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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017-2018
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work Amendment (Making
Australia More Equal) Bill 2018
No. , 2018
(Mr Bandt)
A Bill for an Act to amend the Fair Work Act 2009,
and for related purposes
No. , 2018
Fair Work Amendment (Making Australia More Equal) Bill 2018
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Fair Work Act 2009
3
No. , 2018
Fair Work Amendment (Making Australia More Equal) Bill 2018
1
A Bill for an Act to amend the Fair Work Act 2009,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Fair Work Amendment (Making Australia More
5
Equal) Act 2018.
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2 Commencement
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(1) Each provision of this Act specified in column 1 of the table
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commences, or is taken to have commenced, in accordance with
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column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Fair Work Amendment (Making Australia More Equal) Bill 2018
No. , 2018
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
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Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
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3 Schedules
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Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
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concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
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Amendments Schedule 1
No. , 2018
Fair Work Amendment (Making Australia More Equal) Bill 2018
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Schedule 1--Amendments
1
2
Fair Work Act 2009
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1 Subsection 9(5B)
4
Repeal the subsection, substitute:
5
(5B) Part 6-4B contains special provisions about workers. It allows the
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FWC to make minimum entitlements orders that extend provisions
7
of this Act, modern awards or enterprise agreements to workers. It
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also allows a worker who has been bullied at work to apply for the
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FWC for an order to stop the bullying.
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2 Section 12 (at the end of the definition of employee)
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Add:
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Note 4:
See also Division 1A of Part 6-4B (minimum entitlements orders).
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3 Section 12 (at the end of the definition of employer)
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Add:
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Note 4:
See also Division 1A of Part 6-4B (minimum entitlements orders).
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4 Section 12
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Insert:
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minimum entitlements order: see subsection 789FBA(1).
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5 Section 12 (at the end of the definition of national system
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employee)
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Add:
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Note 3:
See also Division 1A of Part 6-4B (minimum entitlements orders).
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6 Section 12 (at the end of the definition of national system
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employer)
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Add:
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Note 3:
See also Division 1A of Part 6-4B (minimum entitlements orders).
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Schedule 1 Amendments
4
Fair Work Amendment (Making Australia More Equal) Bill 2018
No. , 2018
7 Paragraph 576(1)(q)
1
Repeal the paragraph, substitute:
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(q) workers (Part 6-4B).
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8 Paragraph 675(2)(j)
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Before "Part 6-4B", insert "Division 2 of".
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9 Part 6-4B (heading)
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Repeal the heading, substitute:
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Part 6-4B--Workers
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10 Section 789FA
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Repeal the section, substitute:
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789FA Guide to this Part
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This Part contains special provisions about workers.
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Division 1A provides for the making of minimum entitlements
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orders by FWC that extend provisions of this Act, or modern
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awards or enterprise agreements, to workers.
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Division 2 allows a worker who has been bullied at work to apply
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to the FWC for an order to stop the bullying.
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11 Before Division 2 of Part 6-4B
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Insert:
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Division 1A--Minimum entitlements orders
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789FBA Minimum entitlements orders
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(1) The FWC may make an order (a minimum entitlements order)
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that:
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(a) the provisions of this Act specified in the order; or
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(b) a modern award specified in the order; or
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(c) an enterprise agreement specified in the order;
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Amendments Schedule 1
No. , 2018
Fair Work Amendment (Making Australia More Equal) Bill 2018
5
apply to work performed by the workers to whom the order applies
1
for the constitutionally-covered businesses required to comply with
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the order.
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Workers to whom the order may apply
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(2) A minimum entitlements order may apply (subject to
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subsections (4) and (5)) to:
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(a) a worker; or
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(b) two or more workers; or
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(c) a class of workers.
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(3) Without limiting paragraph (2)(c), the class may be described by
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reference to one or more of the following:
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(a) a particular industry or part of an industry;
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(b) a particular kind of work;
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(c) workers who perform work for a particular
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constitutionally-covered business.
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(4) A minimum entitlements order must not apply to a worker unless
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the FWC is satisfied that the worker's terms and conditions as
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affected by the order will, considered on an overall basis, be no
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less favourable than the worker's terms and conditions before the
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order is made.
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(5) A minimum entitlements order must not apply to a worker who
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carries out work as:
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(a) a student gaining work experience; or
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(b) a volunteer (within the meaning of the Work Health and
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Safety Act 2011).
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Order must specify businesses required to comply with order
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(6) A minimum entitlements order must specify, for each worker to
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whom the order applies:
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(a) the constitutionally-covered business or businesses; or
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(b) the class of constitutionally-covered businesses;
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required to comply with the order in relation to any work
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performed for the constitutionally-covered business by the worker.
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Schedule 1 Amendments
6
Fair Work Amendment (Making Australia More Equal) Bill 2018
No. , 2018
(7) Without limiting subsection (6) a class of constitutionally-covered
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businesses may be described by reference to either or both of the
2
following:
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(a) a particular industry or part of an industry;
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(b) a particular kind of work.
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789FBB When does a worker perform work for a
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constitutionally-covered business?
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(1) A worker performs work for a constitutionally-covered business
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for the purposes of a minimum entitlements order, if:
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(a) the worker performs work directly or indirectly for the
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constitutionally-covered business; or
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(b) the worker performs work directly for another entity, and the
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constitutionally-covered business carries on a business of
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arranging for workers, including the worker, to perform work
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for that other entity.
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(2) Without limiting paragraph (1)(a), a worker indirectly performs
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work for a constitutionally-covered business if the work benefits
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the constitutionally-covered business, irrespective of the legal
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relationship (contractual or otherwise) between the worker and the
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constitutionally-covered business.
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(3) If, because of the operation of subsection (1), a worker performs
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the same work for 2 or more constitutionally-covered businesses,
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the FWC may specify any or all of those constitutionally-covered
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businesses for the worker in a minimum entitlements order that
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applies to the worker.
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789FBC Effect of a minimum entitlements order
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(1) If the FWC makes a minimum entitlements order, the provisions,
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modern award or enterprise agreement specified in the order apply
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to work performed by a worker to whom the order applies for a
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constitutionally-covered business required to comply with the
30
order in relation to that work, as if:
31
(a) any reference to an employee (within the ordinary meaning
32
of that expression), or a national system employee, also
33
included a reference to the worker; and
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Amendments Schedule 1
No. , 2018
Fair Work Amendment (Making Australia More Equal) Bill 2018
7
(b) any reference to an employer (within the ordinary meaning of
1
that expression), or a national system employer, also included
2
a reference to the constitutionally-covered business.
3
Example: If a minimum entitlements order specifies a modern award, the award
4
applies to the worker, in relation to work performed for the
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constitutionally-covered business, as if the worker were an employee.
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The obligation to comply with the modern award is in section 45 (in
7
Part 2-1).
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(2) The provisions, modern award or enterprise agreement specified in
9
the order apply as referred to in subsection (1):
10
(a) from the time or times specified in the order (which must not
11
be earlier than the time the order is made); and
12
(b) with such other modifications (if any) as are specified in the
13
order.
14
789FBD Application for a minimum entitlements order
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The FWC may make a minimum entitlements order only on
16
application by:
17
(a) a worker to whom the order will apply; or
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(b) an organisation that is entitled to represent the industrial
19
interests of the worker, workers or class of workers to whom
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the order will apply; or
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(c) an organisation that would, if a worker to whom the order
22
will apply were instead an employee, be entitled to represent
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the industrial interests of the worker.
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789FBE Matters for FWC to consider
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In deciding whether, or the terms on which, to make a minimum
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entitlements order, the FWC must as far as practicable give effect
27
to the principle that all workers should be entitled to minimum
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terms and conditions that are no less favourable than those of
29
employees performing the same work.
30