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This is a Bill, not an Act. For current law, see the Acts databases.
FAIR WORK AMENDMENT (TACKLING JOB INSECURITY) BILL 2012
2010-2011-2012
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work Amendment (Tackling Job
Insecurity) Bill 2012
No. , 2012
(Mr Bandt)
A Bill for an Act to amend the Fair Work Act 2009,
and for related purposes
i Fair Work Amendment (Tackling Job Insecurity) Bill 2012 No. , 2012
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
1
Schedule 1--Amendments
3
Fair Work Act 2009
3
Fair Work Amendment (Tackling Job Insecurity) Bill 2012 No. , 2012 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 (Tackling Job
5
Insecurity) Act 2012.
6
2 Commencement
7
This Act commences on the day after this Act receives the Royal
8
Assent.
9
3 Schedule(s)
10
Each Act that is specified in a Schedule to this Act is amended or
11
repealed as set out in the applicable items in the Schedule
12
2 Fair Work Amendment (Tackling Job Insecurity) Bill 2012 No. , 2012
concerned, and any other item in a Schedule to this Act has effect
1
according to its terms.
2
3
Amendments Schedule 1
Fair Work Amendment (Tackling Job Insecurity) Bill 2012 No. , 2012 3
Schedule 1--Amendments
1
2
Fair Work Act 2009
3
1 Paragraph 5(8)(a)
4
Omit "or an equal remuneration order (see Part 2-7)", substitute ", an
5
equal remuneration order (see Part 2-7) or a secure employment order
6
(see Part 2-7B)".
7
2 Section 12
8
Insert:
9
rolling contract basis: see section 21A.
10
3 Section 12
11
Insert:
12
rolling contract employee: see section 21A.
13
4 Section 12
14
Insert:
15
secure employment arrangement means ongoing employment on a
16
part-time or full-time basis.
17
5 Section 12
18
Insert:
19
secure employment order: see subsection 306N(1).
20
6 Section 12
21
Insert:
22
small business exempt casual: a casual employee is a small
23
business exempt casual if:
24
(a) the employer is a small business employer; and
25
(b) the employee is not a long term casual employee.
26
7 After section 21
27
Insert:
28
Schedule 1 Amendments
4 Fair Work Amendment (Tackling Job Insecurity) Bill 2012 No. , 2012
21A Meaning of rolling contract employee and rolling contract basis
1
(1) An employee who is employed on a rolling contract basis is a
2
rolling contract employee.
3
(2) An employee is employed by an employer on a rolling contract
4
basis if:
5
(a) the contract of employment ends on a specified date or at the
6
end of a specified period; and
7
(b) the employee has previously been employed by the employer
8
under such a contract; and
9
(c) the current and previous contracts relate to the same kind of
10
work.
11
(3) For the purposes of paragraph (2)(a), a contract may end on a
12
specified date or at the end of a specified period even if a term of
13
the contract has the effect that the contract might be terminated
14
before that date or before the end of that period.
15
8 Subparagraph 43(2)(a)(ii)
16
Omit "and", substitute "or".
17
9 At the end of paragraph 43(2)(a)
18
Add:
19
(iii) a secure employment order (see Part 2-7B); and
20
10 After paragraph 172(1)(c)
21
Insert:
22
(ca) matters pertaining to secure employment arrangements,
23
including moving from casual employment, or from
24
employment on a rolling contract basis, to secure
25
employment arrangements;
26
11 After Part 2-7
27
Insert:
28
Amendments Schedule 1
Fair Work Amendment (Tackling Job Insecurity) Bill 2012 No. , 2012 5
Part 2-7B--Secure employment arrangements
1
Division 1--Introduction
2
306J Guide to this Part
3
This Part provides for transition to, and maintenance of, secure
4
employment arrangements.
5
Division 1 deals with preliminary matters.
6
Division 2 deals with requests for secure employment
7
arrangements. These include the following:
8
(a)
requests to change from casual employment to
9
secure employment arrangements;
10
(b)
requests to change from employment on a rolling
11
contract basis to secure employment arrangements.
12
Division 3 provides for the making of secure employment orders
13
by FWA for employees or prospective employees.
14
306K Meanings of employee and employer
15
In this Part, employee means a national system employee, and
16
employer means a national system employer.
17
Division 2--Requests for secure employment arrangements
18
306L Requests to change from casual employment to secure
19
employment arrangements
20
(1) A casual employee may request the employer, in writing, for a
21
secure employment arrangement.
22
(2) An employee organisation that is entitled to represent casual
23
employees may, if asked to do so by one or more of the employees,
24
request the employer, in writing, for a secure employment
25
arrangement for that employee or those employees.
26
Schedule 1 Amendments
6 Fair Work Amendment (Tackling Job Insecurity) Bill 2012 No. , 2012
(3) The employer must give the employee or organisation a written
1
response to the request within 21 days, stating whether the
2
employer grants or refuses the request.
3
(4) If the employer refuses the request, the employer's written
4
response must include details of the reasons for the refusal.
5
(5) This section does not apply in relation to a small business exempt
6
casual.
7
306M Requests to change from employment on rolling contract
8
basis to secure employment arrangements
9
(1) A rolling contract employee may request the employer, in writing,
10
for a secure employment arrangement.
11
(2) An employee organisation that is entitled to represent rolling
12
contract employees may, if asked to do so by one or more of the
13
employees, request the employer, in writing, for a secure
14
employment arrangement for that employee or those employees.
15
(3) The employer must give the employee or organisation a written
16
response to the request within 21 days, stating whether the
17
employer grants or refuses the request.
18
(4) If the employer refuses the request, the employer's written
19
response must include details of the reasons for the refusal.
20
Division 3--Secure employment orders
21
306N FWA may make secure employment order
22
(1) FWA may, on application in accordance with section 306P, make
23
any order (a secure employment order) it considers appropriate to
24
provide, or to maintain, secure employment arrangements for the
25
person or persons to whom the order will apply.
26
(2) A secure employment order may apply to:
27
(a) any one of the following persons (a relevant person):
28
(i) a casual employee;
29
(ii) a rolling contract employee;
30
Amendments Schedule 1
Fair Work Amendment (Tackling Job Insecurity) Bill 2012 No. , 2012 7
(iii) a prospective employee who, if employed at the time the
1
application for the order was made, would be a casual
2
employee or rolling contract employee;
3
(iv) an employee who already has a secure employment
4
arrangement;
5
(v) a prospective employee who, if employed at the time the
6
application for the order was made, would have a secure
7
employment arrangement; or
8
(b) two or more relevant persons; or
9
(c) a class of relevant persons.
10
(3) Without limiting paragraph (2)(c), the class may be described by
11
reference to one or more of the following:
12
(a) a particular industry or part of an industry;
13
(b) a particular kind of work;
14
(c) a particular type of employment;
15
(d)
a
particular
employer.
16
(4) A secure employment order must specify the employer or
17
employers who are required to comply with the order, being the
18
employer or employers of the relevant person, relevant persons or
19
class of relevant persons to whom the order applies.
20
(5) Despite subsection (2), a secure employment order cannot apply to
21
a small business exempt casual.
22
306P Application for secure employment order
23
(1) Application for a secure employment order in relation to a request
24
refused under section 306L or 306M may be made by:
25
(a) if the employee made the request--any of the following:
26
(i)
the
employee;
27
(ii) an organisation that is entitled to represent the interests
28
of the employee, if asked by the employee to make the
29
application;
30
(iii) the Age Discrimination Commissioner, the Disability
31
Discrimination Commissioner or the Sex Discrimination
32
Commissioner; or
33
(b) if an organisation made the request--the organisation.
34
Schedule 1 Amendments
8 Fair Work Amendment (Tackling Job Insecurity) Bill 2012 No. , 2012
(2) Application for a secure employment order otherwise than in
1
relation to a request refused under section 306L or 306M may be
2
made by:
3
(a) an organisation that is (or, for prospective employees, that
4
would be) entitled to represent the interests of the relevant
5
person, relevant persons or class of relevant persons to whom
6
the order will apply; or
7
(b) an employer organisation that is entitled to represent the
8
industrial interests of an employer of a relevant person,
9
relevant persons or class of relevant persons to whom the
10
order will apply.
11
306Q Matters for FWA to consider
12
In deciding whether, or the terms on which, to make a secure
13
employment order, FWA must have regard to the following:
14
(a) the needs of employees to have secure jobs and stable
15
employment;
16
(b) an employer's capacity to use arrangements that are not
17
secure employment arrangements in cases where this is
18
genuinely appropriate having regards to the needs of the
19
business;
20
(c) the size of the employer or employers to whom the order will
21
apply;
22
(d) if the application was made under subsection 306P(2)--
23
whether the order should apply to the same employees and
24
prospective employees, and require the same employers to
25
comply with it, as are covered by a relevant modern award;
26
(e) any other matter FWA considers relevant.
27
306R Content of orders affecting more than one person
28
(1) Orders providing or maintaining secure employment arrangements
29
for more than one relevant person may include one or more of the
30
following:
31
(a) an order requiring that all the relevant persons who are long
32
term casual employees be offered a secure employment
33
arrangement;
34
(b) an order providing for a process by which all the relevant
35
persons who have been employed by the employer for a
36
Amendments Schedule 1
Fair Work Amendment (Tackling Job Insecurity) Bill 2012 No. , 2012 9
certain period of time can elect to have a secure employment
1
arrangement;
2
(c) an order specifying the terms of secure employment
3
arrangements under which casual loadings would be phased
4
out over a period of time so as to avoid a sharp drop in
5
employee remuneration;
6
(d) an order implementing secure employment arrangements in
7
such stages (as provided in the order) as FWA thinks
8
appropriate;
9
(e) an order requiring the employer to provide information to
10
FWA for the purposes of monitoring the staged
11
implementation of secure employment arrangements;
12
(f) an order regulating the engagement of prospective employees
13
on a casual basis, a rolling contract basis or a secure
14
employment basis;
15
(g) an order regulating the employer's use of arrangements that
16
are not secure work arrangements in circumstances in which
17
secure work arrangements could be used.
18
(2) Subsection (1) does not limit the orders that FWA may make under
19
this section.
20
306S Implementation of secure employment order in stages
21
A secure employment order may implement secure employment
22
arrangements in such stages (as provided in the order) as FWA
23
thinks appropriate.
24
306T Contravening a secure employment order
25
An employer must not contravene a secure employment order.
26
Note:
This section is a civil remedy provision (see Part 4-1).
27
306U Inconsistency with modern awards and enterprise agreements
28
A term of a modern award or an enterprise agreement has no effect
29
in relation to an employee to the extent that it is less beneficial to
30
the employee than a term of a secure employment order that
31
applies to the employee.
32
12 Subsection 539(2) (after table item 9)
33
Schedule 1 Amendments
10 Fair Work Amendment (Tackling Job Insecurity) Bill 2012 No. , 2012
Insert:
1
2
Part 2-7B--Secure employment arrangements
9B 306T
(a) a person to whom
a secure
employment order
applies;
(b) an organisation
entitled to
represent a person
to whom a secure
employment order
applies
(a) the Federal Court;
(b) the Federal
Magistrates
Court;
(c) an eligible State
or Territory court
60 penalty
units
3
13 After paragraph 557(2)(f)
4
Insert:
5
(fa) section 306T (which deals with contraventions of working
6
arrangements orders);
7
14 After paragraph 576(1)(f)
8
Insert:
9
(fa) secure employment arrangements (Part 2-7B);
10
15 After paragraph 653(1)(c)
11
Insert:
12
(ca) conduct research into the operation of Part 2-7B in relation to
13
requests for secure employment arrangements; and
14
16 Subparagraph 653(1)(d)(i)
15
Repeal the subparagraph, substitute:
16
(i) the circumstances in which such requests are made; and
17
17 After paragraph 675(2)(e)
18
Insert:
19
(ea) a secure employment order;
20
18 At the end of subsection 716(1)
21
Add:
22
Amendments Schedule 1
Fair Work Amendment (Tackling Job Insecurity) Bill 2012 No. , 2012 11
; (g) a term of a secure employment order.
1