreements made on or after the
commencement of those items.
Item 27 - Application of new section
170VD
9.150 Item 27 would provide that new section 170VD, which
concerns the relationship between AWAs and awards, [including awards made under
section 170MX(3)], exceptional matters orders and certified agreements, applies
to AWAs made on or after the commencement of item 1.
Item 28 -
Application of items 4, 5 and 6
9.151 The effect of item 28 is that
items 4, 5 and 6 would apply to AWAs, extension agreements, variation agreements
and termination agreements irrespective of the date they were
made.
Item 29 - Application of items 8 and 24
9.152 Item 29
would provide that the amendments made by item 8 (which repeals Division 8,
thereby removing the limited immunity for AWA industrial action) and the
consequential amendments made by item 24, apply only in relation to industrial
action taken after the commencement of those items.
Item 30 - Savings
- AWAs
Item 31 - Savings - extension agreements
Item 32 -
Savings - variation agreements
Item 33 - Savings - termination
agreements
9.153 The effect of items 30 to 33 is to provide for the
continuing effect of AWAs, extension agreements, variation agreements and
termination agreements approved in accordance with the requirements that applied
before the commencement of the new approval provisions.
Item 34 -
Savings - regulations made for the purposes of former sections 170VG and 170VR
9.154 Item 34 would save regulations made for the purposes of former
subsections 170VG(1) and (3) and 170VR(4). These regulations would continue to
have effect as if they had been made under the corresponding new provisions (as
indicated in the table set out in item 34) that would be inserted by item 1.
Item 35 - Savings - Gazette notices
9.155 Item 35
would save Gazette notices published for the purposes of former
paragraphs 170VO(1)(c), (3)(c), (4)(b), (5)(b) and (6)(b). These notices would
continue to have effect as if they had been made under the corresponding new
provisions (as indicated in the table set out in item 35) that would be inserted
by item 1.
Item 36 - Savings - prescribed
conditions
9.156 Item 36 would save regulations made for the
purposes of former subsection 170VR(5). These regulations would continue to have
effect as if they had been made for the purposes of the definition of
‘prescribed conditions’ in new subsection 170VDA(5).
Item 37 - Savings - appointment of bargaining agent
9.157 Item
37 would save appointments of bargaining agents made under former subsection
170VK(1). Such appointments would continue in force as if they had been made
under new subsection 170WAA.
Item 38 -
Definitions
9.158 Item 38 defines the terms ‘amended
Act’, ‘former provision’ and ‘amended provision’
as they apply in this Part.
10.1 This schedule proposes technical amendments to Part XIE of the WR
Act to: clarify the definitions of ‘award’ and ‘relevant
award’; to update the reference to the relevant Minister for the purposes
of declaring approving authorities; and to provide for the Commission and the
Employment Advocate to designate awards on their own initiative where no
application has been made for an award to be designated for the purposes of the
no-disadvantage test.
Item 1 - Section 170X (at the end of the definition of
award)
10.2 This item would make it clear that ‘old IR
agreements’ are not awards for the purposes of the no-disadvantage test.
‘Old IR agreements’ are agreements certified or approved under
various now repealed provisions of the Act. A definition of ‘old IR
agreement’, would be inserted into the Act by item 3 of Schedule 11.
10.3 This item proposes to remove the reference to the Minister for
Schools, Vocational Education and Training and substitute a reference to the
Minister for Education, Training and Youth Affairs as the relevant Minister for
the purposes of declaring persons or bodies to be ‘approving
authorities’ (see sections 170XC and 170XD).
Item 3 - Section
170X (definition of relevant award)
10.4 Item 3 would repeal
the existing definition of ‘relevant award’ in section 170X and
replace it with a new definition that would make it clear that a ‘relevant
award’ in relation to a person to whom an agreement applies or will apply,
is an award that regulates, or in the case of a new employee, would regulate,
any term or condition of employment of the person who is to be covered by the
agreement and is binding on that person’s employer immediately before the
commencing day of the agreement. This means that where an employer is respondent
to a number of different awards, the relevant awards for the purposes of the
no-disadvantage test would be those that apply to the employment of the
employees who are to be covered by the agreement. Other awards that are binding
on the employer in respect of employees who would not be covered by the
agreement are not relevant awards.
Item 4 - Subsection
170XE(1)
Item 5 - After subsection 170XE(2)
Item 6 -
Subsection 170XE(3)
10.5 Existing section 170XE provides that
where there is no relevant award (as defined in section 170X) covering the
employee party to an Australian Workplace Agreement, the employer must apply to
the Employment Advocate for an award or awards to be designated for the purposes
of applying the no-disadvantage test.
10.6 Items 4 - 6 would amend
section 170XE to enable the Employment Advocate to designate an award or awards
on his or her own initiative where an employer applies for approval of an
Australian Workplace Agreement without having applied for an award to be
designated.
10.7 Item 4 would make a technical amendment to omit the word
‘must’ and substitute ‘may’ in subsection 170XE(1),
consequential upon the insertion of new subsection (2A) [item 5].
10.8
Item 5 would insert a new subsection 170XE(2A) that would require the
Employment Advocate to designate an award for the purposes of dealing with an
application for approval of an Australian Workplace Agreement where the employer
party to the agreement has not applied under subsection 170XE(2) for an award to
be designated.
10.9 Item 6 would make a technical amendment to
subsection 170XE(3) to include a reference to proposed new subsection (2A) [item
5].
Item 8 - Subsection 170XF(2)
Item 9 - After subsection
170XF(2)
Item 10 - Subsection
170XF(3)
10.10 Existing section 170XF provides for the
designation of awards by the Commission where the employment of some or all of
the employees to whom an agreement will apply is not covered by a relevant award
(as defined in section 170X). The employer must apply to the Commission for an
award or awards to be designated for the purposes of applying the
no-disadvantage test.
10.11 Items 7 - 10 would amend section 170XF to
enable the Commission to designate an award or awards on its own initiative
where an application for certification of an agreement is made without an
application having been made for an award to be designated. In addition to
amendments in similar terms to those proposed for section 170XE, further
amendments to section 170XF are required to provide for the proposed new
procedures for certification of agreements set out in Schedule 8.
10.12 Item 7 would insert new subsections 170XF(1) and (1A). New
subsection 170XF(1) would enable an employer, an organisation of employees, or a
prescribed number of employees of a single business or part of a single business
to apply to the Commission to designate an award under subsection 170XF(2) for
the purposes of agreement-making under Part VIB of the Act. New subsection
170XF(1) indicates that the number of employees required to make an application
would be fixed by regulations made for this purpose. This amendment takes
account of the proposed new procedures set out in Schedule 8 in relation to
applications for certification of agreements under Part
VIB.
10.13 Item 8 would omit the words
‘employer or organisation’ and substitute ‘the applicant under
subsection (1)’. This amendment is consequent upon the amendment proposed
by item 7, which would enable a prescribed number of employees to make an
application under subsection 170XF(1).
10.14 Item 9 would insert new
subsections 170XF(2A) and 170XF(2B). New subsection 170XF(2A) would provide for
the Commission to designate an award where an application for certification of
an agreement is made in circumstances in which a designated award is required
but no party has applied for an award to be designated. New subsection 170XF(2B)
would provide that the reference to the ‘prescribed number of
employees’ in subsection 170XF(2A) is a reference to the number fixed by
regulations for the purposes of making applications to the Commission for the
certification of agreements under subsection 170LH(4).
10.15 Item 10
would make a technical amendment to subsection 170XE(3) to include a reference
to proposed new subsection (2A) (inserted by item 9).
10.16 This item would provide that the amendments proposed by items 1 to
3 of this schedule apply only to applications made after the commencement of
items 4 to 6 for the approval of Australian Workplace Agreements; and to
applications made after the commencement of items 7 to 10 for the certification
of agreements.
10.17 This item would provide that the amendments proposed by items 4 to
6 of this schedule apply to applications made after the commencement of those
items for approval of Australian Workplace Agreements.
10.18 This item would provide that the amendments proposed by items 7 to
10 of this schedule apply to applications made after the commencement of those
items for certification of agreements.
SCHEDULE 11 - INDUSTRIAL ACTION
11.1 This Schedule proposes a
series of amendments to strengthen the distinction between protected and
unprotected industrial action, and to provide effective responses for dealing
with unprotected industrial action.
11.2 The amendments proposed by this Schedule would:
• strengthen the Commission’s powers to stop or prevent unprotected industrial action and lockouts, including by empowering the Commission to make orders preventing industrial action and lockouts where there has been such action in the recent past and there is a reasonable possibility of further unprotected industrial action or unprotected lockout;
• introduce a requirement for the suspension and termination of bargaining periods in defined circumstances to allow for a cooling off period, in which issues may be settled without recourse to industrial action, and refine the Commission’s powers to suspend or terminate a bargaining period on other grounds;
• make changes to how and when protected industrial action may be taken (together with Schedule 12, which introduces pre-industrial action secret ballots);
• increase access to State and Territory courts for remedies in respect
of unprotected industrial action; and
• improve the operation of Part
VIIIA (the ‘strike pay’ provisions).
Part 1 - Amendments
Workplace Relations Act 1996
Item 1 - Subsection
4(1) (definition of boycott)
Item 2 - Subsection 4(1)
(definition of boycott conduct)
11.3 These items propose the
repeal of the definitions of ‘boycott’ and ‘boycott
conduct’. The amendments are consequential upon the removal of the
Commission’s jurisdiction to deal with disputes about boycotts. [For the
repeal of Division 7 of Part VI of the Act, see item 16 of this
Schedule.]
Item 3 - Subsection 4(1)
11.4 The current
definition of ‘certified agreement’ [subsection 4(1)] is limited to
agreements certified under the current provisions (which were introduced by the
Workplace Relations and Other Legislation Amendment Act 1996 and
commenced on 31 December 1996).
11.5 This item proposes to insert a
definition of ‘old IR agreement’. The concept of an old IR agreement
(which is defined to mean an agreement certified or approved under various now
repealed provisions of the Act) is relevant in a number of contexts (for
example, in relation to when an order to stop or prevent industrial action or a
lockout may be made).
11.6 A number of other proposed amendments in this and
other Schedules would ensure that agreements made before the commencement of the
current provisions fall within the scope of relevant provisions of the
Act.
Item 4 - Subsection 4(1A)
11.7 This item, which would
amend the definition of ‘independent contractor’ in subsection 4(1A)
of the Act, is consequential upon item 42 of this Schedule.
11.8 The
effect of the amendments proposed by items 4 and 42 of this Schedule is that the
reference to ‘independent contractor’ in new section 187ABA [item
42] would extend to corporate contractors. A similar provision already applies
in relation to the freedom of association provisions of the Act.
Item
5 - At the end of Section 4
11.9 This item proposes a technical
amendment. The effect of this item, which is consequential upon the amendment
proposed by item 3 of this Schedule, is that a reference to the nominal expiry
date of an agreement would include a reference to the period of operation of an
old IR agreement.
Item 6 - Subsection 99(4)
11.10 This
item would repeal subsection 99(4), which relates to the application of section
99 to Division 7 of Part VI. This subsection would be redundant, as Division 7
of Part VI is to be repealed [item 16 of this Schedule].
Item 7 -
Subsection 127(1)
11.11 This item proposes the repeal of subsection
127(1), which sets out the circumstances in which an order to stop or prevent
industrial action may be made by the Commission, and its replacement by a series
of new provisions.
11.12 Current subsection 127(1) allows the
Commission to make orders to stop or prevent industrial action in relation to an
industrial dispute, the negotiation or proposed negotiation of a certified
agreement, or work that is related to an award or certified agreement which is
either happening, threatened, impending or probable.
11.13 The proposed
amendments [which would insert new subsections 127(1)-(1F)] are designed to
strengthen the existing provisions, consistent with the Government’s
policy intention of providing effective and timely relief in respect of
unprotected industrial action. (The new provisions are expressly directed
towards industrial action and lockouts that are not protected.)
New
subsection 127(1)
New subsection 127(1A)
11.14 Proposed new
subsections 127(1) and 127(1A) set out the prerequisites for the making of an
order to stop or prevent unprotected industrial action.
11.15 The Commission’s proposed new powers to make orders to stop or
prevent industrial action would apply if unprotected industrial action by
employees or an unprotected lockout by an employer is happening, is threatened,
impending or probable, or is being organised in relation to an industrial
dispute, the negotiation of a certified agreement or work that is regulated by
an award, a certified agreement or an old IR agreement [proposed subsection
(1)]:
• Section 127 does not currently expressly extend to the
organising of industrial action. Industrial or lockout action in relation to
work regulated by an old IR agreement is also not currently
addressed.
11.16 New subsection (1A) would also empower the Commission to
make orders in circumstances in which such unprotected industrial action or an
unprotected lockout has happened within the previous three months, and it is
reasonably possible that further unprotected action will occur. The subsequent
action need not be of the same type as was taken or organised previously. For
example, the provision would apply in circumstances where unprotected strike
action was taken two months previously and it is reasonably possible that
unprotected work bans will be imposed.
New subsection
127(1B)
New subsection 127(1C)
11.17 Where the
prerequisites for making an order outlined above are met, the Commission would
be required to make an order to stop or prevent the unprotected industrial
action or lockout and any other unprotected action by the same employees, or any
other unprotected lockout by the employer. It would also be required to prohibit
the organising of such action. Again, it is made clear that, in the case of
industrial action, all action need not be of the same
type.
11.18 Proposed subsection (1B) relates to orders prohibiting
unprotected industrial action. Subsection (1C) is an equivalent provision in
relation to unprotected lockouts by employers.
New subsection
127(1D)
11.19 New subsection 127(1D) would provide that in making an
order concerning industrial action the Commission is not required to state the
specific industrial action to which the order relates.
11.20 This
subsection is designed to allow comprehensive orders to be made, without the
need to identify each instance of action separately.
New subsection
127(1E)
New subsection 127(1F)
11.21 In making an order to
stop or prevent the taking or organising of unprotected industrial action or an
unprotected lockout, the Commission would also be required to consider whether
to make a further order directed at unprotected action by any other person or
organisation.
Item 8 - Subsection 127(2)
11.22 This item
proposes a technical amendment.
Item 9 - Paragraph
127(2)(b)
11.23 This amendment would extend the category of those who
may seek an order to stop or prevent unprotected industrial action or an
unprotected lockout being taken or organised.
11.24 At present such
orders may be sought by, among others, those who are directly affected by the
action. As a result of the amendment proposed by this item, an order could be
sought by any person directly or indirectly affected by the industrial action or
lockout.
Item 10 - Subsection 127(3)
11.25 This item
proposes to repeal subsection 127(3), which requires the Commission to hear and
determine an application for a section 127 order as quickly as practicable, and
substitute a number of new provisions [subsections 127(3)-(3C)] designed to
enhance access to Commission orders.
New subsection
127(3)
11.26 The Commission would be required to deal with
applications within 48 hours of them being made. Proposed subsection 127(3)
makes clear that the Commission must consider, within the 48 hour period, the
question of whether the industrial action is, or is likely to be, unprotected.
New subsection 127(3A)
New subsection 127(3B)
New
subsection 127(3C)
11.27 These new provisions would address the
situation where the Commission is unable to determine an application within 48
hours of it being made.
11.28 In such circumstances, the Commission would
be required to issue an interim order, which would operate until the application
is determined, unless to make such an order would be contrary to the public
interest.
11.29 Subsection 127(3A) would provide for the making of such
orders in respect of industrial action by employees. Subsection 127(3B) would
make similar provision in respect of lockouts by employers.
11.30 An
exception to the requirement to make interim orders would be provided in
circumstances where there is an issue as to whether there has been a termination
of employment. In such a case it is not appropriate to seek to use provisions
designed to prohibit unprotected lockouts as a means of requiring an employer to
provide access to the workplace.
11.31 It is important to note that
proposed subsection (3C) would not impinge on any dispute about whether
termination was fair or lawful (these questions are specifically addressed
elsewhere in this Act and relevant State legislation). Rather, it prevents an
interim order being made in limited circumstances to allow proper consideration
of the question of whether dismissal occurred as a matter of fact.
Item 11
- Subsection 127(4)
11.32 This item proposes a technical amendment to
reflect the insertion of new sections 127(1B), (1C) and (1F).
Item 12
- At the end of subsection 127(4)
11.33 This item would insert a note
after subsection (4) to assist readers by directing them to other provisions in
the Act that also deal with unprotected industrial action.
11.34 The new
note refers to new sections 127AAA and 127AAB (which would provide for the
enforcement of orders made by the Commission under section 127), section 187
(which relates to the suspension and termination of awards or orders in whole or
in part) and sections 294 and 295 (which allow the Federal Court to cancel the
registration of an industrial organisation, or to make orders in lieu of such
cancellation, such as restrictions on use of funds).
Item 13 -
Subsection 127(5)
11.35 This item proposes a technical amendment to
reflect the insertion of new sections 127(1B), (1C) and (1F).
Item 14
- Subsections 127(6) and (7)
11.36 This item proposes the repeal of
subsections 127(6) and (7), which provide for the making of interim and final
injunctions by the Federal Court. These subsections would to be replaced by a
new system of remedial orders (proposed new sections 127AAA and 127AAB) [item 15
of this Schedule].
Item 15 - After section 127
11.37 This
item proposes to insert new section 127AAA (which would provide for remedial
orders) and new section 127AAB (which would provide for interim remedial
orders). These new sections would provide a more effective means of enforcing
Commission orders under section 127 than is currently provided by subsections
127(6) and (7), which would be repealed [item 14 of this Schedule].
11.38 New section 127AAA would allow a person or organisation affected by
an order of the Commission under section 127 to apply to the Federal Court or to
a State or Territory Supreme to enforce the order [proposed subsections (1) and
(6)]. The courts in which enforcement orders may be sought are known, for the
purposes of this section, as ‘appropriate courts’ [proposed
subsection (8)].
11.39 An appropriate court would be required to make an
order where it finds that the respondent to a Commission order is contravening
or proposing to contravene the order [proposed subsection (2)].
11.40 The
note to proposed subsection (2) reminds the reader that a breach of a court
order made under this section may provide a basis for cancellation of an
organisation’s registration.
11.41 Proposed subsection (3) outlines the
type of orders an appropriate court may make. However, this list would not be
exclusive [proposed subsection (4)].
11.42 Proposed subsection 127AAA(5)
would also empower an appropriate court to make further supplementary orders to
secure compliance with any order it has made requiring compliance with a
Commission order.
11.44 New section 127AAB would provide for interim remedial orders.
11.45 Interim remedial orders are to be available where an appropriate
court is unable to determine an application under section 127AAA promptly
[proposed subsection (1)]. Powers under this section would be exercised by
‘appropriate courts’ [defined in proposed subsection
(9)].
11.46 An interim remedial order, which is to apply until the matter
is determined, would be required to be made as soon as possible, unless to make
such an order would cause serious prejudice to a person or organisation
[proposed subsection (2)].
11.47 Proposed subsection (3) would ensure
that certain factors are not relevant to determining whether to make an interim
order. This type of provision is contained in other federal legislation, for
example subsection 80(4) of the Trade Practices Act
1974.
11.48 Proposed subsections (4) - (8) would make similar
provision in respect of interim remedial orders as are made by proposed
subsections 127AAA(3) - (7) in respect of remedial orders.
Item 16 -
Division 7 of Part VI
11.49 This item proposes to repeal Division 7
of Part VI of the Act, including section 166A.
11.50 Division 7
provides a limited conciliation role for the Commission where applications in
respect of boycott conduct are before the Federal Court. Division 7 also
requires a certificate to be obtained from the Commission before common law
action is brought in respect of unlawful industrial action (section
166A).
11.51 The involvement of the Commission in such matters is no
longer considered appropriate.
11.52 The effect of the repeal of this
Division is that the Commission would no longer have a conciliation role in
relation to boycott disputes. Consequential amendments are proposed to the Act
[items 1, 2 and 6 of this Schedule] and the Trade Practices Act 1974
[Part 2 of this Schedule] to reflect this change.
11.53 The repeal of
section 166A would mean that it would no longer be necessary to obtain a
certificate from the Commission (which can take up to 72 hours) before seeking
common law relief in the civil courts in respect of unlawful industrial
action.
Item 17 - Section 170LG
11.54 This item proposes to
repeal existing section 170LG and insert a new section.
11.55 Existing
section 170LG defines ‘paid rates awards’ for the purposes of
suspension and termination of bargaining periods. This definition is no longer
necessary as the fact that employment was covered by a paid rates award would no
longer be a ground for suspension or termination of a bargaining period (current
subsection 170MW(7) would be repealed by item 36 of this
Schedule).
New section 170LG – When is an organisation of
employees not engaging in pattern bargaining
11.56 Proposed new
section 170LG relates to pattern bargaining.
11.57 Amendments to be made by this Schedule and Schedule 12 are designed to restrict access to industrial action in pursuit of common outcomes across a number of workplaces:
• pattern bargaining would be a basis to terminate a bargaining period
(see proposed new section 170MWG); and
• pattern bargaining could also
be raised as a reason why a protected action ballot to authorise industrial
action in pursuit of an agreement should not be ordered [Schedule 12].
11.58 Proposed section 170LG would set out, for the purposes of the provisions described above, a non-exclusive list of the circumstances in which pattern bargaining is not to be considered to be occurring. Specifically, these circumstances are:
• to the extent that an organisation of employees is seeking terms and
conditions which give effect to a Full Bench decision establishing national
standards; and
• to the extent that the Commission is satisfied that
the terms and conditions sought by the organisation are appropriate to the
single business or part of the single business in relation to which they are
sought (the Commission is to have particular regard to the views of the employer
in determining this issue).
Item 18 - Subsection 170MI(1)
(note)
11.59 The note to subsection 170MI(1) refers to subsection
170MW(10), which it is proposed will be repealed [item 36 of this Schedule].
Item 18 would remove the reference to subsection 170MW(10) and replace it with a
reference to the new subsections 170MWA(2) and 170MWI(4).
Item 19 -
Paragraph 170ML(2)(b)
11.60 Subsection 170ML(2) sets out who may take
protected action in pursuit of a proposed certified agreement.
11.61 This item would amend a loophole in the legislation which
currently allows any member of a union that is negotiating an agreement who is
an employee of the employer that is negotiating the agreement to take protected
action, not just those employees who would be subject to the proposed agreement.
The proposed amendment would ensure that protected action during negotiations
for a certified agreement is only available to members of an organisation of
employees whose employment is to be covered by the proposed certified
agreement.
Item 20 - Subsection 170ML(2)
Item 21 -
Subsection 170ML(3)
11.62 These items propose minor amendments to
section 170ML to make clear that industrial action or a lockout in the context
of negotiations for a certified agreement would only be protected as long as the
action is taken solely for the purpose of supporting or advancing claims made in
respect of the proposed agreement, or if it is taken solely in response to
industrial action or a lockout.
Item 22 - After subsection
170ML(3)
11.63 This item would insert a new subsection 170ML(3A). The
purpose of new subsection 170ML(3A) would be to make clear that action is not
protected if it is taken in support of matters that cannot be included in a
certified agreement.
11.64 As industrial action or a lockout would be
protected only as long as the action is taken solely for the purpose of
supporting or advancing claims made in respect of a proposed agreement, where a
proposed agreement contains any matter that cannot be included in a certified
agreement such action would not be protected.
Item 23 - Section
170MM
New section 170MM - Industrial action must not involve
persons who are not protected for that industrial action
11.65 This
item would repeal and replace section 170MM.
11.66 The proposed changes
to section 170MM are designed to make clear that protected industrial action
could be taken only by those to whom the proposed agreement will apply (ie a
union, employer or employee that is a negotiating party in respect of the
agreement or a member of a union negotiating party whose employment will be
subject to the proposed agreement).
11.67 Industrial action would 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).
Item 24 - Paragraph 170MN(1)(a)
Item 27 -
Paragraph 170MN(4)(a)
11.68 Item 24 would extend the prohibition on
industrial action during the nominated duration of a certified agreement or an
award under section 170MX to action during the life of an old IR agreement.
11.69 Item 27 proposes a similar amendment in respect of lockouts.
Item 25 - Subsection 170MN(1)
Item 26 - Paragraph
170MN(2)(a)
Item 28 - Subsection 170MN(4)
11.70 Item 25
would extend the prohibition on industrial action during the life of the
nominated duration of a certified agreement, an award under section 170MX or, if
the amendment proposed by item 16 is made, an old IR
agreement.
11.71 Presently, only industrial action in pursuit of a
certified agreement is prohibited. However, it is proposed that all industrial
action be prohibited until the nominated expiry date of such agreements and
awards, irrespective of its purpose. Industrial action other than in pursuit of
an agreement is already unprotected (such action is already subject to
Commission orders under section 127) and it is appropriate that this be
reflected by express prohibition in section 170MN.
11.72 Item 28 proposes
a similar amendment in respect of lockouts.
11.73 Item 26 is
consequential. It would repeal paragraph 170MN(2)(a), as the affect of paragraph
170MN(2)(a) has been incorporated into the amendment to subsection 170MN(1)
proposed by item 17.
Item 29 - Paragraph 170MO(2)(b)
Item
30 - Subparagraph 170MO(3)(a)(ii)
Item 31 - Subparagraph
170MO(3)(b)(ii)
Item 32 - Paragraph 170MO(4)(b)
Item 33 -
Subsection 170MO(5)
11.74 Items 29 to 32 would extend the period of
notice required for protected industrial action from three to five working days.
11.75 Item 33 would amend the requirements for a notice of intended industrial action or lockout. The amendments are designed to ensure that notices contain adequate detail of the action proposed. A notice would be required to provide details of
• the precise nature and form of the intended action;
• the day or days upon which it is proposed that the action will take
place; and
• the duration of the intended action.
Item 34 -
Section 170MS
11.76 This amendment proposes to replace current
section 170MS with new provisions. The amendment would address a technical
defect in the current provision.
11.77 As currently drafted, section
170MS provides that unless an application to the Commission to certify an
agreement is made within 21 days after the agreement is made, any industrial
action taken during the bargaining period will not have been protected. Where an
organisation makes an agreement prior to the agreement being submitted to the
employees for approval, it is required that the employees have access to the
agreement for 14 days prior to being asked to approve the agreement. In these
circumstances, there may be practical difficulties making the application for
certification within 21 days of the union’s making the agreement. In cases
involving delay in obtaining approval this timeframe for making the application
for certification may be impossible.
New section 170MS - What happens
if application to certify agreement is not made within time
limits
11.78 New section 170MS would remedy this problem by providing
that unless an application to the Commission to certify an agreement is made
within 21 days after the day when the agreement is approved (where the
agreement is under sections 170LR or 170LJ), or made (where the agreement
is under section 170LK), then nothing that was done during the bargaining period
by the employee whose employment is bound by the agreement or by a person bound
by an agreement is protected action.
Item 35 - After section
170MT
11.79 This item proposes to insert new section 170MTA into the
Act.
11.80 This item would expressly confer jurisdiction on the Federal Court
to determine whether industrial action is protected, and, if so, whether the
industrial action is covered by the immunity provided in subsections 170MT(1)
and (2) [proposed subsection (1)]. The Federal Court has already found it has
such jurisdiction. However, there is a question as to whether its jurisdiction
is exclusive of the jurisdiction of State or Territory Courts.
Proposed
subsection (4) would provide that the Federal Court’s jurisdiction in
respect of such matters is not exclusive. Further, proposed subsection (2)
would prohibit the Federal Court from issuing anti-suit injunctions to prevent
proceedings being brought or pursued in relation to the same industrial action
under:
• section 127 of the WR Act;
• any of sections
170MW to 170MWI; or
• any law, whether written or unwritten, in force
in a State or Territory.
11.82 Proposed subsection (3) is a technical
provision that would ensure that the conferral of express powers on the Court
does not impact on its other powers.
Item 36 - Section
170MW
11.83 This item proposes to repeal section 170MW, which deals
with the Commission’s power to suspend or terminate a bargaining period,
and substitute a series of new provisions.
11.84 In the new sections
proposed to replace existing section 170MW, the grounds for suspension would be
largely separated from those for termination. Most of the existing grounds would
be replicated in the new provisions. The existing grounds not replicated are
that dealing with directions of the Commission concerning a proposed agreement
(as Schedule 4 proposes to remove the Commission’s powers to make such
directions) and that which enables suspension or termination of bargaining
periods involving parties who were or are covered by paid rates awards. In
addition, new grounds for suspension and termination would be added concerning
cooling off periods, unprotected industrial action and pattern
bargaining.
New section 170MW - Suspension of bargaining period (cooling
off periods)
11.85 New section 170MW would require the Commission to
suspend a bargaining period after industrial action has been engaged in, in
order to establish a cooling off period during which parties may attempt to
settle the matters at issue between them without recourse to industrial
action.
11.86 Subsection 170MW(1) would require the Commission to suspend
a bargaining period where protected industrial action has been, or is being,
taken during the bargaining period and at least 14 days have passed since the
industrial action was first taken.
11.87 Subsection 170MW(2) makes it
clear the Commission would be required to suspend the bargaining period after 14
days had passed since the action had first been taken, even if the industrial
action had since ceased (for example, before the order was made or before 14
days had passed), and irrespective of what length of time the protected action
ballot had authorised action to be taken for. Similarly it would be immaterial
if different types of action, as authorised by a ballot, had been taken since
the first industrial action was taken.
11.88 In determining an
application under this section, if the Commission considers it would be in the
public interest for the bargaining period to continue, proposed subsection
170MW(3) would compel the Commission not to suspend the bargaining period.
Section 170MWC deals with matters that the Commission would be required to
consider in determining the public interest in relation to this section.
11.89 An order under subsection 170MW(1) could only be made following an
application by a negotiating party [proposed subsection 170MW(4)].
11.90 To ensure that applicants cannot gain access to a cooling off period
on the basis of their own industrial action, the Commission could not have
regard to any protected industrial action taken by the applicant during the
bargaining period [subsection 170MW(5)]. If the applicant is an organisation of
employees, the industrial action to be ignored would also include that taken by
members of the organisation who are employees of the employer and whose
employment would be subject to the proposed agreement [subsection 170MW(6)].
11.91 Proposed section 170MWA would require the Commission to suspend or
terminate a bargaining period if unprotected action is taken or organised during
the bargaining period. In the first instance, the Commission would have a
discretion as whether to suspend or terminate the bargaining period in these
circumstances.
11.92 New subsection 170MWA(1) would require the
Commission to suspend or terminate a bargaining period if, during the bargaining
period, industrial action that is not protected has been (or is being) taken or
organised. The unprotected action must have been (or is being) taken or
organised by a negotiating party, or an employee who is a member of an
organisation that is a negotiating party and whose employment would be subject
to the proposed agreement. Unprotected industrial action taken by other parties
could be addressed under other compliance provisions of the Act.
11.93 If a
party whose bargaining period has been suspended (whether or not that suspension
is still on foot) because of unprotected industrial action, organises or takes
further unprotected action the Commission would be required to terminate the
bargaining period. In the case of a union’s bargaining period, the
relevant action or further action would include action taken by its members who
would be subject to the proposed agreement. Proposed subsection 170MWA(2) would
apply if a negotiating party took the initial unprotected action, while
subsection 170MWA(3) would apply if the initial action was taken by a member of
the union that was a negotiating party, and who would be covered by the proposed
agreement.
11.94 Proposed subsection 170MWA(4) is in the same terms as
existing subsection 170MW(10), which empowers the Commission when terminating a
bargaining period to make a declaration establishing the conditions upon which a
further bargaining period may be established, if it considers a declaration is
in the public interest.
11.95 An order under subsection 170MWA(1) could
only be made on application by a negotiating party (subsection 170MWA(5). As in
the proposed subsection 170MW(5), action taken by an applicant (including, if
the applicant is a union, the members of the union who would be subject to the
agreement) would be ignored by the Commission in determining the application
[subsections 170MWA(6) and (7)].
11.96 New section 170MWB is based on the existing ground for suspension
or termination of a bargaining period in subsection 170MW(3). It would provide
that the Commission must suspend the bargaining period if industrial action in
relation to a proposed agreement threatens to endanger the life, the personal
safety or health, or the welfare, of the population or part of it; or to cause
significant damage to the Australian economy or an important part of it.
11.97 New subsection 170MWB(2) proposes that the Commission must extend
the suspension of the bargaining period if the initial grounds for the
suspension [under subsection 170MWB(1)] continue to exist or would be likely to
continue to exist if the suspension was not in place.
11.98 The
Commission would also be empowered to extend the suspension if the process for
terminating the bargaining period had begun (under the proposed sections 170MWF
or 170MWH) and suspension would enable the Commission to conduct hearings
concerning the termination [proposed subsection 170MWB(3)].
11.99 New
subsection 170MWB(4) proposes that the Commission may make an order under this
section either at its own initiative, or on application by a negotiating party
or the Minister.
11.100 This proposed section contains provisions that would regulate the
operation of proposed sections 1170MW, 170MWA and 170MWB.
11.101 New
subsection 170MWC(1) would require the making of interim orders in relation to
applications under sections 170MW and 170MWB. It proposes that if the Commission
is unable to determine an application under these sections within 48 hours of
the application being made, the Commission must make an interim order within
that 48-hour period to suspend the bargaining period. This interim order would
have effect until the application was determined. The Commission would not be
required to issue an interim order if it was satisfied that it would be contrary
to the public interest to make such an order.
11.102 Before an order was
made under sections 170MW, 170MWA or 170MWB, the Commission would be required to
give the negotiating parties an opportunity to be heard. An opportunity to be
heard would be discretionary where the Commission was considering whether to
make an interim order.
11.103 New subsection 170MWC(3) would require
that an order made under sections 170MW, 170MWA or 170MWB specify the period of
the suspension. This period would have to be of a length of time that the
Commission considered sufficient to resolve the matters at
issue.
11.104 New subsection 170MWC(4) would provide that if an order is
made under sections 170MW, 170MWA or 170MWB, the Commission would be required to
inform the negotiating parties of the availability of voluntary conciliation and
mediation services and the role of the Mediation Adviser, and could, if it
considered it appropriate, make recommendations to the negotiating parties
concerning voluntary conciliation and mediation.
11.105 New subsection
170MWC(5) would make it clear that anything done by a negotiating party or any
other person in respect of the proposed agreement is not protected action if
done while the bargaining period is suspended.
11.106 In determining
what is in the public interest in regard to sections 170MW and 170MWC(1),
subsection 170MWC(6) would require the Commission to take into account the
matters set out in subsection 170MWC(7). Proposed subsection (7) does not limit
the matters the Commission may take into account in determining the public
interest.
11.107 Proposed section 170MWD would enable the Commission to revoke a
suspension order under sections 170MW, 170MWA, 170MWB, or subsection 170MWC(1)
if the initial grounds for the suspension no longer existed. Before making a
revocation order the Commission would be required to give the negotiating
parties an opportunity to be heard. The Commission could make a revocation order
under subsection 170MWD(1) on application by a negotiation party and, in
relation to section 170MWB or subsection 170MWC(1), as it relates to section
170MWC, on its own initiative or on application by the Minister.
11.108 This section would regulate how protected action by unions or
employees may be recommenced after a period of suspension has ended. The section
would only apply in relation to action authorised by a protected action ballot,
which either had not commenced or had not ended before it was suspended.
11.109 The section proposes that a union or person authorised to
organise or engage in protected action by a ballot could, following the end of a
suspension period, engage in action endorsed by that ballot without the need to
hold another protected action ballot.
11.110 As the dates specified in the
ballot as to when action is proposed to begin or be taken may have passed during
the period of suspension, the section would also provide that the period of
suspension, including any such dates, is to be ignored in determining when
protected action may be taken [subsection 170MWE(2)]. This provision must be
considered in conjunction with proposed subsection 170MWE(5) which would make it
clear that the details of proposed action in the ballot may only be ignored in
relation to such dates; any action taken following the end of a suspension
period would still be required to be consistent with the type and duration of
action specifically endorsed in the ballot.
11.111 In addition, parties
wishing to recommence action following the end of a period of suspension would
be required to give 5 working days’ notice of their intention to take
action, detailing the nature, intended days and intended duration of the action,
consistent with the proposed requirements of subsection 170ML(2) [see Schedule
11].
11.112 Proposed subsection 170MWE(4) would ensure that in applying
the provisions of subsection 170MW(1)(c) to action taken after a period of
suspension, the 14 day period that applies under that section would begin only
from when the action is taken after the period of suspension; it could not be
taken to have begun, for example, when the original protected action began
before the suspension period.
11.113 New section 170MWF would require the Commission to terminate a
bargaining period if any of the circumstances in section 170MWG exists or has
existed, although only a Presidential member could determine whether pattern
bargaining has occurred [under subsection 170MWG(5)]. The Commission could only
make an order under this section on application by a negotiating
party.
11.114 If the Commission terminates a bargaining period under this
section it would be required to inform the negotiating parties of the
availability of voluntary conciliation and mediation services and the role of
the Mediation Adviser, and could, if the Commission considers it appropriate,
make recommendations to the negotiating parties concerning voluntary
conciliation and mediation.
11.115 As in proposed subsections 170MW(5)
and (6), an applicant could not rely on its own industrial action to seek the
termination of a bargaining period [subsection 170MWF(4)]. If the applicant is a
union, such action would include that taken by members of the union who would be
subject to the proposed agreement [subsection 170MWF(5)].
11.116 Proposed section 170MWG would establish the circumstances in which
the Commission would be required under section 170MWF to terminate a bargaining
period. The circumstances are based on the provisions in existing sections of
the Act; viz paragraphs 170MW(2)(a) and (b) concerning not genuinely
trying to reach agreement, subsection 170MW(4) concerning action taken or
organised by a union regarding employees not eligible to be members of the
union, subsection 170MW(5) concerning demarcation disputes, and subsection
170MW(6) concerning non-compliance with directions, awards or orders of the
Commission. In addition, a bargaining period would be required to be terminated
if a union that is a negotiating party is engaged in pattern bargaining in
relation to the proposed agreement.
11.117 As the Commission may have
considered the issues of a party not genuinely trying to reach agreement and
engaging in pattern bargaining in making an order for a protected action ballot,
it would not be necessary for the Commission to examine those issues again
except in relation to actions of the relevant party since the making of the
order for a ballot. This would be achieved by proposed subsections 170MWG(4) and
(6).
11.118 New section 170MWH deals with termination of bargaining periods in
relation to action endangering life, health or safety or threatening the economy
[based on the existing subsection 170MW(3)]. Where a bargaining period has been
terminated on these grounds the Commission would be required to conciliate and,
if necessary, arbitrate an award to settle the matters at issue (see the
existing section 170MX).
11.119 The Commission would only be empowered to terminate a bargaining under these provisions if:
• the bargaining period had previously been suspended under section 170MWB;
• that period of suspension had ceased;
• the grounds for suspension continued to exist or, if the suspension
was continuing (whether by extension or by the granting of an interim suspension
order), the grounds would be likely to still exist if not for the continuing
suspension; and
• further suspension would not assist to resolve the
matters at issue between the parties.
11.120 The Commission could make
an order under this section at its own initiative or on application by a
negotiating party or by the Minister. However, the party that initiated the
bargaining period would not be able to apply for termination of that bargaining
period.
11.121 The Commission’s power to terminate under this
section would be discretionary.
11.122 This new section contains provisions that would regulate the
making of orders under sections 170MWF and 170MWH.
11.123 Under proposed subsection 170MWI(1), if the Commission was unable to determine an application under section 170MWH within 48 hours of the application being made, the Commission would be required to make an interim order to suspend the bargaining period within that 48 hour period unless the Commission was satisfied that it would be contrary to the public interest to make such an order. In considering the public interest in this instance, the Commission would be required to take into consideration the same matters as outlined in proposed subsection 170MWC(7); that is:
• if the applicant is an employer: any economic damage that industrial action has caused, or if the action is allowed to continue, that is likely to be caused to the employer;
• if the applicant is an organisation of employees, or an employee: any economic damage that a lockout has caused, or if the lockout is allowed to continue, that is likely to be caused to the employees who are negotiating parties;
• whether the industrial action has had, or if allowed to continue, is
likely to have, an adverse effect on the job security of employees of the
employer; and
• whether any negotiating party has failed to follow any
recommendation of the Commission relating to the proposed agreement [subsection
170MWI(6)].
11.124 Anything done by a negotiating party or any other
person in respect of the proposed agreement would not be protected action if it
was done while the bargaining period was suspended [subsection
170MWI(3)].
11.125 New subsection 170MWI(2) would provide that before
making an order under sections 170MWF or 170MWH, the Commission would be
required to give the negotiating parties an opportunity to be heard. An
opportunity to be heard would be discretionary in the case of an interim order.
11.126 As is the case under existing subsection 170MW(10) and proposed
section 170MWA(4), if the Commission considered it to be in the public interest,
an order made under sections 170MWF or 170MWH could contain a declaration
outlining the conditions upon which a further bargaining period may be
established.
Item 37 - Subsection 170MX(1)
11.127 This item
proposes a technical amendment to alter the heading and include a reference to
new section 170MWH in section 170MX.
Item 38 - Section
187AA
Item 41 - Paragraph 187AB(1)(a)
11.128 These items
would amend section 187AA, which prohibits payment in respect of periods of
industrial action (commonly known as ‘strike pay’), and section
187AB, which prohibits claims for, and industrial action in pursuit of, such
payments.
11.129 In some circumstances a narrow interpretation of the
prohibition on payment has been adopted which does not accord with the original
policy objective, particularly in the case of selective work
bans.
11.130 The proposed amendments would have the effect of prohibiting
payment and claims for payment in respect of any day on which industrial action
is taken.
Item 39 - Subsection 187AA(1)
11.131 This item
would make it clear that the prohibition on payment in respect of industrial
action applies to both protected and unprotected action. This is the intended
effect of the current legislation; this amendment is made to avoid any doubt.
Item 40 - After subsection 187AA(1)
11.132 This item proposes
to insert new subsections 187AA(1A) and (1B). This item would make provision, in
the context of the prohibition on payment for any day on which industrial action
occurs, for the situation where a ‘day’s work’ stretches over
more than one day.
11.133 New subsection (1A) would do this by providing
that a shift which extends over two consecutive days is to be taken as one day
for the purposes of the prohibition on payment. A note provides an example of
the intended operation of this provision.
11.134 New subsection 187AA(1B)
would ensure that in the case of a shift that extends over more than one day,
overtime is not considered to be a separate shift for strike pay
purposes.
Item 42 - After section 187AB
11.135 This item
proposes the insertion of a new section 187ABA, as follows.
11.136 This new provision is designed to prohibit pressure against
subcontractors to make payments to their employees in respect of days on which
industrial action is taken (proposed subsection (1)). The prohibition would
apply irrespective of whether the industrial action was protected, or
unprotected. The prohibition would also apply to pressure against corporate
contractors (proposed subsection (3); see also item 4 of this
Schedule).
11.137 Contravention of this prohibition would not be an
offence [subsection (2)]. Rather, the remedies available in respect of breaches
of other provisions of Part VIIIA would apply.
Item 43 - Subsection
187AC(1)
Item 44 - After subsection 187AC(3)
11.138 The
amendments proposed by these items are consequential upon item 42 of this
Schedule.
11.139 Item 43 would insert a reference to new section 187ABA
in section 187AC (which provides for applications to be made to the Federal
Court in respect of breaches of relevant provisions).
11.140 Item 44
would add a subcontractor, who is the subject of pressure prohibited by new
section 187ABA, to the list of those who may apply to the Court for relief.
Item 45 - Paragraph 294(1)(d)
Item 46 - Subsection
294(7)
11.141 These items would make consequential changes to
references to amended provisions. These changes would be necessary as a result
of the amendments proposed to section 127 and the insertion of new sections
127AAA and 127AAB.
Part 2 – Consequential amendments
Item 47 - Subsection 76(1) (note)
Item 48 - Subsection 80(1)
(note)
Item 49 - Sections 80AA and 80AB
Item 50 - Section
87AA
11.142 These items propose amendments that are consequential
upon the repeal of Division 7 of Part VI of the Workplace Relations Act
1996 [item 16 of this Schedule].
11.143 These provisions require the
Federal Court to consider conciliation proceedings when exercising its powers in
relation to boycott conduct, including when considering issuing injunctions.
11.144 As it is proposed to remove the Commission’s residual
jurisdiction to deal with boycott disputes (ensuring that such disputes are
clearly recognised as a trade and competition issue), it would no longer be
appropriate that the Federal Court have regard to conciliation proceedings in
industrial tribunals.
11.145 Part 3 makes provision for the operation of the amendments made by
this Schedule.
Item 51 - Application - items 4 and 42 to
44
11.146 The amendments relating to new section 187ABA (which would
prohibit pressure against subcontractors to make payments to their employees in
respect of days on which industrial action is taken) would apply to acts or
omissions after the new provisions come into operation.
Item 52 -
Application - items 7 to 13
11.147 The proposed amendments to section
127 [other than the repeal of subsections (6) and (7)] would apply to all
applications to the Commission made after the day on which the new provisions
come into operation.
Item 53 - Application - items 14, 15, 45 and
46
11.148 The proposed provisions relating to remedial orders, to
enforce orders of the Commission that industrial action or a lockout stop or not
occur, would apply to all applications made after the new sections come into
operation (irrespective of when the Commission’s order was
made).
Item 54 - Application - repeal of section
166A
11.149 This item would ensure that, despite the repeal of
section 166A (which requires a certificate from the Commission before an
application may be made in tort), that section would continue to apply to acts
and omissions before the repeal took effect.
Item 55 - Application -
items 19 to 23 and 35
11.150 The amendments proposed by items would
apply to industrial action that occurs on or after the day on which the
amendments made by the items come into effect.
Item 56 - Application -
items 25, 26, 28 and 38 to 41
11.151 The amendments proposed by these
items would apply to all industrial action engaged in on or after
commencement.
Item 57 - Application - items 29 to
33
11.152 The amendments relating to protected action would apply to
industrial action that occurs on or after the new provisions come into operation
[subitem (1)].
11.153 However, where all steps required to access
protected action under the current provisions have been taken before the new
provisions come into operation, the new notice requirements would not apply for
14 days ie where three days notice has already been given, no further notice
would be required) [subitem (2)].
Item 58 - Application - item
34
11.154 The amendment to section 170MS would apply to all
applications for certification made after its commencement.
Item 59 -
Transitional - applications to Commission under section 127 of the Workplace
Relations Act 1996
11.155 This item sets out what would happen in
relation to applications made to the Commission for an order under section 127
before the commencement of the amendments to that section.
11.156 Where
the Commission has started to deal with the application, it would continue to do
so under the current provisions [subitem (2)].
11.157 Where the
Commission has not started to deal with the application, the application would
be taken to have been made (and must be dealt with) under the amended
provisions. The requirement to issue interim orders if an application cannot be
determined within 48 hours would apply to such applications (the 48 hours being
calculated from the start of the day on which the amendments
commence).
Item 60 - Transitional - applications under subsection 127(6)
or (7) of the Workplace Relations Act 1996
11.158 This item
sets out what would happen where an application for an injunction has been made
under either subsection 127(6) or (7) (which provide for final and interim
injunctions to enforce orders of the Commission that industrial action stop or
not occur) and that application has not been determined at the time those
subsections are repealed.
11.159 Where the Court has started to deal with
the application, it would continue to do so under the current provisions
[subitem (2)].
11.160 Where the Court had not started to deal with the
application, the application would be taken to have been made (and must be dealt
with) under new section 127AAA [subitem (3)].
Item 61 - Transitional -
notifications under section 157 of the Workplace Relations Act
1996
11.161 This item sets out what would happen where a
notification has been given under section 157 and the matter has not been
finalised before the repeal of that section [item 16 of this Schedule].
11.162 Where the Commission has started to deal with the notification,
it would continue to do so under the current provisions [subitem
(2)].
11.163 Where the Commission has not started to deal with the
notification, it would not be able to start to do so [subitem
(3)].
Item 62 - Application - paragraph
170MW(1)(c)
11.164 This item makes it clear that proposed section
170MW, after its commencement, may be applied to any protected action once 14
days have passed since the action first began, irrespective of whether the
action began before or after the Schedule commenced.
Item 63 -
Transitional - proceedings under section 170MW of the Workplace Relations Act
1996
11.165 In relation to proceedings instituted under existing
section 170MW before the commencement of this Schedule, this item provides that
if substantive hearings have not begun before the commencement of the item the
proceedings would be dismissed unless the applicant amends its application to
enable it to be dealt with under the new provisions [subitem (2)]. In the case
of proceedings begun by the Commission under its own motion, the Commission
could decide to continue the proceedings under the new proposed section 170MWB
[subitem (3)].
11.166 If substantive hearings have begun concerning a
matter under the existing provisions the matter would continue to be dealt with
under those provisions [subitem (4)].
SCHEDULE 12 – SECRET BALLOTS FOR PROTECTED
ACTION
12.1 This Schedule proposes to introduce new preconditions for
the taking or organising of protected industrial action by employees and
organisations of employees. In order to be protected action under the provisions
of the Act, it is proposed that industrial action must be preceded by a secret
ballot process overseen by the Commission.
12.2 The new provisions are
intended to ensure that protected industrial action is not used as a substitute
for genuine discussions during a bargaining period, and to ensure that the final
decision to take industrial action is made by the employees directly
concerned.
12.3 Under the new provisions, a union or employees would be
required to apply to the Commission for an order that a ‘protected action
ballot’ be held. The Schedule includes proposed amendments and new
provisions to ensure that where employees wish to initiate a bargaining period
or apply for a protected action ballot order, they may do so through an agent,
and their identity would be protected.
12.4 It is proposed that the
Commission would be responsible for deciding whether a ballot should be held.
However, the Commission would not be able to order a ballot unless a bargaining
period is in place, and the applicant has been genuinely negotiating to reach an
agreement.
12.5 The Schedule proposes that if a union makes an
application for a ballot, only union members whose employment would be covered
by the proposed agreement would be entitled to vote in the ballot. If employees
who are seeking a non-union agreement make the application, all employees whose
employment would be covered by the proposed agreement would be entitled to vote
in a ballot. In either case, employees who are party to an Australian Workplace
Agreement or state employment agreement whose nominal expiry date has not passed
would not be eligible to vote.
12.6 The new provisions set out proposed
procedural requirements for ballots, including specific information that would
be required to be provided to employees in ballot papers. Industrial action
would be authorised by a ballot if at least 50 per cent of eligible voters
participate in the ballot, and if more than 50 per cent of the votes cast are in
favour of the proposed industrial action.
12.7 Under the existing secret
ballot provisions (sections 135 - 140), the Commission may order secret ballots
of union members in relation to industrial disputes and of union members or
groups of employees concerning threatened, impending or probable industrial
action. Members of unions may also request the Commission to order a ballot be
held in relation to proposed industrial action.
12.8 This Schedule
proposes to remove the Commission’s powers to order a ballot in relation
to threatened impending or probable industrial action [subsections 135(2) and
135(2B)], and on request from union members [subsections 136(1) - (7) and
135(8B) - (10)]. In addition, the Commission would be prevented from ordering a
secret ballot of union members who are in a bargaining period. These changes are
proposed because new Division 8A would require protected action ballots to be
held before unions or employees can engage in protected action. The
responsibility for seeking an order for such ballots would be on the union or
employees involved, as would the liability for the cost of such ballots. It
would not be appropriate in such circumstances for the Commission to be able to
order a ballot on its own initiative.
12.9 The first group of proposed amendments in this Schedule deals with
repeal of existing provisions and consequential amendments.
Item 1 -
Subsection 134(5) (paragraphs (d) and (e) of the definition of prescribed
premises)
12.10 This item proposes to amend the definition of
‘prescribed premises’. The amendment is consequential and would
replace a reference to existing section 136, which would be repealed [item 5 of
this Schedule], with a reference to proposed Division 8A of Part VIB [item 22 of
this Schedule], which would contain new provisions relating to protected action
ballots.
Item 2 - Subsection 135(2)
12.11 This item
proposes to repeal existing subsection 135(2), under which the Commission may
order a secret ballot of members of an organisation where it appears to the
Commission that a ballot may help to stop or prevent industrial action, and
substitute a new subsection. As outlined above, this power would not be
appropriate following the introduction of requirements for protected action
ballots.
12.12 New subsection 135(2) would prevent the Commission from
ordering a secret ballot of members of an organisation under subsection 135(1)
where the organisation has initiated a bargaining period under section 170MI for
an agreement. This would ensure that a decision of employees or a union to apply
for a protected action ballot could not be pre-empted by the
Commission.
Item 3 - Subsection 135(2B)
12.13 This item
proposes to repeal existing subsection 135(2B), which allows the Commission to
order a secret ballot to determine whether employees support taking industrial
action where it appears that industrial action is being taken or is threatened,
impending or probable, for the same reasons as outlined in relation to
subsection 135(2) [item 2 of this Schedule].
Item 4 - Subsection
135(3)
12.14 This item proposes a consequential amendment to
subsection 135(3) to remove the reference to existing subsection 135(2), which
would be repealed [item 2 of this Schedule].
Item 5 - Subsections
136(1), (2), (3), (4), (5), (6) and (7)
12.15 This item proposes to
repeal existing subsections 136(1), (2), (3), (4), (5), (6) and (7). These
subsections currently permit members of an organisation, who have been requested
or directed by the organisation to engage in industrial action, to apply to the
Commission to order a secret ballot to find out whether or not the members
support the proposed industrial action. These provisions would no longer be
required, as it is proposed that protected industrial action could not take
place before a protected action ballot of members is conducted under proposed
Division 8A. Industrial action taken without the authorisation of such a ballot
would not be protected and it would be inappropriate for the Commission to be
involved in ordering a ballot in such circumstances; rather the various
compliance measures in the Act and elsewhere could be directed at participants
in such action.
Item 6 - Paragraphs 136(8)(a) and
(b)
12.16 This item proposes to repeal existing paragraphs 136(8)(a)
and (b), and substitute new paragraphs. New paragraph (a) would omit references
to existing subsections 135(2) and 136(2), which would be repealed [items 2 and
5 of this Schedule].
12.17 New paragraph (b) would remove the
Commission’s power to revoke an order for a secret ballot because
industrial action has ceased. This provision would no longer be required, as it
is proposed that protected industrial action could not take place before a
protected action ballot is conducted.
Item 7 - Subsections 136(8B),
(9) and (10)
Item 8 - Subsection 137(1)
Item 9 - Subsection
138(1)
Item 10 - Subsection 138(2)
Item 11 - Subsection
138(5)
Item 12 - Subsection 138(6)
12.18 These items propose to repeal existing subsections 136(8B), (9) and
(10), 138(2) and 138(6), and section 140, and also remove references in
subsections 137(1), 138(1), 138(5) and 139 to existing secret ballot provisions
which are proposed to be repealed. The amendments are consequential to the
limitations on the Commission’s power to order ballots be held proposed in
items 2 to 5 of this Schedule.
12.19 This item proposes to insert two new sections into the Act, as
follows.
12.20 This new section would provide that an employee or employees who
wish to initiate a bargaining period under section 170MI to negotiate an
agreement, or who wish to give an employer notice of intention to take
industrial action under section 170MO, but want to remain anonymous from their
employer, may appoint an agent to initiate the bargaining period or to issue the
notice on the employees’ behalf. This provision is consistent with
proposed subsection 170NBB(4), which would provide for an employee or employees
to appoint an agent to represent them in relation to applications for a
protected action ballot.
12.21 The new section would also specify that
where an agent has been appointed to initiate a bargaining period under section
170MI, the written notice that would be required to be given to the Commission
under subsection 170MI(2) must include the names of the employee or employees
who appointed the agent.
12.22 New subsection 170MJB(1) proposes that the Commission must not
disclose information that would identify persons who have appointed a bargaining
agent under proposed section 170MJA. The proposed exceptions to this prohibition
are: the Commission could disclose information that would identify persons who
have appointed a bargaining agent under proposed section 170MJA if the
disclosure is permitted by any Act or by regulations made under an Act, or if
the disclosure has been authorised by the person whose identity would otherwise
be protected [subsection 170MJB(2)].
12.23 Under proposed subsection
170MJB(3), it would be an offence for any person to disclose information that
would identify persons who have appointed a bargaining agent under proposed
section 170MJA. The proposed maximum penalty for this offence is 6 months’
imprisonment.
12.24 Proposed exceptions to this offence are: a person
could disclose such information if the disclosure is by a Registry official or
authorised ballot agent in the course of performing their functions or duties,
if the disclosure is permitted by any Act or by regulations made under an Act,
or if the disclosure has been authorised by the person whose identity would
otherwise be protected [subsection 170MJB(4)].
12.25 For the purposes of
determining the burden of proof in proceedings relating to offences under
proposed subsection 170MJB(3), the exceptions set out in proposed subsection
170MJB(4) would be part of the description of the offence. This addresses the
requirements of the Criminal Code [subsection
170MJB(5)].
12.26 Definitions of the terms ‘protected
information’ and ‘Registry official’, that would be used in
new section 170MJB, are contained in subsection 170MJB(6).
Item 16 -
After subsection 170ML(2)
12.27 Employees whose employment is subject
to an Australian Workplace Agreement or a state employment agreement (either
collective or individual) would not be entitled to vote in a protected action
ballot, nor to engage in any protected action authorised by a ballot, until the
nominal period of operation of their Australian Workplace Agreement or state
agreement has passed. The proposed new subsection 170ML(2A) would establish the
limitation on taking protected action in relation to employees with state
employment agreements. Existing section 170VU would similarly limit employees
who were party to Australian Workplace Agreements.
Item 17 - At the
end of subsection 170ML(7)
12.28 This item proposes to amend existing
subsection 170ML(7) by adding a reference to proposed Division 8A at the end of
the subsection. This amendment would ensure that industrial action would only be
protected if the new provisions regarding protected action ballots in proposed
Division 8A have been complied with. The requirement for protected action
ballots would not apply to industrial action taken in response to a lockout -
see proposed section 170MQ [item 21 of this Schedule].
Item 18 -
Subsection 170MO(6)
12.29 Subsection 170MO(6) currently provides that
the written notice of industrial action required under subsection 170MO(2) may
be given before the start of a bargaining period. As it is proposed that
protected action must be proceeded by a protected action ballot, it would not be
possible for notice of such action to be given until the action had been
authorised by a ballot. Proposed subsection 170MO(6) thus establishes that
notice of proposed action cannot be given until a ballot result has been
declared.
12.30 A protected action ballot would not be required for an
employer to undertake a protected action lockout of employees, nor would a
ballot be required for a union and employees to respond to such a lockout. In
this situation, notice by an employer or by a union or employees could be given
once the bargaining period has commenced.
Item 19 - Subsections
170MP(1) and (2)
Item 20 - Paragraphs 170MP(3)(b) and
(c)
12.31 These items propose to repeal existing subsections 170MP(1)
and (2) and paragraph (3)(c). These provisions provide that industrial action is
not protected unless the organisation or employees taking action have genuinely
tried to reach agreement and the organisation or employees or employer taking
action have complied with any orders of the Commission relating to the
negotiations. These provisions would no longer be necessary, as the issue of
whether a union or employees proposing to take industrial action have been
genuinely trying to reach an agreement would be considered by the Commission
when it is determining an application for a protected action ballot under
proposed section 170NBC [item 22 of this Schedule]. It is also proposed to
repeal the Commission’s power to make orders concerning negotiations
[Schedule 4]. The remaining provisions of section 170MP would continue to ensure
that an employer is required to genuinely try and reach agreement before taking
protected action.
New section 170MQ - Industrial action must be authorised by
ballot
12.32 This item proposes to repeal existing section 170MQ, and
substitute a new section. Existing section 170MQ provides that where the
Commission has ordered a protected action ballot under subsections 135(2) or
(2B), protected industrial action cannot be taken unless the ballot has been
held and the action approved by a majority of votes cast. This section would no
longer be required, as subsections 135(2) and (2B) would be repealed [item 5 of
this Schedule]. The new section would provide that industrial action taken by an
organisation of employees, its members or employees, or by employees who are
negotiating parties, would not be protected action unless the action is taken in
response to a lockout of employees, or the action has been authorised by a
protected action ballot conducted in accordance with new Division 8A [item 22 of
this Schedule].
12.33 This item proposes to insert a new Division into the Act, as
follows.
New Division 8A - Secret ballots on proposed protected
action
New section 170NBA - Object of Division and overview of
Division
12.34 This section would establish the object of the new
Division, to ensure that employees and organisations of employees can only take
industrial action if the employees concerned have authorised the action in a
fair and democratic ballot. A protected action ballot would not be required in
the case of action taken in response to a lockout by the employer.
12.35 New section 170NBAA defines 14 terms used in proposed Division 8A.
New section 170NBB - Who may apply for a ballot order,
etc.
12.36 New subsection 170NBB(1) proposes that an application for
a protected action ballot could only be made once a bargaining period has
commenced.
12.37 Who could make the application would depend on who
initiated the bargaining period under section 170MI. Under new subsection
170NBB(2), if the bargaining period was initiated by a union, then that union
could apply to the Commission for a ballot order. If the bargaining period was
initiated by an employee or employees seeking a non-union agreement, then any
employee who would be subject to the proposed agreement, or such employees
acting jointly, could apply to the Commission for a ballot
order.
12.38 To ensure that a sufficient level of support exists to
justify the holding of a ballot in relation to employees seeking a non-union
agreement, subsection 170NBB(3) proposes that an employee or employees acting
jointly could not make an application to the Commission for a ballot order
unless the application has the support of a ‘prescribed number’ of
employees who would be subject to the proposed agreement. The term
‘prescribed number’ is defined in proposed section 170NBAA. There
would be no such requirement in the case of ballot applications by unions and
instead unions would have to provide evidence that the application has been
authorised by or through a committee of management (see proposed section
170NBBB).
12.39 The prescribed minimum number of employees (defined in
proposed section 170NBAA) would vary depending on the size of the workplace. If
there are less than 80 employees who would be subject to the proposed agreement,
then at least 4 of the employees would be required to support the ballot
application. If there are between 80 and 5000 employees who would be subject to
the proposed agreement, at least 5% of the employees would be required to
support the ballot application. If there are more than 5000 employees who would
be subject to the proposed agreement, then at least 250 of the employees would
be required to support the ballot application.
12.40 New subsection
170NBB(4) would provide that where an employee or employees have initiated a
bargaining period for a non-union agreement and industrial action is proposed,
an employee or employees acting jointly could 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 to
remain anonymous.
New section 170NBBA - Contents of
application
12.41 This new section proposes mandatory requirements for a ballot application under section 170NBB. Applications would be required to include the following information:
• the bargaining period to which the proposed ballot relates;
• the types of employees who are to be balloted [for example their occupations, work groups and locations, similarly required in existing paragraph 170MJ(b)];
• the names of the applicant, applicants or applicant’s agent;
• the proposed timetable for the ballot;
• the name of the ballot agent nominated by the applicant to conduct the ballot;
• the proposed voting method for the ballot;
• the precise nature and form of the proposed industrial action to be voted on;
• the day or days on which it is intended the proposed industrial action would take place;
• the duration of the proposed industrial action; and
• the
relevant employer’s name, addresses, telephone and fax numbers.
12.42 New section 170NBBB would require the applicant to provide certain material to the Commission with the ballot application, including:
• a copy of the notice initiating the bargaining period and 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 an objectionable provision or an anti-AWA provision in the proposed agreement (these two types of provisions are defined in subsections 298Z(5) and 4(1) respectively);
• if the applicant is an organisation of employees, a written notice
showing that the application has been duly authorised in accordance with the
organisation’s rules; and
• if the applicant is represented by an
agent, a document containing the name of the employee applicant or
applicants.
12.43 Under new subsection 170NBBB(6), it would be an offence
to make a statement in the declaration required by new section 170NBBB, reckless
as to whether it is false or misleading. The proposed maximum penalty for an
offence against subsection 170NBBB(6) is 20 penalty units.
12.44 This new section would require the applicant to give a copy of the
application to the relevant employer and the ballot agent nominated in the
application within 24 hours of the application being lodged with the Commission.
However, the applicant would not be required to give these parties copies of the
supporting material that must be given to the Commission with the application
under proposed section 170NBBB, such as the document containing the names of
applicant employees, where the applicants are represented by an
agent.
New section 170NBBD - Joint applications
12.45 This
section proposes that where a bargaining period for the proposed agreement was
initiated by an employee seeking a non-union agreement, two or more employees
who would be subject to the proposed agreement could make a ballot application
jointly [subsection 170NBBD(1)].
12.46 If a joint application was 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. Either adding or withdrawing names could be done at any time before
the application is determined [subsections 170NBBD(2) and (3)]. Preventing
applicants withdrawing their name from an application after the determination of
the application is relevant to the fixing of liability for the cost of
conducting a ballot under proposed section 170NBF below.
12.47 New
subsection 170NBBD(4) would allow the President of the Commission to establish
rules regarding how the provisions of the Act relating to ballot orders apply to
joint applicants and subsection 170NBBD(5) would specify that any rules made
under new subsection 170NBBD(4) would be both disallowable instruments and
statutory rules.
New section 170NBC - Commission to notify parties of
application
12.48 To assist in ensuring the speedy determination of
applications, this new section would require the Commission to notify all
parties of the Commission’s procedure for dealing with an application for
a ballot order, as soon as practicable after an application is lodged. This
would include notifying the parties that they may make submissions to the
Commission about the application, whether submissions should be made orally or
in writing, and the cut off time for making submissions.
New section
170NBCA - Commission to act quickly in relation to application
etc.
12.49 New subsection 170NBCA(1) would provide that in exercising
its powers under Division 8A, the Commission must act as quickly as practicable
and would be required, as far as possible, to determine an application for a
ballot order within 4 working days of the application being
made.
12.50 New subsection 170NBCA(2) would provide that paragraph
111(1)(g) of the Act does not apply to ballot proceedings under Division 8A.
Paragraph 111(1)(g) allows the Commission to dismiss or to refrain from hearing
or determining a dispute on various grounds, including that the dispute is
trivial, is being dealt with by a State industrial authority, that a party to
the dispute is engaging in conduct that is hindering the settlement of the
dispute or has breached an award, agreement or order of the Commission, etc.
Note, however, that under proposed subsection 170NBCB(2) the Commission would be
able to refrain from considering a submission if it was satisfied that the
submission was vexatious, frivolous, misconceived or lacking in
substance.
New section 170NBCB - Parties and relevant employees may make
submissions and apply for directions
12.51 New subsection 170NBCB(1)
would provide that a party to a ballot application (the applicant, the employer
or the ballot agent), a union member (where the applicant is a union) or
employee (where the applicant is an employee or employees) who would be subject
to the proposed agreement could make submissions to the Commission about the
application, or about the conduct of the protected action ballot. Also, any of
these persons could apply to the Commission for directions about the application
or about the conduct of the ballot.
12.52 New subsection 170NBCB(2) would
allow the Commission to refuse to consider a submission if the Commission was
satisfied that the submission was vexatious, frivolous, misconceived or lacking
in substance.
12.53 This new section would empower the Commission to make directions
regarding an application for a ballot order or about any aspect of the conduct
of a protected action ballot.
12.54 New section 170NBCD would provide that if, in a submission to the
Commission about an application for a ballot order, an employer alleges that the
applicant is engaging in pattern bargaining, the Commission would be required to
refer the issue of whether the applicant is engaging in pattern bargaining to
the President of the Commission. The President could then determine the issue of
whether an applicant is engaging in pattern bargaining personally, refer the
issue to another Presidential member for determination, or refer the issue back
to the Commission as originally constituted to hear the application for the
ballot order to determine the issue.
12.55 If any Presidential member
finds that the applicant is engaging in pattern bargaining, the President would
be required to direct the Commission to dismiss the ballot order application.
If, however, the Presidential member finds that the applicant is not engaging in
pattern bargaining, the President would be required to report this finding back
to the member dealing with the application [subsections 170NBCD(3) and (4)]. The
member could not determine the application until the President has given a
direction or reported back [subsection 170NBCD(5)].
12.56 Guidance as to
the determination of whether pattern bargaining is being engaged in would be
provided in proposed section 170LG [item 17 of Schedule 11].
12.57 Proposed section 170NBCE seeks to ensure that any disruption that
may be caused to an employer’s operations by the conduct of more than one
protected action ballot (especially, for example, attendance ballots) proposed
to be held within a short space of time can be minimised. The Commission would
be specifically empowered to hear and determine at the same time applications
that concerned the same employer or that concerned the same place of work where
different employers were involved (for example a construction site). If an order
had been made concerning a particular employer or place of work and a further
application was made concerning that employer or place of work, the Commission
would be able to determine that the later ballot be held at the same time as the
first ordered ballot or it could vary the order for the first ordered ballot to
require both ballots be held at the same time.
12.58 New subsection 170NBCF(1) sets out the matters that would be required to be established to the Commission’s satisfaction before the Commission could grant an application for a ballot order. The matters are:
• a bargaining period has been initiated and has commenced;
• the application was accompanied by a declaration by the applicant that the proposed industrial action is not for the purposes of supporting or advancing claims to include an objectionable provision or an anti-AWA provision in an agreement (new subsection 170BBB(4) above);
• if the applicant is an employee or employees, that the application is supported by at least the prescribed number of employees (new subsection 170NBB(3) above);
• the other parties have received a copy of the application as required by new section 170NBBC above;
• the nominal expiry dates of all certified agreements, old IR agreements and section 170MX awards applying to the union members or employees who would be eligible to vote on the industrial action have passed;
• the manner in which the ballot would be conducted will ensure the secrecy and security of employees votes, and would result in a fair and democratic ballot to the extent that the applicant can guarantee this (this will normally require that the ballot be conducted as a postal vote);
• the proposed ballot timetable is appropriate (under proposed section 170NBCJ the Commission may develop guidelines which would assist in determining this issue);
• the question or questions to be put to employees in the ballot meet the requirements of new paragraph 170NBBA(g), that is, the questions must state the precise nature and form of the proposed industrial action, the day or days on which it is proposed that the action will take place and the duration of the proposed industrial action;
• the ballot agent nominated in the application will conduct the ballot in accordance with the requirements of Division 8A and with any orders or directions made by the Commission;
• if the ballot agent nominated in the application is not the Australian Electoral Commission, that the ballot agent has consented to conduct the ballot;
• if a party has submitted to the Commission that the applicant has not
genuinely tried to reach agreement with the employer, that there are not
sufficient grounds for accepting this submission; and
• any other
matter prescribed by the regulations.
12.59 If the Commission was
satisfied of all these matters except for those dealing with the proposed ballot
method, timetable or ballot agent, the Commission would be required to give the
applicant an opportunity to amend the application in respect of these matters.
The Commission has a general discretion to allow a party to vary any other
element of its application.
12.60 To help ensure the accuracy of a ballot
roll and the anonymity of Australian Workplace Agreement employees and union
members, proposed subsection 170NBCF(3) would require the Commission to consider
whether it should make an order under new section 170NBCK before it grants an
application. New section 170NBCK would allow the Commission to order the
applicant or the employer of the relevant employees to provide the Commission
with a list of employees who would be eligible to vote in the proposed ballot,
and any other information that the Commission reasonably requires to assist in
compiling the roll of voters for the proposed ballot.
12.61 New
subsection 170NBCF(4) would provide that the Commission must not grant an
application if the Commission, whether through a Presidential member or
otherwise, has determined that the applicant is engaging in pattern bargaining
under new section 170NBCD.
12.62 New subsection 170NBCF(5) would require
the Commission to grant an application if it was satisfied that all the matters
in subsection (1) have been complied with, the Commission has considered the
matter in subsection (3) and, if the question of pattern bargaining has been
raised in submissions, the Commission has determined that the applicant is not
engaging in pattern bargaining under new section 170NBCD.
12.63 New
subsection 170NBCF(6) would provide that even if subsection (5) would otherwise
require the Commission to grant an application, the Commission has a discretion
to refuse to grant the application if it is satisfied that the applicant, or an
employee or union member who would be eligible to vote in the proposed ballot,
has at any time contravened a provision of Division 8A or an order or direction
made by the Commission under Division 8A.
12.64 This new section proposes that, where the Commission refuses an
application for a ballot order, the Commission would be required to inform the
applicant and the employer of the availability of voluntary conciliation and
mediation services and the role of the Mediation Adviser under the Act.
12.65 This new section would provide that if the Commission grants an
application for a ballot order, the Commission would be required to order the
applicant to hold a ballot in accordance with Division 8A.
12.66 Proposed subsection 170NBCI(1) sets out the information that would
be required to be contained in a ballot order made by the
Commission.
12.67 An order would be required to specify the ballot be
conducted by postal vote, unless another method was proposed in the application
for the ballot order and the Commission is satisfied that this other method
would ensure the secrecy and security of votes and a fair and democratic ballot,
and that if the ballot was to be conducted by attendance vote, that the voting
could take place in work breaks or otherwise outside hours or employment
[subsection 170NBCI(2)].
12.68 If a ballot is to be conducted by an
attendance vote, the ballot order would be required to specify that voting is to
take place during breaks or otherwise outside work hours [subsection
170NBCI(3)].
12.69 To assist the Commission in speedily determining applications, the
President of the Commission would be empowered to develop guidelines concerning
timetables for the conduct of ballots under Division 8A. The President could
consult with the Australian Electoral Commission and other ballot agents in
developing any guidelines under this section.
12.70 The only employees who would be eligible to vote in protected
action ballots are those who would be subject to the proposed agreement, who are
not party to an Australian Workplace Agreement nor employed under a state
employment agreement whose nominal expiry date has not passed and, in the case
of union initiated ballots, are members of the union that is the applicant for
the order. To determine if all of these criteria are met would frequently
require the Commission (or the authorised ballot agent) to obtain information
from the employer and the applicant. New subsection 170NBCK(1) would allow the
Commission to order the applicant or the employer of the employees (or both) to
provide the Commission with a list of employees who might be eligible to vote in
a proposed ballot, and any other information that the Commission reasonably
requires to assist in compiling the roll of voters for the proposed ballot.
12.71 The Commission would be able to require this information to be
provided either to the Commission or to the authorised ballot agent and could
require it be provided in whatever form the Commission thinks is appropriate
[subsections 170NBCK(2) and (3)].
New section 170NBCL - Roll to be
compiled by Commission or ballot agent
12.72 This new section would
provide that if the Commission makes an order for a ballot to be held, the
Commission would be required to compile a list of names of all persons who are
eligible to be included on the roll of voters for the ballot, and provide this
to the authorised ballot agent, or alternatively, the Commission could make a
separate order requiring the authorised ballot agent to compile the roll of
voters for the ballot. A separate order would be required in this situation to
ensure that a ballot agent is bound by the order.
12.73 New subsection 170NBCM(1) 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.
12.74 Additionally,
if the applicant for the ballot order was 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 Commission.
12.75 Further, a person whose
employment is subject to an Australian Workplace Agreement or a State employment
agreement 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 (1).
12.76 New subsection 170NBCN(1) would require the ballot agent to add a
person’s name to the roll of voters for a ballot at any time before voting
in the ballot is finished, 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.
12.77 In addition, a person would be able
to apply to the Commission for a declaration that they are eligible to be
included on the roll of voters for a ballot. If the Commission is satisfied that
the person is eligible to be included on the roll of voters, and voting in the
ballot has not finished, the Commission would be required to make the
declaration sought, and direct the ballot agent to include the person’s
name on the roll of voters for the ballot.
12.78 A process for removing a
person’s name from the roll of voters is proposed in subsection
170NBCN(3). This would provide that a party to a ballot order or a person whose
name is on the roll of voters for the ballot could apply to the Commission for a
declaration that a person whose name is on the roll of voters is not eligible to
be included on the roll. If, in the case of a postal ballot, voting had not yet
finished, or in the case of any other type of ballot, voting had not yet
started, and the Commission was satisfied that the person was not eligible to be
included on the roll of voters, the Commission would be required to make the
declaration sought and direct the ballot agent to remove the person’s name
from the roll of voters.
12.79 If a person’s name was removed from
the roll as outlined above and a postal ballot had already commenced and the
person had cast a vote, the ballot agent would be required to take all
reasonable steps to ensure that person’s vote was not counted [section
170NBCN(4)].
12.80 New subsection 170NBCO(1) would allow an applicant for a ballot
order to apply to the Commission, at any time before the expiry of the ballot
order, to have the ballot order varied, for example to deal with unanticipated
circumstances.
12.81 New subsection 170NBCO(2) would allow the authorised
ballot agent under a ballot order to apply to the Commission, at any time before
voting under the ballot has finished, 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, it has
encountered difficulties in compiling the roll of voters that would prevent it
completing the ballot within the ordered timeframe.
12.82 New subsection 170NBCP would provide that if a ballot has not been
held within the period specified in the ballot order, the order would expire at
the end of that period. An applicant for a ballot order could apply to the
Commission to have the order revoked at any time before the order expires, for
example if the matters at issue are resolved before the ballot is conducted. If
such an application were made, the Commission would be required to revoke the
order.
12.83 This new section would provide that if the Commission was to make
an order or direction under Division 8A expressed to apply to a person or an
organisation of employees, that person or organisation must comply with the
order or direction. A ballot order would only apply to the applicant, although
separate orders and directions could be made which would apply to other parties.
12.84 This new section would require the Commission, as soon as
practicable after it makes a ballot order, to ensure that a copy of that order
is given to each party to the application (the applicant, employer and ballot
agent).
12.85 This new section would provide that a ballot would not be a
protected action ballot unless it was conducted by the ‘authorised ballot
agent’; this term is defined in proposed section 170NBAA. The effect of
this section is that a ballot would be required to be conducted by the ballot
agent authorised by the Commission in the ballot order. If someone else
conducted the ballot, then it would not comply with the requirements of proposed
Division 8A, and any industrial action taken following such a ballot would not
be protected industrial action under new section 170MQ [item 21 of this
Schedule].
12.86 This new section would require the ballot paper to be in the prescribed form, and to contain certain information, including:
• the name of the applicant or applicant’s agent;
• the types of employees who are to be balloted [for example, their occupations, work groups and locations, similarly required in existing paragraph 170MJ(b)];
• the name of the ballot agent authorised to conduct the ballot;
• the precise nature and form of the intended industrial action to be voted on;
• the day or days on which it is intended that the proposed industrial action will take place;
• the duration of the proposed industrial action;
• the statement set out in proposed Schedule 5 [item 32 of this
Schedule]; and
• instructions to the voter on how to complete the
ballot paper.
New section 170NBDB - Who can vote
12.87 This new
section would provide that a person could not vote in a ballot unless the
person’s name is on the roll of voters for the ballot, established under
new section 170NBCL above.
12.88 This new section would require the ballot agent to make a
declaration of the results of the ballot in writing, and inform the applicant,
the affected employer and the Workplace Relations Registrar, in writing, of the
results as soon as practicable after the end of voting.
12.89 Under this proposed section industrial action would only be authorised by a protected action ballot if:
• the action was the subject of a ballot conducted in accordance with the provisions of proposed Division 8A;
• at least 50% of persons on the roll of voters for the ballot
established under proposed section 170NBCL voted in the ballot;
and
• more than 50% of the votes cast in the ballot approved the
industrial action.
New section 170NBDE - Registrar to record
questions put in ballot and results
12.90 New section 170NBDE would
require the Workplace Relations Registrar to keep a record of questions put to
the voters and the results of the ballot for each ballot held under Division 8A.
The Registrar would be required to publish the results of a ballot as soon as
practicable after being notified of the results by the ballot agent.
12.91 This section would require the Workplace Relations Registrar to
maintain a register of ballot agents who could be authorised by the Commission
to conduct ballots under Division 8A. To enter a person on the register, the
Registrar would be required to be satisfied that the person is a fit and proper
person to conduct such ballots.
12.92 In deciding whether a person is a fit and proper person, new subsection 170NBE(3) would require the Registrar to have regard to the following factors:
• whether the person is capable of ensuring the security and secrecy of votes cast in a ballot;
• whether the person is capable of ensuring that a ballot is fair and democratic;
• whether the person is likely to maintain confidentiality of the records that they are required to keep in relation to the ballot;
• if the person is a natural person, whether the person has contravened
a ‘prescribed law’ within the last five years; and
• if the
person is a body corporate, whether the corporation or any of its officers or
employees have contravened a ‘prescribed law’ within the last 5
years.
12.93 New subsection 170NBE(4) would provide that where a person
has contravened a ‘prescribed law’ in the last 5 years, the
Registrar would not be able to include the person on the register of ballot
agents unless the person has been granted leave under proposed section 170NBEA
to seek to have their name included on the register. If a body corporate ballot
agent is conducting a ballot under Division 8A it would not be able to authorise
a person who has contravened a ‘prescribed law’ in the last 5 years
to participate in conducting the ballot.
12.94 Proposed subsection
170NBE(6) defines ‘prescribed law’ for the purposes of new section
170NBE. It would include laws whose contravention is punishable by imprisonment
for more than 12 months, and those involving dishonesty punishable by
imprisonment for more than 6 months, and provisions of the Act dealing with
freedom of association, protected action ballots and other forms of
ballots.
12.95 New subsection 170NBEA(1) proposes that a person who has
contravened a ‘prescribed law’, as defined in new subsection
170NBE(6), within the last 5 years could apply to the Federal Court for leave to
seek to have their name entered on the register of ballot agents maintained by
the Workplace Relations Registrar. New subsection 170NBEA(2) would allow the
Court to impose any conditions or restrictions as the Court thinks fit when
granting leave under the section. New subsection 170NBEA(3) would allow the
Court to revoke leave at any time on the application of the Workplace Relations
Registrar.
12.96 This new section would allow the Workplace Relations Registrar to
remove a person’s name from the register of ballot agents if the Registrar
was satisfied that the person was not a fit and proper person to conduct
protected action ballots. Before removing a person’s name, the Registrar
would be required to give the person notice of the intention to remove their
name from the register and reasons in writing for the removal, and give the
person a reasonable opportunity to make submissions about the proposed
removal.
12.97 New section 170NBF would provide that the applicant for a ballot
order is liable for the cost of holding the ballot, and that where a ballot
application was made jointly, each applicant is jointly and severally liable for
the cost of holding the ballot.
12.98 This new section would allow an applicant to seek reimbursement of
some of the costs of holding a ballot under Division 8A from the
Commonwealth.
12.99 New subsection 170NBFA(1) would require an applicant
to notify the Workplace Relations Registrar of the costs incurred by the
applicant in holding the ballot, within a reasonable time after completion of
the ballot. The Workplace Relations Registrar would then be required to
determine what proportion of these costs were reasonably and genuinely incurred
by the applicant in holding the ballot (the ‘reasonable ballot
cost’).
12.100 New subsection 170NBFA(2) would provide that the
Commonwealth would be liable to pay to the applicant 80% of the reasonable
ballot cost. Where there are joint applicants, new subsection 170NBFA(3)
proposes a formula for calculating the proportion of the reasonable ballot costs
that the Commonwealth would be liable to pay to each joint
applicant.
12.101 New subsection 170NBFA(4) will provide that where joint
applicants for a secret ballot request the Commonwealth to reimburse the
reasonable costs of the ballot in other than equal proportions, the Commonwealth
is liable to distribute that amount in accordance with the request.
12.102 New subsection 170NBFA(5) would enable regulations to be made
prescribing matters that are to be taken into account by the Workplace Relations
Registrar in determining whether ballot costs are reasonably and genuinely
incurred for the purposes of proposed subsection 170NBFA(1).
12.103 New subsection 170NBG(1) would provide that the Commission must not disclose information that 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 proposed subsection 170NBB(3);
• a person whose name appears on the roll of voters for a ballot;
or
• a person who is party to an Australian Workplace
Agreement.
12.104 New subsection 170NBG(2) would establish exceptions to
the prohibition in new subsection 170NBG(1): the Commission could disclose
information that would otherwise be prohibited under subsection (1) if the
disclosure was permitted by any Act or by regulations made under an Act, or if
the disclosure had been authorised in writing by the person whose identity would
otherwise be protected.
12.105 A similar prohibition on revealing
information would apply to persons generally under proposed section 170NBGA.
Under this section, it would be an offence to disclose the ‘protected
information’ which is that listed in section 170NBG. The proposed maximum
penalty for this offence is 6 months’ imprisonment.
12.106 Proposed
exceptions to the offence are set out in new subsection 170NBGA(2), based on
those in existing subsection 170WHB(2): a person could disclose ‘protected
information’ if the disclosure was made by a Registry official or
authorised ballot agent in the course of performing their functions or duties,
if the disclosure was permitted by any Act or by regulations made under an Act,
or if the disclosure had been authorised in writing by the person whose identity
would otherwise be protected.
12.107 New subsection 170NGBA(3) would
specify that, for the purposes of determining the burden of proof in proceedings
relating to offences under proposed subsection 170NBGA(1), the exceptions set
out in proposed subsection 170NBGA(2) would be part of the description of the
offence. This subsection addresses the requirements of the new Criminal
Code.
12.108 Definitions of the terms ‘protected information’
and ‘Registry official’, which would be used in new section 170NGBA,
are set out in proposed subsection 170NGBA(4).
12.109 This new section would provide that if industrial action has been
authorised by the results of a ballot, and an organisation or person goes ahead
and organises or participates in industrial action acting in good faith on the
results of the ballot, no legal action could be taken against that organisation
or those persons if it turns out that the action was not in fact protected (for
example, if it comes to light later that the ballot did not in fact comply with
the requirements of Division 8A). This defence would not apply in cases where
the industrial action resulted in personal injury, wilful or reckless damage to
property or the unlawful taking or keeping of property. Also, new subsection
170NGB(2) provides that there would be no immunity against legal action for
defamation in the course of industrial action.
12.110 New section 170NBGC would require a ballot agent who conducts a
ballot under Division 8A 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.
12.111 This new section would ensure that if the Australian Electoral
Commission (AEC) is the authorised ballot agent for a ballot under Division 8A,
it is a function of the AEC to conduct the ballot. If the Commission authorised
the AEC to conduct a ballot in a ballot order, the AEC would be required to
conduct the ballot.
12.112 This new section proposes that regulations could be made under the Act on the following matters:
• the qualifications and appointment of applicant’s agents;
• procedures to be followed in conducting a ballot or class of ballot;
• the qualifications, appointment, powers and duties of scrutineers;
• the entry and removal of names from the register of ballot agents;
and
• the manner in which ballot results are to be
published.
Item 23 - After paragraph 170ND(d)
Item 25 - After subsection 178(1)
12.113 These items deal with
the enforcement of orders and directions under proposed Division 8A [item 22 of
this Schedule]. Item 23 proposes to insert a new paragraph 170ND(da) into the
Act. The new paragraph would specify that proposed section 170NBCQ, which would
provide that if an order or direction is made against a person or organisation,
that person or organisation must comply with the order or direction, is a
penalty provision for the purposes of Division 10 of Part
VIB.
12.114 Item 24 would establish who could apply to an eligible court
for an order imposing a penalty on a person or organisation who has failed to
comply with an order or direction of the Commission under Division 8A. Proposed
subsection 170NF(8) would provide that employees eligible to vote in a ballot,
an employer, an ballot applicant, an inspector or any person prescribed by the
regulations may so apply. Existing section 170NG also allows an eligible court
to grant an injunction requiring a person not to contravene or to cease
contravening a penalty provision.
12.115 Item 25 would ensure that orders
of the Commission under Division 8A of Part VIB could only be enforced under
Division 10 of Part VIB as outlined above. The item proposes to insert a new
subsection 178(1A) into the Act so that the existing section 178(1), which
regulates breaches of Commission orders, would not apply to orders under
Division 8A.
Item 26 - At the end of sections 287 and
288
12.116 This item proposes to amend sections 287 and 288. Section
287 provides that financial members of an organisation have the right to vote in
any ballot taken for the purpose of submitting a matter to a vote of the members
of the organisation. Section 288 provides that financial members of an
organisation may request information regarding ballots from the returning
officer to determine whether there has been an irregularity in relation to the
ballot. The proposed amendment would specify that neither section applies to
protected action ballots conducted under new Division 8A.
12.117 This item proposes to repeal existing section 307, which creates
an offence regarding false or misleading material in an application for a secret
ballot under existing section 136, and substitute two similar provisions
regarding ballots under Division 8A, one dealing with applications in general
and the other dealing with joint applications.
New section 307 -
Application for protected action ballot order
New section 307A - False
statement in joint application for protected action ballot
order
12.118 These new sections propose that a person must not make a
statement or join with others in making a statement in an application for a
protected action ballot, recklessly as to whether the statement is false or
misleading.
12.119 The proposed maximum penalty for offences against new
sections 307 and 307A is a fine of $1000.
Item 28 - After section
314
New section 314A – Failure to preserve protected action
ballot papers etc.
12.120 This item proposes to insert a provision
similar to existing section 314, which would prohibit a person knowingly or
recklessly contravening proposed section 170NBGC, which would require the
preservation of ballot papers for one year after completion of the ballot [item
22 of this Schedule].
12.121 The proposed maximum penalty for an offence
against new section 314A is a $500 fine and 6 months’
imprisonment.
Item 29 - Paragraph 317(5)(a)
Item 30 -
Paragraph 317(5)(b)
12.122 These items deal with offences in relation to ballots. Item 29
proposes a consequential amendment to paragraph 317(5)(a) to remove the
reference to secret ballots ordered under section 136. It is proposed that
existing provisions in section 136 allowing the Commission to order a secret
ballot would be repealed [item 5 of this Schedule].
12.123 Item 30
proposes an amendment to paragraph 317(5)(b) to specify that the offences set
out in section 317 apply to ballots conducted under Division 7A of Part IX
(these are ballots concerning withdrawal of organisations from
amalgamations).
12.124 Item 31 proposes to insert a new subsection
317(6) into the Act. The new subsection would provide that a ballot referred to
in subsections 317(2), (3) and (4) includes a ballot held under Division 8A of
Part VIB, and would ensure that offences set out in these subsections apply to
protected action ballots.
12.125 This item proposes to add a new Schedule to the Act, as
follows.
12.126 This new Schedule contains a statement that would be included in
all ballot papers issued for a protected action ballot under new section 170NBDA
[item 22 of this Schedule]. The statement would inform employees who receive a
ballot paper of their legal rights regarding participation in the ballot and
participation in any industrial action that is authorised as a result of the
ballot.
12.127 Subitem (1) would provide that the amendment proposed by item 21
of this Schedule (industrial action must be authorised by a Division 8A ballot
to be protected industrial action) would apply to industrial action taken on or
after the ‘commencing day’ (that is the day on which this Schedule
commences).
12.128 Subitem (2) would provide that the amendment proposed by item 21 would not apply to industrial action taken after the ‘commencing day’ if:
• the action is protected action under subsection 170ML(2) of the Act;
• the existing requirements of sections 170MO and 170MR, to provide
written notice of the intended industrial and, if an organisation is a
negotiating party to ensure the action was properly authorised, were met before
the ‘commencing day;’ and
• the action is taken within 14
days after the ‘commencing day’.
12.129 Any action different
to that specified in the notice given under s170MO or any continuation of action
after 14 days have passed since the Schedule commenced would require the
authorisation of a protected action ballot under Division 8A.
12.130 This item deals with secret ballots ordered by the Commission
before the commencement day under sections 135(2) and (2B), which would be
repealed under this Schedule.
12.131 If a ballot under these provisions
has been ordered by the Commission but the ballot result is not known by the
commencing day (because the ballot has not yet been held or the result of the
ballot has not yet been determined), the order for the ballot would continue to
have effect and the existing elements of Division 4 of Part VI of the Act would
continue to apply. In addition the existing section 170MQ would apply. That is,
any action taken by a union or member or employee would not be protected action
unless the ballot has been held and has approved the action. However, if such a
ballot approves industrial action, any such action taken following the ballot
must begin within 14 days of the ballot result being declared and 5 working days
notice of the action must be given to the employer as required by the proposed
new section 170MO.
12.132 If a ballot under the relevant existing
provisions is conducted and finalised before the commencing day, then item 33
would apply.
12.133 The provisions of Schedule 11 (including changes in
notice periods and provisions for suspension and termination of bargaining
periods) would apply to action taken after its commencing day.
13.1 This Schedule proposes to introduce new requirements for entry to
premises by union officials and employees by amending Division 11A of Part IX of
the Act.
13.2 The new requirements are consistent with the principle that
unions should act as representatives of their members and be accountable to
those members, and not act as uninvited quasi-inspectors at the workplace.
13.3 The proposed amendments build on the current permit system, by
introducing a requirement that, as a prerequisite to exercising right of entry
to a workplace, a union have a written invitation from an employee who is a
member of that organisation. Provision is made to ensure the confidentiality of
employees who give invitations.
13.4 Provision is also made for the
variation and revocation of permits where there is evidence of breach or
misconduct with respect to the exercise of powers granted by such permits. Such
powers are to be exercised by the Commission.
13.5 In addition, the
Commission could make orders restricting the rights of an organisation or
specified officers or employees if satisfied that there is evidence of abuse of
the permit system.
Workplace Relations Act 1996
Item 1 - Subsection
127AA(1)
13.6 This item proposes a technical amendment to subsection
127AA(1).
13.7 This item proposes to remove the reference to section 285G (current
section 285G is to be repealed) and substitute a reference to new section 285J
(a new provision which allows the Commission to make orders to address abuse of
the permit system). This item is consequent upon item 20 of this Schedule.
Item 3 - Before subsection 178(2)
13.8 Subsection 178(1)
provides for penalties for breach of Commission orders.
13.9 As provision
is to be made separately for penalties for breach of Commission orders in
respect of right of entry (new section 285F), subsection 178(1) is not to apply
to orders made by the Commission under Division 11A of Part IX.
Item
4 - Subsections 285A(2), (3), (4), (5) and (6)
13.10 This item
proposes the repeal of subsections 285A(2), (3), (4), (5) and (6), which relate
to the operation and revocation of permits issued by a Registrar under section
285A(1).
13.11 The item proposes new subsections 285A(2), (3), (4), (5),
(6), and (7).
13.12 Proposed new subsection 285A(2) requires a Registrar to refer an application for a right of permit to the Commission where:
• a permit previously issued to the officer or employee in question has been revoked, varied or issued subject to a condition;
• the Commission has made an order prohibiting the issue of a further permit for a period, or making the issue of further a permit subject to conditions;
• the officer or employee has contravened a penalty provision;
or
• the officer or employee or his or her organisation is, or has
been, the subject of an order of the Commission under section 285J (which
relates to abuse of the permit system).
13.13 If an application is
referred to the Commission, it must have regard to the matter or matters which
provided the grounds for the Registrar’s referral [proposed subsection
285A(3)].
13.14 Should the Commission decide that the permit should be
issued, it must direct the Registrar to issue the permit, or issue the issue the
permit subject to conditions [proposed subsection 285A(4)].
13.15 Proposed subsection 285A(5) provides that a permit granted under
section 285A would continue in force until it expires or is revoked by the
Commission. If the permit is not revoked, it would expire either after three
years, or when the person to whom it was issued ceases to be an officer or
employee of the organisation concerned.
13.16 An expired permit must
be returned to the Registrar
within 14 days of its expiry [proposed subsection
285A(6)].
13.17 Proposed subsection 285(7) defines ‘penalty
provision’ as having the same meaning as in section 285F.
Item 5
- Subsection 285B(1)
13.18 Subsection 285B(1) sets out the basis upon
which a permit holder may enter for investigative purposes: entry must relate to
a suspected breach of the Act, or of an award, order of the Commission or
certified agreement that is in force and which binds the permit holder’s
organisation.
13.19 The item proposes to replace subsection 285B(1), to
reflect the requirement for an invitation from a member at the premises. It is
also proposed that entry be available in respect of a suspected breach of an
‘old IR agreement’. [A definition of this term is to be introduced
by item 3 of Schedule 11].
Item 6 - At the end of subsection
285B(2)
13.20 This item would insert a note after subsection 285B(2),
which relates to a permit holder’s ability to enter into premises to
investigate suspected breaches, to remind readers that a permit holder’s
entitlement to enter premises is subject to any conditions imposed on their
permit.
Item 7 - Paragraph 285B(3)(a)
Item 8 - Paragraph
285B(3)(b)
13.21 The amendment proposed by item 7 would ensure that a
permit holder may only make copies of documents that relate to the employment of
their members.
13.22 Item 8 proposes a similar limitation in respect of
viewing any work, material, machinery, or appliances that are related to the
breach.
Item 9 - Paragraph 285B(3)(c)
13.23 Item 9
proposes an amendment to paragraph 285B(3)(c), which allows a permit holder (for
the purposes of investigating a suspected breach) to interview employees who are
members of the permit holder’s organisation or who are eligible to become
members.
13.24 The proposed amendment would clarify that only those
employees who are willing to be interviewed, can be interviewed.
Item
10 - Subsection 285C(2)
13.25 This item proposes to replace existing
subsection 285C(2), which provides that discussions between permit holders and
employees can only occur during employees’ meal times or other breaks. For
structural reasons, this requirement is to be moved to proposed new section
285DA [item 15 of this Schedule].
13.26 New subsection 285C(2) sets out
the requirement for a permit holder to have an invitation.
13.27 New subsection 285C(3) would only allow a permit holder to enter
premises during working hours. This reflects existing subsection 285C(2).
13.28 This item proposes to insert new sections 285CA, 285CB, and 285CC
into the Act as follows.
13.29 New section 285CA proposes requirements for a valid invitation to
enter premises.
13.30 Those requirements are as follows:
• the invitation must be in writing and signed by at least one employee who works at the premises and is a member of the organisation;
• the invitation must be given to the organisation or to an officer or employee of the organisation;
• the invitation must state that the employee who has signed the
invitation has reasonable grounds to believe that there is evidence at the
premises which is relevant to a suspected breach; and
• the invitation
is current.
13.31 A current invitation is one that has been given within
28 days of the proposed entry; or has been certified under proposed section 291B
[item 21 of this Schedule] within 28 days of the proposed entry.
13.32 Proposed new section 285CB would provide that an invitation may
specify that it is an invitation to investigate a suspected breach, to hold
discussions, or to do both.
13.33 If the invitation does not specify a
purpose, it would be taken as an invitation to hold discussions.
13.34 Proposed new section 285CC (together with proposed new section
291B) would provide for the protection of the identity of an employee who has
given an invitation.
13.35 An invitation may state that the identity of
the inviting employee or employees is confidential [proposed subsection
(1)].
13.36 New subsection 285CC(2) would provide that if there is no
statement as to confidentiality, the organisation receiving the invitation must
ask the employee or employees who have signed the invitation if they wish their
identity to be confidential.
13.37 If an employee has indicated a
preference for confidentiality, the organisation must not reveal the
employee’s identity to the employee’s employer or the occupier of
the premises to which the invitation relates [proposed subsection
(3)].
Item 13 - Subsections 285D(1) and (2)
13.38 Section
285D requires a permit holder to comply with certain requirements in exercising
the right of entry conferred by sections 285B and 285C.
13.39 Subsection
285D(1) (which requires a permit holder to show their permit on request) and
subsection 285D(2) (which requires 24 hours’ notice of intended entry be
given to the occupier) would be repealed, and new subsections 285D(1), (2),
(2A), (2B), (2C), and (2D) – which extend these requirements - would be
inserted.
13.40 Proposed subsection 285D(1) would require a permit
holder to comply with a request by the relevant employer or the occupier to see
the invitation or permit relating to the proposed entry. The permit holder could
also be required, in the case of entry to investigate a suspected breach, to
provide particulars of the suspected breach. If a permit holder does not comply
with such a request he or she could not enter or remain on the premises.
13.41 Under proposed subsection (2), a permit holder requested to show the
relevant invitation would be able to comply with the request by showing the
employer or occupier a copy of the invitation or a confidentiality certificate
issued under section 291B [item 21 of this Schedule]. This would not to be taken
to limit the ways in which a request may be complied with – proposed
subsection (2A).
13.42 If a permit holder is requested by the relevant employer or occupier of the premises to provide particulars of the suspected breach under subsection 285D(1) then [under proposed subsection (2B)] the permit holder would be required to either:
• identify the requirement of the Act, award, order or agreement that
is suspected of being breached; the reasons for suspecting that a breach has
occurred; and the reasons for suspecting that there is evidence of the breach on
the premises; or
• show the employer or occupier a copy of a
certificate issued under section 291B, if that certificate contains a statement
of the grounds for entry. (Proposed new subsection 291B allows a statement of
grounds to be included in a confidentiality certificate.)
13.43 A person would be taken not to have complied with a request by the
employer or occupier to provide particulars of the suspected breach, in
circumstances in which the person does not show the employer or occupier a copy
of a certificate containing a statement of grounds, if the employer or occupier
indicates that they are not satisfied that adequate particulars have been
provided. The effect of this is that if the employer or occupier is not
satisfied that adequate particulars have been provided entry need not be
granted
• however, an employer or occupier must not indicate that they
are not satisfied with the particulars provided unless they have reasonable
grounds for doing so [this would be a penalty provision - proposed subsection
285E(2B)].
13.44 Proposed subsection 285D(2D) would require the permit
holder to give the employer and the occupier at least 24 hours’ notice in
writing of the intended entry. That notice must specify the day on which the
permit holder proposes to enter the premises.
13.45 This item would define, for the purpose of section 285D, the term
‘relevant employer’.
13.46 This item proposes to insert a new section 285DA.
13.47 New section 285DA would establish requirements for the conduct of
interviews and discussions with employees.
13.48 Under proposed
subsection 285DA(1) a permit holder may only interview or hold discussions with
employees during the employees’ mealtime or other breaks.
13.49 Proposed subsection 285DA(2) would allow the employer of an
employee, or the occupier of premises, to direct a permit holder to conduct
interviews or discussions in a particular room or area that is recognised as an
employee meeting room or meeting area. A permit holder could not remain on
premises unless he or she complies with this request.
Item 16 -
Subsections 285E(1) and (2)
13.50 This item proposes to replace
subsections 285E(1) and (2), which relate to permit holders hindering and
obstructing employers and employees, and the ability of an occupier to refuse
the entry of a permit holder, with new subsections 285E(1), (2), (2A) and (2B).
The prohibitions in existing subsections (1) and (2) would be retained or
extended.
13.51 Proposed subsection 285E(1) would prohibit a permit holder exercising
right of entry powers from intentionally hindering or obstructing any
person, or otherwise acting in an improper manner. This would extend
existing subsection (1), which prohibits such conduct only in respect of
employers and employees
• examples of acting in an improper manner are
set out in subsection 285G(2) [item 20 of this Schedule].
13.52 Proposed
subsection 285E(2) provides that a permit holder could only exercise powers
under sections 285B or 285C subject to any conditions attaching to that permit.
13.53 Proposed subsection 285E(2A) would provide that a person must not
refuse or unduly delay entry to premises by a permit holder who is entitled to
enter premises under sections 285B or 285C. (This reflects existing subsection
(2).)
13.54 Proposed subsection 285E(2B) would provide that an employer
or occupier must not indicate that he or she is unsatisfied with regard to
particulars for entry provided by a permit holder unless he or she has
reasonable grounds for being unsatisfied.
13.55 This item proposes to insert a note (in line with current drafting
practice) at the end of section 285E to the effect that each subsection of
section 285E is a civil penalty provision to which section 285F
applies.
Item 18 - Subsection 285F(1) (definition of penalty
provision)
13.56 This item proposes to repeal the existing
definition of ‘penalty provision’ and substitute a new definition.
The new definition reflects the fact that additional conduct is subject to civil
penalty as a result of the amendments made by this Schedule.
Item 19
- Subsection 285F(5)
13.57 This item would make clear that an
injunction (including an interim injunction) in respect of a breach of a penalty
provision may be sought by any person.
Item 20 -
Section 285G
13.58 This item would repeal existing section 285G,
which confers power on the Commission to prevent and settle industrial disputes
concerning the operation of the right of entry provisions (including by revoking
a permit) for the purpose of preventing or settling an industrial dispute.
13.59 This item also proposes the insertion of new sections 285G, 285H, 285J, 285K and 285L into the Act:
• proposed section 285G relates to variation and revocation of permits by the Commission;
• proposed section 285H relates to the variation or removal of conditions imposed on a permit;
• proposed section 285J provides for orders to be made by the
Commission to address abuse of the permit system; and
• proposed
sections 285K and 285L are consequential on sections 285G, 285H and 285J.
13.60 New subsection 285G(1) would provide that the Commission may vary
or revoke a permit where the permit holder has, in exercising right of entry
powers, intentionally hindered or obstructed another person or otherwise acted
in an improper manner, or not complied with an inviting employee’s request
for confidentiality.
13.61 In determining whether a permit holder has
intentionally hindered or obstructed another person or otherwise acted in an
improper manner, conduct occurring before the commencement of new section 285G
would be relevant [subsection (5)].
13.62 Proposed subsection 285G(2)
sets out examples of the type of conduct that could amount to acting in an
improper manner. The list is not exhaustive.
13.63 New subsection (3)
would provide that the Commission may vary a permit by applying a condition
preventing the permit holder from entering specified, or a specified part of, a
premises for a specified period.
13.64 If the Commission revokes a
permit, it may also order that no further permit be issued to that person for a
period, or that a permit may only be issued subject to certain conditions
[subsection (4)].
13.65 Under proposed new section 285H, the Commission would be able on
application to remove a condition applied to a permit.
13.66 The
Commission would only be able remove that condition if it was satisfied that the
circumstances that led to the condition being imposed have altered to render the
condition inappropriate.
New section 285J - Abuse of permit
system
13.67 Proposed new section 285J would allow the Commission to
make orders to address abuse of the right of entry permit system.
13.68 The powers of the Commission under this section could only be
exercised by the President, a Presidential Member assigned by the President to
deal with the matter, or, if the President directs, a Full Bench [subsection
(6)].
13.69 The Commission could make orders, either on application or
on its own motion, to restrict the powers of an organisation, or officers or
employees of an organisation, under the permit system where it is satisfied that
the organisation, officers or employees have abused the permit system
[subsections (1) and (7)].
13.70 The types of order that the Commission would be able to make include:
• an order that no officer or employee of a particular organisation can
exercise right of entry powers for a specified period; and
• an order
that a particular officer or employee may not exercise right of entry powers in
respect of specified premises for a specified period [subsection
(2)].
13.71 Conduct preceding the commencement of section 285J could be
taken into account by the Commission in making an order [subsection (3)].
13.72 Subsections 285J(4) and (5) would attribute responsibility for the
conduct of officers and employees to their organisation unless the committee of
management of the organisation or a person authorised by that committee has
taken reasonable steps to prevent the conduct.
13.73 Proposed section 285K would provide for the return and, if
necessary, reissue of permits affected by orders of the Commission. A permit
would be required to be returned within 14 days of a Commission order (this
requirement would be a penalty provision).
13.74 If the permit is made
subject to conditions, a Registrar would be required to issue a new permit with
those conditions specified.
13.75 Proposed section 285L would provide that an organisation, which is
subject to an order under section 285J, must comply with that order. This would
be a penalty provision, and failure to comply could attract a civil penalty.
[An officer or employee subject to a Commission order would also be obliged to
comply with the order – subsection 285E(2).]
13.76 This item proposes to insert a new section 291B. This section would
provide for a certificate to be issued to the effect that an invitation that
meets the requirements of the Act has been given to an organisation. This is
designed to ensure that the identity of inviting employees need not be revealed.
A certificate may also include a statement of reasons for entry.
New
section 291B - Certificate as to invitation to enter premises
13.77 A
Registrar would be required to issue a certificate to an organisation which has
an invitation to enter specified premises which was given to the organisation no
earlier than 28 days before the application was made, and which meets the
requirements of paragraphs section 285CA [subsection (1)]. An invitation would
be taken to be given to the organisation if given to one of its officers or
employees – subsection (2).
13.78 In the case of an invitation to enter to investigate a suspected breach, an organisation could also request the Registrar to include in a certificate a statement outlining:
• the requirement of the Act, award, order or agreement that is
suspected of being breached; and
• the grounds for suspecting that a
breach has occurred and that there is evidence relevant to the suspected breach
on the premises.
13.79 The Registrar would be required to include such a
statement if satisfied that the organisation has reasonable grounds for
suspecting the breach has occurred and that there is evidence relevant to the
suspected breach on the premises [subsection (3)]. This does not mean that the
Registrar must be satisfied that a breach is likely to have occurred; the
Registrar needs only to be satisfied that the applicant has reasonable grounds
for suspecting that a breach has occurred.
18.80 If included in a
certificate, this statement would be taken to be sufficient to comply with an
employer’s or occupier’s request for particulars of grounds for
entry [see section 285D; see also subsection (7)].
13.81 If not
satisfied, the Registrar would be required to refer the application to the
Commission for determination [subsection (4)].
13.82 Proposed subsection
291B(5) would provide that the Commission must determine the application
referred to it, and direct the Registrar either to include or not include the
statement in the certificate as requested.
13.83 A certificate could not
identify the inviting employee. It would be required, however, to identify the
organisation to whom the invitation was given, the premises to which the
invitation relates, the relevant employer and the occupier of the premises. It
would also be required to identify whether the entry is for the purposes of
investigation, discussion with employees, or for both purposes.
13.84 This item would provide that the requirement that a permit holder
have an invitation does not become compulsory until 14 days after the amendments
made by this Schedule come into effect.
13.85 Any application for revocation
of a permit made but not determined before the commencement of the Schedule
would remain on foot, and be treated as though the amendments made by this
Schedule had not happened.
13.86 This item proposes to save any orders made under the existing
section 285G, which is to be repealed [item 20 of this Schedule].
• extending the existing prohibitions to cover a broader range of conduct and prohibited reasons;
• providing for the removal from certified agreements and awards of
provisions which encourage or discourage union membership, or which indicate
support for unionism or non-unionism; and
• prohibiting the
establishment or maintenance of union closed shops at workplaces and
businesses.
14.2 The main features of the Schedule include:
• proposed amendments to extend the application of Part XA to conduct that is carried out because a person refuses to pay a fee to a union, refuses to enter into a restrictive agreement or arrangement (including a ‘site agreement’), has been a union member for a shorter or longer time than another member, or is doing something permitted or required by a Commonwealth industrial law or order;
• proposed amendments to consolidate and extend provisions describing prohibited conduct, and to extend the range of conduct that is prohibited;
• proposed amendments to ensure that inducing (for example by asking or inciting) another person to contravene Part XA, aiding and abetting, attempts and other forms of indirect involvement in conduct which contravenes the Part will itself be a contravention of the Part;
• proposed amendments aimed at prohibiting or establishing union closed shops;
• proposed amendments to confer jurisdiction on State and Territory Supreme Courts to deal with Part XA applications;
• proposed amendments to expand the range of orders available to a
court dealing with a Part XA matter; and
• proposed amendments to allow
the removal of a greater range of objectionable provisions from awards and
certified agreements, including union encouragement and discouragement
clauses.
Item 1 - After subsection 268(10)
14.3 This item proposes
to insert new subsection 268(10A), which would require the Australian Workplace
Relations Registrar to allow the Employment Advocate, or an authorised officer
appointed under Part IVA of the Act, to inspect, make copies of or take extracts
from a register of members of an organisation.
14.4 In order gain access to a
register under proposed subsection 268(10A), the party seeking approval from the
Registrar would be required to make a request in writing.
14.5 This
amendment is intended to enable the Employment Advocate or an authorised officer
to obtain information for the purposes of investigating whether a closed shop is
being maintained or established in contravention of Part XA of the Act.
Item 2 - Subsection 268(11)
14.6 This item proposes a
minor technical amendment to include a reference to new subsection
268(10A).
Item 3 - Subsection 298B(1)
Item 4 - Subsection
298B(1)
14.7 These items propose to insert definitions of
‘Commonwealth industrial instrument’ and ‘Commonwealth
industrial law’ into subsection 298B(1) for the purposes of Part XA. These
amendments relate to amendments proposed by items 6 and 32 of this
Schedule.
Item 5 - Subsection 298B(1)
14.8 This item
proposes to insert a definition of ‘threat’ into subsection 298B(1)
for the purposes of Part XA.
14.9 This definition would extend the
meaning of ‘threat’ to include an indirect or implied threat, as
well as an express threat made directly to a person. This would allow a threat
which is not made expressly but which can be implied from actions, equivocal
language and surrounding circumstances to be covered by a reference to a threat
in Part XA. Threats that are not made directly (for example, threats made
through a chain of persons) would also be within the coverage of Part XA.
Item 6 - At the end of Division 1 of Part XA
14.10 This item
proposes to insert a new section 298BA into the Act, setting out prohibited
reasons for the purposes of Part XA.
New section 298BA - Meaning of
‘prohibited reason’
14.11 Proposed subsection 298BA(1)
would bring together in a single section the reasons that are not allowed to be
the basis for certain conduct by any of the persons covered by Part XA
(including employers, employees, independent contractors, persons who engage
independent contractors and industrial associations). Other prohibited reasons
that are specific to particular persons or circumstances are contained in
particular provisions of Divisions 3, 4 and 5 of Part XA.
14.12 Most of
the prohibited reasons are derived from those currently set out in paragraphs
298L(1)(a) to (k) of the Act. However, a number of new prohibited reasons would
be included to catch motivations that relate to freedom of association but which
attach to circumstances not covered by the existing provisions.
14.13 The
proposed new prohibited reasons for engaging in conduct covered by Part XA are
contained in paragraphs 298BA(1)(c), (l), (m) and (n).
New paragraph
298BA(1)(c)
14.14 This paragraph would make the refusal or failure
of a person to pay a fee to a union, or a payment in lieu of such a fee, a
prohibited reason for engaging in certain conduct. This paragraph is aimed
mainly at the practice of exerting pressure on persons who are not members of an
industrial association to pay a fee to the industrial association (or to another
industrial association or person) in lieu of the union dues. However, it would
also apply in the case of an employer who discriminated against an employee
because they had not paid their union dues, and to an industrial association
which applied pressure to the employer to take that action.
New
paragraph 298BA(1)(l)
14.15 Conduct that uses a comparison between
the periods of union membership of members would now be conduct for a prohibited
reason by virtue of proposed paragraph 298BA(1)(l). Paragraph 298BA(1)(l) would
be broad enough to apply to a comparison between aggregate lengths of union
membership, or to a comparison measured by reference to when the persons last
joined the particular industrial association in question.
New
paragraph 298BA(1)(m)
14.16 New paragraph 298BA(1)(m) would make a
refusal by a person to enter into a restrictive agreement or arrangement a
prohibited reason for conduct by employers, persons who engage contractors and
others. A restrictive agreement or arrangement is defined in proposed subsection
298BA(3).
14.17 Paragraph 298BA(1)(m) is aimed at prohibiting the
exertion of pressure on persons (often independent contractors) to enter into
arrangements under which the person is required to provide substantially the
same terms and conditions of employment or engagement to their employees and
independent contractors as are provided to another person’s employees or
independent contractors. These restrictive agreements or arrangements may take
the form of ‘site agreements’ or be an element of ‘pattern
bargaining’ but the definition is not confined to those particular forms
of restrictive arrangement.
14.18 The definition of ‘excluded terms
and conditions’ in subsection 298BA(3) is to be inserted for the purposes
of the reference to excluded terms and conditions in the definition of
restrictive agreement or arrangement. The provision made for excluded terms and
conditions would recognise that there are some matters which are included in
arrangements that would otherwise be caught by the definition, but which may
legitimately be insisted upon. For example, terms and conditions about
superannuation that reflected the requirements of Commonwealth superannuation
legislation would be legitimate. Terms and conditions about occupational health
and safety that reflected the requirements of Commonwealth law, or of a
prescribed State or Territory law, could also be insisted upon. Provision is
made in the definition for State and Territory laws to be prescribed, and also
for particular kinds of terms or conditions of employment or engagement to be
prescribed.
New paragraph 298BA(1)(n)
14.19 New
paragraph 298BA(1)(n) proposes to introduce a new ‘catch-all’
prohibited reason, aimed at preventing conduct engaged in for the reason that a
person does something which is expressly required or permitted by a Commonwealth
industrial law, a Commonwealth industrial instrument or an order of the
Commission. This provision would not derogate from those paragraphs of
subsection 298BA(1) that refer to specific things that a person may do under the
Act.
New subsection 298BA(2)
14.20 New subsection 298BA(2)
would provide that conduct of a person is also for a prohibited reason if it is
engaged in because the person believes another person satisfies one or more of
circumstances specified in a paragraph of subsection 298B(2). For example, if a
person engages in discriminatory conduct because of a belief that another person
is not a member of an industrial association, that belief constitutes a
prohibited reason even if the belief is mistaken.
Item 7 - Section
298C
14.21 This item proposes to amend section 298C so that only
those Divisions of Part XA that apply to conduct are referred
to.
14.22 The item also proposes to change the title of the provision to
reflect the substantive amendment.
Item 8 - At the end of subsection
298G(1)
14.23 This item proposes to expand the range of conduct in
respect of constitutional corporations to which Part XA
applies.
14.24 Proposed paragraph 298G(1)(c) would include within the
scope of Part XA conduct entered into with the intent of adversely affecting a
corporation. This differs from paragraph 298G(1)(b) as the new provision would
catch conduct entered into with the intent (in whole or in part) to have an
adverse effect on a corporation, but would not require the conduct entered into
to actually have that effect.
Item 9 - Subsection
298G(2)
14.25 This item proposes a minor technical amendment to
include a reference to proposed paragraph 298G(1)(c) in subsection 298G(2), so
that the meaning of ‘adversely affect’ is uniform across paragraphs
298G(1)(b) and (c).
Item 10 - Paragraph
298G(2)(a)
14.26 This item proposes a minor technical amendment to
remedy a typographical error.
Item 11 - Paragraph
298G(2)(b)
14.27 This item proposes a technical amendment to clarify
the identity of the person referred to in the paragraph and the relationship of
that person with the constitutional corporation.
Item 12 - Subsection
298K(1)
14.28 This item proposes a minor technical amendment, which
would be required as a result of changes to the structure of Part XA proposed in
items 7 and 18 of this Schedule.
Item 13 - After paragraph
298K(1)(c)
14.29 This item proposes to include discrimination against
an employee for a prohibited reason as conduct that is prohibited under Part XA.
Treating an employee differently from another employee for a prohibited reason,
even where the differential treatment does not injure the employee or alter the
employee’s position to their prejudice, would be caught by proposed
298K(1)(ca).
14.30 An example of the type of conduct that would be
caught by proposed paragraph 298K(1)(ca) is where, for a prohibited reason, an
employer gives an employee a lower priority than other employees when allocating
overtime. This may not be caught by any existing provision in subsection
298K(1).
Item 14 - At the end of paragraph
298K(1)(d)
14.31 This item proposes to extend the type of conduct in
relation to refusal of employment that would be caught by Part XA of the Act to
include refusal to consider a person for employment.
14.32 The amendment
would enable a person to be protected by Part XA if the person is removed from
consideration for a job for a prohibited reason, but is not subject to an
express refusal.
Item 15 - Subsection 298K(2)
14.33 This
item proposes a minor technical amendment to subsection 298K, which parallels
that proposed to subsection 298K(1) by item 12 of this Schedule. It is
consequential on the changes to the structure of Part XA proposed in items 7 and
18 of this Schedule.
Item 16 - After paragraph
298K(2)(c)
14.34 This item proposes to include discrimination against
an independent contractor for a prohibited reason as conduct that is not
sanctioned by Part XA. It parallels the amendment proposed by item 13 in
relation to employees.
Item 17 - At the end of paragraph
298K(2)(d)
14.35 This item parallels the amendment proposed by item
14. It would extend the range of prohibited conduct by persons who engage
independent contractors to include refusal to consider a person for engagement
– for example, by informing prospective contractors that they will not be
considered for a contract unless they enter into an restrictive agreement or
arrangement.
Item 18 - Before subsection
298L(1)
14.36 This item proposes to insert new subsection 298L(1A).
This subsection will specify who is ‘another person’ in proposed
section 298BA, for the purposes of identifying whether conduct under section
298K is for a prohibited reason.
14.37 Proposed paragraphs 298L(1A)(a),
(b) and (c) would specify each of the persons whose actions, omissions or status
is referred to in subsection 298BA(1), and accordingly, could be the subject of
conduct under section 298K which is for a prohibited reason.
14.38 In
particular, paragraphs 298L(1A)(b) and 298L(1A)(c) are intended to extend the
operation of section 298L so that conduct engaged in for prohibited reasons by
head contractors would be caught regardless of the type of work arrangements or
remoteness of the relationship between that person and the person to whom the
prohibited reason relates. For example, if a head contractor refuses work to an
independent contractor because employees of that contractor are union members,
the conduct by the head contractor would be for a prohibited reason under the
proposed amendments. More remote connections would also be caught by virtue of
paragraph 298L(1A)(c).
14.39 The item also proposes a change to the title
of section 298L to reflect the substantive amendment.
Item 19 -
Subsection 298L(1)
14.40 This item proposes a minor technical
amendment to indicate that the reasons listed in subsection 298L(1) are
additional to the prohibited reasons mentioned in subsection 298BA(1). These
additional reasons apply in the context of Division 3 of Part XA.
Item
20 - Paragraphs 298L(1)(a), (b), (c), (d), (e), (f), (g), (h), (i), (j) and
(k)
14.41 This item proposes a minor technical amendment to repeal
these paragraphs. All of the repealed paragraphs would be substantially
reproduced in subsection 298BA(1) by item 7 of this Schedule.
Item 21
- Paragraph 298L(2)(b)
14.42 This item proposes a minor technical
amendment to insert a reference to prohibited reasons that are mentioned in
either subsection 298L(1A) or subsection 298L(1).
Item 22 - Subsection
298L(2)
14.43 This item proposes a minor technical amendment to take
into account that subsection 298L(2) relates to a prohibited reason under either
subsection 298BA(1) or subsection 298L(1).
Item 23 - Section
298M
14.44 This item proposes to extend the types of conduct by an
employer or a person who engages an independent contractor that would be
prohibited by section 298M.
14.45 The amendment would expand the scope of
section 298M to include inducing an employee or independent contractor to become
a member or officer of an industrial association, as well as to cease membership
or to abandon an office.
14.46 The item also proposes a change to the
title of the provision to reflect the substantive amendment.
Item 24 -
Section 298N
Item 25 - Section 298N
14.47 These items
propose to amend section 298N to accommodate the changes to the structure of
Part XA proposed by item 7 of this Schedule, and to widen the range of
prohibited reasons for ceasing to work (or threatening to cease
work).
14.48 Paragraphs 298N(a) - (e) would be omitted, as the reasons
currently listed in those paragraphs would all be included in new section 298BA.
The reasons in section 298BA are to be caught by the references to
‘prohibited reason’ (to be inserted by item
24).
14.49 Section 298N would also apply where the prohibited reason
relates to a person who is not the person who employed or engaged the employee
or independent contractor (for example, where an employee ceases work because
another employee is not a member of an industrial
association).
14.50 Item 24 also proposes to add threats to cease work as
conduct by employees that would be captured by Part XA.
Item 26 -
Section 298P
New section 298P - Industrial associations acting
against various persons
14.51 This item proposes to introduce several
changes to the substance and coverage of section 298P. Proposed section 298P
would incorporate existing sections 298P, 298Q and 298S. Section 298R would
remain a separate section because the relationship of industrial associations
with their members and the kinds of pressure typically exerted on members differ
significantly from the relationships between industrial associations and persons
in their capacity as employees, employers, independent contractors and persons
who engage such contractors.
14.52 The new structure, content and
terminology of section 298P would remove some of the deficiencies and anomalies
that currently exist in Division 4 of Part XA. Section 298P would deal with a
range of different circumstances that involve conduct by industrial associations
against other persons that infringe the principles of freedom of association.
14.53 Some of the subsections of proposed section 298P draw on the
prohibited reasons now listed in section 298BA. However, proposed section 298P
would not draw the sharp distinctions previously made in Division 4 between the
targets of the conduct of industrial associations, and the type of conduct. Each
subsection would now prohibit conduct taken by an industrial association against
or in relation to a ‘person’. The type of person referred to would
be limited to some degree by the context, but in most instances would cover at
least two of the categories of employee, employer, independent contractor and
person who engages an independent contractor.
14.54 The proposed
amendments recognise that an independent contractor may at the same time be an
employer and a person who engages other independent contractors. But the
amendments also recognise that an independent contractor may be a natural person
who is engaged to do work that an employee might otherwise do. The more flexible
form of new section 298P would accommodate these various possibilities.
New subsection 298P(1)
14.55 This new provision is derived from current subsection
298P(1).
14.56 It would prohibit industrial action being taken, threatened or
organised against a person for a prohibited reason. However, it would not be
restricted to industrial action against an employer. The prohibited reasons
would include all those listed in section 298BA, rather than an employer’s
membership of an industrial association only. The prohibited reason could relate
to any person, not just an employer against whom the industrial action is
directed.
New subsection 298P(2)
14.57 This proposed
subsection is derived from current subsection 298P(2) and paragraph
298S(2)(c).
14.58 It would prohibit industrial action being taken,
threatened or organised against a person with intent to coerce the person to
achieve a specified outcome. The person to whom the coercion is applied would
usually be an employer, but may be an independent contractor who is also an
employer. The person could also be an independent contractor who is or would be
eligible to join an organisation of employees.
New subsection
298P(3)
14.59 This proposed subsection is derived mainly from current
paragraphs 298S(2)(a) and (b).
14.60 It would prohibit a range of conduct
carried out for a prohibited reason (within the meaning of section 298BA) or
with a particular intent. First, it would prohibit advising, encouraging or
inciting a person to refuse to make use of services offered by another person,
or to supply goods or services to a third person. Secondly, it would prohibit an
industrial association from taking or threatening to take any action against a
person with intent (wholly or partly) to coerce that person or another person to
refuse to make use of services offered by another person, or to supply goods or
services to a third person.
14.61 The object of the prohibited conduct in
both cases is the same – to bring about a refusal to deal with a third
person. That object, as set out in proposed subsection 298P(3), is similar to
‘discriminatory action’ as currently defined in subsection 298S(1),
but would not be as limited with respect to the target of the
conduct.
New subsection 298P(4)
14.62 This new provision is
aimed specifically at conduct engaged in by an industrial association with the
intent of forcing another person to enter into a restrictive arrangement or
agreement (as defined in section 298BA). It would catch coercion exerted on a
head contractor or other principal, and also coercion exerted on a contractor or
employer further down the chain.
New subsection
298P(5)
14.63 This proposed provision is mostly new, but would
broaden the scope of current section 298Q [now covered also by proposed
subsection 298P(6)]. It aims to extend the range of prohibited conduct by
industrial associations against employees and independent contractors so that it
more closely corresponds to the constraints on employers.
14.64 New
subsection 298P(5) would prohibit an industrial association from taking or
threatening any action that has the effect of prejudicing an employee or
independent contractor in their employment or engagement. It would apply whether
the effect on the target is direct or indirect.
14.65 The pressure could
be exerted on an employer, a person who engages an independent contractor or
another person through whom the prejudicial effect can be realised. The conduct
would be prohibited if it is done for a prohibited reason, or reasons including
a prohibited reason, or if it is done with the intent to coerce a person to join
or remain a member of a union.
New subsection
298P(6)
14.66 This proposed subsection is derived from current
section 298Q. There is little change proposed to the current provision, other
than that proposed subsection 298P(6) would apply to independent contractors as
well as employees, and would apply when carried out partly, as well as wholly,
with the specified intent. Like subsection 298P(5), the pressure could be
exerted on an employer or a person who engages the independent contractor.
New subsection 298P(7)
14.67 This proposed provision is based
on current subsection 298P(3). It would prohibits pressure being applied to
employers and persons who engage independent contractors to make them take
action against another person which would contravene section 298K. The
prohibited conduct is substantially the same as in current subsection 298P(3).
However, any action would be caught (not just industrial action), partial intent
would suffice, and the action or threat would not have to be against an
employer.
14.68 A further change proposed is the removal of a loophole
that may have allowed the industrial association to rely on the absence of a
prohibited reason on the part of the employer as a defence. At present, if an
employer took discriminatory action against an employee because of coercion by
the industrial association, the employer might not contravene section 298K
(because it might not have acted for a prohibited reason). This could operate to
negate any contravention by the industrial association under current subsection
298P(3). The additional words at the end of subsection 298P(7) would remove the
scope for this construction.
New subsection
298P(8)
14.69 This provision is substantially the same as current
subsection 298P(4), except that any action would be caught (not just industrial
action), partial intent would suffice, and the pressure would not have to be
applied to an employer. Proposed subsection 298P(8) would also apply where the
target is an independent contractor, as well as an employee. The subsection
would prohibit certain forms of pressure being applied by an industrial
association to a person to make that person do something to prejudice a member
of the association in their employment or engagement, because the member has not
complied with directions by the association.
New subsection
298(9)
14.70 This provision would reproduce current subsection
298P(5). It supplements subsection 298P(8) and would be unchanged in
substance.
Item 27 - Section 298Q
14.71 This item proposes
to repeal section 298Q, which would be incorporated into proposed new section
298P.
Item 28 - Paragraph 298R(a)
14.72 This item proposes
to broaden the application of paragraph 298R(1)(a) by providing that the intent
referred to in this paragraph may be held wholly or partly. This amendment is
consistent with other amendments proposed by this Schedule.
Item 29 -
After paragraph 298R(a)
14.73 This item proposes to insert a new
paragraph in section 298R to ensure that the section would apply when the intent
of the conduct caught by the section is wholly or partly to coerce a member into
maintaining his or her membership of an industrial association.
Item
30 - Paragraph 298R(c)
Item 31 - Paragraph
298R(d)
14.74 These items propose minor technical amendments that
take into account the different ways in which secret ballots may take place
under industrial laws, and to remove superfluous words. Proposed paragraphs
298R(c) and 298R(d) parallel proposed paragraphs 298BA(1)(f) and 298BA(1)(g)
respectively.
14.75 In addition, item 31 would correct a drafting
oversight at the beginning of paragraph 298R(d).
Item 32 - At the end
of section 298R
14.76 This item proposes to add another reason to the
list of reasons in section 298R.
14.77 Proposed paragraph 298R(e) would
prohibit conduct covered by the section which is engaged in because a member is,
or is proposing to do, something which is authorised under a Commonwealth
industrial law or instrument, or an order of the Commission. This paragraph
parallels paragraph 298BA(1)(n). It would not derogate from paragraphs 298R(c)
and 298R(d).
Item 33 - Section 298S
14.78 This item
proposes to repeal section 298S, which would be incorporated into proposed
section 298P, mainly by subsections 298P(2) and 298P(3).
Item 34 -
After Division 5 of Part XA
14.79 This item proposes to insert a new
Division into Part XA, which specifically deals with the prohibition of closed
shops, as follows.
New Division 5A - Closed shops
New
section 298SA - Prohibition on closed shops
14.80 Subject to proposed
section 298VA, this proposed section would expressly prohibit the establishment
or maintenance of a closed shop, or engaging in conduct wholly or partly with
intent to bring about the establishment or maintenance of a closed
shop.
New section 298SB - When a closed shop
exists
14.81 This new section would specify when a closed shop exists
for the purposes of section 298SA.
14.82 The description in subsection 298SB(1) embraces the concepts of both prevalence of union membership at a workplace or business, and pressure to become or remain a union member:
• the first element is that at least 60% of the workers of the same
class or who do the same kind of work at the workplace or business are members
of the same industrial association; and
• the second element is that
membership of an industrial association is an express or implied condition of
the employment or engagement of workers of that class or doing that work, or
that there is a reasonable likelihood that conduct which would contravene Part
XA would be taken against them if they were not members of an industrial
association. The existence of either or both of the circumstances specified in
paragraph 298BA(1)(b) would satisfy this second element.
14.83 The
section would apply to closed shops at a workplace or a business. Business would
be defined to include a business, project, undertaking or activity that is
carried on by a single employer, or multiple employers engaged in a joint
venture or a common enterprise.
Item 35 – Before Division 6 of
Part XA
14.84 This item proposes to insert a new Division into Part
XA to prohibit certain kinds of ancillary and indirect conduct. The Division
would apply to persons generally although, like the other Divisions of Part XA
that apply to conduct, its application would be governed by Division 2.
New Division 5B - Other prohibited conduct
New section
298SC - Indirect conduct
14.85 New section 298SC would prohibit a
person from engaging in certain activities for reasons that include a prohibited
reason (within the meaning of section 298BA) aimed at inducing a contravention
of Part XA.
14.86 The section would apply to a range of persuasive and
coercive conduct whether engaged in directly or indirectly. For example, a
person would contravene this section if the person encouraged a particular
company to put pressure on a related company to discriminate against certain of
its employees because they were not members of an industrial association.
Provided that the first person has a prohibited reason for their conduct, there
could be a contravention of this section by that first person whether or not the
person who carries out the requested conduct does so for a prohibited
reason.
New section 298SD – Aiding and abetting etc.
contraventions of this Part
14.87 This new section would prohibit
certain other forms of indirect conduct in relation to contraventions of Part
XA. The prohibited conduct would include aiding and abetting a contravention,
being knowingly concerned in a contravention, or attempting to contravene the
Part or to induce a contravention.
Item 36 - Before section 298T of
Division 6 of Part XA
New section 298TA -
Definitions
14.88 This item proposes to insert a definition of
‘appropriate court’ into the Act for the purposes of Division 6 of
Part XA.
Item 37 - Subsection 298T(1)
Item 38 - Section
298U
14.89 These items propose to amend subsections 298T(1) and 298U
respectively to allow orders to be sought from either the Federal Court of
Australia or the Supreme Court of a State or Territory in respect of a
contravention of Part XA.
14.90 The items also propose changes to the
titles of the provisions to reflect the substantive amendments.
Item
39 - Paragraph 298U(c)
14.91 This item proposes a minor technical
amendment to take into account that a State or Territory Supreme Court may also
give orders under Division 6.
Item 40 - Paragraph
298U(e)
14.92 This item proposes to expand the kinds of injunctions
and orders that can be granted under section 298U.
14.93 A court would
continue to be able to grant injunctions or make orders in respect of conduct in
contravention of Part XA that the court thinks necessary to stop the conduct or
remedy its effects. In addition the court would be able to grant injunctions or
make orders under proposed paragraph 298U(e) as the court thinks necessary to
prevent the person from engaging in further contravening conduct, to prevent the
establishment of a closed shop, or to eliminate a closed
shop.
Item 41 - At the end of section
298U
14.94 This item proposes to insert three new subsections into
section 298U.
14.95 Subsection 298U(2) would confer power on an
appropriate court to grant injunctions and make orders to prevent future conduct
that would contravene Part XA. Unlike the powers conferred on a court under
subsection 298U(1), this subsection would not only apply in respect of
contravening conduct (or alleged contravening conduct) which has already
occurred.
14.96 Subsection 298U(3) would vest federal jurisdiction in the
Supreme Courts of the States and Territories.
14.97 Subsection 298U(4)
would ensure that the powers conferred on an appropriate court under section
298U are not taken to be in derogation of any other powers of the court.
Item 42 – At the end of Division 6 of Part XA
New
section 298VA - Presumptions about closed shops
14.98 This item
proposes to insert a new section 298VA. The new section will have two purposes:
first, to ensure that a contravention of section 298SA can only be found if the
person is found to have contravened another provision of the Part; and secondly,
to create an additional presumption that would apply in relation to closed shop
proceedings only. Under proposed subsection 298VA(1), if proceedings for a
contravention of section 298SA are instituted against a person, then the court
must first find that the person engaged in conduct for the reason or in the
belief that another person satisfied paragraph 298BA(1)(b), (c) or (m), or with
an intent to coerce another person to become or remain a member of an industrial
association. The court must also find that the conduct contravened Part XA
(apart from section 298SA).
14.99 Subsection 298VA(2) would ensure that
if the findings about conduct that are set out in subsection 298VA(1) are made,
then the presumption set out in 298VA(4) applies.
14.100 The
presumption would also operate when a person is found, in other proceedings, to
have engaged in conduct prohibited by Part XA for the reason or in the belief
that another person satisfies paragraph 298BA(1)(b), (c) or (m), or with an
intent to coerce another person to become or remain a member of an industrial
association. In such a case it would be presumed, in closed shop proceedings,
that the conduct was engaged in wholly or partly with intent to establish or
maintain a closed shop. If a closed shop within the meaning of section 298SB has
been found to exist at a relevant workplace or business, the presumption arising
from the conduct found in the first proceedings would be that the person against
whom the contravention is found was knowingly concerned in the establishment or
maintenance of the closed shop. The presumption could be displaced by the person
proving there was no intent or knowing involvement (as the case may be) in
relation to a closed shop.
14.101 Paragraphs (b), (c) and (m) of
subsection 298BA(1) are specified for the purposes of subsections 298VA(1) and
(3) because they each describe circumstances which relate, directly or
indirectly, to union membership. Thus the presumption would arise if it is found
in proceedings under Part XA that a person has engaged in conduct against a
second person for a reason or in the belief that relates to a person’s
failure to be or to remain a member of an industrial association, to pay a fee
sought by the industrial association or to enter into a restrictive agreement or
arrangement. The existence of these reasons and beliefs as the basis for conduct
which contravenes Part XA logically suggests that a person is attempting to
establish or maintain a closed shop or has been knowingly concerned in its
establishment or maintenance.
14.102 Where the presumption arises from
findings in proceedings other than the closed shop proceedings, subsection
298VA(4) would only apply when the closed shop proceedings are instituted at the
same time as the other proceedings or in the period starting on the date the
other proceedings are instituted and ending 12 months after an order is made in
relation to the other proceedings.
14.103 Proposed section 298VA would
operate in addition to section 298V.
Item 43 - Section
298Y
14.104 This item proposes to increase the types of arrangements
that are within the scope of section 298Y. The amendment would specify that both
industrial and non-industrial agreements and arrangements are relevant for the
purposes of this section.
14.105 The item also proposes a change to the
heading of the provision to reflect the substantive amendment.
Item 44
- Subsection 298Z(5)
14.106 The main purpose of this item is to
expand the definition of ‘objectionable provision’ for the purposes
of section 298Z and certain other provisions of the Act that prohibit the
inclusion of objectionable provisions in certain industrial
instruments.
14.107 Proposed paragraph 298Z(5)(a) refers to types of
provisions currently covered by section 298Z.
14.108 Proposed paragraph
298Z(5)(b) is directed at provisions that require a person to encourage or
discourage membership, whether the provisions operate expressly and directly, or
by implication or indirectly.
14.109 Proposed paragraph 298Z(5)(c) would
make provisions objectionable where they indicate a preference by way of support
for unionism or non-unionism generally.
14.110 Proposed paragraph
298Z(5)(d) would make provisions objectionable if they require payment of a fee
to an industrial association, or a payment to another person or industrial
association in lieu of such a payment, in respect of a person who is not a
member of the industrial association but who would have to pay a membership fee
if they were such a member. This is aimed at preventing provisions that require
the payment of ‘service fees’ by or in respect of non-union
employees or contractors.
14.111 Proposed subsection 298Z(6) would
provide that certain factors are not to affect the determination of whether a
provision is an objectionable provision. It does not matter if the provision in
question has effect by itself or in combination with other provisions, or
whether the provision is void because of section 298Y.
14.112 Proposed
subsection 298Z(7) would insert definitions of ‘permits’ and
‘requires’ for the purposes of subsection 298Z(5).
Item 45
- Section 496
New section 496 - Additional effect of Act - freedom
of association
14.113 This item proposes to extend the application of
Part XA so that provisions in awards and certified agreements that have effect
by virtue of Part XV of the Act can be caught by section 298Z as
amended.
Part 2 – Application, transitional and saving provisions
14.114 This Part deals with the application of the amendments proposed by
Part 1 of this Schedule.
Item 46 - Application of items 3 to 6 and 12
to 33
14.115 This item proposes that the amendments in items 3 to 6
and 12 to 33 of this Schedule would apply to conduct occurring after the
commencement of those items, but that the circumstances which gave rise to the
reason for the conduct may have occurred or been in existence before the
commencement.
14.116 For example, an employer who dismisses an employee
after the commencement of these items because the employee had refused to make a
payment to an industrial association before the commencement would contravene
section 298K. Similarly, an industrial association, which, after the
commencement, encourages the employer to take that action, would contravene
section 298P(7), whether or not the employee’s refusal occurred before or
after the commencement.
Item 47 - Application of proposed section
298SC
14.117 This item proposes that, in cases where the conduct
involves actions designed to induce another person to contravene Part XA,
proposed section 298SC would only apply in respect of inducing conduct that
occurs after the commencement of item 35 of this Schedule.
14.118 Again,
however, the reason for the conduct may relate to a circumstance which occurred
or existed before the commencement of item 35, and which is a prohibited reason
under Part XA as amended.
Item 48 - Application of items 36 to
41
14.119 This item proposes that orders could only be made by an appropriate court under section 298U as amended in respect of applications brought after the commencement of items 36 to 41 of this Schedule. However, such applications could relate to conduct which was engaged in before, on or after the commencement. For example, if an application for orders under Division 6 of Part XA:
• is made after the commencement;
• relates to pre-commencement conduct by a person; and
• the
conduct allegedly contravened Part XA as in force before the
commencement
the application would be governed by Division 6 as amended
by items 36 to 41.
Item 49 - Saving of applications made under
section 298T
14.120 This item proposes that applications under
section 298T made prior to the commencement of item 37 of this Schedule would be
unaffected by the commencement of that item where the Federal Court has not yet
made its decision in respect of the application at the time that item 37
commences.
14.121 This item would also provide that applications lodged
prior to the commencement of items 38 to 41 of this Schedule (which would amend
what orders a court may make in respect of contraventions of Part XA) would
continue to be dealt with in accordance with section 298T and 298U as in force
immediately before the commencement of these items.
Item 50 - Saving
of orders etc. made under section 298U
14.122 This item would ensure
the continuation of orders made prior to the commencement of items 36 to 41 of
this Schedule as if they had been validly made under the provisions as amended
by those items.
Item 51 - Application of item
42
14.123 This item proposes that new section 298VA (which proposes
presumptions about closed shops in certain circumstances) would apply to
proceedings instituted on or after the commencement of item 51 of this Schedule.
This means that the presumption could not arise from proceedings that were
instituted before the commencement of item 51, even if a finding of a relevant
contravention is made in the course of those proceedings after the
commencement.
Item 52 - Application of item 44
14.124 This
item proposes that the amendments proposed to section 298Z in relation to
objectionable provisions would apply only to applications under section 298Z
made after the commencement of item 52 of this Schedule.
Item 53 -
Saving of applications made under section 298Z
14.125 This item
proposes that applications under section 298Z lodged prior to the commencement
of item 44 of this Schedule would be unaffected by the commencement of that item
where the Commission has not yet made its decision in respect of the application
at the time that item 44 commences.
Item 54 - Transitional provision
for operation of section 298Z
14.126 This item proposes that
collective agreements entered into under the Act before 1 January 1997 would be
treated as if they were certified agreements under section 298Z as amended by
this Schedule. This would ensure the application of section 298Z as amended to
such instruments.
14.127 This amendment is intended to enable the removal
of objectionable provisions from old Industrial Relations Act agreements (both
certified agreements and enterprise flexibility agreements) made under the
Industrial Relations Act 1988 before its amendment by the Workplace
Relations and Other Legislation Amendment Act 1996.
SCHEDULE 15 - MATTERS REFERRED BY VICTORIA
15.1 This Schedule
proposes to amend Part XV and Schedule 1A of the Act, which were inserted into
the Act by the Workplace Relations and Other Legislation Amendment Act (No.
2) 1996. Part XV and Schedule 1A preserve aspects of the system which
existed under the former Employee Relations Act 1992 (Vic). In addition,
aspects of Part XV provide for the expanded operation in Victoria of provisions
contained in other Parts of the Act.
15.2 The amendments proposed by
Schedule 15 are primarily technical or consequential in nature, and are
generally aimed at clarifying the operation and enforceability of aspects of
Part XV and Schedule 1A.
15.3 The enforcement of minimum entitlements prescribed by Schedule 1A would be enhanced by:
• clarifying the operation of the Schedule 1A entitlements to annual leave and sick leave;
• clarifying that Schedule 1A employees are entitled to payment for work performed in excess of 38 hours a week;
• providing inspectors with the power to enter and inspect premises where they reasonably believe that Schedule 1A work is being performed;
• providing for a power to make regulations requiring employers to keep
and maintain employment records for employees covered by Schedule 1A, and
employees employed under Victorian employment agreements;
and
• providing that a breach of the Schedule 1A minima can be
prosecuted under sections 178 and 179 of the Act.
15.4 Part XV of the Act would be amended:
• so that section 494 applies to Victorian employers who are successors
to Division 2 certified agreements in the same way that subsection 170MB(2)
applies in relation to constitutional corporations and Commonwealth employers
who are successors to a Division 2 certified agreement; and
• to insert
a new section 509A, to provide a mechanism for the stand-down of Victorian
employees who are not employed under federal awards or agreements or Victorian
employment agreements.
Part 1 -
Amendments
Workplace Relations Act 1996
Item
1 - Subsection 86(1)
15.5 Item 1 proposes a revision of subsection
86(1) of the Act, and the insertion of new subsection 86(1A). Section 86 sets
out the powers of authorised inspectors to enter into and inspect workplaces for
the purpose of ascertaining compliance with the requirements of the Act, and of
certain industrial instruments made pursuant to it. New subsection 86(1) would
set out the general purposes for which inspectors may exercise their
powers.
15.6 Item 1 also proposes the insertion of new paragraph 86(1A)(c),
which would permit an inspector to require a person to produce a document
relevant to the purpose of ascertaining compliance with the Act or an award or
agreement (other than an Australian Workplace Agreement) made under it, without
first having to enter and inspect the premises of the employer. At present, an
inspector may only compel a person to provide information in the course of an
inspection of premises. That power to obtain documents would remain –
proposed subparagraph 86(1A)(b)(iv).
Item 2 - Subsection
86(2)
Item 3 - Subsection 86(3)
15.7 The amendments
proposed by items 2 and 3 are consequential upon the restructure of section 86.
Item 4 - After subsection 86(4)
15.8 Item 4 proposes to
insert new subsections 86(4A), (4B) and (4C), which would apply where an
inspector requests information from a person pursuant to a notice issued under
paragraph 86(1A)(c). New subsection 86(4A) proposes the formal requirements for
the notice. Proposed subsection 86(4B) would statutorily abrogate the privilege
against self-incrimination; however, subsection 86(4C) would provide that any
information obtained as a result of a document being produced under paragraph
86(4C) would not be admissible in any criminal proceedings against that
individual, unless it is a prosecution for hindering or obstructing an inspector
in the exercise of his or her powers.
15.9 Item 5 proposes to insert new subsections 86(6) and (7), which would
permit inspectors from the Department of Employment, Workplace Relations and
Small Business to enter into and inspect workplaces in Victoria where the terms
and conditions of employment of the employees concerned are determined by a
contract of employment other than a Victorian employment agreement.
15.10 The inclusion of these subsections would ensure that complaints of
breaches of such contracts of employment, and in particular, of the minimum
conditions of employment contained in Schedule 1A to the Act, would be able to
be efficiently and effectively investigated and resolved. In addition, the
amendments would ensure consistency with the regime which existed under the
former Employee Relations Act 1992 (Vic), sections 148 and 149 of which
conferred power on authorised inspectors to enter premises and inspect documents
for the purpose of ensuring compliance with that Act.
Item 6 -
Paragraph 305(b)
15.11 The amendment to paragraph 305(b) proposed by
item 6 is consequential upon the amendments made by item 1.
Item 7 -
Subsection 494(3)
15.12 Item 7 proposes the repeal of existing
subsection 494(3), and its replacement with a new subsection. The purpose of the
amendment is to ensure that the provisions concerning the succession of Division
2 certified agreements to employers in Victoria who are neither a constitutional
corporation or the Commonwealth are consistent with the amendments to section
170MB of the Act proposed by items 46, 47 and 48 of Schedule 8.
15.13 The amendments proposed by items 46 - 48 of Schedule 8 to section 170MB of the Act would permit the Commission to order that a certified agreement has limited or no binding effect on a successor, transmittee or assignee of the business, or part of the business, to which a certified agreement applies. In particular, it is envisaged that such an order may be made on the application of the employer bound by the agreement. It is envisaged that the Commission might make an order on application by:
• the successor employer after the succession, assignment or
transmission has occurred;
• an employer who is contemplating a
transfer of their business. (In this situation, the Commission order would only
apply if a succession, assignment or transfer occurred.)
15.14 Before the Commission makes an order, it would be required to give the persons bound by the agreement an opportunity to make submissions. However, an organisation bound by an agreement made directly between an employer and the employer’s employees (ie. an agreement made in accordance with section 170LK) would only to be entitled to make submissions if asked to do so by a member of the organisation:
• whose employment is subject to the agreement; and
• whose
industrial interests the organisation is entitled to represent.
Item 8
- Subsection 506(2)
15.15 Item 8 proposes the repeal of existing
subsection 506(2) of the Act, and the insertion of new subsections 506(2) and
506(3). New subsection 506(2) would permit proceedings to be brought for a
penalty (under section 178 of the Act) or a recovery of underpayments (under
section 179) in the case where a contract of employment, other than a Victorian
employment agreement, does not comply with a minimum term or condition set out
in Schedule 1A to the Act.
15.16 Although section 533 allows an employee
to seek a penalty in respect of a breach of a minimum term or condition in
Schedule 1A, the section does not provide for the recovery of an amount of
underpayment. In addition, an inspector is unable to bring an action under
section 533 on behalf of an employee. Accordingly, the amendment proposed by
this item would facilitate enforcement of Schedule 1A entitlements by permitting
inspectors to bring actions under sections 178 and 179 on behalf of employees to
whom those entitlements apply. Item 13 would amend section 533 to ensure that an
action for a penalty for a breach of a Schedule 1A entitlement could not be
instituted under both that section and section 178.
15.17 New subsection
506(3) would make clear that the amendment to subsection 506(2) is not intended
to prevent a person from taking action at common law in respect of such
breaches.
Item 9 - At the end of Subdivision B of Division 3 of Part
XV
Section 509A - Stand down provisions in a contract of
employment (other than an employment agreement)
15.18 Item 9 proposes
the insertion of new section 509A, which would provide an employer with a
statutory entitlement to stand down a Schedule 1A employee in certain
circumstances.
15.19 Where a contract of employment of a Schedule 1A
employee does not provide for the standing-down of that employee when that
employee cannot be usefully employed because of any strike, breakdown of
machinery or stoppage of work for any cause for which the employer cannot
reasonably be held responsible, the contract of employment would be deemed to
contain the model stand-down provision set out in subsection 509A(2). The model
stand-down provision is in the same terms as the provision deemed to be included
in Victorian employment agreements by virtue of section 519 of the
Act.
15.20 This amendment is intended to address uncertainty amongst
employers and employees in Victoria as to the right of employers to stand down
employees to whom it was not possible to provide work.
Item 10 -
Heading to Subdivision D of Division 3 of Part XV
15.21 Item 10
proposes the repeal of the existing heading to the Subdivision and its
replacement with a new heading, to reflect the changes proposed to Subdivision D
by item 11.
Item 11 - Section 514
15.22 Item 11 proposes
the repeal of existing section 514, which currently provides that the Workplace
Relations Regulations may require employers of employees in Victoria to issue
pay slips to those employees.
New section 514 - Making and retaining
employment records
15.23 Proposed section 514 would provide for a power to make regulations:
• requiring employers to keep and maintain employment records for employees employed under Victorian employment agreements, or pursuant to a contract of employment underpinned by the Schedule 1A minimum conditions;
• in relation to the inspection of such records;
and
• requiring employers to issue pay slips to those employees, as
prescribed by the regulations.
Item 12 - Section
532
15.24 Item 12 proposes the repeal of section 532. Section 532
provides that regulations under section 353A in relation to employment records
and pay slips may be made in respect of employees employed under Victorian
employment agreements. As the power to make regulations would be contained in
new section 514, section 532 would no longer be necessary.
Item 13
- At the end of section 533
15.25 Item 13 proposes the insertion of
new subsection 533(4). Section 533 provides for the recovery of penalties in
respect of a contravention of a ‘penalty’ provision. Accordingly, a
person can seek a penalty for contravention of subsection 500(1), which provides
that the minimum conditions of employment of employees in Victoria are contained
in Schedule 1A.
15.26 New subsection 533(4) would prevent a person from
applying for a penalty under section 533 for breach of a minimum term or
condition of employment applicable to the employment under section 500(1) if the
person has already sought a penalty under section 178 in respect of that breach.
15.27 Item 14 proposes the repeal of existing paragraphs 1(1)(a) and
(1)(b), and proposes to substitute new paragraphs. The amendments are intended
to clarify that casual employees are not entitled to annual leave and sick leave
under Schedule 1A. The new paragraphs also refer to the proposed formulae for
calculation of the Schedule 1A annual leave and sick leave entitlements.
15.28 Item 15 proposes to insert new paragraph 1(1)(f). This amendment
would clarify that an employee whose terms and conditions of employment are
governed by a contract of employment underpinned by the Schedule 1A minima is
entitled to payment for work performed in excess of 38 hours a week. Item 16 of
this Schedule would provide that hours worked in a week that are in excess of 38
are to be paid at the same hourly rate of pay as that applicable to the employee
for his or her work classification as determined by the Commission under
subsection 501(5), unless the employer and employee agree to a higher hourly
rate.
Item 16 - At the end of clause 1 of Schedule
1A
15.29 Item 16 proposes a series of amendments to clarify the
operation of the Schedule 1A entitlements concerning annual leave, sick leave,
and payment for hours worked in excess of 38 in a week.
15.30 At present,
Schedule 1A provides that the entitlements to annual leave and sick leave are to
be calculated on the basis of the number of ordinary hours required to be worked
in any four week or one week period respectively. This formula has led to
uncertainty in cases where the ordinary hours that the employee is required to
work vary from week to week. Accordingly, item 16 proposes a new formula for
calculation of these entitlements.
15.31 Item 16 also proposes to clarify
matters associated with the annual leave entitlement, including that it counts
as service for all purposes, is to be paid at the time the employee commences
annual leave or leaves his or her employment, and must be taken within 12 months
after the end of the year in which it accrued unless the employee and the
employer have agreed otherwise. In addition, item 16 would allow an employer to
direct an employee to take annual leave where the employer shuts down the
business for a period (eg a Christmas close-down, or a seasonal shut down).
Part 2 – Application and saving provisions
Item 17 - Definition
15.32 Item 17 provides that references
to ‘Principal Act’ are to the Workplace Relations Act
1996.
Item 18 - Application of item 8
15.33 Item 18
proposes that a person would only be able to institute proceedings under
sections 178 and 179 of the Act in respect of a breach of a minimum condition of
employment set out in Schedule 1A that occurs on or after the commencement of
item 8 of this Schedule.
Item 19 - Saving provision in relation to
certain regulations made for the purposes of sections 353A and 514 of the
Principal Act
15.34 Item 19 would provide for the preservation of
regulations made under sections 353A that prescribe record-keeping requirements
in respect of employees covered by a Victorian employment agreement. On
commencement of items 10, 11 and 12 of this Schedule, the regulations would be
taken to have been made under proposed subsection 514(2).
15.35 In
addition, item 19 would provide for the preservation of regulations made in
relation to pay slips under section 514. On commencement of items 10, 11 and 12,
the regulations would be taken to have been made under proposed subsection
514(3).
Item 20 - Application of items 14 and 16
15.36 Item
20 would provide that the amendments to Schedule 1A relating to the annual leave
and sick leave entitlements would apply in respect of the first year of the
employee’s employment that commences on or after the commencement of items
14 and 16 of this Schedule and each subsequent year of
employment.
15.37 Item 20 would also deal with the case where an employee
was employed before the date of commencement of the items, and continues in
employment after commencement. The amendments would apply in respect of such an
employee in respect of the year beginning on the (next) anniversary of the
employee’s engagement, and each subsequent year of the employee’s
employment.
SCHEDULE 16 - INDEPENDENT CONTRACTORSSCHEDULE 6 - INDEPENDENT
CONTRACTORS
16.1. This Schedule proposes to repeal sections 127A
-127C, which now confer jurisdiction on the Federal Court of Australia to review
contracts for services made by independent contractors.
Part 1 -
Amendments Part 1 - Amendments
Workplace Relations Act
1996
Item 1 - Paragraphs 45(1)(ea) and
(eb)
16.2 This item proposes to delete obsolete subparagraphs
45(1)(ea) and (eb) of the Act.
Item 2 - Sections 127A, 127B and
127C
16.3. This item proposes to repeal sections 127A, 127B and 127C
of the Act. These sections give the Federal Court of Australia power to review
contracts for services made by independent contractors. If the Court forms the
opinion that a contract is harsh or unfair, it may make an order setting aside
the whole or part of the contract, or it may vary the contract.
Item 3
- Subsection 178(9)
16.4. This item would repeal subsection 178(9) of
the Act. Subsection 178(9) provides that the general penalties for contravention
of awards and orders apply in respect of orders made under section 127B of the
Act. This is unnecessary given the repeal of section 127B.
Item 4 -
Subsection 179(3)
16.5. This item would repeal subsection 179(3) of
the Act. Subsection 179(3) allows a person to sue to recover money owing under a
section 127B order. This is unnecessary given the repeal of section 127B.
Part 2 - Transitional provisionsPart 2 - Transitional provisions
Item 5 - Definitions
16.6. This item defines terms used in
this Part. A reference in Part 2 to ‘commencing time’ means the day
on which the Schedule commences, and a reference to ‘Principal Act’
means the Workplace Relations Act 1996.
Item 6 - Application
of sections 127A, 127B and 127C
16.7. This item would ensure that, in
those cases where an application for review of a contract has been made but not
finalised before the commencing time, sections 127A, 127B and 127C continue to
have effect as if they had not been repealed.
Item 7 -
Application of sections 178 and 179
16.8. This item proposes that the
penalties which apply to a contravention of an order made under section 127B and
the entitlement of a person to sue to recover money owing pursuant to an order
made under section 127B will continue to apply as if subsections 178(9) and
179(3) of the Act had not been repealed.
17.2 This item proposes to correct a reference to a
paragraph.
Item 2 - Subsection 108(2)
17.3 This item
proposes to remove a reference to an obsolete subsection.
17.4 This item proposes to insert new sections 170JEB and 170JEC into the
Act, which will allow applications for orders under Division 2 and Subdivisions
D and E of Division 3 of Part VIA to be referred to a Full Bench or be handled
by the President of the Commission on his or her own motion, as follows.
17.5 This new section would provide for the reference to a Full Bench of
applications for orders under Division 2 and Subdivisions D and E of Division 3
of Part VIA. This new section has been modelled on section 107 (which provides
for reference of industrial disputes to a Full Bench), but has been adapted to
take account of the difference between applications under Part VIA and
industrial disputes.
17.6 It is intended that the process for handling
references under proposed section 170JEB should be broadly the same as that for
industrial disputes under section 107.
17.8 It is intended that the manner in which the President can deal with
applications under proposed section 170JEC should be broadly the same as that
for industrial disputes under section 108 (except in relation to the reference
of agreements to a Full Bench under subsection 108(7)).
Item 4 -
Subsection 178(1)
17.9 This item proposes to remove obsolete
references to bans clauses from subsection 178(1).
Item 5 - After
subsection 179(1)
17.10 Section 179 provides for the recovery of
payments owed to an employee under an award, order or certified agreement
through a small claims process.
17.11 This item proposes to extend the
provisions of section 179 to circumstances where an employer has failed to pay a
superannuation contribution in respect of an employee (and that contribution is
required by an award, order or certified agreement). Any outstanding amount
would be required to be paid on the employee’s behalf to a superannuation
fund or retirement savings account, rather than directly to the
employee.
Item 6 - Subsection 202(13) (definition of State
Act)
17.12 This item proposes to update references to State
legislation in subsection 202(13).
Item 7 – Subparagraph
253ZJ(1)(c)(i)
17.13 This amendment proposes to amend existing
subparagraph 253ZJ(1)(c)(i) to extend by another 12 months the time limit for
the making of applications to withdraw from union amalgamations that took place
before the commencement of the provisions concerning withdrawal from
amalgamations (31 December 1996). Accordingly, the time limit within which an
application can be made to withdraw from such an amalgamation will expire on 31
December 2000.
Item 8 - At the end of Division 3 of Part
XIV
New section 471A - Particular rights of intervention of
Minister in State or Territory courts
17.14 This item proposes to
insert new section 471A, which would allow the Minister to intervene in
proceedings under the Act before a State or Territory court.
17.15 The
new section is modelled on section 471, which confers on the Minister a right to
intervene in matters before the Federal Court arising under the
Act.
17.16 Amendments proposed by Schedule 11 (which relates to
industrial action) and Schedule 14 (freedom of association) would confer
jurisdiction on State and Territory Supreme Courts in a range of workplace
relations matters. The jurisdiction of Supreme Courts in such matters is to be
the same as that of the Federal Court.
17.17 State and Territory courts
also have powers under the Act in respect of a range of other matters (for
example, making orders in respect of penalty provisions under Part VIB
(certified agreements) and Part VID (Australian Workplace Agreements)). The
Federal Court also has jurisdiction in such matters.
17.18 Given the
range of matters under the Act which could now be determined by a State or
Territory court, and the fact that applications made to such courts could also
have been made to the Federal Court, it is appropriate that the Minister have an
equivalent right to that conferred by section 471 in respect of the Federal
Court, to intervene in proceedings before such courts to put submissions about
the intended operation of the legislation.
17.19 The heading of section
471 would also be amended by this item to reflect the proposed
amendment.
Item 9 - Paragraph (a) of Schedule 3
17.20 This
item proposes to update a reference to a term used in the New South Wales
legislation.
Item 10 - Paragraph (a) of Schedule 3
Item 11 -
Paragraph (b) of Schedule 3
Item 12 - Paragraph (d) of Schedule
3
17.21 These items propose to update references to State Acts in
Schedule 3 of the Act.
Part 2 - Application and transitional
Item 13 - Application of items 3 and 8
17.22 This item
proposes that item 3 would only apply to applications under Division 2 or
Subdivisions D or E of Division 3 of Part VIA of the Act that are lodged after
that item commences.
17.23 This item also proposes that item 8 would only
apply to proceedings where the application was lodged after the commencement of
that item.
Item 14 - Transitional - subsection 179(1A) of the
Workplace Relations Act 1996
17.24 This item proposes that an
employee should be able to sue under section 179 in respect of an outstanding
superannuation payment, as provided for by item 5 of this Schedule, whether the
payment was required to be made before or after the commencement of that
item.
18.3 Items 9 to 25, 30 and 31 propose to amend provisions of the
following legislation:
Navigation Act 1912
Safety,
Rehabilitation and Compensation Act 1988
Seafarers Rehabilitation and
Compensation Act 1992
Superannuation Act 1976
Superannuation
Act 1990
18.4 The essential purpose of the amendments is to clarify
references to ‘awards’ and ‘agreements’ in these Acts.
The need for clarification has arisen as follows.
18.5 Under the
Industrial Relations Act 1988, ‘award’ was defined so as to
include an enterprise flexibility agreement and a certified agreement. The
Workplace Relations and Other Legislation Amendment Act 1996 amended the
definition of ‘award’ in the Workplace Relations Act 1996 so
as to limit it to a written decision of the Commission in certain
circumstances.
18.6 As a result of the amendment to the definition of
‘award’ in the Workplace Relations Act 1996, it became
unclear whether a reference to an award in other legislation continued to
encompass a reference to an enterprise flexibility agreement or certified
agreement made under the former provisions of the Industrial Relations Act
1988, to a certified agreement or Australian Workplace Agreement made under
the Workplace Relations Act 1996, or to a State employment agreement.
18.7 Items 7, 10 and 14 use a standard definition of ‘industrial
agreement’. This term is defined to include a certified agreement,
Australian Workplace Agreement, state employment agreement or old IR agreement
within the meaning of the Workplace Relations Act 1996 [the definition of
‘old IR agreement’ is inserted by item 3 of Schedule 11, and
includes an enterprise flexibility agreement].
18.8 Items 26 to 29
propose amendments to the Social Security Act 1991, which reflect the
fact that State and Territory Supreme Courts will be given specific powers under
the Workplace Relations Act 1996.
Item 1 - Schedule 1 (paragraph (l))
18.9 This item proposes
a consequential amendment to take into account amendments made by item 6 of this
Schedule.
Freedom of Information Act 1982
18.10 This item proposes a consequential amendment to take into account
amendments made by item 6 of this Schedule.
Item 4 - Section 1
Item 5 - Section 3 (definition of
Council)
18.11 These items propose consequential amendments to
take into account amendments made by item 6 of this Schedule.
18.12 This item proposes to change the name of the National Labour
Consultative Council to the National Workplace Relations Consultative
Council.
Item 7 – Paragraph 6(1)(d)
Item 8 –
Paragraph 6(1)(e)
18.13 Items 7 and 8 propose to amend paragraphs
6(1)(d) and 6(1)(e) of the National Labour Consultative Council Act 1977
to alter the membership of the Council. These changes have been necessitated by
the merger of two peak employer bodies, the Australian Chamber of Manufactures
with the Metal Trades Industry Association of Australia, to form the Australian
Industry Group. As both of these employer bodies were members of the Council,
their merger provides the opportunity to grant membership to another employer
body. The amendments will:
• substitute the Business Council of
Australia for the Australian Chamber of Manufactures;
and
• substitute the Australian Industry Group for the Metal Trades
Industry Association of Australia.
Navigation Act
1912
Item 9 - Subsection 6(1)
18.14 Section 6
contains the general definitions for this piece of legislation. This amendment
would insert the standard definition ‘industrial agreement’ to
facilitate its use in the legislation.
Item 10 - Section
135
18.15 This section restricts the application of Division 15 of
the Navigation Act so that it is subject to certain awards in so far as they
deal with accommodation.
18.16 This amendment would ensure that the
Division also applies subject to agreements made under both the Workplace
Relations Act 1996 and the Industrial Relations Act 1988, in so far
as those agreements deal with the issue of accommodation.
Item 11 -
Section 292
18.17 This section concerns prima facie evidence of wages
for seamen employed in the coasting trade.
18.18 This amendment would
ensure that an industrial agreement that has replaced an award is the instrument
that provides prima facie evidence of wages.
Safety, Rehabilitation
and Compensation Act 1988
Item 12 - Subsection
4(1)
18.19 Section 4 contains the general definitions for this piece
of legislation. The definition of ‘industrial agreement’ would be
inserted so as to facilitate its use in the amendments.
Item 13 -
Paragraph 33(2)(ba)
18.20 Section 33 reduces the amount of
compensation payable to an employee under certain provisions of the legislation
when certain amounts have been paid or are payable. Paragraph 33(2)(ba)
presently excludes consideration of an amount paid or payable if the amount was
paid or is to be paid in lieu of long service leave under a law, industrial
award, determination, order or agreement.
18.21 The amendment to this
section would ensure that where any amount has been paid or is payable in lieu
of long service leave under an award, determination, order or industrial
agreement, such amount does not reduce the amount of compensation payable to an
employee.
Item 14 - Paragraph 52(6)(b)
18.22 The section
requires an employee who has an entitlement to both compensation under the Act
and benefits under an award arising out of the same injury to make an election
in relation to the source of compensation. Paragraph 52(6)(b) defines
‘award’ for the purposes of granting benefits to or in relation to
employees and their dependents in respect of an injury or disease connected with
employment.
18.23 This amendment would ensure that where an entitlement
or benefit accrues upon injury to an employee party to an industrial agreement,
the employee must make an election as to whether such an entitlement or benefit
will be the source of his/her compensation or conversely, to receive
compensation under the Act.
18.24 The words ‘relating to
conciliation and arbitration’ would be removed so as to allow for
consideration of agreements that are made other than under laws made on the
basis of the conciliation and arbitration power under the Commonwealth
Constitution.
Item 15 - Section 116
18.25 Section
116 prohibits an employee on compensation leave from being granted any kind of
leave of absence with pay other than maternity leave. Notwithstanding this,
certain entitlements continue to accrue.
18.26 This amendment would
ensure that when an employee is on compensation leave, an industrial agreement
could not operate to grant any kind of leave of absence with pay other than
maternity leave.
Seafarers Rehabilitation and Compensation Act
1992
Item 16 - Section 3
18.27 Section 3 contains
the general definitions for this legislation. This amendment would insert the
standard definition of ‘industrial agreement’ to facilitate its use
throughout this Act.
Item 17 - Subsection 13(2)
Item 18 -
Subsection 13(3)
Item 19 - Subsection 13(5)
Item 20 -
Paragraph 13(6)(b)
18.28 Section 13 prescribes the parameters for
calculating the normal weekly wage of an employee who suffers an injury by
reference to an award or certified agreement.
18.29 The amendments to
section 13 would ensure that an ‘industrial agreement’ could be
relied upon to determine the calculation of normal weekly
earnings.
Item 21 - Paragraph 31(14)(a)
18.30 Section 31
prescribes the parameters for the calculation of compensation on a weekly basis
for an employee who is incapacitated for work as a result of an injury. The
section also provides for a reduction in weekly income if the injured employee
obtains earnings from suitable employment.
18.31 The amendment to
paragraph 31(14)(a) would ensure that an industrial agreement could be relied
upon to determine the calculation of the normal weekly earnings of the
employee.
Item 22 - Subsection 61(6)
18.32 Section 61
requires an employee who has an entitlement to both compensation under the Act
and benefits under an award arising out of the same injury to make an election
in relation to the source of compensation. Subsection 61(6) defines
‘award’ for the purposes of granting benefits to employees or in
relation to employees and their dependents in respect of an injury or disease
connected with employment.
18.33 This amendment would ensure that where
an entitlement or benefit accrues upon injury to an employee party to an
industrial agreement, the employee must make an election as to whether such an
entitlement or benefit will be the source of his/her compensation or conversely,
to receive compensation under the Act.
Item 23 - Subsection
61(6)
18.34 The words ‘relating to conciliation and
arbitration’ would be removed from subsection 61(6) so as to allow for
consideration of agreements that are made other than under laws made on the
basis of the conciliation and arbitration power under the Commonwealth
Constitution.
Item 25 - Section 137
18.35 This section prohibits an employee
on compensation leave from being granted any kind of leave of absence with pay
other than maternity leave. Notwithstanding this, long service leave
entitlements continue to accrue in accordance with the applicable award,
determination or certified agreement.
18.36 These amendments would ensure
that when an employee is on compensation leave, an industrial agreement could
not operate to grant any kind of leave of absence with pay other than maternity
leave.
Item 27 – Subsection 596(4)
Item 28 – Subsection
660XBE(4)
Item 29 – Subsection 771HB(4)
18.37 Items
26 – 29 propose amendments to the Social Security Act 1991 to
insert references to ‘a Supreme Court of a State or Territory’.
These amendments are consequential upon proposed amendments to the Workplace
Relations Act 1996 to confer specific powers on State and Territory Supreme
Courts.
Item 30 - Subsection 54C(1)
18.38 Section 54C ensures that
an eligible employee, who has not reached his/her maximum retiring age, is not
retired by the Commonwealth Superannuation Board of Trustees No.1 on the ground
of invalidity without a written certificate first being issued in relation to
the employee’s entitlement to benefits.
18.39 The amendment to this
subsection would ensure that a term of an industrial agreement which facilitates
the retirement of an eligible employee on the basis of any physical or mental
condition prior to his/her retirement age is of no effect if the eligible
employee has not first obtained the requisite written certificate.
Item 31 - Subsection 13(1)
18.40 Section 13 ensures that a
member of the Public Sector Superannuation Scheme who is under the age of 60 is
not capable of being retired on the ground of any mental or physical condition
without a written certificate first being issued in relation to the
member’s entitlement to benefits under the Public Sector Superannuation
Scheme.
18.41 The amendment would ensure that a term in an industrial
agreement which facilitates the retirement of an eligible employee on the basis
of any mental or physical condition prior to the age of 60 is of no effect if
the member has not first obtained the requisite written certificate.