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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work Amendment (Repeal of 4
Yearly Reviews and Other Measures)
Bill 2017
No. , 2017
Employment
A Bill for an Act to amend the Fair Work Act 2009,
and for related purposes
No. , 2017
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Four yearly reviews of modern awards
3
Fair Work Act 2009
3
Schedule 2--Procedural requirements in enterprise bargaining
6
Fair Work Act 2009
6
Schedule 3--FWC Members
7
Fair Work Act 2009
7
Fair Work (Transitional Provisions and Consequential Amendments)
Act 2009
13
Schedule 4--Application and transitional provisions
16
Fair Work Act 2009
16
No. , 2017
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
1
A Bill for an Act to amend the Fair Work Act 2009,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Fair Work Amendment (Repeal of 4 Yearly Reviews
5
and Other Measures) Act 2017.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
No. , 2017
Commencement information
Column 1
Column 2
Column 3
Provisions
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
1 January 2018.
1 January 2018
3. Schedules 2, 3
and 4
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
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 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Four yearly reviews of modern awards Schedule 1
No. , 2017
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
3
Schedule 1--Four yearly reviews of modern
1
awards
2
3
Fair Work Act 2009
4
1 Section 12 (definition of 4 yearly review of modern awards)
5
Repeal the definition.
6
2 Section 12 (definition of work value reasons)
7
Omit "156(4)", substitute "157(2A)".
8
3 Section 132 (paragraph relating to Division 4)
9
Repeal the paragraph.
10
4 Section 132 (paragraph relating to Division 5)
11
Omit "outside the system of 4 yearly reviews".
12
5 Paragraph 135(1)(a)
13
Omit "subsections 156(3) and", substitute "subsection".
14
6 Paragraph 141(2)(b)
15
Omit "4 or".
16
7 Subsections 141(3) and (5)
17
Omit "4 or".
18
8 Division 4 of Part 2-3
19
Repeal the Division.
20
9 Division 5 of Part 2-3 (heading)
21
Repeal the heading, substitute:
22
Division 5--Exercising modern award powers
23
10 Subsection 157(1)
24
Omit "outside the system of 4 yearly reviews of modern awards".
25
Schedule 1 Four yearly reviews of modern awards
4
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
No. , 2017
11 Subsection 157(1) (note 1)
1
Repeal the note, substitute:
2
Note 1:
Generally, the FWC must be constituted by a Full Bench to make,
3
vary or revoke a modern award. However, the President may direct a
4
single FWC Member to make a variation (see section 616).
5
12 Paragraph 157(2)(b)
6
Omit "and the system of 4 yearly reviews of modern awards".
7
13 After subsection 157(2)
8
Insert:
9
(2A) Work value reasons are reasons justifying the amount that
10
employees should be paid for doing a particular kind of work,
11
being reasons related to any of the following:
12
(a) the nature of the work;
13
(b) the level of skill or responsibility involved in doing the work;
14
(c) the conditions under which the work is done.
15
14 Paragraph 582(4)(a)
16
Repeal the paragraph.
17
15 After paragraph 582(4)(aa)
18
Insert:
19
(ab) a direction about the exercise of modern award powers in
20
accordance with Division 5 of Part 2-3;
21
16 At the end of subsection 582(4)
22
Add:
23
; (e) a direction that a single FWC Member perform a function or
24
exercise a power in relation to the variation of a modern
25
award.
26
17 Subsections 616(2) and (3)
27
Repeal the subsections.
28
18 After subsection 616(3A)
29
Insert:
30
Four yearly reviews of modern awards Schedule 1
No. , 2017
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
5
(3B) A determination that revokes a modern award under Division 5 of
1
Part 2-3 must be made by a Full Bench.
2
(3C) Subject to subsection (3D), a determination that varies a modern
3
award under Division 5 of Part 2-3 (other than a determination
4
varying the default fund term of a modern award under
5
section 159A) must be made by a Full Bench.
6
(3D) The President may direct a single FWC Member to perform a
7
function or exercise a power:
8
(a) under section 159, 160 or 161 (varying a modern award); or
9
(b) in relation to any other variation under section 157 that the
10
President considers appropriate of:
11
(i) a modern award; or
12
(ii) if 2 or more modern awards relate to the same industry
13
or occupation--those awards.
14
Note:
The President may give directions as to the manner in which the FWC
15
is to perform its functions or exercise its powers (see section 582).
16
Schedule 2 Procedural requirements in enterprise bargaining
6
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
No. , 2017
Schedule 2--Procedural requirements in
1
enterprise bargaining
2
3
Fair Work Act 2009
4
1 Section 188
5
Before "An enterprise", insert "(1)".
6
2 At the end of section 188
7
Add:
8
(2) An enterprise agreement has also been genuinely agreed to by the
9
employees covered by the agreement if the FWC is satisfied that:
10
(a) the agreement would have been genuinely agreed to within
11
the meaning of subsection (1) but for minor procedural or
12
technical errors made in relation to the requirements
13
mentioned in paragraph (1)(a) or (b), or the requirements of
14
sections 173 and 174 relating to a notice of employee
15
representational rights; and
16
(b) the employees covered by the agreement were not likely to
17
have been disadvantaged by the errors.
18
FWC Members Schedule 3
No. , 2017
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
7
Schedule 3--FWC Members
1
2
Fair Work Act 2009
3
1 After section 641A
4
Insert:
5
641B Modified application of the Judicial Misbehaviour and
6
Incapacity (Parliamentary Commissions) Act 2012
7
(1) The object of this section is to modify the application of the
8
Judicial Misbehaviour and Incapacity (Parliamentary
9
Commissions) Act 2012 (the JMIPC Act) so as to allow a
10
Commission to be established by the Houses of Parliament to
11
investigate and report on alleged misbehaviour or incapacity of an
12
FWC Member, so the Houses can be well-informed to consider
13
whether to pray for:
14
(a) the termination of the FWC Member's appointment under
15
section 641; or
16
(b) the removal of the FWC Member from office under
17
section 82 or 86 of the WR Act (within the meaning of the
18
Transitional Act), as those sections continue to apply because
19
of the operation of item 2 of Schedule 18 to the Transitional
20
Act.
21
(2) The JMIPC Act applies, in addition to its general application, as if
22
a provision of that Act referred to in an item in column 1 of the
23
following table were amended as specified in column 2 of the item.
24
25
Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary
Commissions) Act 2012
Item
Column 1
Provision of the JMIPC
Act
Column 2
Amendment
1
Subsection 3(1)
Omit "a Commonwealth judicial officer",
substitute "an FWC Member".
2
Subsection 3(1)
Omit all the words after "whether to",
Schedule 3 FWC Members
8
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
No. , 2017
Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary
Commissions) Act 2012
Item
Column 1
Provision of the JMIPC
Act
Column 2
Amendment
substitute:
"pray for:
(a) for a non-transitioned FWC Member--the
termination of the FWC Member's
appointment under section 641 of the FW
Act; or
(b) for a transitioned FWC Member--the
removal of the FWC Member from office
under section 82 or 86 of the WR Act (as
those sections continue to apply because of
the operation of item 2 of Schedule 18 to
the FW Transitional Act).".
3
Paragraph 3(2)(b)
Omit "removal of a Commonwealth judicial
officer under paragraph 72(ii) of the
Constitution", substitute "termination of
appointment or removal from office of an
FWC Member under the relevant provisions
referred to in subsection (1)".
4
Section 4
Omit "a Commonwealth judicial officer (that
is, a High Court judge or a judge of the
Federal Court of Australia, the Family Court
of Australia or the Federal Circuit Court of
Australia)", substitute "an FWC Member".
5
Section 4
Omit "removal of the judicial officer, the
judicial officer may be removed by the
Governor-General in Council in accordance
with paragraph 72(ii) of the Constitution",
substitute "termination of appointment or
removal from office of the FWC Member, the
FWC Member's appointment may be
terminated, or the FWC Member may be
removed from office, by the
Governor-General in Council under the
applicable provisions of the FW Act or the
WR Act".
FWC Members Schedule 3
No. , 2017
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
9
Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary
Commissions) Act 2012
Item
Column 1
Provision of the JMIPC
Act
Column 2
Amendment
6
Section 7
Insert:
FW Act means the Fair Work Act 2009.
FWC Member has the same meaning as in the
FW Act and includes a transitioned FWC
Member.
FW Transitional Act means the Fair Work
(Transitional Provisions and Consequential
Amendments) Act 2009.
7
Section 7 (definition of
incapacity)
Omit the definition (including the note),
substitute:
incapacity:
(a) in relation to the termination of
appointment of a non-transitioned FWC
Member under section 641 of the FW
Act--has the same meaning as in that
section; and
(b) in relation to the removal of a transitioned
FWC Member from office under
section 82 of the WR Act (as that section
continues to apply because of the operation
of item 2 of Schedule 18 to the FW
Transitional Act)--has the same meaning
as in that section; and
(c) in relation to the removal of a transitioned
FWC Member from office under
section 86 of the WR Act (as that section
continues to apply because of the operation
of item 2 of Schedule 18 to the FW
Transitional Act)--has the same meaning
as in that section; and
(d) in relation to the termination of
appointment of a member of the
Commission under section 73 of this
Act--has its ordinary meaning.
8
Section 7 (definition of
Omit the definition (including the note),
Schedule 3 FWC Members
10
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
No. , 2017
Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary
Commissions) Act 2012
Item
Column 1
Provision of the JMIPC
Act
Column 2
Amendment
misbehaviour)
substitute:
misbehaviour:
(a) in relation to the termination of
appointment of a non-transitioned FWC
Member under section 641 of the FW
Act--has the same meaning as in that
section; and
(b) in relation to the removal of a transitioned
FWC Member from office under
section 82 of the WR Act (as that section
continues to apply because of the operation
of item 2 of Schedule 18 to the FW
Transitional Act)--has the same meaning
as in that section; and
(c) in relation to the removal of a transitioned
FWC Member from office under
section 86 of the WR Act (as that section
continues to apply because of the operation
of item 2 of Schedule 18 to the FW
Transitional Act)--has the same meaning
as in that section; and
(d) in relation to the termination of
appointment of a member of the
Commission under section 73 of this
Act--has its ordinary meaning.
9
Section 7
Insert:
non-transitioned FWC Member means an
FWC Member who is not a transitioned FWC
Member.
10
Section 7 (definition of
proved)
Omit the definition, substitute:
proved:
(a) in relation to the termination of
appointment of a non-transitioned FWC
Member for misbehaviour under
paragraph 641(a) of the FW Act--has the
FWC Members Schedule 3
No. , 2017
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
11
Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary
Commissions) Act 2012
Item
Column 1
Provision of the JMIPC
Act
Column 2
Amendment
same meaning as in that paragraph; and
(b) in relation to the termination of
appointment of a non-transitioned FWC
Member for incapacity under
paragraph 641(b) of the FW Act--means
the grounds referred to in that paragraph
are established; and
(c) in relation to the removal of a transitioned
FWC Member from office for
misbehaviour or incapacity under
section 82 of the WR Act (as that section
continues to apply because of the operation
of item 2 of Schedule 18 to the FW
Transitional Act)--has the same meaning
as in that section; and
(d) in relation to the removal of a transitioned
FWC Member from office for
misbehaviour or incapacity under
section 86 of the WR Act (as that section
continues to apply because of the operation
of item 2 of Schedule 18 to the FW
Transitional Act)--has the same meaning
as in that section.
11
Section 7
Insert:
transitioned FWC Member means a person
who is taken to be appointed as an FWA
Member under item 1 of Schedule 18 to the
FW Transitional Act.
WR Act has the same meaning as in the FW
Transitional Act.
WR Act repeal day has the same meaning as
in the FW Transitional Act.
12
Section 8
Omit "a Commonwealth judicial officer",
substitute "an FWC Member".
13
Section 8
Omit "removal of the judicial officer, the
Schedule 3 FWC Members
12
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
No. , 2017
Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary
Commissions) Act 2012
Item
Column 1
Provision of the JMIPC
Act
Column 2
Amendment
judicial officer may be removed by the
Governor-General in Council in accordance
with paragraph 72(ii) of the Constitution",
substitute "termination of appointment or
removal from office of the FWC Member, the
FWC Member's appointment may be
terminated, or the FWC Member may be
removed from office, by the
Governor-General in Council under the
applicable provisions of the FW Act or the
WR Act".
14
Subsection 9(1)
Omit "Commonwealth judicial officer",
substitute "FWC Member".
15
Subsection 9(1) (note 2)
Omit "Commonwealth judicial officer",
substitute "FWC Member".
16
Paragraph 16(1)(b)
Omit "a Commonwealth judicial officer",
substitute "an FWC Member".
17
Subsection 19(6)
After paragraph 19(6)(c), insert:
(ca) an investigation into a complaint about an
FWC Member; and
18
Subsection 20(2)
Omit "a Commonwealth judicial officer",
substitute "an FWC Member".
19
Subsection 20(2)
Omit "the Commonwealth judicial officer"
(wherever occurring), substitute "the FWC
Member".
20
Section 21
Omit "a Commonwealth judicial officer"
(wherever occurring), substitute "an FWC
Member".
21
Paragraph 23(3)(a)
Omit "Commonwealth judicial officer to
whom the investigation relates to perform his
or her duties as such an officer", substitute
"FWC Member to whom the investigation
relates to perform his or her duties as an FWC
Member".
FWC Members Schedule 3
No. , 2017
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
13
Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary
Commissions) Act 2012
Item
Column 1
Provision of the JMIPC
Act
Column 2
Amendment
22
Paragraph 23(3)(b) and
subparagraph 23(3)(c)(i)
Omit "judiciary", substitute "Fair Work
Commission".
23
Subparagraph 23(3)(c)(ii)
Omit "Commonwealth judicial officer",
substitute "FWC Member".
24
Subsection 24(4) (heading) Omit "Commonwealth judicial officer",
substitute "FWC Member".
25
Subsections 24(4) and (5)
Omit "Commonwealth judicial officer"
(wherever occurring), substitute "FWC
Member".
26
Paragraph 24(7)(c)
Omit "Commonwealth judicial officer",
substitute "FWC Member".
27
Subdivision D of
Division 2 of Part 3
(heading)
Omit "Commonwealth judicial officer",
substitute "FWC Member".
28
Section 45 (heading)
Omit "Commonwealth judicial officer",
substitute "FWC Member".
29
Subsections 45(1) and
46(2)
Omit "Commonwealth judicial officer",
substitute "FWC Member".
1
Fair Work (Transitional Provisions and Consequential
2
Amendments) Act 2009
3
2 At the end of Part 1 of Schedule 18
4
Add:
5
6A Dealing with a complaint about an FWC Member
6
(1)
This item applies in relation to an FWC member who is a person taken
7
to have been appointed as an FWA Member under item 1 of this
8
Schedule.
9
Schedule 3 FWC Members
14
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
No. , 2017
(2)
Section 581A of the FW Act (which deals with the President handling
1
complaints about FWC Members) applies after the commencement of
2
this item in relation to a complaint made about the performance of the
3
FWC Member as if the following amendments were made:
4
(a) paragraph (4)(b) of that section--omit "termination of the
5
appointment of the FWC Member", substitute "removal of
6
the FWC Member from office";
7
(b) the note to subsection (4) of that section--omit "The
8
appointment of an FWC Member may be terminated under
9
section 641", substitute "An FWC Member may be removed
10
from office under section 82 or 86 of the WR Act (within the
11
meaning of the Transitional Act), as those sections continue
12
to apply because of the operation of item 2 of Schedule 18 to
13
the Transitional Act,";
14
(c) subparagraph (a)(i) of the definition of relevant belief in
15
section 12 of the FW Act--omit "terminating the
16
appointment of the FWC Member in accordance with
17
section 641", substitute "removing the FWC Member from
18
office in accordance with section 82 or 86 of the WR Act
19
(within the meaning of the Transitional Act), as those
20
sections continue to apply because of the operation of item 2
21
of Schedule 18 to the Transitional Act".
22
Note:
Paragraph (2)(c) alters the meaning of relevant belief in subparagraphs 581A(2)(a)(ii)
23
and (iii) of the FW Act.
24
(3)
Section 641A of the FW Act (which deals with the Minister handling
25
complaints about FWC Members) applies after the commencement of
26
this item in relation to a complaint made about the performance of the
27
FWC Member as if the following amendments were made:
28
(a) paragraph (a) of that section--omit "termination of the
29
appointment of the FWC Member; and", substitute "removal
30
of the FWC Member from office.";
31
(b) paragraph (b) of that section--omit the paragraph;
32
(c) note 1 to that section--omit "The appointment of an FWC
33
Member may be terminated under section 641", substitute
34
"An FWC Member may be removed from office under
35
section 82 or 86 of the WR Act (within the meaning of the
36
Transitional Act), as those sections continue to apply because
37
of the operation of item 2 of Schedule 18 to the Transitional
38
Act,";
39
FWC Members Schedule 3
No. , 2017
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
15
(d) note 2 to that section--omit the note.
1
(4)
For the purposes of subitems (2) and (3), it does not matter whether:
2
(a) the complaint is made before or after the commencement of
3
this item; or
4
(b) the complaint relates to the performance of the FWC Member
5
before or after the commencement of this item.
6
(5)
In this item:
7
FWC Member has the same meaning as in the FW Act.
8
Schedule 4 Application and transitional provisions
16
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
No. , 2017
Schedule 4--Application and transitional
1
provisions
2
3
Fair Work Act 2009
4
1 In the appropriate position in Schedule 1
5
Insert:
6
Part 5--Amendments made by the Fair Work
7
Amendment (Repeal of 4 Yearly Reviews
8
and Other Measures) Act 2017
9
Division 1--General
10
25 Definitions
11
In this Part:
12
4 yearly review of modern awards has the meaning given by this
13
Act, as in force immediately before the commencement of
14
Schedule 1 to the amending Act.
15
amended Act means this Act as amended by the amending Act.
16
amending Act means the Fair Work Amendment (Repeal of 4
17
Yearly Reviews and Other Measures) Act 2017.
18
Schedule 1 commencement day means the day on which
19
Schedule 1 to the amending Act commences.
20
Application and transitional provisions Schedule 4
No. , 2017
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
17
Division 2--Amendments made by Schedule 1 to the
1
amending Act
2
26 Incomplete review of modern award
3
Scope
4
(1) This clause applies in relation to a review of a modern award
5
conducted as part of a 4 yearly review of modern awards if:
6
(a) the review of the modern award commenced before the
7
Schedule 1 commencement day; and
8
(b) immediately before that day, the review of the modern award
9
had not been completed.
10
Saving
11
(2) Despite the repeal of:
12
(a) Division 4 of Part 2-3 (which deals with 4 yearly reviews of
13
modern awards); and
14
(b) paragraph 582(4)(a) (which deals with directions by the
15
President); and
16
(c) subsections 616(2) and (3) (which deal with the FWC's
17
functions etc. that must be performed by a Full Bench);
18
by the amending Act, those provisions continue to apply, in
19
relation to the review of the modern award, as if those repeals had
20
not happened.
21
(3) Despite the repeal of paragraph 582(4)(a) (which deals with
22
directions by the President) by the amending Act, a direction given
23
by the President to an FWC Member under that paragraph that was
24
in force immediately before the Schedule 1 commencement day
25
continues to have effect, in relation to the review of the modern
26
award, as if that repeal had not happened.
27
27 Dismissing applications
28
(1) On or after the Schedule 1 commencement day, the FWC may
29
dismiss an application under section 158 to vary, revoke or make a
30
modern award if the FWC is satisfied that the specific matters in
31
Schedule 4 Application and transitional provisions
18
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Bill 2017
No. , 2017
relation to which the application is made were dealt with, or are
1
being dealt with, in a 4 yearly review of modern awards.
2
Note:
For another power of the FWC to dismiss applications under
3
section 158, see section 587.
4
(2) This clause does not limit when the FWC may dismiss an
5
application under section 158.
6
Sunset provision
7
(3) This clause ceases to have effect at the end of 2 years after the
8
Schedule 1 commencement day.
9
Division 3--Amendments made by Schedule 2 to the
10
amending Act
11
28 Application of amendments--when employees have genuinely
12
agreed to an enterprise agreement
13
The amendments of section 188 made by Schedule 2 to the
14
amending Act apply in relation to an application for the approval
15
of an enterprise agreement made under section 185 after the
16
commencement of that Schedule.
17
Division 4--Amendments made by Schedule 3 to the
18
amending Act
19
29 Application of section 641B of the amended Act
20
Section 641B of the amended Act applies in relation to alleged
21
misbehaviour or incapacity of an FWC Member occurring before
22
or after the commencement of Schedule 3 to the amending Act.
23