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This is a Bill, not an Act. For current law, see the Acts databases.
2002
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Workplace
Relations Amendment (Simplifying Agreement-making) Bill
2002
No. ,
2002
(Employment and Workplace
Relations)
A Bill for an Act to amend the
Workplace Relations Act 1996, and for related
purposes
Contents
Part 1—Amendments 3
Workplace Relations Act
1996 3
Part 2—Application and saving
provisions 45
Part 1—Amendments 49
Workplace Relations Act
1996 49
Part 2—Application
provisions 58
A Bill for an Act to amend the Workplace Relations Act
1996, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Workplace Relations Amendment
(Simplifying Agreement-making) Act 2002.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
|
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 on which this Act receives the Royal Assent |
|
|
2. Schedules 1 and 2 |
A single day to be fixed by Proclamation, subject to
subsection (3) |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part
of this Act. This information may be included in any published version of this
Act.
(3) If a provision covered by item 2 of the table does not commence
within the period of 6 months beginning on the day on which this Act receives
the Royal Assent, it commences on the first day after the end of that
period.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 Divisions 1, 2, 3, 4, 5 and 6 of
Part VID
Repeal the Divisions, substitute:
(1) This Part deals with the making, approval and operation of:
(a) Australian Workplace Agreements (AWAs); and
(b) agreements to extend, vary or terminate AWAs (ancillary
documents).
(2) Division 1 contains provisions dealing with the interpretation
and scope of this Part.
(3) Division 2 sets out the requirements for making an AWA.
(4) Division 3 deals with the approval process for AWAs.
(5) Division 4 sets out the effect of an AWA on awards, agreements
and laws. It also:
(a) sets out obligations, breach of which may lead to a civil penalty;
and
(b) deals with the conduct of industrial action by a party to an AWA
during the AWA’s period of operation before its nominal expiry
date.
(6) Division 5 deals with agreements to extend or vary AWAs. The
Division contains the following Subdivisions:
(a) Subdivision A dealing with the making and approval of extension
agreements;
(b) Subdivision B dealing with the making and approval of variation
agreements.
(7) Division 6 deals with the making and approval of agreements to
terminate AWAs and other mechanisms for terminating AWAs.
(8) Division 7 deals with enforcement and remedies in relation to
AWAs and ancillary documents.
(9) Division 8 deals with limited immunity for industrial
action.
(10) Division 9 contains miscellaneous matters in relation to AWAs
and ancillary documents.
In this Part, unless the contrary intention appears:
ancillary document means any of the following:
(a) a variation agreement;
(b) an extension agreement;
(c) a termination agreement;
(d) a termination notice.
approval notice means an approval notice issued by the
Employment Advocate or Commission under Division 3, 5 or 6.
approved means approved under Division 3, 5 or 6 by the
Employment Advocate or Commission.
AWA has a meaning affected by section 170VAB and
subsections 170VCB(9) and 170VEG(8).
AWA date means the date on which the employer and employee
sign the AWA or, if they sign on different dates, the later of those
dates.
bargaining agent means a person or group of persons duly
appointed as a bargaining agent under section 170WEA.
constitutional trade or commerce means trade or
commerce:
(a) between Australia and a place outside Australia; or
(b) between the States; or
(c) within a Territory, between a State and a Territory or between 2
Territories.
eligible court means any of the following:
(a) the Federal Court of Australia;
(b) a District, County or Local Court;
(c) a magistrate’s court.
employee has a meaning affected by
section 170VAB.
employer has a meaning affected by
section 170VAB.
existing employee, in relation to an AWA, means an employee
who signed the AWA after commencing the employment to which the AWA
relates.
extension agreement means an agreement to extend the nominal
expiry date of an AWA.
new employee, in relation to an AWA, means an employee who
signed the AWA before, or at the time of, commencing the employment to which the
AWA relates.
no-disadvantage test means the no-disadvantage test set out
in Part VIE.
nominal expiry date means the nominal expiry date that
applies under section 170VBC.
party, in relation to an AWA or ancillary document, means the
employer or employee.
period of operation, in relation to an AWA, means the period
of operation as determined under section 170VBD.
referral notice means a referral notice issued by the
Employment Advocate under Division 3 or 5.
referral protocol means:
(a) the protocol that, immediately before the commencement of this
section, was in force under section 170VPE; or
(b) if that protocol has been varied under section 170WKB—that
protocol as so varied.
refusal notice means a refusal notice issued by the
Employment Advocate or Commission under Division 3, 5 or 6.
State agreement means an employment agreement made under, or
for the purposes of, a law of a State.
termination agreement means an agreement to terminate an
AWA.
variation agreement means an agreement to vary an
AWA.
verified copy, in relation to a document, means
a copy that is certified as being a true copy of the document.
(1) So far as the context permits, a reference in this Part to an AWA or
ancillary document includes a reference to a proposed AWA or ancillary
document.
(2) In relation to a proposed AWA or ancillary document, a reference to
the employer or employee is a reference to the person who will be the employer
or employee when the AWA or ancillary document starts to operate.
An AWA is of no effect unless at least one of the following applies at
the AWA date:
(a) the employer is a constitutional corporation;
(b) the employer is the Commonwealth;
(c) the employee’s primary workplace is in a Territory;
(d) the employer is a waterside employer, the employee is a waterside
worker and the employee’s employment is in connection with constitutional
trade or commerce;
(e) the employee is a maritime employee and the employee’s
employment is in connection with constitutional trade or commerce;
(f) the employee is a flight crew officer and the employee’s
employment is in connection with constitutional trade or commerce.
(1) The Commission must, as far as practicable, perform its functions
under this Part in a way that furthers the objects of this Act.
(2) Section 90 does not apply to the performance of functions of the
Commission under this Part.
(3) In performing its functions under this Part, the Commission is not
empowered to act under paragraph 111(1)(g) on the grounds specified in
subparagraph (i), (ii) or (iii) of that paragraph.
An AWA or ancillary document has effect as provided by this Part, and not
otherwise.
(1) An employer and employee may make a written agreement, called an
Australian workplace agreement (an AWA), that deals with matters
pertaining to the relationship between an employer and employee.
(2) The requirements set out in the following sections must be satisfied
in relation to the AWA:
(a) section 170VBA (making an AWA);
(b) section 170VBB (content of an AWA).
(3) The AWA may be made before commencement of the employment.
(1) An AWA must be signed and dated by the employer and the employee who
are parties to it.
(2) The employer must give the employee a copy of the AWA.
Note: This section is a civil penalty provision (see
section 170VV).
(3) Before the employee signs the AWA, the employer must:
(a) give the employee a copy of an information statement prepared by the
Employment Advocate (see subsection (4)); and
(b) explain the effect of the AWA to the employee.
(4) The information statement prepared by the Employment Advocate for the
purposes of paragraph (3)(a) must include information about the following
matters, but may include other information:
(a) Commonwealth statutory entitlements;
(b) occupational health and safety law;
(c) services provided by the Employment Advocate;
(d) bargaining agents.
Note: For more information on bargaining agents, see
section 170WEA.
(5) The employee may withdraw his or her consent to the AWA by giving
written notice of the withdrawal of consent to the employer before the end of
the cooling-off period.
Note: If the employee withdraws his or her consent to the
AWA after the employer has applied to the Employment Advocate for approval of
the AWA, the employee must also give the Employment Advocate written notice of
the withdrawal of consent (see subsections 170VC(6) and (7)).
(6) The cooling-off period is the period of:
(a) 5 days after the day on which a new employee signs the AWA;
and
(b) 14 days after the day on which an existing employee signs the
AWA.
Must be included
(1) The AWA must include the provisions relating to discrimination that
are prescribed by the regulations. If the AWA does not in fact include those
provisions, the AWA is taken to include those provisions.
(2) The AWA must include a dispute resolution procedure. If the AWA does
not in fact include a dispute resolution procedure, the AWA is taken to include
the model procedure that is prescribed by the regulations.
(3) A dispute resolution procedure that is included in an AWA under
subsection (2), or prescribed by the regulations for the purposes of
subsection (2), may confer powers on the Commission to settle disputes
between the parties to the AWA about the application or interpretation of the
AWA. The Commission may exercise those powers.
Must not be included
(4) The AWA must not include any provisions that prohibit or restrict
disclosure of details of the AWA by either party to another person.
(5) The AWA must not include any objectionable provisions within the
meaning of section 298Z.
(1) An AWA may specify a date as its nominal expiry date. The date cannot
be more than 3 years after the AWA date.
(2) If no date is specified, then the nominal expiry date is the third
anniversary of the AWA date.
(1) Subject to section 170VCD, an AWA for an employee starts
operating on the later of:
(a) the AWA date; or
(b) the day specified in the AWA as the starting day; or
(c) if the employee is a new employee—the day the employment
commences.
(2) Subject to section 170VCD, an AWA for an employee stops operating
at the earlier of the following times:
(a) if no application is made to the Employment Advocate to approve the
AWA within the period of 21 days starting on the AWA date (or such longer period
as the Employment Advocate allows under subsection 170VC(3))—the start of
the day after the end of that period;
(b) the end of the day when a refusal notice is issued in relation to the
AWA;
(c) the time when a termination under section 170VFA, 170VFD or
170VFE takes effect;
(d) the time when another AWA between the employer and employee starts to
operate.
Note: See also section 170VCA which deals with the
effect of the employee’s withdrawal of consent to the AWA, and
section 170WKD, under which an AWA stops operating if the Employment
Advocate’s approval of the AWA is revoked.
(1) An employer must apply, in writing, to the Employment Advocate for
approval of an AWA to which the employer is a party unless the employee
withdraws his or her consent to the AWA before the end of the cooling-off period
referred to in subsection 170VBA(6).
(2) The application must be made before the end of the period of 21 days
starting on the AWA date.
(3) The Employment Advocate may, at any time within that period of 21
days, extend the period for making the application.
Note: Section 170VCD sets out the consequences of
failure to apply for approval by the deadline.
(4) An application must be accompanied by:
(a) a copy of the AWA; and
(b) any other information that the Employment Advocate requires, by notice
published in the Gazette, for the purpose of performing his or her
functions.
(5) Two or more agreements that have been negotiated collectively may be
included in the same notice of application if the same employer is a party to
all the agreements. The agreements need not be in the same terms.
(6) If:
(a) before the end of the cooling-off period referred to in subsection
170VBA(6), the employee referred to in subsection 170VBA(5) withdraws his or her
consent to the AWA; and
(b) the employer has already applied to the Employment Advocate under this
section for approval of the AWA;
the employee must also give the Employment Advocate written notice of the
withdrawal of consent.
(7) The employee must lodge the written notice of withdrawal of consent
with the Employment Advocate within 7 days after giving notice of withdrawal to
the employer.
Note: The employee may give the Employment Advocate this
notice after the end of the cooling-off period under subsection
170VBA(6).
If:
(a) the employee referred to in subsection 170VBA(5) or 170VC(6) withdraws
his or her consent to the AWA before the end of the cooling-off period referred
to in subsection 170VBA(6); and
(b) apart from this section, the AWA would have already started to
operate;
the AWA is taken not to have started to operate.
Approval if AWA passes the
no-disadvantage test etc.
(1) The Employment Advocate must approve an AWA if:
(a) the application for approval of the AWA is made in accordance with
section 170VC; and
(b) the AWA satisfies the requirements of section 170VBA;
and
(c) the AWA complies with section 170VBB; and
(d) the AWA passes the no-disadvantage test; and
(e) the Employment Advocate is satisfied that the employee genuinely
consented to making the AWA.
Approval if concerns resolved
(2) If the Employment Advocate has concerns about whether the AWA meets
the requirements of subsection (1), the Employment Advocate must give the
parties to the AWA an opportunity to:
(a) take any action (including giving undertakings); or
(b) give to the Employment Advocate any information sought by the
Employment Advocate.
The Employment Advocate must approve the AWA if satisfied that, because of
the action taken or information given, those concerns are resolved.
Approval if no disadvantage to parties
(3) The Employment Advocate may approve the AWA if:
(a) the only reason for not approving the AWA is that the Employment
Advocate is not satisfied that the requirements of subsection 170VBA(1) are met;
but
(b) he or she is satisfied that the failure to meet those requirements has
not disadvantaged, and will not disadvantage, either party to the AWA.
Referral to Commission
(4) The Employment Advocate must refer the AWA to the Commission,
if:
(a) the Employment Advocate has concerns about whether the AWA passes the
no-disadvantage test; and
(b) those concerns are not resolved by action taken or information given
as mentioned in subsection (2).
Approval if the AWA passes the no-disadvantage test
(5) The Commission must approve the AWA if the Commission is satisfied
that:
(a) the AWA passes the no-disadvantage test; or
(b) any action taken (including the giving of undertakings) resolves any
uncertainty as to whether the AWA passes the no-disadvantage test.
Approval if not contrary to the public interest
(6) If the Commission considers that it is not contrary to the public
interest to approve the AWA, it must approve the AWA (whether or not
subsection (5) requires the Commission to approve the AWA).
Note: An example of a case where the Commission may be
satisfied that approving the AWA is not contrary to the public interest could be
where making the AWA is part of a reasonable strategy to deal with a short-term
crisis in, and to assist in the revival of, a business or part of a
business.
Otherwise, approval refused by Commission
(7) If the Commission is not required to approve the AWA, the Commission
must refuse to approve it.
Otherwise, approval refused by Employment Advocate
(8) If the Employment Advocate is not required to approve the AWA and does
not approve the AWA under subsection (3), the Employment Advocate must
refuse to approve it.
Undertakings
(9) An undertaking accepted by the Employment Advocate or by the
Commission is taken to be included in the AWA.
(1) If the Employment Advocate approves an AWA, the Employment Advocate
must issue an approval notice to the employer.
(2) If the Employment Advocate refers an AWA to the Commission, the
Employment Advocate must issue a referral notice to the employer, advising of
the referral.
(3) If the Employment Advocate refuses to approve an AWA, the Employment
Advocate must issue a refusal notice to the employer.
(4) The Employment Advocate must also include in an approval notice a copy
of each of the following:
(a) the provisions relating to discrimination referred to in subsection
170VBB(1) (if they are taken to be included in the AWA because of that
subsection);
(b) the model procedure relating to a dispute resolution procedure
referred to in subsection 170VBB(2) (if it is taken to be included in the AWA
because of that subsection);
(c) a copy of each undertaking (if any) in relation to the AWA that is
taken to be included in the AWA because of subsection 170VCB(9).
(5) If the Commission approves an AWA, the Commission must:
(a) issue an approval notice to the employer; and
(b) give a copy of the approval notice to the Employment Advocate;
and
(c) give a copy of the AWA as approved to the Employment
Advocate.
Note: An undertaking accepted in accordance with an AWA is
deemed to form part of the AWA. Therefore a copy of the undertaking will be sent
to the Employment Advocate under this section.
(6) If the Commission refuses to approve an AWA, the Commission
must:
(a) issue a refusal notice to the employer; and
(b) give a copy of the refusal notice to the Employment
Advocate.
(1) If no application is made for approval of an AWA within the period of
21 days after the AWA date, or such longer period as allowed by the Employment
Advocate under subsection 170VC(3):
(a) if the AWA has already started operating—the AWA ceases to
operate after the end of that period; and
(b) if the AWA has not already started operating—the AWA does not
start to operate; and
(c) the Employment Advocate cannot approve the AWA.
(2) If the Employment Advocate issues a refusal notice in relation to an
AWA:
(a) if the AWA has already started operating—the AWA ceases
operating at the end of the day when the refusal notice is issued; and
(b) if the AWA has not already started operating—the AWA does not
start to operate; and
(c) the Employment Advocate cannot approve the AWA.
(3) If the Employment Advocate refers an AWA to the Commission:
(a) if the AWA has already started operating—the AWA continues to
operate; and
(b) if the AWA has not already started operating—the AWA does not
start to operate; and
(c) the Employment Advocate cannot approve the AWA.
(1) As soon as practicable after receiving from the Employment Advocate or
the Commission the approval notice, referral notice or refusal notice, the
employer must give the employee with whom the AWA was made a copy of:
(a) the notice; and
(b) any material that is taken to be included in the AWA because of
subsections 170VBB(1) and (2) and subsection 170VCB(9).
Note: This subsection is a civil penalty provision (see
section 170VV).
(2) The employer must give the employee any other document prescribed by
the regulations, within the period required by the regulations.
Note: This subsection is a civil penalty provision (see
section 170VV).
In deciding whether to refer an AWA to the Commission, the Employment
Advocate must apply the referral protocol.
(1) During its period of operation, an AWA operates to the exclusion of
any award that would otherwise apply to the employee’s employment. This
subsection has effect subject to subsections (2) and (3).
(2) An AWA is of no effect if it is made:
(a) after the commencement of an award that is made under subsection
170MX(3) and applies to the employee’s employment; and
(b) before the nominal expiry date of the award.
(3) An AWA does not operate to the exclusion of an exceptional matters
order, but prevails over an exceptional matters order to the extent of any
inconsistency.
(4) During its period of operation, an AWA operates to the exclusion of
any State award or State agreement that would otherwise apply to the
employee’s employment.
(5) The relationship between an AWA and a certified agreement is as
follows:
(a) a certified agreement prevails over the AWA to the extent of any
inconsistency if:
(i) the certified agreement is in operation at the time the AWA comes into
operation; and
(ii) the nominal expiry date of the certified agreement is after the date
on which the AWA comes into operation; and
(iii) the certified agreement does not expressly allow a subsequent AWA to
operate to the exclusion of the certified agreement or to prevail over the
certified agreement to the extent of any inconsistency;
(b) a certified agreement that comes into operation after the nominal
expiry date of the AWA prevails over the AWA to the extent of any
inconsistency;
(c) in all other cases, the AWA operates to the exclusion of any certified
agreement that would otherwise apply to the employee’s
employment.
State law
(1) Subject to this section, an AWA prevails over conditions of employment
specified in a State law, to the extent of any inconsistency.
(2) Provisions in an AWA that deal with the following matters operate
subject to the provisions of any State law that deals with the matter:
(a) occupational health and safety;
(b) workers’ compensation;
(c) apprenticeship;
(d) any other matter prescribed by the regulations.
(3) If a State law provides protection for an employee against harsh,
unjust or unreasonable termination of employment (however described in the law),
subsection (1) is not intended to affect the provisions of that law that
provide that protection, so far as those provisions are able to operate
concurrently with the AWA.
Prescribed conditions of employment
(4) To the extent of any inconsistency, an AWA prevails over prescribed
conditions of employment specified in a Commonwealth law that is prescribed by
the regulations.
(5) In this section:
Commonwealth law means an Act or any regulations or other
instrument made under an Act.
prescribed conditions means conditions that are identified by
the regulations.
State law means a law of a State or Territory (including any
regulations or other instrument made under a law of a State or Territory), but
does not include a State award or State agreement.
A party to an AWA must not breach the AWA.
Note: This section is a civil penalty provision (see
section 170VV).
(1) During the period of operation of an AWA before its nominal expiry
date, the employee must not engage in industrial action in relation to the
employment to which the AWA relates.
Note: This subsection is a civil penalty provision (see
section 170VV).
(2) During the period of operation of an AWA before its nominal expiry
date, the employer must not lock out the employee for the purpose of supporting
or advancing claims in respect of the employee’s employment.
Note: This subsection is a civil penalty provision (see
section 170VV).
(1) If:
(a) an employee who is a party to an AWA becomes an employee of a new
employer because the new employer is a successor to the whole or any part of the
previous employer’s business or undertaking; and
(b) at the succession time at least one of the following
applies:
(i) the new employer is a constitutional corporation;
(ii) the new employer is the Commonwealth;
(iii) the employee’s primary workplace is in a Territory;
(iv) the new employer is a waterside employer, the employee is a waterside
worker and the employee’s employment is in connection with constitutional
trade or commerce;
(v) the employee is a maritime employee and the employee’s
employment is in connection with constitutional trade or commerce;
(vi) the employee is a flight crew officer and the employee’s
employment is in connection with constitutional trade or commerce;
then the new employer replaces the previous employer as a party to the AWA
from the succession time.
(2) The succession does not affect the rights and obligations of the
previous employer that arose before the succession.
(3) In this section:
successor means a successor, transmittee or
assignee.
(1) An employer and employee may make a written agreement that extends the
nominal expiry date of an AWA to which they are parties. The extended date
cannot be more than 3 years after the AWA date.
(2) An extension agreement may only be made before the nominal expiry date
of the AWA.
(3) An extension agreement is made when it is signed and dated by the
employer and the employee who are parties to it.
(4) The employee may withdraw his or her consent to the extension
agreement by giving written notice of the withdrawal of consent to the employer
before the end of the cooling-off period.
Note: If the employee withdraws his or her consent to the
extension agreement after the employer has applied to the Employment Advocate
for approval of the extension agreement, the employee must also give the
Employment Advocate written notice of the withdrawal of consent (see subsections
170VEA(4) and (5)).
(5) The cooling-off period is the period of 14 days after
the day on which the employee signs the agreement.
(6) Subject to section 170VEC, the extension agreement takes effect
on the day on which the employer and the employee sign the agreement or, if they
sign on different days, the later of those days.
(1) An employer must apply, in writing, to the Employment Advocate for
approval of an extension agreement to which the employer is a party. An
application for approval must be made within the period of 21 days starting on
the day when the agreement takes effect.
Note: Subsection 170VEC(1) sets out the consequences of
failure to apply for approval before the end of that period.
(2) An application must be accompanied by:
(a) a copy of the extension agreement; and
(b) any other information that the Employment Advocate requires, by notice
published in the Gazette, for the purpose of performing his or her
functions.
(3) Two or more extension agreements that have been negotiated
collectively may be included in the same notice of application if the same
employer is a party to all the agreements. The agreements need not be in the
same terms.
(4) If:
(a) before the end of the cooling-off period referred to in subsection
170VE(5) the employee referred to in subsection 170VE(4) withdraws his or her
consent to the extension agreement; and
(b) the employer has already applied to the Employment Advocate under this
section for approval of the extension agreement;
the employee must also give the Employment Advocate written notice of the
withdrawal of consent.
(5) The employee must lodge the written notice of withdrawal of consent
with the Employment Advocate within 7 days after giving notice of withdrawal to
the employer.
Note: The employee may give the Employment Advocate this
notice after the end of the cooling-off period under subsection
170VE(5).
Approval if sections 170VE and 170VEA satisfied
(1) The Employment Advocate must approve the extension agreement
if:
(a) the application for approval of the extension agreement is made in
accordance with section 170VEA; and
(b) the extension agreement satisfies the requirements of
section 170VE; and
(c) the Employment Advocate is satisfied that the employee genuinely
consented to making the extension agreement.
Approval if no disadvantage to parties
(2) The Employment Advocate may approve the extension agreement
if:
(a) the only reason for not approving the extension agreement is that the
Employment Advocate is not satisfied that the requirements of subsection
170VE(3) are met; but
(b) he or she is satisfied that the failure to meet those requirements has
not disadvantaged, and will not disadvantage, either party to the AWA.
Approval notice etc.
(3) If the Employment Advocate approves an extension agreement, the
Employment Advocate must:
(a) issue an approval notice to the employer; and
(b) give a copy of the extension agreement as approved to the
employer.
Refusal of approval and refusal notice
(4) If the Employment Advocate is not required to approve the extension
agreement and does not approve the extension agreement under
subsection (2), the Employment Advocate must:
(a) refuse to approve the extension agreement; and
(b) issue a refusal notice to the employer.
Note: Subsection 170VEC(2) sets out the consequences of the
issuing of a refusal notice.
Employer must give certain documents to employee
(5) As soon as practicable after receiving from the Employment Advocate
the approval notice or refusal notice, the employer must give the employee with
whom the extension agreement was made a copy of:
(a) the notice; and
(b) the extension agreement (if it was approved).
Note: This subsection is a civil penalty provision (see
section 170VV).
(6) The employer must give the employee any other document prescribed by
the regulations, within the period required by the regulations.
Note: This subsection is a civil penalty provision (see
section 170VV).
(1) If no application is made for approval of an extension agreement
within the period of 21 days starting on the day when the agreement took
effect:
(a) the extension agreement ceases to have effect after the end of that
period; and
(b) the Employment Advocate cannot approve the extension
agreement.
(2) If the Employment Advocate issues a refusal notice in relation to the
extension agreement, the extension agreement ceases to have effect at the end of
the day when the refusal notice is issued.
Note: An extension agreement also ceases to have effect if
the Employment Advocate’s approval of the extension agreement is revoked
under section 170WKD.
(1) An employer and employee may make a written agreement varying an AWA.
A variation agreement is made when it is signed and dated by the employer and
the employee who are parties to it.
Note: A variation agreement may vary the AWA’s nominal
expiry date. However, the extended date cannot be more than 3 years after the
AWA date (see sections 170VBC and 170VE).
(2) The employee may withdraw his or her consent to the variation
agreement by giving written notice of the withdrawal of consent to the employer
before the end of the cooling-off period.
Note: If the employee withdraws his or her consent to the
variation agreement after the employer has applied to the Employment Advocate
for approval of the variation agreement, the employee must also give the
Employment Advocate written notice of the withdrawal of consent (see subsections
170VEE(5) and (6)).
(3) The cooling-off period is the period of 14 days after
the day on which the employee signs the agreement.
(4) Subject to sections 170VEF and 170VEJ, the variation agreement
takes effect on:
(a) the day on which the employer and employee sign the variation
agreement, or if they sign on different days, the later of those days;
and
(b) if a day is specified in the variation agreement as the date of effect
and that day is later than the day under paragraph (a)—the day
specified in the agreement.
(5) Sections 170VBA and 170VBB apply to the AWA as varied in the same
way as those sections apply to the original AWA.
(1) An employer must apply, in writing, to the Employment Advocate for
approval of a variation agreement to which the employer is a party unless the
employee withdraws his or her consent to the variation agreement before the end
of the cooling-off period referred to in subsection 170VED(3).
(2) An application for approval must be made within the period of 21 days
starting on:
(a) the day on which the employer and the employee sign the variation
agreement; or
(b) if they sign on different days—the later of those
days.
Note: Subsection 170VEJ(1) sets out the consequences of
failure to apply for approval by the deadline.
(3) An application must be accompanied by:
(a) a copy of the variation agreement; and
(b) any other information that the Employment Advocate requires, by notice
published in the Gazette, for the purpose of performing his or her
functions.
(4) Two or more variation agreements that have been negotiated
collectively may be included in the same notice of application if the same
employer is a party to all the agreements. The agreements need not be in the
same terms.
(5) If:
(a) before the end of the cooling-off period referred to in subsection
170VED(3) the employee referred to in subsection 170VED(2) withdraws his or her
consent to the variation agreement; and
(b) the employer has already applied to the Employment Advocate under this
section for approval of the variation agreement;
the employee must also give the Employment Advocate written notice of the
withdrawal of consent.
(6) The employee must lodge the written notice of withdrawal of consent
with the Employment Advocate within 7 days after giving notice of withdrawal to
the employer.
Note: The employee may give the Employment Advocate this
notice after the end of the cooling-off period under subsection
170VED(3).
If:
(a) an employee referred to in subsection 170VED(2) withdraws his or her
consent to the variation agreement before the end of the cooling-off period
referred to in subsection 170VED(3); and
(b) apart from this section, the variation agreement would already have
taken effect;
the variation agreement is taken not to have taken effect.
Approval if AWA, as varied, passes the no-disadvantage test
etc.
(1) The Employment Advocate must approve a variation agreement
if:
(a) the application for approval of the variation agreement is made in
accordance with section 170VEE; and
(b) the variation agreement satisfies the requirements of
section 170VBA as it applies to those agreements; and
(c) the AWA as varied complies with section 170VBB as it applies to
variation agreements; and
(d) the AWA, as varied, passes the no-disadvantage test; and
(e) the Employment Advocate is satisfied that the employee genuinely
consented to making the variation agreement.
Approval if concerns resolved
(2) If the Employment Advocate has concerns about whether the AWA meets
the requirements of subsection (1), the Employment Advocate must give the
parties to the AWA an opportunity to:
(a) take any action (including giving undertakings); or
(b) give to the Employment Advocate any information sought by the
Employment Advocate.
The Employment Advocate must approve the AWA if satisfied that, because of
the action taken or information given, those concerns are resolved.
Approval if no disadvantage to parties
(3) The Employment Advocate may approve the variation agreement
if:
(a) the only reason for not approving the variation agreement is that the
Employment Advocate is not satisfied that the requirements of subsection
170VBA(1) (as it applies to the variation agreement) are met in all respects;
but
(b) he or she is satisfied that the failure to meet those requirements has
not disadvantaged, and will not disadvantage, either party to the AWA.
Referral to Commission
(4) The Employment Advocate must refer the variation agreement to the
Commission, if:
(a) the Employment Advocate has concerns about whether the variation
agreement passes the no-disadvantage test; and
(b) those concerns are not resolved by action taken or information given
as mentioned in subsection (2).
Approval if not contrary to public interest
(5) The Commission must approve the variation agreement if the
Commission:
(a) is satisfied that the variation agreement passes the no-disadvantage
test; or
(b) is satisfied that any action taken (including the giving of
undertakings) resolves any uncertainty as to whether the variation agreement
passes the no-disadvantage test.
(c) is not satisfied that the variation agreement passes the
no-disadvantage test, but is satisfied that it is not contrary to the public
interest to approve the variation agreement.
Note: An example of a case where the Commission may be
satisfied that approving the variation agreement is not contrary to the public
interest could be where making the variation agreement is part of a reasonable
strategy to deal with a short-term crisis in, and to assist in the revival of, a
business or part of a business.
Otherwise, approval refused by Commission
(6) If the Commission does not approve the variation agreement under
subsection (5), the Commission must refuse to approve it.
Otherwise, approval refused by Employment Advocate
(7) If the Employment Advocate is not required to approve the variation
agreement and does not approve the variation agreement under
subsection (3), the Employment Advocate must refuse to approve
it.
Undertakings
(8) An undertaking accepted by the Employment Advocate or by the
Commission is taken to be included in the AWA as varied.
(1) If the Employment Advocate approves a variation agreement, the
Employment Advocate must:
(a) issue an approval notice to the employer; and
(b) give a copy of the variation agreement as approved to the
employer.
(2) If the Employment Advocate refers a variation agreement to the
Commission, the Employment Advocate must issue a referral notice to the
employer, advising of the referral.
(3) If the Employment Advocate refuses to approve a variation agreement,
the Employment Advocate must issue a refusal notice to the employer.
Note: Subsection 170VEJ(2) sets out the consequences of the
issuing of a refusal notice.
(4) If the Commission approves a variation agreement, the Commission
must:
(a) issue an approval notice to the employer; and
(b) give a copy of the variation agreement as approved to the employer;
and
(c) give a copy of the approval notice to the Employment
Advocate.
Note: An undertaking accepted in accordance with an AWA is
deemed to form part of the AWA. Therefore a copy of the undertaking will be sent
to the Employment Advocate under this section.
(5) If the Commission refuses to approve a variation agreement, the
Commission must:
(a) issue a refusal notice to the employer; and
(b) give a copy of the refusal notice to the Employment
Advocate.
(1) As soon as practicable after receiving from the Employment Advocate or
the Commission the approval notice or refusal notice, the employer must give the
employee with whom the variation agreement was made a copy of:
(a) the notice; and
(b) the variation agreement as approved (if it was approved);
and
(c) any material that is taken to be included in the AWA because of
paragraph 170VEG(1)(c) or subsection 170VEG(8).
Note: This subsection is a civil penalty provision (see
section 170VV).
(2) The employer must give the employee any other document prescribed by
the regulations, within the period required by the regulations.
Note: This subsection is a civil penalty provision (see
section 170VV).
(1) If no application is made for approval of a variation agreement before
the end of the period referred to in subsection 170VEE(2):
(a) if the variation agreement has already taken effect—the
variation agreement ceases to have effect after the end of that period;
and
(b) if the variation agreement has not already taken effect—the
variation agreement does not take effect; and
(c) the Employment Advocate cannot approve the variation
agreement.
(2) If the Employment Advocate or the Commission issues a refusal notice
in relation to the variation agreement:
(a) if the variation agreement has already taken effect—the
variation agreement ceases to have effect at the end of the day when the refusal
notice is issued; and
(b) if the variation agreement has not already taken effect—the
variation agreement does not take effect.
Note: A variation agreement also ceases to have effect if
the Employment Advocate’s approval of the variation agreement is revoked
under section 170WKD.
(3) If the Employment Advocate refers the variation agreement to the
Commission:
(a) if the variation agreement has already taken effect—the
variation agreement continues to have effect; and
(b) if the variation agreement has not already taken effect—the
variation agreement does not take effect; and
(c) the Employment Advocate cannot approve the variation
agreement.
In deciding whether to refer a variation agreement to the Commission, the
Employment Advocate must apply the referral protocol.
This Division sets out the 3 ways in which an AWA may be
terminated:
(a) termination by a termination agreement (see Subdivision B);
(b) termination by the Commission (see Subdivision C);
(c) termination in accordance with the AWA (see Subdivision D).
(1) At any time, the employer and employee may make a written agreement to
terminate an AWA.
(2) A termination agreement is made when it is signed and dated by the
employer and the employee who are parties to it.
(3) The employee may withdraw his or her consent to the termination
agreement by giving written notice of the withdrawal of consent to the employer
before the end of the cooling-off period.
Note: If the employee withdraws his or her consent to the
termination agreement after the employer has applied to the Employment Advocate
for approval of the termination agreement, the employee must also give the
Employment Advocate written notice of the withdrawal of consent (see subsections
170VFB(5) and (6)).
(4) The cooling-off period is the period of 14 days after
the day on which the employee signs the agreement.
(5) A termination agreement must be approved by the Employment Advocate
under section 170VFC. If approved, the agreement takes effect:
(a) at the end of the day on which an approval notice is issued for the
termination agreement; or
(b) if a time for termination is specified in the termination agreement
and that time is later than the time under paragraph (a)—at the time
specified in the termination agreement.
If the Employment Advocate refuses to approve the termination agreement, it
does not take effect.
Note: A termination agreement ceases to have effect if the
Employment Advocate’s approval of the termination agreement is revoked
under section 170WKD.
(1) An employer must apply, in writing, to the Employment Advocate for
approval of a termination agreement to which the employer is a party.
(2) The application must be made within the period of 21 days starting
when the termination agreement is made.
(3) An application must be accompanied by:
(a) a copy of the termination agreement; and
(b) any other information that the Employment Advocate requires, by notice
published in the Gazette, for the purpose of performing his or her
functions.
(4) Two or more termination agreements may be included in the same notice
of application if the same employer is a party to all the agreements. The
agreements need not be in the same terms.
(5) If:
(a) before the end of the cooling-off period referred to in subsection
170VFA(4) the employee referred to in subsection 170VFA(3) withdraws his or her
consent to the termination agreement; and
(b) the employer has already applied to the Employment Advocate under
section 170VFB for approval of the termination agreement;
the employee must also give the Employment Advocate written notice of the
withdrawal of consent.
(6) The employee must lodge the written notice of withdrawal of consent
with the Employment Advocate within 7 days after giving notice of withdrawal to
the employer.
Note: The employee may give the Employment Advocate this
notice after the end of the cooling-off period under subsection
170VFA(4).
Approval if sections 170VFA and 170VFB are satisfied
(1) The Employment Advocate must approve the termination agreement
if:
(a) the application for approval of the termination agreement is made in
accordance with section 170VFB; and
(b) the termination agreement satisfies the requirements of
section 170VFA; and
(c) the Employment Advocate is satisfied that the employee genuinely
consented to making the termination agreement.
Approval if no disadvantage to parties
(2) The Employment Advocate may approve the termination agreement
if:
(a) the only reason for not approving the termination agreement is that
the Employment Advocate is not satisfied that the requirements of subsection
170VFA(2) are met; but
(b) he or she is satisfied that the failure to meet those requirements has
not disadvantaged, and will not disadvantage, either party to the AWA.
Approval notice
(3) If the Employment Advocate approves a termination agreement, the
Employment Advocate must issue an approval notice to the employer.
Refusal of approval and refusal notice
(4) If the Employment Advocate is not required to approve the termination
agreement and does not approve the termination agreement under
subsection (2), the Employment Advocate must:
(a) refuse to approve the termination agreement; and
(b) issue a refusal notice to the employer.
Employer must give certain documents to employee
(5) As soon as practicable after receiving from the Employment Advocate
the approval notice or refusal notice, the employer must give the employee with
whom the termination agreement was made a copy of:
(a) the notice; and
(b) the termination agreement (if it was approved).
Note: This subsection is a civil penalty provision (see
section 170VV).
(6) The employer must give the employee any other document prescribed by
the regulations, within the period required by the regulations.
Note: This subsection is a civil penalty provision (see
section 170VV).
(1) After the nominal expiry date of an AWA, the Commission may, on
application by either party, terminate the AWA if the Commission considers that
it is not contrary to the public interest to do so.
(2) The Commission must issue a copy of its determination to:
(a) the parties; and
(b) the Employment Advocate.
(3) A termination under subsection (1) takes effect at the end of the
day on which the Commission issues copies of its determination, or at such later
time as is specified in the determination
(1) After the nominal expiry date of an AWA, the employer or the employee
may apply, in writing, to the Employment Advocate for approval to terminate the
AWA in a manner provided for in the AWA.
(2) As soon as practicable after making the application, the applicant
must give written notice of the application to the other party to the
AWA.
(3) An application must be accompanied by:
(a) details of the manner provided for in the AWA to terminate the AWA;
and
(b) any other information that the Employment Advocate requires, by notice
published in the Gazette, for the purpose of performing his or her
functions.
(4) The termination of 2 or more AWAs may be covered by the same notice of
application if:
(a) the applicant is the employer; and
(b) the employer is a party to all the AWAs.
The terminations need not be in the same terms.
(5) A termination referred to in subsection (1) must be approved by
the Employment Advocate under section 170VFF. If approved, the termination
takes effect:
(a) at the end of the day on which an approval notice is issued in
relation to the termination; or
(b) if a time for termination is specified in the application and that
time is later than the time under paragraph (a)—at the time specified
in the application.
If the Employment Advocate refuses to approve the termination, it does not
take effect.
Approval if section 170VFE etc. satisfied
(1) The Employment Advocate must approve an application made under
section 170VFE if:
(a) the application is made in accordance with section 170VFE;
and
(b) the applicant has notified the other party of the application;
and
(c) the termination is in accordance with the AWA.
Approval notice
(2) If the Employment Advocate approves the application, the Employment
Advocate must issue an approval notice to the applicant.
Refusal of approval and refusal notice
(3) If the Employment Advocate is not required to approve the termination,
the Employment Advocate must:
(a) refuse to approve the termination; and
(b) issue a refusal notice to the applicant.
Applicant must give certain documents to other party
(4) As soon as practicable after receiving from the Employment Advocate
the approval notice or refusal notice, the applicant must give the other party
to the AWA a copy of the notice.
Note: This subsection is a civil penalty provision (see
section 170VV).
(5) The applicant must give the other party to the AWA any other document
prescribed by the regulations, within the period required by the
regulations.
Note: This subsection is a civil penalty provision (see
section 170VV).
2 At the end of subsection
170VV(1)
Add:
A contravention is not an offence.
Note: The heading to section 170VV is replaced by the
heading “Civil penalties”.
3 Subsection 170VV(3)
Repeal the subsection, substitute:
(3) An application for an order under subsection (1) that relates to
an AWA or ancillary document may be made by:
(a) a party to the AWA or ancillary document; or
(b) the Employment Advocate; or
(c) an authorised officer.
4 Subsection 170VV(4) (definition of penalty
provision)
Repeal the definition, substitute:
penalty provision means:
(a) subsection 170VBA(2); or
(b) subsection 170VCE(1) or (2); or
(c) section 170VDB; or
(d) subsection 170VDC(1) or (2); or
(e) subsection 170VEB(5) or (6); or
(f) subsection 170VEI(1) or (2); or
(g) subsection 170VFC(5) or (6); or
(h) subsection 170VFF(4) or (5); or
(i) subsection 170WE(1); or
(j) subsection 170WEA(2) or (4); or
(k) subsection 170WF(1); or
(l) subsection 170WG(1) or (2); or
(m) section 170WH; or
(n) subsection 170WKD(5).
5 After section 170VV
Insert:
(1) If, in a proceeding against an employer under section 170VV, it
appears to the eligible court that an employee of the employer has not been paid
an amount that the employer was required to pay under the AWA, the court may
order the employer to pay to the employee the amount of the
underpayment.
(2) An order must not be made under subsection (1) in relation to so
much of an underpayment as relates to any period more than 6 years before the
commencement of the proceedings.
6 At the end of
section 170VW
Add:
(3) This section does not apply to the extent that the amount of the loss
or damage has been recovered by the employee who is a party to the AWA because
of an order made under section 170VVA.
7 Section 170VX
Repeal the section, substitute:
(1) If:
(a) an item in the second column of the following table applies to an AWA;
and
(b) the amount (the incorrect amount) referred to in the
corresponding item in the third column of the table in relation to the employee
is less than the amount (the correct amount) referred to in the
corresponding item in the fourth column of the table in relation to the
employee;
then:
(c) the difference between the correct amount and the incorrect amount is
payable to the employee by the employer; and
(d) the employee (or the Employment Advocate, or an authorised officer, on
the employee’s behalf) is entitled to recover that difference from the
employer in an eligible court.
|
Compensation for shortfall in entitlements |
|||
|---|---|---|---|
|
Item |
When shortfalls can arise |
Incorrect amounts |
Correct amounts |
|
1 |
The AWA stops operating because the employer failed to apply for approval
of the AWA within the period of 21 days after the AWA date, or such longer
period allowed by the Employment Advocate under subsection 170VC(3) |
The total value of the entitlements to which the employee became entitled
under the AWA for the period it was in operation |
The employee’s non-AWA entitlements for that period |
|
2 |
The AWA stops operating because a refusal notice is issued in relation to
the AWA |
The total value of the entitlements to which the employee became entitled
under the AWA for the period it was in operation |
The employee’s non-AWA entitlements for that period |
|
3 |
The AWA was operating before it was approved, and the Employment Advocate
approved it under subsection 170VCB(2) because the employer took action referred
to in that subsection |
The total value of the entitlements to which the employee became entitled
under the AWA for the period it was operating before it was approved |
The total value of the entitlements to which the employee would have been
entitled for that period if the AWA, as given to the Employment Advocate for
approval, had taken account of the action taken by the employer |
|
4 |
The AWA was operating before it was approved, and the Commission approved
an AWA under subsection 170VCB(5) because the employer took action referred to
in that subsection |
The total value of the entitlements to which the employee became entitled
under the AWA for the period it was operating before it was approved |
The total value of the entitlements to which the employee would have been
entitled for that period if the AWA, as given to the Employment Advocate for
approval, had taken account of the action taken by the employer |
|
5 |
A variation agreement ceases to have effect because the employer failed to
apply for approval of the variation agreement before the end of the period
referred to in subsection 170VEE(2) |
The total value of the entitlements to which the employee became entitled
under the AWA, as varied, for the period during which the variation agreement
had taken effect |
The total value of the entitlements to which the employee would have been
entitled for that period under the AWA before it was varied |
|
6 |
A variation agreement ceases to have effect because a refusal notice is
issued in relation to the variation agreement |
The total value of the entitlements to which the employee became entitled
under the AWA, as varied, for the period during which the variation agreement
had taken effect |
The total value of the entitlements to which the employee would have been
entitled for that period under the AWA before it was varied |
|
7 |
A variation agreement took effect before it was approved, and the
Employment Advocate approved it under subsection 170VEG(2) because the employer
took action referred to in that subsection |
The total value of the entitlements to which the employee became entitled
under the AWA, as varied, for the period during which the variation had taken
effect |
The total value of the entitlements to which the employee would have been
entitled for that period if the variation agreement, as given to the Employment
Advocate for approval, had taken account of the action taken by the
employer |
|
8 |
A variation agreement took effect before it was approved, and the
Commission approved it under paragraph 170VEG(5)(b) because the employer took
action referred to in that paragraph |
The total value of the entitlements to which the employee became entitled
under the AWA, as varied, for the period during which the variation had taken
effect |
The total value of the entitlements to which the employee would have been
entitled for that period if the variation agreement, as given to the Employment
Advocate for approval, had taken account of the action taken by the
employer |
|
9 |
The approval of the AWA is void |
The total value of the entitlements to which the employee would have been
entitled under the AWA (if it was not void) for the period during which it was
treated as being in operation |
The employee’s non-AWA entitlements for that period |
|
10 |
The Employment Advocate revokes an approval under
section 170WKD |
The total value of the entitlements to which the employee was entitled
under the AWA for the period during which the AWA, or the agreement to which
approval related, had effect |
The employee’s non-AWA entitlements for that period |
(2) In this section:
non-AWA entitlements, of an employee in relation to a
particular period, means the total value of the entitlements to which the
employee would have been entitled for that period (if the AWA in question had
not been made) under:
(a) if the employment to which the AWA relates is covered by a certified
agreement—that certified agreement; or
(b) if that employment is not covered by a certified agreement but is
covered by one or more relevant awards within the meaning of
Part VIE—that relevant award or those relevant awards; or
(c) if that employment is not covered by a certified agreement and is not
covered by any such relevant award—the one or more designated awards
(within the meaning of that Part) that cover that employment.
8 At the end of subsection
170WE(1)
Add:
Note: This subsection is a civil penalty provision (see
section 170VV).
9 Before section 170WF
Insert in Division 9:
(1) An employer or employee may appoint a person to be his or her
bargaining agent in relation to the making, approval, variation or termination
of an AWA. The appointment must be made in writing.
(2) Subject to subsection (3), an employer or employee must not
refuse to recognise a bargaining agent duly appointed by the other party for the
purposes of subsection (1).
Note: This subsection is a civil penalty provision (see
section 170VV).
(3) Subsection (2) does not apply if the person refusing has not been
given a copy of the bargaining agent’s instrument of appointment before
the refusal.
(4) An employer or employee must not coerce, or attempt to coerce, the
other party:
(a) to appoint, or not to appoint, a particular person as an authorised
bargaining agent; or
(b) to terminate the appointment of an authorised bargaining
agent.
Note: This subsection is a civil penalty provision (see
section 170VV).
(5) In this section:
person includes a group of persons.
10 At the end of subsection
170WF(1)
Add:
Note: This subsection is a civil penalty provision (see
section 170VV).
11 At the end of subsection
170WG(1)
Add:
Note: This subsection is a civil penalty provision (see
section 170VV).
12 At the end of subsection
170WG(2)
Add:
Note: This subsection is a civil penalty provision (see
section 170VV).
13 Section 170WH
Repeal the section, substitute:
A person must not give the Employment Advocate information for the
purposes of this Part that the person knows, or ought reasonably to know, is
false or misleading.
Note: This section is a civil penalty provision (see
section 170VV).
14 Subsection 170WHA(1)
Omit “filing,”.
15 Subsection 170WI(1)
Omit “filed with”, substitute “given to”.
16 Paragraph 170WI(2)(a)
Omit “filed”, substitute “given to the Employment
Advocate”.
17 Paragraph 170WI(2)(c)
Omit “a filing receipt,”, substitute
“an”.
18 After
section 170WKA
Insert:
(1) The President may vary the referral protocol.
(2) However, the terms of the variation must have the concurrence of the
Employment Advocate.
(1) If the Employment Advocate gives an approval notice, referral notice
or refusal notice under this Part, there must be identified in the notice the
relevant or designated award that applies to the AWA or variation agreement to
which the notice relates.
(2) In this section:
relevant or designated award means the relevant or designated
award that is used when applying the no-disadvantage test set out in
Part VIE.
(1) The Employment Advocate may revoke:
(a) an approval by the Employment Advocate of an AWA, extension agreement,
variation agreement or termination agreement; or
(b) a refusal by the Employment Advocate to approve an AWA, extension
agreement, variation agreement or termination agreement.
(2) If the Employment Advocate revokes an approval:
(a) the AWA stops operating; or
(b) the extension agreement or variation agreement ceases to have effect;
or
(c) the termination agreement ceases to have effect, and the AWA to which
it relates starts operating again;
on and from the day specified in the instrument of revocation. The day may
be the day of the revocation or any later day.
(3) If the Employment Advocate revokes a refusal to approve, the
Employment Advocate must deal with the application to which the refusal related
as if the refusal had not occurred.
(4) If the Employment Advocate revokes an approval or a refusal to
approve, the Employment Advocate must issue a notice of the revocation to the
employer who is a party to the AWA or the agreement.
(5) As soon as practicable after receiving the notice from the Employment
Advocate, the employer must give the employee with whom the AWA or agreement was
made a copy of the notice.
Note: This subsection is a civil penalty provision (see
section 170VV).
19 Paragraph 170WL(d)
Repeal the paragraph.
Part 2—Application
and saving provisions
20 Application of items 1, 4, 7, 9 and 13
to 18
The amendments made by items 1, 4, 7, 9 and 13 to 18 apply to AWAs,
extension agreements, variation agreements and termination agreements made after
the commencement of this Schedule.
21 Application of items 3, 5 and
6
The amendments made by items 3, 5 and 6 apply to AWAs, extension
agreements, variation agreements and termination agreements whether made before,
on or after the commencement of this Schedule.
(1) This item applies to an AWA if the AWA:
(a) was approved under section 170VPB or 170VPG of the Workplace
Relations Act 1996 as in force immediately before the commencement of this
Schedule; and
(b) was in force immediately before that commencement.
(2) The AWA has effect, after that commencement, as if it had been approved
under section 170VCB of the amended Act.
23 Saving—extension
agreements
(1) This item applies to an extension agreement for an AWA if:
(a) the extension agreement was approved under section 170VPD of the
Workplace Relations Act 1996 as in force immediately before the
commencement of this Schedule; and
(b) the AWA was in force immediately before that commencement.
(2) The extension agreement has effect, after that commencement, as if it
had been approved under section 170VEB of the amended Act.
24 Saving—variation
agreements
(1) This item applies to a variation agreement in relation to an
AWA:
(a) if the variation agreement was approved under section 170VPC or
170VPH of the Workplace Relations Act 1996 as in force immediately before
the commencement of this Schedule; and
(b) the AWA was in force immediately before that commencement.
(2) The variation agreement has effect, after that commencement, as if it
had been approved under section 170VEG of the amended Act.
25 Saving—termination
agreements
(1) This item applies to a termination agreement for an AWA if:
(a) the termination agreement was approved under section 170VPD of
the Workplace Relations Act 1996 as in force immediately before the
commencement of this Schedule; and
(b) the AWA was in force immediately before that commencement.
(2) The termination agreement has effect, after that commencement, as if it
had been approved under section 170VFC of the amended Act.
26 Saving—regulations made for purposes of
former sections 170VG and 170VR
If:
(a) regulations were made for the purposes of the former provision
referred to in column 2 of the table; and
(b) the regulations were in force immediately before the commencement of
this Schedule;
the regulations have effect, after that commencement, as if they had been
made for the purposes of the new provision referred to in column 3.
|
Regulations continue to have effect |
||
|---|---|---|
|
Column 1 Item |
Column 2 Former provision |
Column 3 New provision |
|
1 |
subsection 170VG(1) |
subsection 170VBB(1) |
|
2 |
subsection 170VG(3) |
subsection 170VBB(2) |
|
3 |
subsection 170VR(4) |
subsection 170VDA(4) |
27 Saving—Gazette
notices
If:
(a) a notice was published in the Gazette for the purposes of the
former provision referred to in column 2 of the table; and
(b) the notice was in force immediately before the commencement of this
Schedule;
the notice has effect, after that commencement, as if it had been published
in the Gazette for the purposes of the new provision referred to in
column 3.
|
Gazette notices continue to have effect |
||
|---|---|---|
|
Column 1 Item |
Column 2 Former provision |
Column 3 New provision |
|
1 |
paragraph 170VO(1)(c) |
paragraph 170VC(4)(b) |
|
2 |
paragraph 170VO(3)(c) |
paragraph 170VEE(3)(b) |
|
3 |
paragraph 170VO(4)(b) |
paragraph 170VEA(2)(b) |
|
4 |
paragraph 170VO(5)(b) |
paragraph 170VFB(3)(b) |
|
5 |
paragraph 170VO(6)(b) |
paragraph 170VFE(3)(b) |
28 Saving—prescribed
conditions
(1) This item applies to conditions identified by regulations if:
(a) the regulations were made for the purposes of the definition of
prescribed conditions in subsection 170VR(5) of the Workplace
Relations Act 1996 as in force immediately before the commencement of this
Schedule; and
(b) the regulations were in force immediately before that
commencement.
(2) The regulations have effect, after that commencement, as if they had
been made for the purposes of the definition of prescribed
conditions in subsection 170VDA(5) of the amended Act.
29 Saving—appointment of bargaining
agent
(1) This item applies to an appointment of a bargaining agent if:
(a) the appointment was made under subsection 170VK(1) of the Workplace
Relations Act 1996 as in force immediately before the commencement of this
Schedule; and
(b) the appointment was in force immediately before that
commencement.
(2) The appointment has effect, after that commencement, as if it had been
made under subsection 170WEA(1) of the amended Act.
30 Variations of the section 170VPE
protocol
Any purported variations that the President purported to make, before the
commencement of this Schedule, to the protocol established under
section 170VPE as in force before that commencement are taken to have had
effect accordingly.
31 Definitions
In this Part:
amended Act means the Workplace Relations Act 1996 as
amended by this Schedule.
former provision means a provision of the Workplace
Relations Act 1996 as in force immediately before the commencement of this
Schedule.
new provision means a provision of the Workplace Relations
Act 1996 as in force immediately after the commencement of this
Schedule.
1 Paragraph 170LJ(3)(a)
Repeal the paragraph, substitute:
(a) all the persons whose employment will be subject to the agreement, and
who are employed on the day 14 days before approval is given, either have, or
have ready access to, the agreement, in writing, at least 14 days before that
approval is given; and
(aa) any person first employed less than 14 days before approval is given
and whose employment will be subject to the agreement, either has, or has ready
access to, the agreement, in writing, before that approval is given;
and
2 After subsection 170LJ(3)
Insert:
(3A) The employer must, within the period of 7 days beginning on the day
(the relevant day) on which the agreement is approved, take
reasonable steps to inform each person whose employment will be subject to the
agreement that the person may, no later than 28 days after the relevant day,
request the Commission to hold a hearing in relation to whether the agreement
should be certified.
3 Subsection 170LK(2)
Repeal the subsection, substitute:
(2) The employer must take reasonable steps to ensure that:
(a) all the persons whose employment will be subject to the agreement, and
who are employed on the day 14 days before the agreement is made, have at least
14 days’ written notice of the intention to make the agreement;
and
(b) any person whose employment will be subject to the agreement, and who
is first employed less than 14 days before the agreement is made, has written
notice of the intention to make the agreement before the agreement is made;
and
(c) before the agreement is made, the terms of the agreement are explained
to all the persons.
The agreement must not be made before the 14 days mentioned in
paragraph (a) have passed.
4 Subsection 170LK(7)
Repeal the subsection, substitute:
(7) The employer must, within the period of 7 days beginning on the day
(the relevant day) on which the agreement is made, take reasonable
steps to inform each person whose employment will be subject to the agreement
that the person may, no later than 28 days after the relevant day, request the
Commission to hold a hearing in relation to whether the agreement should be
certified.
5 Subsection 170LK(8)
Omit “subsections (2), (3), (5) and (7)”, substitute
“subsections (2), (3) and (5)”.
6 At the end of
section 170LK
Add:
Note: The Commission may still certify an agreement if those
steps are not taken again: see subsection 170LT(11).
7 Paragraph 170LR(2)(a)
Repeal the paragraph, substitute:
(a) all the persons whose employment will be subject to the agreement, and
who are employed on the day 14 days before approval is given, either have, or
have ready access to, the agreement, in writing, at least 14 days before that
approval is given; and
(aa) any person first employed less than 14 days before approval is given
and whose employment will be subject to the agreement, either has, or has ready
access to, the agreement, in writing, before that approval is given;
and
8 At the end of
section 170LR
Add:
(3) The employer must, within the period of 7 days beginning on the day
(the relevant day) on which the agreement is approved, take
reasonable steps to inform each person whose employment will be subject to the
agreement that the person may, no later than 28 days after the relevant day,
request the Commission to hold a hearing in relation to whether the agreement
should be certified.
9 Subsection 170LT(7)
Omit “paragraph 170LJ(3)(b), subsection 170LK(7) or paragraph
170LR(2)(b)”, substitute “paragraph 170LJ(3)(b), 170LK(2)(c) or
170LR(2)(b)”.
10 At the end of
section 170LT
Add:
(11) Subsection 170LK(8) (which deals with variations of proposed
agreements) does not prevent the Commission from certifying an agreement
if:
(a) the proposed agreement was varied as mentioned in that subsection;
and
(b) the requirements of that subsection were not satisfied; and
(c) the Commission is satisfied that no person whose employment would be
covered by the proposed agreement suffered detriment as a result of that
failure.
11 After section 170LV
Insert:
(1) The Commission must make a decision whether or not to certify an
agreement without holding a hearing unless:
(a) the Commission is not satisfied that it can make that decision with
the information available to it; or
(b) any of the following persons requests the Commission, in accordance
with subsection (2), to hold such a hearing and the Commission is satisfied
that there are reasonable grounds for doing so:
(i) the employer;
(ii) a person whose employment will be subject to the agreement;
(iii) if the agreement is made in accordance with section 170LJ or
170LL or Division 3—one or more organisations of employees that made
the agreement with the employer;
(iv) if the agreement is made in accordance with
section 170LK—an organisation of employees that has notified the
Commission, and the employer, in writing that it wants to be bound by the
agreement;
(v) a person prescribed by the regulations.
(2) The request must be made no later than 28 days after:
(a) if the agreement is made in accordance with
section 170LJ—the day on which the agreement is approved as mentioned
in subsection 170LJ(2); or
(b) if the agreement is made in accordance with section 170LK or
170LL—the day on which the agreement is made; or
(c) if the agreement is made in accordance with Division 3—the
day on which the agreement is approved as mentioned in subsection
170LR(1).
12 Subsection 170MC(1)
Omit “certified agreement”, substitute “certified
agreement made in accordance with section 170LJ or 170LK or
Division 3”.
13 Paragraphs 170MC(1)(a) and
(b)
Repeal the paragraphs, substitute:
(a) if the agreement was made in accordance with section 170LJ or
Division 3—the employer and the one or more organisations bound by
the agreement; or
(b) if the agreement was made in accordance with
section 170LK—the employer;
14 After subsection
170MC(2)
Insert:
(2A) If one or more organisations are bound by an agreement made in
accordance with section 170LK, the Commission must give each organisation
an opportunity to make submissions before approving the extension.
(2B) However, such an organisation may only make a submission if the
organisation has at least one member:
(a) whose employment is subject to the agreement; and
(b) whose industrial interests the organisation is entitled to represent
in relation to work that is subject to the agreement; and
(c) who requested the organisation to make a submission.
15 After subsection
170MC(4)
Insert:
(4A) The employer must, within the period of 7 days beginning on the
extension day, take reasonable steps to inform each person whose employment is
subject to the agreement on the extension day that the person may, no later than
28 days after the extension day, request the Commission to hold a hearing in
relation to whether the extension should be approved.
(4B) In subsection (4A), extension day means the day on
which the employer and the one or more organisations bound by the agreement, or
the employer, extended the nominal expiry date of the agreement under
subsection (1).
16 Subsection 170MC(5)
Repeal the subsection, substitute:
(5) This section does not apply to an agreement to which subsection
170LT(3) applied, in circumstances covered by the example in subsection 170LT(4)
(short-term business crises).
17 Paragraphs 170MD(1)(a) and
(b)
Repeal the paragraphs, substitute:
(a) if the agreement was made in accordance with section 170LJ or
170LL or Division 3—the employer and the one or more organisations
bound by the agreement; or
(b) if the agreement was made in accordance with
section 170LK—the employer;
18 After subsection
170MD(2)
Insert:
(2A) If one or more organisations are bound by an agreement made in
accordance with section 170LK, the Commission must give each organisation
an opportunity to make submissions before approving the variation.
(2B) However, such an organisation may only make a submission if the
organisation has at least one member:
(a) whose employment is, or will be, subject to the agreement;
and
(b) whose industrial interests the organisation is entitled to represent
in relation to work that is, or will be, subject to the agreement; and
(c) who requested the organisation to make a submission.
19 After subsection
170MD(5)
Insert:
(5A) The employer must, within the period of 7 days beginning on the
variation day, take reasonable steps to inform each person whose employment is
subject to the agreement on the variation day that the person may, no later than
28 days after the variation day, request the Commission to hold a hearing in
relation to whether the variation should be approved.
(5B) In subsection (5A), variation day means the day on
which the employer and the one or more organisations bound by the agreement, or
the employer, varied the agreement under subsection (1).
20 Paragraphs 170MG(1)(a) and
(b)
Repeal the paragraphs, substitute:
(a) if the agreement was made in accordance with section 170LJ or
170LL or Division 3—the employer and the one or more organisations
bound by the agreement; or
(b) if the agreement was made in accordance with
section 170LK—the employer;
21 After subsection
170MG(2)
Insert:
(2A) If one or more organisations are bound by an agreement made in
accordance with section 170LK, the Commission must give each organisation
or organisations an opportunity to make submissions before approving the
termination.
(2B) However, such an organisation may only make a submission if the
organisation has at least one member:
(a) whose employment is subject to the agreement; and
(b) whose industrial interests the organisation is entitled to represent
in relation to work that is subject to the agreement; and
(c) who requested the organisation to make a submission.
22 At the end of
section 170MG
Add:
(5) The employer must, within the period of 7 days beginning on the
termination day, take reasonable steps to inform each person whose employment is
subject to the agreement on the termination day that the person may, no later
than 28 days after the termination day, request the Commission to hold a hearing
in relation to whether the termination should be approved.
(6) In subsection (5), termination day means the day on
which the employer and the one or more organisations bound by the agreement, or
the employer, terminated the agreement under subsection (1).
23 Paragraph 170MH(1)(c)
Before “an organisation”, insert “if the agreement was
made in accordance with section 170LJ or 170LL or
Division 3—”.
24 After subsection
170MH(2)
Insert:
(2A) However, the Commission may only obtain the views of an organisation
that is bound by an agreement made in accordance with section 170LK if the
organisation has at least one member:
(a) whose employment is subject to the agreement; and
(b) whose industrial interests the organisation is entitled to represent
in relation to work that is subject to the agreement; and
(c) who requested the organisation to give the Commission views about
whether the agreement should be terminated.
25 Paragraph 170MHA(2)(c)
Before “an organisation”, insert “if the agreement was
made in accordance with section 170LJ or 170LL or
Division 3—”.
26 After subsection
170MHA(3)
Insert:
(3A) If one or more organisations are bound by an agreement made in
accordance with section 170LK, the Commission must give each organisation
an opportunity to make submissions before approving the termination.
(3B) However, such an organisation may only make a submission if the
organisation has at least one member:
(a) whose employment is subject to the agreement; and
(b) whose industrial interests the organisation is entitled to represent
in relation to work that is subject to the agreement; and
(c) who requested the organisation to make a submission.
27 At the end of Division 7 of
Part VIB
Add:
(1) The Commission must make a decision whether or not to extend, vary or
terminate an agreement without holding a hearing unless:
(a) the Commission is not satisfied that it can make that decision with
the information available to it; or
(b) any of the following persons requests the Commission, in accordance
with subsection (2), to hold such a hearing and the Commission is satisfied
that there are reasonable grounds for doing so:
(i) the employer;
(ii) an employee whose employment is subject to the agreement;
(iii) one or more organisations bound by the agreement;
(iv) a person prescribed by the regulations.
(2) The request must be made no later than 28 days after:
(a) if the nominal expiry date of the agreement was extended under
subsection 170MC(1)—the day on which that extension occurred; or
(b) if the agreement was varied under subsection 170MD(1)—the day on
which that variation occurred; or
(c) if the agreement was terminated under subsection 170MG(1)—the
day on which that termination occurred; or
(d) if an application under subsection 170MH(1) or 170MHA(1) was made to
the Commission to have the agreement terminated or to have the termination
approved (as the case may be)—the day on which that termination or
approval occurred.
28 Application of items 1 to
11
The amendments made by items 1 to 11 apply in relation to any
agreement where the application to certify the agreement is made after the
commencement of this Schedule. The amendments also apply in relation to the
applications to certify those agreements.
29 Application of items 12 to
27
The amendments made by items 12 to 27 apply to a decision made by the
Commission after the commencement of this Schedule about the extension,
variation or termination of a certified agreement in respect of applications for
the extension, variation or termination made after that commencement.