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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work Amendment Bill 2014
No. , 2014
(Employment)
A Bill for an Act to amend the Fair Work Act 2009,
and for other purposes
No. , 2014
Fair Work Amendment Bill 2014
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedule(s) ........................................................................................ 3
Schedule 1--Amendments
4
Part 1--Extension of period of unpaid parental leave
4
Fair Work Act 2009
4
Part 2--Payment for annual leave
5
Fair Work Act 2009
5
Part 3--Taking or accruing leave while receiving workers'
compensation
6
Fair Work Act 2009
6
Part 4--Individual flexibility arrangements
7
Division 1--Modern awards (genuine needs statements)
7
Fair Work Act 2009
7
Division 2--Modern awards (other matters)
7
Fair Work Act 2009
7
Division 3--Enterprise agreements
8
Fair Work Act 2009
8
Part 5--Greenfields agreements
11
Fair Work Act 2009
11
Part 6--Transfer of business
18
Fair Work Act 2009
18
Part 7--Protected action ballot orders
19
Fair Work Act 2009
19
Part 8--Right of entry
20
Fair Work Act 2009
20
Part 9--FWC hearings and conferences
26
Fair Work Act 2009
26
ii
Fair Work Amendment Bill 2014
No. , 2014
Part 10--Unclaimed money
28
Fair Work Act 2009
28
Schedule 2--Application and transitional provisions
29
Fair Work Act 2009
29
No. , 2014
Fair Work Amendment Bill 2014
1
A Bill for an Act to amend the Fair Work Act 2009,
1
and for other purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Fair Work Amendment Act 2014.
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 2014
No. , 2014
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, 2 and 3
The day after this Act receives the Royal
Assent.
3. Schedule 1,
Part 4, Division 1
The day after the end of the period of 6
months beginning on the day this Act
receives the Royal Assent.
4. Schedule 1,
Part 4,
Divisions 2 and 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.
5. Schedule 1,
Parts 5, 6 and 7
The day after this Act receives the Royal
Assent.
6. Schedule 1,
Part 8
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.
7. Schedule 1,
Part 9
The day after this Act receives the Royal
Assent.
8. Schedule 1,
Part 10
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.
9. Schedule 2
The day after this Act receives the Royal
Assent.
No. , 2014
Fair Work Amendment Bill 2014
3
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 Amendments
Part 1 Extension of period of unpaid parental leave
4
Fair Work Amendment Bill 2014
No. , 2014
Schedule 1
--
Amendments
1
Part 1
--
Extension of period of unpaid parental leave
2
Fair Work Act 2009
3
1 After subsection 76(5)
4
Insert:
5
Discussion
6
(5A) The employer must not refuse the request unless the employer has
7
given the employee a reasonable opportunity to discuss the request.
8
Amendments Schedule 1
Payment for annual leave Part 2
No. , 2014
Fair Work Amendment Bill 2014
5
Part 2
--
Payment for annual leave
1
Fair Work Act 2009
2
2 Subsection 55(4) (paragraph (b) of note 2)
3
Omit "99).", substitute "99); or".
4
3 Subsection 55(4) (at the end of note 2)
5
Add:
6
(c) that provide that if, when the employment of an employee ends,
7
the employee has a period of untaken paid annual leave, the
8
employee is to be paid the amount that would have been payable
9
to the employee had the employee taken that period of leave (that
10
amount may be higher than the amount required by
11
subsection 90(2)).
12
4 Subsection 90(2)
13
Repeal the subsection, substitute:
14
(2) If, at the time (the termination time) when the employment of an
15
employee ends, the employee has a period of untaken paid annual
16
leave:
17
(a) the employer must pay the employee a rate for each hour of
18
the employee's untaken paid annual leave; and
19
(b) that rate must not be less than the rate that, immediately
20
before the termination time, is the employee's base rate of
21
pay (expressed as an hourly rate).
22
Note:
See also section 55 (which deals with the interaction between the
23
National Employment Standards and a modern award or enterprise
24
agreement).
25
Schedule 1 Amendments
Part 3 Taking or accruing leave while receiving workers' compensation
6
Fair Work Amendment Bill 2014
No. , 2014
Part 3
--
Taking or accruing leave while receiving
1
workers' compensation
2
Fair Work Act 2009
3
5 Subsection 130(2)
4
Repeal the subsection.
5
Amendments Schedule 1
Individual flexibility arrangements Part 4
No. , 2014
Fair Work Amendment Bill 2014
7
Part 4
--
Individual flexibility arrangements
1
Division 1
--
Modern awards (genuine needs statements)
2
Fair Work Act 2009
3
6 After paragraph 144(4)(c)
4
Insert:
5
(ca) require the employer to ensure that any individual flexibility
6
arrangement includes a statement by the employee setting out
7
why the employee believes (at the time of agreeing to the
8
arrangement) that the arrangement:
9
(i) meets the genuine needs of the employee; and
10
(ii) results in the employee being better off overall than the
11
employee would have been if no individual flexibility
12
arrangement were agreed to; and
13
Division 2
--
Modern awards (other matters)
14
Fair Work Act 2009
15
7 Paragraph 144(4)(d)
16
Repeal the paragraph, substitute:
17
(d) require the employer to ensure that any individual flexibility
18
arrangement agreed to under the term must be able to be
19
terminated:
20
(i) by either the employee, or the employer, giving 13
21
weeks notice of termination, in writing, to the other
22
party to the arrangement; or
23
(ii) by the employee and the employer at any time if they
24
agree, in writing, to the termination; and
25
8 At the end of subsection 144(4)
26
Add:
27
Note:
Benefits other than an entitlement to a payment of money may be
28
taken into account for the purposes of paragraph (c).
29
Schedule 1 Amendments
Part 4 Individual flexibility arrangements
8
Fair Work Amendment Bill 2014
No. , 2014
9 At the end of subsection 145(3)
1
Add:
2
Note:
An employer does not contravene a flexibility term in the
3
circumstances set out in section 145AA.
4
10 After section 145
5
Insert:
6
145AA Contravention of flexibility term by employer
7
An employer does not contravene a flexibility term of a modern
8
award in relation to a particular individual flexibility arrangement
9
if, at the time when the arrangement is made, the employer
10
reasonably believes that the requirements of the term were
11
complied with, so far as the requirements are applicable to the
12
arrangement.
13
Division 3
--
Enterprise agreements
14
Fair Work Act 2009
15
11 Before paragraph 203(2)(a)
16
Insert:
17
(aa) if the enterprise agreement includes terms that deal with one
18
or more of the following matters:
19
(i) arrangements about when work is performed;
20
(ii) overtime rates;
21
(iii) penalty rates;
22
(iv) allowances;
23
(v) leave loading;
24
provide that the effect of those terms may be varied by an
25
individual flexibility arrangement agreed to under the
26
flexibility term; and
27
12 Paragraph 203(2)(a)
28
Omit "the terms", substitute "any other terms".
29
Amendments Schedule 1
Individual flexibility arrangements Part 4
No. , 2014
Fair Work Amendment Bill 2014
9
13 At the end of subsection 203(4)
1
Add:
2
Note:
Benefits other than an entitlement to a payment of money may be
3
taken into account for the purposes of this subsection.
4
14 After subsection 203(4)
5
Insert:
6
Requirement for genuine needs statement
7
(4A) The flexibility term must require the employer to ensure that any
8
individual flexibility arrangement agreed to under the term
9
includes a statement by the employee setting out why the employee
10
believes (at the time of agreeing to the arrangement) that the
11
arrangement:
12
(a) meets the genuine needs of the employee; and
13
(b) results in the employee being better off overall than the
14
employee would have been if no individual flexibility
15
arrangement were agreed to.
16
15 Paragraph 203(6)(a)
17
Omit "written notice of not more than 28 days", substitute "13 weeks
18
notice of termination, in writing, to the other party to the arrangement".
19
16 At the end of subsection 204(3)
20
Add:
21
Note:
An employer does not contravene a flexibility term in the
22
circumstances set out in section 204A.
23
17 Subsection 204(4)
24
Repeal the subsection, substitute:
25
Arrangement may be terminated by agreement or notice
26
(4) The flexibility term is taken to provide (in addition to any other
27
means of termination of the arrangement that the term provides)
28
that the arrangement can be terminated:
29
(a) by either the employee, or the employer, giving written
30
notice of not more than 28 days; or
31
Schedule 1 Amendments
Part 4 Individual flexibility arrangements
10
Fair Work Amendment Bill 2014
No. , 2014
(b) by the employee and the employer at any time if they agree,
1
in writing, to the termination.
2
18 After section 204
3
Insert:
4
204A Contravention of flexibility term by employer
5
An employer does not contravene a flexibility term of an enterprise
6
agreement in relation to a particular individual flexibility
7
arrangement if, at the time when the arrangement is made, the
8
employer reasonably believes that the requirements of the term
9
were complied with, so far as the requirements are applicable to the
10
arrangement.
11
Amendments Schedule 1
Greenfields agreements Part 5
No. , 2014
Fair Work Amendment Bill 2014
11
Part 5
--
Greenfields agreements
1
Fair Work Act 2009
2
19 Section 12 (at the end of the definition of appointment)
3
Add "or 177(c)".
4
20 Section 12 (definition of bargaining representative)
5
Omit "section 176", substitute "sections 176 and 177".
6
21 Section 12
7
Insert:
8
notified negotiation period for a proposed single-enterprise
9
agreement that is a greenfields agreement: see section 178B.
10
22 Subsection 172(1) (note 2)
11
After "enterprise agreement", insert "that is not a greenfields
12
agreement".
13
23 After section 176
14
Insert:
15
177 Bargaining representatives for proposed enterprise agreements
16
that are greenfields agreements
17
The following paragraphs set out the persons who are bargaining
18
representatives for a proposed single-enterprise agreement that is a
19
greenfields agreement:
20
(a) an employer that will be covered by the agreement;
21
(b) an employee organisation:
22
(i) that is entitled to represent the industrial interests of one
23
or more of the employees who will be covered by the
24
agreement, in relation to work to be performed under
25
the agreement; and
26
(ii) with which the employer agrees to bargain for the
27
agreement;
28
Schedule 1 Amendments
Part 5 Greenfields agreements
12
Fair Work Amendment Bill 2014
No. , 2014
(c) a person who is a bargaining representative of an employer
1
that will be covered by the agreement if the employer
2
appoints, in writing, the person as his or her bargaining
3
representative for the agreement.
4
24 At the end of subsection 178(2)
5
Add:
6
; and (c) for an appointment made by an employer that will be covered
7
by a proposed single-enterprise agreement that is a
8
greenfields agreement--be given, on request, to an employee
9
organisation that is a bargaining representative for the
10
agreement.
11
25 Paragraph 178A(3)(b)
12
After "a proposed enterprise agreement", insert ", other than a
13
single-enterprise agreement that is a greenfields agreement".
14
26 After subsection 178A(3)
15
Insert:
16
(3A) A copy of an instrument under subsection (1) made by an employer
17
that will be covered by a proposed single-enterprise agreement that
18
is a greenfields agreement must be given to the bargaining
19
representative and, on request, to an employee organisation that is
20
a bargaining representative for the agreement.
21
27 At the end of Division 3 of Part 2-4
22
Add:
23
178B Notified negotiation period for a proposed single-enterprise
24
agreement that is a greenfields agreement
25
(1) If a proposed single-enterprise agreement is a greenfields
26
agreement, an employer that is a bargaining representative for the
27
agreement may give written notice:
28
(a) to each employee organisation that is a bargaining
29
representative for the agreement; and
30
(b) stating that the period of 3 months beginning on a specified
31
day is the notified negotiation period for the agreement.
32
(2) The specified day must be later than:
33
Amendments Schedule 1
Greenfields agreements Part 5
No. , 2014
Fair Work Amendment Bill 2014
13
(a) if only one employee organisation is a bargaining
1
representative for the agreement--the day on which the
2
employer gave the notice to the organisation; or
3
(b) if 2 or more employee organisations are bargaining
4
representatives for the agreement--the last day on which the
5
employer gave the notice to any of those organisations.
6
Multiple employers--agreement to giving of notice
7
(3) If 2 or more employers are bargaining representatives for the
8
agreement, the notice has no effect unless the other employer or
9
employers agree to the giving of the notice.
10
28 At the end of section 182
11
Add:
12
(4) If:
13
(a) a proposed single-enterprise agreement is a greenfields
14
agreement that has not been made under subsection (3); and
15
(b) there has been a notified negotiation period for the
16
agreement; and
17
(c) the notified negotiation period has ended; and
18
(d) the employer or employers that were bargaining
19
representatives for the agreement (the relevant employer or
20
employers) gave each of the employee organisations that
21
were bargaining representatives for the agreement a
22
reasonable opportunity to sign the agreement; and
23
(e) the relevant employer or employers apply to the FWC for
24
approval of the agreement;
25
the agreement is taken to have been made:
26
(f) by the relevant employer or employers with each of the
27
employee organisations that were bargaining representatives
28
for the agreement; and
29
(g) when the application is made to the FWC for approval of the
30
agreement.
31
Note:
See also section 185A (material that must accompany an application).
32
29 Subsection 185(1A)
33
After "the agreement is a", insert "multi-enterprise agreement that is a".
34
Schedule 1 Amendments
Part 5 Greenfields agreements
14
Fair Work Amendment Bill 2014
No. , 2014
30 At the end of section 185
1
Add:
2
Single-enterprise agreements that are greenfields agreements
3
(6) This section does not apply to an agreement made under
4
subsection 182(4).
5
31 At the end of Subdivision A of Division 4 of Part 2-4
6
Add:
7
185A Material that must accompany an application under
8
subsection 182(4) for approval of a greenfields agreement
9
An application under subsection 182(4) for approval of an
10
agreement must be accompanied by:
11
(a) a copy of the agreement; and
12
(b) any declarations that are required by the procedural rules to
13
accompany the application.
14
32 Subsection 186(1)
15
After "made under", insert "subsection 182(4) or".
16
33 At the end of section 187
17
Add:
18
(6) If an agreement is made under subsection 182(4) (which deals with
19
a single-enterprise agreement that is a greenfields agreement), the
20
FWC must be satisfied that the agreement, considered on an
21
overall basis, provides for pay and conditions that are consistent
22
with the prevailing pay and conditions within the relevant industry
23
for equivalent work.
24
Note:
In considering the prevailing pay and conditions within the relevant
25
industry for equivalent work, the FWC may have regard to the
26
prevailing pay and conditions in the relevant geographical area.
27
34 Paragraph 190(1)(a)
28
After "made under", insert "subsection 182(4) or".
29
Amendments Schedule 1
Greenfields agreements Part 5
No. , 2014
Fair Work Amendment Bill 2014
15
35 Subsection 192(1)
1
After "made under", insert "subsection 182(4) or".
2
36 Subsection 193(6)
3
After "made under", insert "subsection 182(4) or".
4
37 After subsection 201(2)
5
Insert:
6
(2A) If:
7
(a) an agreement is made under subsection 182(4) (which deals
8
with a single-enterprise agreement that is a greenfields
9
agreement); and
10
(b) the FWC approves the agreement;
11
the FWC must note in its decision to approve the agreement that
12
the agreement covers each employee organisation that was a
13
bargaining representative for the agreement.
14
38 Paragraph 211(1)(a)
15
After "made under", insert "subsection 182(4) or".
16
39 Paragraph 211(4)(d)
17
After "(6) to", insert "subsection 182(4) or".
18
40 At the end of subsection 228(1)
19
Add:
20
Note:
See also section 255A (limitations relating to greenfields agreements).
21
41 At the end of subsection 229(1)
22
Add:
23
Note:
See also section 255A (limitations relating to greenfields agreements).
24
42 At the end of subsection 230(1)
25
Add:
26
Note:
See also section 255A (limitations relating to greenfields agreements).
27
43 At the end of section 232
28
Add:
29
Schedule 1 Amendments
Part 5 Greenfields agreements
16
Fair Work Amendment Bill 2014
No. , 2014
Note:
See also section 255A (limitations relating to greenfields agreements).
1
44 Section 234 (note)
2
After "Note", insert "1".
3
45 At the end of section 234
4
Add:
5
Note 2:
See also section 255A (limitations relating to greenfields agreements).
6
46 At the end of subsection 235(1)
7
Add:
8
Note:
See also section 255A (limitations relating to greenfields agreements).
9
47 Subsection 238(1)
10
After "a proposed single-enterprise agreement", insert "(other than a
11
greenfields agreement)".
12
48 At the end of subsection 240(1)
13
Add:
14
Note:
See also section 255A (limitations relating to greenfields agreements).
15
49 At the end of subsection 255(1)
16
Add:
17
; or (d) an employer to give a notice under section 178B; or
18
(e) an employer to specify a particular day in a notice under
19
section 178B; or
20
(f) an employer to agree to the giving of a notice under
21
section 178B.
22
50 After section 255
23
Insert:
24
255A Limitations relating to greenfields agreements
25
(1) If:
26
(a) a proposed single-enterprise agreement is a greenfields
27
agreement; and
28
Amendments Schedule 1
Greenfields agreements Part 5
No. , 2014
Fair Work Amendment Bill 2014
17
(b) there has been a notified negotiation period for the
1
agreement; and
2
(c) the notified negotiation period has ended;
3
then:
4
(d) the following provisions do not apply in relation to the
5
agreement at any time after the end of the notified
6
negotiation period:
7
(i) section 228 (which deals with good faith bargaining
8
requirements);
9
(ii) sections 229 and 230 (which deal with bargaining
10
orders);
11
(iii) sections 234 and 235 (which deal with serious breach
12
declarations);
13
(iv) section 240 (which deals with bargaining disputes); and
14
(e) a bargaining order that relates to the agreement ceases to
15
have effect at the end of the notified negotiation period.
16
(2) Paragraph (1)(e) has effect despite anything in section 232 (which
17
deals with the operation of bargaining orders).
18
51 At the end of subsection 269(1)
19
Add:
20
Note 3:
See also section 271A (limitations relating to greenfields agreements).
21
52 At the end of Division 4 of Part 2-5
22
Add:
23
271A Limitations relating to greenfields agreements
24
If:
25
(a) a proposed single-enterprise agreement is a greenfields
26
agreement; and
27
(b) there has been a notified negotiation period for the
28
agreement; and
29
(c) the notified negotiation period has ended;
30
section 269 (which deals with bargaining related workplace
31
determinations) does not apply in relation to the agreement at any
32
time after the end of the notified negotiation period.
33
Schedule 1 Amendments
Part 6 Transfer of business
18
Fair Work Amendment Bill 2014
No. , 2014
Part 6
--
Transfer of business
1
Fair Work Act 2009
2
53 Section 12 (paragraph (a) of the definition of transfer of
3
business)
4
Omit "subsection 311(1)", substitute "subsections 311(1) and (1A)".
5
54 After subsection 311(1)
6
Insert:
7
(1A) However, there is not a transfer of business if:
8
(a) the new employer is an associated entity of the old employer
9
when the employee becomes employed by the new employer;
10
and
11
(b) before the termination of the employee's employment with
12
the old employer, the employee sought to become employed
13
by the new employer at the employee's initiative.
14
55 At the end of section 768AD
15
Add:
16
Exception
17
(5) Subsections (2), (3) and (4) do not apply if:
18
(a) the new employer is an associated entity of the old State
19
employer when the person becomes employed by the new
20
employer as mentioned in paragraph (1)(b); and
21
(b) before the termination of the person's employment with the
22
old State employer, the person sought to become employed
23
by the new employer at the person's initiative.
24
(6) For the purposes of sections 768BL, 768BM and 768BN, assume
25
that subsection (5) of this section had not been enacted.
26
Amendments Schedule 1
Protected action ballot orders Part 7
No. , 2014
Fair Work Amendment Bill 2014
19
Part 7
--
Protected action ballot orders
1
Fair Work Act 2009
2
56 After subsection 437(2)
3
Insert:
4
(2A) Subsection (1) does not apply unless there has been a notification
5
time in relation to the proposed enterprise agreement.
6
Note:
For notification time, see subsection 173(2). Protected industrial
7
action cannot be taken until after bargaining has commenced
8
(including where the scope of the proposed enterprise agreement is the
9
only matter in dispute).
10
Schedule 1 Amendments
Part 8 Right of entry
20
Fair Work Amendment Bill 2014
No. , 2014
Part 8
--
Right of entry
1
Fair Work Act 2009
2
57 Section 12 (definition of accommodation arrangement)
3
Repeal the definition.
4
58 Section 12
5
Insert:
6
invitation certificate: see subsection 520A(1).
7
59 Section 12 (definition of transport arrangement)
8
Repeal the definition.
9
60 Section 478
10
Omit:
11
Division 7 deals with accommodation and transport arrangements
12
in remote areas.
13
61 Section 484
14
Repeal the section, substitute:
15
484 Entry to hold discussions
16
Permit holder's organisation is covered by an enterprise
17
agreement
18
(1) A permit holder may enter premises for the purposes of holding
19
discussions with one or more employees or TCF award workers:
20
(a) who perform work on the premises; and
21
(b) whose industrial interests the permit holder's organisation is
22
entitled to represent; and
23
(c) who wish to participate in those discussions;
24
if:
25
Amendments Schedule 1
Right of entry Part 8
No. , 2014
Fair Work Amendment Bill 2014
21
(d) an enterprise agreement applies to work performed on the
1
premises; and
2
(e) the permit holder's organisation is covered by the enterprise
3
agreement.
4
Note 1:
A permit holder, or the organisation to which the permit holder
5
belongs, may be subject to an order by the FWC under section 508 if
6
rights under this Subdivision are misused.
7
Note 2:
A person must not refuse or unduly delay entry by a permit holder, or
8
intentionally hinder or obstruct a permit holder, exercising rights
9
under this Subdivision (see sections 501 and 502).
10
Note 3:
Under paragraph 487(1)(b), the permit holder must give the occupier
11
of the premises notice for the entry. Having given that notice, the
12
permit holder may hold the relevant discussions on the premises.
13
Permit holder's organisation is not covered by an enterprise
14
agreement
15
(2) A permit holder may enter premises for the purposes of holding
16
discussions with one or more employees or TCF award workers:
17
(a) who perform work on the premises; and
18
(b) whose industrial interests the permit holder's organisation is
19
entitled to represent; and
20
(c) who wish to participate in those discussions;
21
if:
22
(d) either:
23
(i) an enterprise agreement applies to work performed on
24
the premises, but the enterprise agreement does not
25
cover the permit holder's organisation; or
26
(ii) no enterprise agreement applies to work performed on
27
the premises; and
28
(e) a member, or prospective member, of the permit holder's
29
organisation:
30
(i) who performs work on the premises; and
31
(ii) whose industrial interests the organisation is entitled to
32
represent;
33
has invited the organisation to send a representative to the
34
premises for the purposes of holding those discussions.
35
Note 1:
The FWC may issue an invitation certificate under section 520A. The
36
certificate will state that the FWC is satisfied that the organisation has
37
been invited.
38
Schedule 1 Amendments
Part 8 Right of entry
22
Fair Work Amendment Bill 2014
No. , 2014
Note 2:
A permit holder, or the organisation to which the permit holder
1
belongs, may be subject to an order by the FWC under section 508 if
2
rights under this Subdivision are misused.
3
Note 3:
A person must not refuse or unduly delay entry by a permit holder, or
4
intentionally hinder or obstruct a permit holder, exercising rights
5
under this Subdivision (see sections 501 and 502).
6
Note 4:
Under paragraph 487(1)(b), the permit holder must give the occupier
7
of the premises notice for the entry. Having given that notice, the
8
permit holder may hold the relevant discussions on the premises.
9
62 Sections 492 and 492A
10
Repeal the sections, substitute:
11
492 Conduct of interviews in particular room etc.
12
(1) The permit holder must comply with any reasonable request by the
13
occupier of the premises to:
14
(a) conduct interviews or hold discussions in a particular room or
15
area of the premises; or
16
(b) take a particular route to reach a particular room or area of
17
the premises.
18
Note:
The FWC may deal with a dispute about whether the request is
19
reasonable (see subsection 505(1)).
20
(2) Without limiting when a request under subsection (1) might
21
otherwise be unreasonable, a request under paragraph (1)(a) is
22
unreasonable if:
23
(a) the room or area is not fit for the purpose of conducting the
24
interviews or holding the discussions; or
25
(b) the request is made with the intention of:
26
(i) intimidating persons who might participate in the
27
interviews or discussions; or
28
(ii) discouraging persons from participating in the
29
interviews or discussions; or
30
(iii) making it difficult for persons to participate in the
31
interviews or discussions, whether because the room or
32
area is not easily accessible during mealtimes or other
33
breaks, or for some other reason.
34
Amendments Schedule 1
Right of entry Part 8
No. , 2014
Fair Work Amendment Bill 2014
23
(3) However, a request under subsection (1) is not unreasonable only
1
because the room, area or route is not that which the permit holder
2
would have chosen.
3
(4) The regulations may prescribe circumstances in which a request
4
under subsection (1) is or is not reasonable.
5
63 Subsection 505(1)
6
Repeal the subsection, substitute:
7
(1) The FWC may deal with a dispute about the operation of this Part
8
(including a dispute about whether a request under section 491,
9
492 or 499 is reasonable).
10
Note:
Sections 491, 492 and 499 deal with requests for permit holders to use
11
particular rooms or areas, and comply with occupational health and
12
safety requirements.
13
64 Subsection 505(5)
14
Repeal the subsection, substitute:
15
(5) In dealing with the dispute, the FWC must not confer rights on a
16
permit holder that are additional to, or inconsistent with, rights
17
exercisable in accordance with Division 2 or 3 of this Part, unless
18
the dispute is about whether a request under section 491, 492 or
19
499 is reasonable.
20
65 Subsection 505A(4)
21
Repeal the subsection.
22
66 Subsection 505A(6)
23
Repeal the subsection, substitute:
24
(6) In dealing with the dispute, the FWC must take into account:
25
(a) fairness between the parties concerned; and
26
(b) if the dispute relates to an employer--the combined impact
27
on the employer's operations of entries onto the premises by
28
permit holders of organisations; and
29
(c) if the dispute relates to an occupier of premises--the
30
combined impact on the occupier's operations of entries onto
31
the premises by permit holders of organisations.
32
Schedule 1 Amendments
Part 8 Right of entry
24
Fair Work Amendment Bill 2014
No. , 2014
(7) For the purposes of paragraphs (6)(b) and (c), it is immaterial
1
whether the organisations, or their permit holders, are parties to the
2
dispute.
3
67 After Subdivision D of Division 6 of Part 3-4
4
Insert:
5
Subdivision DA--Invitation certificates
6
520A Invitation certificates
7
(1) The FWC must, on application by an organisation, issue a
8
certificate (an invitation certificate) to the organisation if the FWC
9
is satisfied that:
10
(a) a member, or prospective member, of the organisation
11
performs work on particular premises; and
12
(b) the organisation is entitled to represent the industrial interests
13
of the member or prospective member; and
14
(c) the member or prospective member has invited the
15
organisation to send a representative to the premises for the
16
purposes of holding discussions with one or more employees
17
or TCF award workers.
18
(2) An invitation certificate must state the following:
19
(a) the premises to which it relates;
20
(b) the organisation to which it relates;
21
(c) that the FWC is satisfied of the matters referred to in
22
paragraphs (1)(a), (b) and (c).
23
(3) The FWC must specify an expiry date in an invitation certificate.
24
The certificate ceases to have effect at the end of that date.
25
(4) In specifying an expiry date in an invitation certificate, the FWC
26
must comply with any limitations, restrictions or requirements
27
prescribed by the regulations.
28
(5) An invitation certificate must not reveal the identity of the member
29
or prospective member to whom it relates.
30
Amendments Schedule 1
Right of entry Part 8
No. , 2014
Fair Work Amendment Bill 2014
25
68 Paragraphs 521(a), (b), (c) and (d)
1
Omit "and affected member certificates", substitute ", affected member
2
certificates and invitation certificates".
3
69 Division 7 of Part 3-4
4
Repeal the Division.
5
70 Subsection 539(2) (cell at table item 25, column headed
6
"
Civil remedy provision
"
)
7
Omit:
8
521C(3)
9
521D(3)
10
71 After paragraph 601(5)(f)
11
Insert:
12
(fa) a decision to issue, or to refuse to issue, an invitation
13
certificate under section 520A;
14
Schedule 1 Amendments
Part 9 FWC hearings and conferences
26
Fair Work Amendment Bill 2014
No. , 2014
Part 9
--
FWC hearings and conferences
1
Fair Work Act 2009
2
72 Section 12
3
Insert:
4
designated application-dismissal power means:
5
(a) the power conferred by section 399A (which deals with
6
dismissing applications for orders under Division 4 of
7
Part 3-2); or
8
(b) the power conferred by section 587 to dismiss an application
9
for an order under Division 4 of Part 3-2.
10
Note:
Division 4 of Part 3-2 deals with remedies for unfair dismissal of
11
employees.
12
73 Section 397
13
Before "The FWC", insert "(1)".
14
74 At the end of section 397
15
Add:
16
(2) This section does not apply for the purposes of deciding whether to
17
exercise a designated application-dismissal power.
18
75 At the end of section 399
19
Add:
20
Designated application-dismissal power
21
(4) To avoid doubt, a reference in this section to a hearing in relation
22
to a matter arising under this Part includes a reference to a
23
hearing for the purposes of deciding whether to exercise a
24
designated application-dismissal power.
25
76 After section 399A
26
Insert:
27
Amendments Schedule 1
FWC hearings and conferences Part 9
No. , 2014
Fair Work Amendment Bill 2014
27
399B Hearings and conferences--dismissing applications
1
(1) If the FWC decides not to hold a hearing, or conduct a conference,
2
for the purposes of deciding whether to exercise a designated
3
application-dismissal power, the FWC must, before deciding
4
whether to exercise the power:
5
(a) invite the parties to the matter concerned to provide further
6
information that relates to whether the power should be
7
exercised; and
8
(b) take account of any such information.
9
(2) If, as a result of information provided as mentioned in
10
subsection (1), the FWC considers that it would be desirable to
11
hold a hearing, or conduct a conference, for the purposes of
12
deciding whether to exercise a designated application-dismissal
13
power, the FWC may do so.
14
(3) An invitation under paragraph (1)(a) must:
15
(a) be given by written notice to the parties to the matter
16
concerned; and
17
(b) specify the time by which the information referred to in the
18
invitation is to be provided.
19
77 Subsection 587(1) (note)
20
After "Note", insert "1".
21
78 At the end of subsection 587(1)
22
Add:
23
Note 2:
Section 399 deals with hearings for the purposes of deciding whether
24
to exercise the power conferred by this section to dismiss an
25
application for an order under Division 4 of Part 3-2.
26
Note 3:
Section 399B sets out requirements that apply if the FWC decides not
27
to hold a hearing, or conduct a conference, for the purposes of
28
deciding whether to exercise the power conferred by this section to
29
dismiss an application for an order under Division 4 of Part 3-2.
30
Schedule 1 Amendments
Part 10 Unclaimed money
28
Fair Work Amendment Bill 2014
No. , 2014
Part 10
--
Unclaimed money
1
Fair Work Act 2009
2
79 Before subsection 559(4)
3
Insert:
4
Interest
5
(3A) If:
6
(a) an amount is paid to a person under subsection (3) at a
7
particular time; and
8
(b) the amount is at least $100; and
9
(c) the amount is attributable to an amount that was paid to the
10
Commonwealth under subsection (1) more than 6 months
11
before that time;
12
the Fair Work Ombudsman, on behalf of the Commonwealth, must
13
also pay to the person the amount of interest (if any) worked out in
14
accordance with an instrument under subsection (3B).
15
(3B) The Minister may make an instrument for the purposes of
16
subsection (3A).
17
(3C) An instrument under subsection (3B) may involve different rates of
18
interest for different periods over which the interest accrues. For
19
this purpose, rate includes a nil rate.
20
(3D) An instrument made under subsection (3B) is a legislative
21
instrument.
22
80 Subsection 559(4)
23
Omit "this section", substitute "subsection (3)".
24
Application and transitional provisions Schedule 2
No. , 2014
Fair Work Amendment Bill 2014
29
Schedule 2
--
Application and transitional
1
provisions
2
3
Fair Work Act 2009
4
1 At the end of the Act
5
Add:
6
Schedule 5--Amendments made by the Fair
7
Work Amendment Act 2014
8
Note:
See section 795A.
9
10
11
1 Definition
12
In this Schedule:
13
amending Act means the Fair Work Amendment Act 2014.
14
2 Part 1 of Schedule 1 to the amending Act
15
The amendment made by Part 1 of Schedule 1 to the amending Act
16
applies in relation to a request made after the commencement of
17
that Part.
18
3 Part 2 of Schedule 1 to the amending Act
19
The amendments made by Part 2 of Schedule 1 to the amending
20
Act apply in relation to the end of the employment of an employee,
21
if the end of the employment occurs after the commencement of
22
that Part.
23
4 Part 3 of Schedule 1 to the amending Act
24
The amendment made by Part 3 of Schedule 1 to the amending Act
25
applies in relation to a compensation period beginning after the
26
commencement of that Part.
27
Schedule 2 Application and transitional provisions
30
Fair Work Amendment Bill 2014
No. , 2014
5 Division 1 of Part 4 of Schedule 1 to the amending Act
1
Paragraph 144(4)(ca) applies in relation to a modern award that is
2
in operation after the commencement of Division 1 of Part 4 of
3
Schedule 1 to the amending Act, whether or not the award was
4
made before the commencement of that Division.
5
6 FWC to vary certain modern awards--genuine needs statement
6
Scope
7
(1) This clause applies in relation to a modern award if:
8
(a) the award is in operation at any time during the period of 6
9
months ending at the commencement of Division 1 of Part 4
10
of Schedule 1 to the amending Act; and
11
(b) at any time during that 6-month period, the award includes a
12
flexibility term that does not comply with
13
paragraph 144(4)(ca) (if it were assumed that
14
paragraph 144(4)(ca) applied in relation to the award).
15
Variation
16
(2) The FWC must, before the commencement of Division 1 of Part 4
17
of Schedule 1 to the amending Act, make a determination varying
18
the modern award so as to ensure that the flexibility term complies
19
with paragraph 144(4)(ca).
20
(3) A determination made under subclause (2) comes into operation at
21
(and takes effect from) the commencement of Division 1 of Part 4
22
of Schedule 1 to the amending Act.
23
(4) Section 168 applies to a determination made under subclause (2) as
24
if it were a determination made under Part 2-3.
25
7 Division 2 of Part 4 of Schedule 1 to the amending Act
26
Section 145AA applies in relation to an individual flexibility
27
arrangement made after the commencement of Division 2 of Part 4
28
of Schedule 1 to the amending Act.
29
Application and transitional provisions Schedule 2
No. , 2014
Fair Work Amendment Bill 2014
31
8 Division 3 of Part 4 of Schedule 1 to the amending Act
1
(1) The amendments of subsections 203(2) and (6) made by Division 3
2
of Part 4 of Schedule 1 to the amending Act apply in relation to an
3
enterprise agreement made after the commencement of that
4
Division.
5
(2) Subsection 203(4A) applies in relation to an enterprise agreement
6
made after the commencement of Division 3 of Part 4 of
7
Schedule 1 to the amending Act.
8
(3) The amendment of section 204 made by Division 3 of Part 4 of
9
Schedule 1 to the amending Act applies in relation to an enterprise
10
agreement made after the commencement of that Division.
11
(4) Section 204A applies in relation to an individual flexibility
12
arrangement made after the commencement of Division 3 of Part 4
13
of Schedule 1 to the amending Act.
14
9 Part 5 of Schedule 1 to the amending Act
15
The amendments made by Part 5 of Schedule 1 to the amending
16
Act, so far as they concern proposed enterprise agreements, apply
17
in relation to a proposed enterprise agreement if an employer
18
agrees to bargain for the proposed enterprise agreement after the
19
commencement of that Part.
20
10 Part 6 of Schedule 1 to the amending Act
21
(1) Subsection 311(1A) applies in relation to an employee who
22
becomes employed by a new employer after the commencement of
23
Part 6 of Schedule 1 to the amending Act.
24
(2) Subsections 768AD(5) and (6) apply in relation to a person who
25
becomes employed by a new employer after the commencement of
26
Part 6 of Schedule 1 to the amending Act.
27
11 Part 7 of Schedule 1 to the amending Act
28
The amendment of section 437 made by Part 7 of Schedule 1 to the
29
amending Act applies in relation to an application made under that
30
section, if the application was made after the commencement of
31
that Part.
32
Schedule 2 Application and transitional provisions
32
Fair Work Amendment Bill 2014
No. , 2014
12 Part 8 of Schedule 1 to the amending Act
1
(1) The amendments made by item 62 of Schedule 1 to the amending
2
Act apply in relation to interviews conducted, and discussions held,
3
after the commencement of that item.
4
(2) The amendments of section 505A made by Part 8 of Schedule 1 to
5
the amending Act apply to a dispute if the FWC commences to
6
deal with the dispute:
7
(a) on its own initiative after the commencement of that Part; or
8
(b) on application made after the commencement of that Part.
9
13 Part 9 of Schedule 1 to the amending Act
10
The amendments made by Part 9 of Schedule 1 to the amending
11
Act apply in relation to an application for an order under
12
Division 4 of Part 3-2, if the application was made after the
13
commencement of Part 9 of Schedule 1 to the amending Act.
14
14 Part 10 of Schedule 1 to the amending Act
15
Paragraph 559(3A)(c) applies in relation to an amount that was
16
paid to the Commonwealth under subsection 559(1) after the
17
commencement of Part 10 of Schedule 1 to the amending Act.
18
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