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This is a Bill, not an Act. For current law, see the Acts databases.
2010-2011-2012-2013
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work Amendment Bill 2013
No. , 2013
(Education, Employment and Workplace Relations)
A Bill for an Act to amend the Fair Work Act 2009,
and for related purposes
i Fair Work Amendment Bill 2013 No. , 2013
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedule(s) ........................................................................................ 3
Schedule 1--Family-friendly measures
4
Part 1--Special maternity leave
4
Fair Work Act 2009
4
Part 2--Parental leave
6
Fair Work Act 2009
6
Part 3--Right to request flexible working arrangements
8
Fair Work Act 2009
8
Part 4--Consultation about changes to rosters or working
hours
10
Fair Work Act 2009
10
Part 5--Transfer to a safe job
12
Fair Work Act 2009
12
Schedule 2--Modern awards objective
15
Fair Work Act 2009
15
Schedule 3--Anti-bullying measure
16
Fair Work Act 2009
16
Schedule 4--Right of entry
20
Fair Work Act 2009
20
Schedule 5--Functions of the FWC
29
Fair Work Act 2009
29
Schedule 6--Technical amendments
30
Fair Work Act 2009
30
Fair Work Amendment Act 2012
31
Schedule 7--Application and transitional provisions
32
Fair Work Act 2009
32
Fair Work Amendment Bill 2013 No. , 2013 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 may be cited as the Fair Work Amendment Act 2013.
5
2 Commencement
6
(1) Each provision of this Act specified in column 1 of the table
7
commences, or is taken to have commenced, in accordance with
8
column 2 of the table. Any other statement in column 2 has effect
9
according to its terms.
10
11
2 Fair Work Amendment Bill 2013 No. , 2013
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1,
Parts 1 to 3
A single day to be fixed by Proclamation.
However, if the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
3. Schedule 1,
Part 4
1 January 2014.
1 January 2014
4. Schedule 1,
Part 5
At the same time as the provision(s) covered
by table item 2.
5. Schedule 2
1 January 2014.
1 January 2014
6. Schedule 3
At the same time as the provision(s) covered
by table item 2.
7. Schedule 4
1 January 2014.
1 January 2014
8. Schedule 5,
item 1
Immediately after the commencement of the
Fair Work Amendment (Transfer of
Business) Act 2012.
5 December
2012
9. Schedule 5,
item 2
Immediately after the commencement of
Schedule 1 to the Fair Work Amendment
(Textile, Clothing and Footwear Industry)
Act 2012.
1 July 2012
10. Schedule 5,
item 3
At the same time as the provision(s) covered
by table item 2.
11. Schedule 6,
item 1
Immediately after the commencement of
Schedule 1 to the Fair Work Amendment Act
2012.
1 January 2014
12. Schedule 6,
items 2 to 4
The day this Act receives the Royal Assent.
13. Schedule 6,
item 5
Immediately after the commencement of
Schedule 2 to the Fair Work Amendment Act
2012.
1 July 2013
Fair Work Amendment Bill 2013 No. , 2013 3
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
14. Schedule 6,
items 6 to 8
The day this Act receives the Royal Assent.
15. Schedule 6,
items 9 and 10
Immediately after the commencement of
Schedule 8 to the Fair Work Amendment Act
2012.
1 January 2013
16. Schedule 6,
items 11 to 13
Immediately after the commencement of
Part 1 of Schedule 9 to the Fair Work
Amendment Act 2012.
1 January 2013
17. Schedule 6,
item 14
Immediately after the commencement of
item 1364 of Schedule 9 to the Fair Work
Amendment Act 2012.
1 January 2013
18. Schedule 7
The day 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.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Schedule 1 Family-friendly measures
Part 1 Special maternity leave
4 Fair Work Amendment Bill 2013 No. , 2013
Schedule 1
--
Family-friendly measures
1
Part 1
--
Special maternity leave
2
Fair Work Act 2009
3
1 Section 70 (note 1)
4
Omit "Note 1", substitute "Note".
5
2 Section 70 (note 2)
6
Repeal the note.
7
3 Paragraph 75(2)(c)
8
Omit ";", substitute ".".
9
4 Paragraph 75(2)(d)
10
Repeal the paragraph.
11
5 Paragraph 76(6)(a)
12
Omit "and unpaid special maternity leave".
13
6 Paragraph 76(6)(b)
14
Omit "or unpaid special maternity leave".
15
7 Subsection 80(1) (note)
16
Omit "Note", substitute "Note 1".
17
8 At the end of subsection 80(1)
18
Add:
19
Note 2:
If a female employee has an entitlement to paid personal/carer's leave
20
(see section 96), she may take that leave instead of taking unpaid
21
special maternity leave under this section.
22
9 Subsection 80(7)
23
Repeal the subsection (not including the note).
24
10 Section 97 (note)
25
Omit "Note", substitute "Note 1".
26
Family-friendly measures Schedule 1
Special maternity leave Part 1
Fair Work Amendment Bill 2013 No. , 2013 5
11 At the end of section 97
1
Add:
2
Note 2:
If a female employee has an entitlement to paid personal/carer's leave,
3
she may take that leave instead of taking unpaid special maternity
4
leave under section 80.
5
Schedule 1 Family-friendly measures
Part 2 Parental leave
6 Fair Work Amendment Bill 2013 No. , 2013
Part 2
--
Parental leave
1
Fair Work Act 2009
2
12 Section 12
3
Insert:
4
concurrent leave: see subsection 72(5).
5
13 Paragraphs 72(5)(a), (b) and (c)
6
Repeal the paragraphs, substitute:
7
(a) the concurrent leave must not be longer than 8 weeks in total;
8
(b) the concurrent leave may be taken in separate periods, but,
9
unless the employer agrees, each period must not be shorter
10
than 2 weeks;
11
(c) unless the employer agrees, the concurrent leave must not
12
start before:
13
(i) if the leave is birth-related leave--the date of birth of
14
the child; or
15
(ii) if the leave is adoption-related leave--the day of
16
placement of the child.
17
14 Subsection 74(2)
18
Repeal the subsection, substitute:
19
(2) The employee must give the notice to the employer:
20
(a) at least:
21
(i) 10 weeks before starting the leave, unless
22
subparagraph (ii) applies; or
23
(ii) if the leave is to be taken in separate periods of
24
concurrent leave (see paragraph 72(5)(b)) and the leave
25
is not the first of those periods of concurrent leave--4
26
weeks before starting the period of concurrent leave; or
27
(b) if that is not practicable--as soon as practicable (which may
28
be a time after the leave has started).
29
15 After subsection 74(4)
30
Insert:
31
Family-friendly measures Schedule 1
Parental leave Part 2
Fair Work Amendment Bill 2013 No. , 2013 7
(4A) Subsection (4) does not apply to a notice for a period of concurrent
1
leave referred to in subparagraph (2)(a)(ii).
2
Schedule 1 Family-friendly measures
Part 3 Right to request flexible working arrangements
8 Fair Work Amendment Bill 2013 No. , 2013
Part 3
--
Right to request flexible working
1
arrangements
2
Fair Work Act 2009
3
16 Section 12 (definition of school age)
4
Omit "start attending", substitute "attend".
5
17 Subsection 65(1)
6
Repeal the subsection, substitute:
7
Employee may request change in working arrangements
8
(1) If:
9
(a) any of the circumstances referred to in subsection (1A) apply
10
to an employee; and
11
(b) the employee would like to change his or her working
12
arrangements because of those circumstances;
13
then the employee may request the employer for a change in
14
working arrangements relating to those circumstances.
15
Note:
Examples of changes in working arrangements include changes in
16
hours of work, changes in patterns of work and changes in location of
17
work.
18
(1A) The following are the circumstances:
19
(a) the employee is the parent, or has responsibility for the care,
20
of a child who is of school age or younger;
21
(b) the employee is a carer (within the meaning of the Carer
22
Recognition Act 2010);
23
(c) the employee has a disability;
24
(d) the employee is 55 or older;
25
(e) the employee is experiencing violence from a member of the
26
employee's family;
27
(f) the employee provides care or support to a member of the
28
employee's immediate family, or a member of the
29
employee's household, who requires care or support because
30
the member is experiencing violence from the member's
31
family.
32
Family-friendly measures Schedule 1
Right to request flexible working arrangements Part 3
Fair Work Amendment Bill 2013 No. , 2013 9
(1B) To avoid doubt, and without limiting subsection (1), an employee
1
who:
2
(a) is a parent, or has responsibility for the care, of a child; and
3
(b) is returning to work after taking leave in relation to the birth
4
or adoption of the child;
5
may request to work part-time to assist the employee to care for the
6
child.
7
18 After subsection 65(5)
8
Insert:
9
(5A) Without limiting what are reasonable business grounds for the
10
purposes of subsection (5), reasonable business grounds include
11
the following:
12
(a) that the new working arrangements requested by the
13
employee would be too costly for the employer;
14
(b) that there is no capacity to change the working arrangements
15
of other employees to accommodate the new working
16
arrangements requested by the employee;
17
(c) that it would be impractical to change the working
18
arrangements of other employees, or recruit new employees,
19
to accommodate the new working arrangements requested by
20
the employee;
21
(d) that the new working arrangements requested by the
22
employee would be likely to result in a significant loss in
23
efficiency or productivity;
24
(e) that the new working arrangements requested by the
25
employee would be likely to have a significant negative
26
impact on customer service.
27
Schedule 1 Family-friendly measures
Part 4 Consultation about changes to rosters or working hours
10 Fair Work Amendment Bill 2013 No. , 2013
Part 4
--
Consultation about changes to rosters or
1
working hours
2
Fair Work Act 2009
3
19 After section 145
4
Insert:
5
145A Consultation about changes to rosters or hours of work
6
(1) Without limiting paragraph 139(1)(j), a modern award must
7
include a term that:
8
(a) requires the employer to consult employees about a change to
9
their regular roster or ordinary hours of work; and
10
(b) allows for the representation of those employees for the
11
purposes of that consultation.
12
(2) The term must require the employer:
13
(a) to provide information to the employees about the change;
14
and
15
(b) to invite the employees to give their views about the impact
16
of the change (including any impact in relation to their family
17
or caring responsibilities); and
18
(c) to consider any views about the impact of the change that are
19
given by the employees.
20
20 Paragraph 205(1)(a)
21
Repeal the paragraph, substitute:
22
(a) requires the employer or employers to which the agreement
23
applies to consult the employees to whom the agreement
24
applies about:
25
(i) a major workplace change that is likely to have a
26
significant effect on the employees; or
27
(ii) a change to their regular roster or ordinary hours of
28
work; and
29
21 After subsection 205(1)
30
Insert:
31
Family-friendly measures Schedule 1
Consultation about changes to rosters or working hours Part 4
Fair Work Amendment Bill 2013 No. , 2013 11
(1A) For a change to the employees' regular roster or ordinary hours of
1
work, the term must require the employer:
2
(a) to provide information to the employees about the change;
3
and
4
(b) to invite the employees to give their views about the impact
5
of the change (including any impact in relation to their family
6
or caring responsibilities); and
7
(c) to consider any views given by the employees about the
8
impact of the change.
9
Schedule 1 Family-friendly measures
Part 5 Transfer to a safe job
12 Fair Work Amendment Bill 2013 No. , 2013
Part 5
--
Transfer to a safe job
1
Fair Work Act 2009
2
22 Section 12 (definition of appropriate safe job)
3
Omit "subsection 81(4)", substitute "subsection 81(3)".
4
23 Section 12 (definition of paid no safe job leave)
5
Omit "paragraph 81(3)(b)", substitute "section 81A".
6
24 Section 12
7
Insert:
8
risk period: see subsections 81(1) and (5).
9
unpaid no safe job leave means unpaid no safe job leave to which
10
a national system employee is entitled under section 82A.
11
25 Subsections 67(1) and (2)
12
After "unpaid pre-adoption leave", insert "or unpaid no safe job leave".
13
26 Subsection 71(3) (note 2)
14
Repeal the note, substitute:
15
Note 2:
If it is inadvisable for the employee to continue in her present position,
16
she may be entitled:
17
(a) to be transferred to an appropriate safe job under section 81; or
18
(b) to paid no safe job leave under section 81A; or
19
(c) to unpaid no safe job leave under section 82A.
20
27 Subparagraph 73(2)(c)(ii)
21
Repeal the subparagraph, substitute:
22
(ii) the employee has not complied with the notice and
23
evidence requirements of section 74 for taking unpaid
24
parental leave.
25
28 Subsection 73(2) (note)
26
Repeal the note, substitute:
27
Note:
If the medical certificate contains a statement as referred to in
28
subparagraph (c)(i) and the employee has complied with the notice
29
Family-friendly measures Schedule 1
Transfer to a safe job Part 5
Fair Work Amendment Bill 2013 No. , 2013 13
and evidence requirements of section 74, then the employee is entitled
1
to be transferred to a safe job (see section 81) or to paid no safe job
2
leave (see section 81A).
3
29 Section 81
4
Repeal the section, substitute:
5
81 Transfer to a safe job
6
(1) This section applies to a pregnant employee if she gives her
7
employer evidence that would satisfy a reasonable person that she
8
is fit for work, but that it is inadvisable for her to continue in her
9
present position during a stated period (the risk period) because of:
10
(a) illness, or risks, arising out of her pregnancy; or
11
(b) hazards connected with that position.
12
Note:
Personal information given to an employer under this subsection may
13
be regulated under the Privacy Act 1988.
14
(2) If there is an appropriate safe job available, then the employer must
15
transfer the employee to that job for the risk period, with no other
16
change to the employee's terms and conditions of employment.
17
Note:
If there is no appropriate safe job available, then the employee may be
18
entitled to paid no safe job leave under section 81A or unpaid no safe
19
job leave under 82A.
20
(3) An appropriate safe job is a safe job that has:
21
(a) the same ordinary hours of work as the employee's present
22
position; or
23
(b) a different number of ordinary hours agreed to by the
24
employee.
25
(4) If the employee is transferred to an appropriate safe job for the risk
26
period, the employer must pay the employee for the safe job at the
27
employee's full rate of pay (for the position she was in before the
28
transfer) for the hours that she works in the risk period.
29
(5) If the employee's pregnancy ends before the end of the risk period,
30
the risk period ends when the pregnancy ends.
31
(6) Without limiting subsection (1), an employer may require the
32
evidence to be a medical certificate.
33
Schedule 1 Family-friendly measures
Part 5 Transfer to a safe job
14 Fair Work Amendment Bill 2013 No. , 2013
81A Paid no safe job leave
1
(1) If:
2
(a) section 81 applies to a pregnant employee but there is no
3
appropriate safe job available; and
4
(b) the employee is entitled to unpaid parental leave; and
5
(c) the employee has complied with the notice and evidence
6
requirements of section 74 for taking unpaid parental leave;
7
then the employee is entitled to paid no safe job leave for the risk
8
period.
9
(2) If the employee takes paid no safe job leave for the risk period, the
10
employer must pay the employee at the employee's base rate of
11
pay for the employee's ordinary hours of work in the risk period.
12
30 After section 82
13
Insert:
14
82A Unpaid no safe job leave
15
(1) If:
16
(a) section 81 applies to a pregnant employee but there is no
17
appropriate safe job available; and
18
(b) the employee is not entitled to unpaid parental leave; and
19
(c) if required by the employer--the employee has given the
20
employer evidence that would satisfy a reasonable person of
21
the pregnancy;
22
then the employee is entitled to unpaid no safe job leave for the
23
risk period.
24
(2) Without limiting subsection (1), an employer may require the
25
evidence referred to in paragraph (1)(c) to be a medical certificate.
26
Modern awards objective Schedule 2
Fair Work Amendment Bill 2013 No. , 2013 15
Schedule 2
--
Modern awards objective
1
2
Fair Work Act 2009
3
1 After paragraph 134(1)(d)
4
Insert:
5
(da) the need to provide additional remuneration for:
6
(i) employees working overtime; or
7
(ii) employees working unsocial, irregular or unpredictable
8
hours; or
9
(iii) employees working on weekends or public holidays; or
10
(iv) employees working shifts; and
11
Schedule 3 Anti-bullying measure
16 Fair Work Amendment Bill 2013 No. , 2013
Schedule 3
--
Anti-bullying measure
1
2
Fair Work Act 2009
3
1 After subsection 9(5A)
4
Insert:
5
(5B) Part 6-4B allows a worker who has been bullied at work to apply to
6
the FWC for an order to stop the bullying.
7
2 Section 12
8
Insert:
9
bullied at work: see subsection 789FD(1).
10
constitutionally-covered business: see subsection 789FD(3).
11
worker:
12
(a) in Part 6-4B--see subsection 789FC(2); and
13
(b) otherwise--has its ordinary meaning.
14
3 Subsection 539(2) (at the end of the table)
15
Add:
16
17
Part 6-4B--Workers bullied at work
38
789FG
(a) a person affected
by the
contravention;
(b) an industrial
association;
(c) an inspector
(a) the Federal Court;
(b) the Federal
Magistrates
Court;
(c) an eligible State
or Territory court
60 penalty
units
18
4 At the end of subsection 576(1)
19
Add:
20
; (q) workers bullied at work (Part 6-4B).
21
5 At the end of subsection 675(2)
22
Add:
23
Anti-bullying measure Schedule 3
Fair Work Amendment Bill 2013 No. , 2013 17
; (j) an order under Part 6-4B (which deals with workers bullied
1
at work).
2
6 After Part 6-4A
3
Insert:
4
Part 6-4B--Workers bullied at work
5
Division 1--Introduction
6
789FA Guide to this Part
7
This Part allows a worker who has been bullied at work to apply to
8
the FWC for an order to stop the bullying.
9
789FB Meanings of employee and employer
10
In this Part, employee and employer have their ordinary meanings.
11
Division 2--Stopping workers being bullied at work
12
789FC Application for an FWC order to stop bullying
13
(1) A worker who reasonably believes that he or she has been bullied
14
at work may apply to the FWC for an order under section 789FF.
15
(2) For the purposes of this Part, worker has the same meaning as in
16
the Work Health and Safety Act 2011.
17
Note:
Broadly, for the purposes of the Work Health and Safety Act 2011, a
18
worker is an individual who performs work in any capacity, including
19
as an employee, a contractor, a subcontractor, an outworker, an
20
apprentice, a trainee, a student gaining work experience or a volunteer.
21
(3) The application must be accompanied by any fee prescribed by the
22
regulations.
23
(4) The regulations may prescribe:
24
(a) a fee for making an application to the FWC under this
25
section; and
26
(b) a method for indexing the fee; and
27
Schedule 3 Anti-bullying measure
18 Fair Work Amendment Bill 2013 No. , 2013
(c) the circumstances in which all or part of the fee may be
1
waived or refunded.
2
789FD When is a worker bullied at work?
3
(1) A worker is bullied at work if:
4
(a) while the worker is at work in a constitutionally-covered
5
business:
6
(i) an individual; or
7
(ii) a group of individuals;
8
repeatedly behaves unreasonably towards the worker, or a
9
group of workers of which the worker is a member; and
10
(b) that behaviour creates a risk to health and safety.
11
(2) To avoid doubt, subsection (1) does not apply to reasonable
12
management action carried out in a reasonable manner.
13
(3) If a person conducts a business or undertaking (within the meaning
14
of the Work Health and Safety Act 2011) and either:
15
(a) the person is:
16
(i) a constitutional corporation; or
17
(ii) the Commonwealth; or
18
(iii) a Commonwealth authority; or
19
(iv) a body corporate incorporated in a Territory; or
20
(b) the business or undertaking is conducted principally in a
21
Territory or Commonwealth place;
22
then the business or undertaking is a constitutionally-covered
23
business.
24
789FE FWC to deal with applications promptly
25
The FWC must start to deal with an application under
26
section 789FC within 14 days after the application is made.
27
Note:
For example, the FWC may start to inform itself of the matter under
28
section 590, it may decide to conduct a conference under section 592,
29
or it may decide to hold a hearing under section 593.
30
789FF FWC may make orders to stop bullying
31
(1) If:
32
(a) a worker has made an application under section 789FC; and
33
Anti-bullying measure Schedule 3
Fair Work Amendment Bill 2013 No. , 2013 19
(b) the FWC is satisfied that:
1
(i) the worker has been bullied at work by an individual or
2
a group of individuals; and
3
(ii) there is a risk that the worker will continue to be bullied
4
at work by the individual or group;
5
then the FWC may make any order it considers appropriate (other
6
than an order requiring payment of a pecuniary amount) to prevent
7
the worker from being bullied at work by the individual or group.
8
(2) In considering the terms of an order, the FWC must take into
9
account:
10
(a) if the FWC is aware of any final or interim outcomes arising
11
out of an investigation into the matter that is being, or has
12
been, undertaken by another person or body--those
13
outcomes; and
14
(b) if the FWC is aware of any procedure available to the worker
15
to resolve grievances or disputes--that procedure; and
16
(c) if the FWC is aware of any final or interim outcomes arising
17
out of any procedure available to the worker to resolve
18
grievances or disputes--those outcomes; and
19
(d) any matters that the FWC considers relevant.
20
789FG Contravening an order to stop bullying
21
A person to whom an order under section 789FF applies must not
22
contravene a term of the order.
23
Note:
This section is a civil remedy provision (see Part 4-1).
24
789FH Actions under work health and safety laws permitted
25
Section 115 of the Work Health and Safety Act 2011 and
26
corresponding provisions of corresponding WHS laws (within the
27
meaning of that Act) do not apply in relation to an application
28
under section 789FC.
29
Note:
Ordinarily, if a worker makes an application under section 789FC for
30
an FWC order to stop the worker from being bullied at work, then
31
section 115 of the Work Health and Safety Act 2011 and
32
corresponding provisions of corresponding WHS laws would prohibit
33
a proceeding from being commenced, or an application from being
34
made or continued, under those laws in relation to the bullying. This
35
section removes that prohibition.
36
Schedule 4 Right of entry
20 Fair Work Amendment Bill 2013 No. , 2013
Schedule 4
--
Right of entry
1
2
Fair Work Act 2009
3
1 Section 12
4
Insert:
5
accommodation arrangement: see subsections 521A(1) and (2).
6
transport arrangement: see subsections 521B(1) and (2).
7
2 At the end of section 478
8
Add:
9
Division 7 deals with accommodation and transport arrangements
10
in remote areas.
11
3 At the end of subsection 481(1)
12
Add:
13
Note 3:
A permit holder, or the organisation to which the permit holder
14
belongs, may be subject to an order by the FWC under section 508 if
15
rights under this Subdivision are misused.
16
Note 4:
A person must not refuse or unduly delay entry by a permit holder, or
17
intentionally hinder or obstruct a permit holder, exercising rights
18
under this Subdivision (see sections 501 and 502).
19
4 Subsection 483A(1) (note)
20
Omit "Note", substitute "Note 1".
21
5 At the end of subsection 483A(1)
22
Add:
23
Note 2:
A permit holder, or the organisation to which the permit holder
24
belongs, may be subject to an order by the FWC under section 508 if
25
rights under this Subdivision are misused.
26
Note 3:
A person must not refuse or unduly delay entry by a permit holder, or
27
intentionally hinder or obstruct a permit holder, exercising rights
28
under this Subdivision (see sections 501 and 502).
29
Right of entry Schedule 4
Fair Work Amendment Bill 2013 No. , 2013 21
6 At the end of section 484
1
Add:
2
Note 1:
A permit holder, or the organisation to which the permit holder
3
belongs, may be subject to an order by the FWC under section 508 if
4
rights under this Subdivision are misused.
5
Note 2:
A person must not refuse or unduly delay entry by a permit holder, or
6
intentionally hinder or obstruct a permit holder, exercising rights
7
under this Subdivision (see sections 501 and 502).
8
Note 3:
Under paragraph 487(1)(b), the permit holder must give the occupier
9
of the premises notice for the entry. Having given that notice, the
10
permit holder may hold discussions with any person on the premises
11
described in this section.
12
7 Section 492
13
Repeal the section, substitute:
14
492 Location of interviews and discussions
15
(1) The permit holder must conduct interviews or hold discussions in
16
the rooms or areas of the premises agreed with the occupier of the
17
premises.
18
(2) Subsection (3) applies if the permit holder and the occupier cannot
19
agree on the room or area of the premises in which the permit
20
holder is to conduct an interview or hold discussions.
21
(3) The permit holder may conduct the interview or hold the
22
discussions in any room or area:
23
(a) in which one or more of the persons who may be interviewed
24
or participate in the discussions ordinarily take meal or other
25
breaks; and
26
(b) that is provided by the occupier for the purpose of taking
27
meal or other breaks.
28
Note 1:
The permit holder may be subject to an order by the FWC under
29
section 508 if rights under this section are misused.
30
Note 2:
A person must not intentionally hinder or obstruct a permit holder
31
exercising rights under this section (see section 502).
32
Schedule 4 Right of entry
22 Fair Work Amendment Bill 2013 No. , 2013
492A Route to location of interview and discussions
1
(1) The permit holder must comply with any reasonable request by the
2
occupier of the premises to take a particular route to reach a room
3
or area of the premises determined under section 492.
4
Note:
The FWC may deal with a dispute about whether the request is
5
reasonable (see subsection 505(1)).
6
(2) A request under subsection (1) is not unreasonable only because
7
the route is not that which the permit holder would have chosen.
8
(3) The regulations may prescribe circumstances in which a request
9
under subsection (1) is or is not reasonable.
10
8 Section 500 (note)
11
Omit "Note", substitute "Note 1".
12
9 At the end of section 500
13
Add:
14
Note 2:
A permit holder, or the organisation to which the permit holder
15
belongs, may also be subject to an order by the FWC under
16
section 508 if rights under this Part are misused.
17
Note 3:
A person must not intentionally hinder or obstruct a permit holder,
18
exercising rights under this Part (see section 502).
19
10 Subsection 505(1)
20
Repeal the subsection, substitute:
21
(1) The FWC may deal with a dispute about the operation of this Part,
22
including a dispute about:
23
(a) whether a request under section 491, 492A or 499 is
24
reasonable; or
25
(b) when a right of the kind referred to in section 490 may be
26
exercised by a permit holder on premises of a kind mentioned
27
in subsection 521C(1) or 521D(1), despite that section; or
28
(c) whether accommodation is reasonably available as
29
mentioned in subsection 521C(1) or premises reasonably
30
accessible as mentioned in subsection 521D(1); or
31
(d) whether providing accommodation or transport, or causing
32
accommodation or transport to be provided, would cause the
33
occupier of premises undue inconvenience as mentioned in
34
paragraph 521C(2)(a) or 521D(2)(a); or
35
Right of entry Schedule 4
Fair Work Amendment Bill 2013 No. , 2013 23
(e) whether a request to provide accommodation or transport is
1
made within a reasonable period as mentioned in
2
paragraph 521C(2)(c) or 521D(2)(c).
3
Note 1:
Sections 491 and 499 deal with requests for permit holders to comply
4
with occupational health and safety requirements.
5
Note 2:
Section 492A deals with requests for a permit holder to take a
6
particular route to a room or area in which an interview is to be
7
conducted or discussions held.
8
Note 3:
Section 490 deals with when rights under Subdivision A, AA or B of
9
Division 2 of this Part may be exercised.
10
Note 4:
Sections 521C and 521D deal with accommodation in and transport to
11
remote areas for the purpose of exercising rights under this Part.
12
11 Subsection 505(5)
13
Repeal the subsection, substitute:
14
(5) In dealing with the dispute, the FWC must not confer rights on a
15
permit holder that are additional to, or inconsistent with, rights
16
exercisable in accordance with Division 2, 3 or 7 of this Part,
17
unless the dispute is about:
18
(a) whether a request under section 491, 492A or 499 is
19
reasonable; or
20
(b) when a right of the kind referred to in section 490 may be
21
exercised by the permit holder on premises of a kind
22
mentioned in subsection 521C(1) or 521D(1), despite that
23
section; or
24
(c) whether accommodation is reasonably available as
25
mentioned in subsection 521C(1) or premises reasonably
26
accessible as mentioned in subsection 521D(1); or
27
(d) whether providing accommodation or transport, or causing
28
accommodation or transport to be provided, would cause the
29
occupier of premises undue inconvenience as mentioned in
30
paragraph 521C(2)(a) or 521D(2)(a); or
31
(e) whether a request to provide accommodation or transport is
32
made within a reasonable period as mentioned in
33
paragraph 521C(2)(c) or 521D(2)(c).
34
12 After section 505
35
Insert:
36
Schedule 4 Right of entry
24 Fair Work Amendment Bill 2013 No. , 2013
505A FWC may deal with a dispute about frequency of entry to hold
1
discussions
2
(1) This section applies if:
3
(a) a permit holder or permit holders of an organisation enter
4
premises under section 484 for the purposes of holding
5
discussions with one or more employees or TCF award
6
workers; and
7
(b) an employer of the employees or the TCF award workers, or
8
occupier of the premises, disputes the frequency with which
9
the permit holder or permit holders of the organisation enter
10
the premises.
11
(2) The FWC may deal with a dispute about the frequency with which
12
a permit holder or permit holders of an organisation enter premises
13
under section 484.
14
(3) The FWC may deal with the dispute by arbitration, including by
15
making one or more of the following orders:
16
(a) an order imposing conditions on an entry permit;
17
(b) an order suspending an entry permit;
18
(c) an order revoking an entry permit;
19
(d) an order about the future issue of entry permits to one or
20
more persons;
21
(e) any other order it considers appropriate.
22
Note:
The FWC may also deal with a dispute by mediation or conciliation,
23
or by making a recommendation or expressing an opinion (see
24
subsection 595(2)).
25
(4) However, the FWC may only make an order under subsection (3) if
26
the FWC is satisfied that the frequency of entry by the permit
27
holder or permit holders of the organisation would require an
28
unreasonable diversion of the occupier's critical resources.
29
(5) The FWC may deal with the dispute:
30
(a) on its own initiative; or
31
(b) on application by any of the following to whom the dispute
32
relates:
33
(i) a permit holder;
34
(ii) a permit holder's organisation;
35
(iii) an employer;
36
Right of entry Schedule 4
Fair Work Amendment Bill 2013 No. , 2013 25
(iv) an occupier of premises.
1
(6) In dealing with the dispute, the FWC must take into account
2
fairness between the parties concerned.
3
13 At the end of section 506
4
Add "or subsection 505A(3)".
5
14 At the end of Part 3-4
6
Add:
7
Division 7--Accommodation and transport arrangements
8
in remote areas
9
521A Meaning of accommodation arrangement
10
(1) If:
11
(a) an occupier of premises enters into an arrangement with an
12
organisation; and
13
(b) under the terms of the arrangement, a permit holder is
14
provided with accommodation for the purpose of assisting
15
him or her to exercise rights under this Part;
16
the arrangement is an accommodation arrangement.
17
(2) If:
18
(a) an occupier of premises enters into an arrangement with a
19
permit holder; and
20
(b) under the terms of the arrangement, the permit holder is
21
provided with accommodation for the purpose of assisting
22
him or her to exercise rights under this Part;
23
the arrangement is an accommodation arrangement.
24
521B Meaning of transport arrangement
25
(1) If:
26
(a) an occupier of premises enters into an arrangement with an
27
organisation; and
28
(b) under the terms of the arrangement, a permit holder is
29
provided with transport for the purpose of assisting him or
30
her to exercise rights under this Part;
31
Schedule 4 Right of entry
26 Fair Work Amendment Bill 2013 No. , 2013
the arrangement is a transport arrangement.
1
(2) If:
2
(a) an occupier of premises enters into an arrangement with a
3
permit holder; and
4
(b) under the terms of the arrangement, the permit holder is
5
provided with transport for the purpose of assisting him or
6
her to exercise rights under this Part;
7
the arrangement is a transport arrangement.
8
521C Accommodation arrangements for remote areas
9
This section applies only in remote areas
10
(1) This section applies if rights under this Part are to be exercised by
11
a permit holder on premises that are located in a place where
12
accommodation is not reasonably available to the permit holder
13
unless the occupier of the premises on which the rights are to be
14
exercised provides the accommodation, or causes it to be provided.
15
Where parties cannot agree on an accommodation arrangement
16
(2) If all of the following are satisfied:
17
(a) to provide accommodation, or cause accommodation to be
18
provided, to the permit holder would not cause the occupier
19
undue inconvenience;
20
(b) the permit holder, or the organisation of which the permit
21
holder is an official, requests the occupier to provide, or
22
cause to be provided, accommodation for the purpose of
23
assisting the permit holder to exercise rights under this Part
24
on the premises;
25
(c) the request is made within a reasonable period before
26
accommodation is required;
27
(d) the permit holder, and the organisation of which the permit
28
holder is an official, have been unable to enter into an
29
accommodation arrangement with the occupier by consent;
30
the occupier must enter into an accommodation arrangement for
31
the purpose of assisting the permit holder to exercise rights under
32
this Part.
33
Note:
The FWC may deal with disputes about whether accommodation is
34
reasonably available, whether providing accommodation or causing it
35
to be provided would cause the occupier undue inconvenience and
36
Right of entry Schedule 4
Fair Work Amendment Bill 2013 No. , 2013 27
whether a request to provide accommodation is made within a
1
reasonable period (see subsection 505(1)).
2
Costs
3
(3) If an accommodation arrangement is entered into under
4
subsection (2), the occupier must not charge an organisation or a
5
permit holder a fee for accommodation under the arrangement that
6
is more than is necessary to cover the cost to the occupier of
7
providing the accommodation, or causing it to be provided.
8
Note:
This subsection is a civil remedy provision (see Part 4-1).
9
FWC's powers if rights misused whilst in accommodation
10
(4) For the purposes of this Part, the FWC may treat the conduct of the
11
permit holder whilst in accommodation under an accommodation
12
arrangement to which the occupier is a party, whether entered into
13
under subsection (2) or by consent, as conduct engaged in as part
14
of the exercise of rights by the permit holder under this Part.
15
521D Transport arrangements for remote areas
16
This section applies only in remote areas
17
(1) This section applies if rights under this Part are to be exercised by
18
a permit holder on premises that are located in a place that is not
19
reasonably accessible to the permit holder unless the occupier of
20
the premises on which the rights are to be exercised provides
21
transport, or causes it to be provided.
22
Where parties cannot agree on transport arrangement
23
(2) If all of the following are satisfied:
24
(a) to provide transport to the premises for the permit holder, or
25
cause that transport to be provided, would not cause the
26
occupier undue inconvenience;
27
(b) the permit holder, or the organisation of which the permit
28
holder is an official, requests the occupier to provide, or
29
cause to be provided, transport to the premises for the
30
purpose of assisting the permit holder to exercise rights under
31
this Part;
32
(c) the request is made within a reasonable period before
33
transport is required;
34
Schedule 4 Right of entry
28 Fair Work Amendment Bill 2013 No. , 2013
(d) the permit holder, and the organisation of which the permit
1
holder is an official, have been unable to enter into a
2
transport arrangement with the occupier by consent;
3
the occupier must enter into a transport arrangement for the
4
purpose of assisting the permit holder to exercise rights under this
5
Part.
6
Note:
The FWC may deal with disputes about whether premises are
7
reasonably accessible, whether providing transport or causing it to be
8
provided would cause the occupier undue inconvenience and whether
9
a request to provide transport is made within a reasonable period (see
10
subsection 505(1)).
11
Costs
12
(3) If a transport arrangement is entered into under subsection (2), the
13
occupier must not charge an organisation or a permit holder a fee
14
for transport under the arrangement that is more than is necessary
15
to cover the cost to the occupier of providing the transport, or
16
causing it to be provided.
17
Note:
This subsection is a civil remedy provision (see Part 4-1).
18
FWC's powers if rights misused whilst in transport
19
(4) For the purposes of this Part, the FWC may treat the conduct of the
20
permit holder whilst in transport under a transport arrangement to
21
which the occupier is a party, whether entered into under
22
subsection (2) or by consent, as conduct engaged in as part of the
23
exercise of rights by the permit holder under this Part.
24
15 Subsection 539(2) (at the end of the cell at table item 25,
25
column headed "Civil remedy provision")
26
Add:
27
521C(3)
28
521D(3)
29
Functions of the FWC Schedule 5
Fair Work Amendment Bill 2013 No. , 2013 29
Schedule 5
--
Functions of the FWC
1
2
Fair Work Act 2009
3
1 After paragraph 576(1)(n)
4
Insert:
5
(na) transfer of business from a State public sector employer
6
(Part 6-3A);
7
2 At the end of subsection 576(1)
8
Add:
9
; (p) special provisions about TCF outworkers (Part 6-4A).
10
3 Before paragraph 576(2)(a)
11
Insert:
12
(aa) promoting cooperative and productive workplace relations
13
and preventing disputes;
14
Schedule 6 Technical amendments
30 Fair Work Amendment Bill 2013 No. , 2013
Schedule 6
--
Technical amendments
1
2
Fair Work Act 2009
3
1 Section 12 (definition of default fund employee)
4
Omit "149A(2)", substitute "149C(2)".
5
Note:
This item fixes an incorrect cross-reference.
6
2 Subsection 176(4)
7
Omit "subsection (3),,", substitute "subsection (3),".
8
Note:
This item fixes incorrect punctuation.
9
3 Subsection 400(1)
10
Omit "FWA" (wherever occurring), substitute "the FWC".
11
Note:
This item fixes an incorrect reference.
12
4 Subsection 515(5)
13
Omit "an the FWC order", substitute "an FWC order".
14
Note:
This item fixes a grammatical error.
15
5 Paragraph 584(1)(a)
16
Omit "the Minimum Wage Panel", substitute "an Expert Panel".
17
Note:
This item fixes an incorrect reference.
18
6 Subsection 603(1)
19
Omit "of The FWC", substitute "of the FWC".
20
Note:
This item fixes a grammatical error.
21
7 Subsection 603(1) (note)
22
Omit "The FWC" (wherever occurring), substitute "the FWC".
23
Note:
This item fixes a grammatical error.
24
8 Paragraph 670(2)(a)
25
Omit "FWA", substitute "the FWC".
26
Note:
This item fixes an incorrect reference.
27
Technical amendments Schedule 6
Fair Work Amendment Bill 2013 No. , 2013 31
Fair Work Amendment Act 2012
1
9 Item 40 of Schedule 8 (heading)
2
Repeal the heading, substitute:
3
40 Subsection 644(1) (heading)
4
Note:
This item fixes a misdescribed amendment.
5
10 Item 41 of Schedule 8
6
Omit "Deputy President,", substitute "Deputy President".
7
Note:
This item fixes a misdescribed amendment.
8
11 Item 414 of Schedule 9 (heading)
9
Repeal the heading, substitute:
10
414 Subsection 400(2)
11
Note:
This item fixes a misdescribed amendment.
12
12 Item 1144 of Schedule 9
13
Omit "FWC's" (first occurring), substitute "FWA's".
14
Note:
This item fixes a misdescribed amendment.
15
13 Item 1252 of Schedule 9
16
Repeal the item, substitute:
17
1252 Subitem 2(1) of Schedule 20
18
Omit "FWA" (wherever occurring), substitute "the FWC".
19
Note:
This item fixes a misdescribed amendment.
20
14 Item 1364 of Schedule 9
21
Repeal the item.
22
Note:
This item repeals an item made redundant by other amendments.
23
Schedule 7 Application and transitional provisions
32 Fair Work Amendment Bill 2013 No. , 2013
Schedule 7
--
Application and transitional
1
provisions
2
3
Fair Work Act 2009
4
1 After Schedule 3
5
Insert:
6
Schedule 4--Amendments made by the Fair
7
Work Amendment Act 2013
8
Note:
See section 795A.
9
Part 1--Preliminary
10
11
1 Definition
12
In this Schedule:
13
amending Act means the Fair Work Amendment Act 2013.
14
Part 2--Family-friendly measures (Schedule 1)
15
16
2 Part 1 of Schedule 1 to the amending Act
17
The amendments made by Part 1 of Schedule 1 to the amending
18
Act apply in relation to a period of unpaid special maternity leave
19
that starts after the commencement of that Part.
20
3 Part 2 of Schedule 1 to the amending Act
21
The amendments made by Part 2 of Schedule 1 to the amending
22
Act apply in relation to the taking of unpaid parental leave by
23
members of an employee couple if the first taking of leave by
24
either member of the employee couple occurs after the
25
commencement of that Part.
26
Application and transitional provisions Schedule 7
Fair Work Amendment Bill 2013 No. , 2013 33
4 Part 3 of Schedule 1 to the amending Act
1
The amendments made by Part 3 of Schedule 1 to the amending
2
Act apply in relation to a request that is made under
3
subsection 65(1) after the commencement of that Part.
4
5 Part 4 of Schedule 1 to the amending Act
5
Application of amendments
6
(1) The amendment made by item 19 of Schedule 1 to the amending
7
Act applies in relation to a modern award that is in operation on or
8
after 1 January 2014, whether or not the award was made before
9
that day.
10
(2) The amendments made by items 20 and 21 of Schedule 1 to the
11
amending Act apply in relation to an enterprise agreement that is
12
made after the commencement of that Schedule.
13
Transitional provision
14
(3) If:
15
(a) a modern award is made before 1 January 2014; and
16
(b) the modern award is in operation on that day; and
17
(c) immediately before that day, the modern award does not
18
include a term (the relevant term) of the kind mentioned in
19
section 145A (as inserted by item 19 of Schedule 1 to the
20
amending Act);
21
then the FWC must, by 31 December 2013, make a determination
22
varying the modern award to include the relevant term.
23
(4) A determination made under subclause (3) comes into operation on
24
(and takes effect from) 1 January 2014.
25
(5) Section 168 applies to a determination made under subclause (3) as
26
if it were a determination made under Part 2-3.
27
6 Part 5 of Schedule 1 to the amending Act
28
The amendments made by Part 5 of Schedule 1 to the amending
29
Act apply in relation to evidence that is given under section 81
30
after the commencement of that Part.
31
Schedule 7 Application and transitional provisions
34 Fair Work Amendment Bill 2013 No. , 2013
Part 3--Modern awards objective (Schedule 2)
1
2
7 Schedule 2 to the amending Act
3
The amendment made by Schedule 2 to the amending Act applies
4
in relation to a modern award that is made or varied after the
5
commencement of that Schedule.
6
Part 4--Anti-bullying measure (Schedule 3)
7
8
8 Schedule 3 to the amending Act
9
The amendments made by Schedule 3 to the amending Act apply
10
in relation to an application that is made under section 789FC (as
11
inserted by item 6 of that Schedule) after the commencement of
12
that Schedule.
13
Part 5--Right of entry (Schedule 4)
14
15
9 Schedule 4 to the amending Act
16
Application of amendment relating to sections 492 and 492A
17
(1) The amendment made by item 7 of Schedule 4 to the amending Act
18
applies in relation to interviews conducted and discussions held
19
after the commencement of that item.
20
Application of amendments relating to section 505A
21
(2) The amendments made by items 12 and 13 of Schedule 4 to the
22
amending Act apply in relation to the frequency of entry after the
23
commencement of those items.
24
Application of amendments relating to accommodation
25
arrangements and transport arrangements
26
(3) The amendments made by items 14 and 15 of Schedule 4 to the
27
amending Act do not apply in relation to arrangements entered into
28
before the commencement of those items.
29
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